People v. Botos, Cr. 5087

• Citation: 27 Cal.App.3d 774,104 Cal.Rptr. 193
• Decision Date: 15 September 1972
• Docket Number: Cr. 5087
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Sharon Glea BOTOS, Defendant and Appellant.
• Court: California Court of Appeals

Page 193

104 Cal.Rptr. 193

27 Cal.App.3d 774

The PEOPLE of the State of California, Plaintiff and Respondent, v. Sharon Glea BOTOS, Defendant and Appellant.

Cr. 5087.

Court of Appeal, Fourth District, Division 1, California.

Sept. 15, 1972.

[27 Cal.App.3d 777] James M. Gattey, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Elaine A. Alexander and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

GERALD BROWN, Presiding Justice.

Defendant Sharon Glea Botos appeals her court-tried conviction of transporting marijuana (Health & Saf. Code § 11531) and possessing marijuana for sale (Health & Saf. Code § 11530.5).

Kent Allan Wenger came to San Diego to buy marijuana in July 1971; he stayed at Botos' home for three or four days, and on July 8 bought marijuana from a person to whom Botos had introduced him on an earlier trip. Wenger packed the marijuana in his two suitcases, putting six plastic wrapped kilo bricks in each. During the late evening of July 8 Botos drove Wenger to the San Diego Airport. Wenger bought a plane ticket to Indiana, and the bags were tagged as his and loaded into the plane's baggage compartment.

The federal government's airplane hijack detection system contains a hijacker profile made up of statistical information describing specific characteristics of likely hijackers. Because Wenger met the hijacker profile, an airline ticket agent stopped him at Gate 8 before boarding his flight. The agent asked Wenger for identification, and when Wenger did not satisfy this request, the agent called Deputy U.S. Marshal Johnson, who was assigned to the anti-air piracy detail at the airport. Johnson asked Wenger to come with him to an unoccupied gate. Botos, who had gone with Wenger to the boarding gate, walked with Wenger and Johnson to Gate 6. Johnson asked Wenger for identification, and Wenger gave him a social security card and a draft classification card. Unsatisfied, Johnson asked for further identification, and Wenger said he had none, explaining he lost his wallet two months earlier. Johnson asked permission to look through Wenger's luggage for weapons explosives, or identification. Wenger consented. When the bags were brought to the counter, Wenger said he did not have the key to open them, and asked Botos if she had it. She answered he had it. Johnson saw a large bulge in Wenger's pocket, and asked him what it was. Wenger replied it was a roach holder, and removed it from his pocket. Three keys were attached to it. Johnson asked if one of the keys would open the luggage, and Wenger replied it would. Wenger had become increasingly nervous during these proceedings and, when Johnson asked him to open the bags, took several tries to fit the key in the lock. Finally, he unlocked and, at Johnson's request, opened a suitcase. Johnson saw the marijuana, and arrested both Wenger and Botos.

During the Grand Jury proceeding, Johnson refused to answer questions concerning the secret air hijacker profile. Botos maintains since the profile has not been revealed the detention is not justified and her motion before trial to suppress the marijuana (Pen.Code § 1538.5) was erroneously denied.

The United States Supreme Court has summarized the Fourth Amendment protection afforded the individual against interrogatory police tactics, saying:

'. . . wherever an individual may harbor a reasonable 'expectation of privacy', * * * he is entitled to be free from unreasonable governmental intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted.' (Terry v. State of Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889.)

When a uniformed officer approaches a citizen and 'requests' he accompany him, even a short distance, for questioning, there is some infringement on personal liberty. Such activity, if conducted on the street and with no objective facts to justify it, is not permissible (People v. Henze, 253 Cal.App.2d 986, 988--989, 61 Cal.Rptr. 545). The content of the Fourth Amendment guarantee, however, must be shaped by the context in which it is asserted. Here the questioning did not take place on a street or in a park, but occurred in an airline terminal at the place where passengers were boarding the plane. It is unnecessary to document the alarming increase in aircraft piracies over the last few years. The dangers presented to innocent bystanders by these crimes are apparent. ¹ When these obvious dangers are combined with the inherent difficulty of preventing hijackings, an individual's expectation of privacy from questioning or search when boarding an aircraft should not be as high as in other public places (See United States v. Lindsey, 3 Cir., 451 F.2d 701, 703). Johnson did not search Wenger for weapons, but merely questioned him concerning his identification. This limited police investigation is similar to requiring an individual to pass through a magnetometer; though not permissible on the streets, it is not objectionable at the aircraft boarding ramp. Contrary to Botos' contention, the aircraft hijacker profile need not be shown to justify this limited investigation. No...