People v. Denman

• Decision Date: 05 December 1980
• Docket Number: Cr. 35251
• Citation: 169 Cal.Rptr. 742,112 Cal.App.3d 1003
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent v. Sarah Minda DENMAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 742

169 Cal.Rptr. 742

112 Cal.App.3d 1003

The PEOPLE of the State of California, Plaintiff and Respondent v. Sarah Minda DENMAN, Defendant and Appellant.

Cr. 35251.

Court of Appeal, Second District, Division 5, California.

Dec. 5, 1980.

As Modified Dec. 12, 1980.

Nasatir, Sherman & Hirsch and Richard G. Hirsch, Los Angeles, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr. and Donald E. DeNicola, Deputy Attys. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

Appellant was charged by information with possession of marijuana for sale, a violation of Health and Safety Code, section 11359. Appellant entered a plea of guilty after the court denied her pre-trial motions pursuant to Penal Code sections 995 and 1538.5. The court placed appellant on probation for a period of three years on the condition, inter alia, that she spend one year in the county jail. Appellant appeals from the judgment.

The facts may be summarized as follows: appellant entered Miami International Airport on May 30, 1978. She was observed by two police officers of the Dade County Public Safety Department, Deputy Joan Wolfe and Deputy D'Azevedo. Appellant carried six pieces of luggage and appeared to be nervous. Deputy Wolfe stepped into the check-in line behind appellant and, as appellant addressed the airline agent, Deputy Wolfe stepped up beside her and leaned against the ticket counter to better hear and observe the exchange. Appellant filled out baggage tickets; three of her six pieces were labeled with the name "Hartman" and the remaining three bags were labeled with identification tags bearing the name "Stewart." Appellant handed the agent two tickets one in the name of Stewart and one in the name of Hartman; she explained that she was travelling with a friend. Identifying herself as "M. Stewart," appellant indicated that her own bags were going to San Diego via Los Angeles and that the Hartman luggage was destined for Los Angeles. The ticket agent handed appellant two boarding passes, and Deputy Wolfe followed appellant to the boarding area.

After appellant passed through the security counter, Deputy Wolfe approached her. Walking beside appellant, Deputy Wolfe identified herself as a police officer and asked whether appellant would mind answering a few questions. Appellant acquiesced, but informed the deputy that she did not want to miss her flight, which was due to depart within a few minutes. In order that she not delay appellant, Deputy Wolfe continued to walk along with her as she hurried to catch her flight. During their conversation, appellant disclosed that she carried no identification; Deputy Wolfe briefly examined appellant's airline ticket and three baggage claim stubs and noted the numbers on the ticket stubs of the baggage destined for San Diego. After an interchange concerning the number of bags appellant possessed, and a repeated request for identification, appellant indicated that she did not wish to answer any additional questions, and said that she had to leave to catch her flight. The entire conversation lasted approximately two minutes.

After watching appellant board the aircraft (still in possession of both boarding passes), Deputy Wolfe returned to the ticket counter. Employing the airlines computer, she learned that appellant's tickets had been purchased earlier in the day at a local travel agency. The deputy phoned the travel agency and discovered that a woman fitting appellant's description had paid cash for two tickets, one in the name of "Stewart" the other in the name of "Hartman." The woman had identified herself as "M. Stewart" and had given the agency a telephone number at which she said she could be contacted. Deputy Wolfe dialed the number and spoke with a woman who stated that she knew no one by the name of "Stewart."

At this point Deputies Wolfe and D'Azevedo telephoned Los Angeles Police Officer Michael Farrant, with whom they had a working relationship, and disclosed to him the particulars of their investigation of appellant at the airport. The deputies relayed to Officer Farrant a detailed description of appellant, her luggage, and the baggage stub numbers on the luggage bound for San Diego.

Officer Farrant and Officer Celmer met appellant's flight at the airport in Los Angeles; they observed appellant disembark and meet one Candice Keanaaina. Keanaaina received some baggage claim checks from appellant and proceeded to the baggage claim area; Officer Celmer continued his surveillance. Appellant went to the airport bar, where she remained until her arrest.

Simultaneously, in the area where the luggage from appellant's flight was being unloaded from the aircraft, United States Custom's Agent Daniel Niederberger brought "Blackie," a dog trained to detect narcotics through its sense of smell, to an area containing 16 items of luggage. Six of the items were those checked by appellant; ten were chosen at random for purposes of the inspection. "Blackie," trained to scratch and bite in the presence of narcotics, "alerted" to appellant's six pieces of luggage. The Los Angeles bound bags, tagged with the name "Hartman," were then sent to the baggage claim area where they were claimed by Keanaaina. Officer Celmer, in the baggage claim area, was notified by radio that "Blackie" had responded to the bags in question; he was also apprised of their respective claim check numbers.

Officer Celmer followed Keanaaina (and the three "Hartman" bags) to a taxi cab outside the terminal. Keanaaina agreed to speak with the officer, and identified the baggage as her own. Keanaaina also indicated that her name was "Martha Rich." Officer Celmer, having informed Keanaaina that he was conducting a narcotics investigation at the outset of their conversation, now expressed his belief that Keanaaina was "possibly" in possession of narcotics, and asked for permission to search the bags. Keanaaina responded, "Yes, go ahead." ¹ The bags contained between 50 and 80 pounds of marijuana; Officer Celmer placed Keanaaina under arrest. He then radioed Officer Farrant, who had already learned of "Blackie's" response to appellant's luggage, and told him of the discovery of the marijuana. Farrant thereupon arrested appellant at the airport bar, and escorted her to the narcotics office, where Keanaaina and all six pieces of luggage were located. ² After being advised of her constitutional rights, appellant agreed to talk with Officer Celmer, and gave her permission that her luggage be searched. Appellant gave Officer Farrant permission to remove the keys to the luggage from her purse; although appellant denied that her luggage contained narcotics, the search disclosed marijuana. The total amount of marijuana in the six pieces of luggage weighed approximately 272 pounds.

Appellant contends on appeal that: (1) the initial contact between Deputy Wolfe and appellant constitutes a detention unjustified by reasonable cause to believe appellant was engaged in criminal activity, and therefore is an illegal detention; (2) the canine search was not supported by probable cause and was therefore unlawful; (3) even assuming the legality of the detention and the canine search, the subsequent warrantless search of appellant's luggage was illegal because the consents were coerced; and (4) even if the consents were not coerced, the trial court's failure to make a specific finding on this issue requires that the case be remanded. ³

With regard to appellant's first contention appellant cites In re Tony C. (1978) 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957 for the proposition that the determinative element in considering the legality of a detention is "the purpose of the intrusion itself. If the individual is stopped or detained because the officer suspects he may be personally involved in some criminal activity, his Fourth Amendment rights are implicated and he is entitled to the safeguards of the rules set forth above." (Id. at p. 895, 148 Cal.Rptr. 366, 582 P.2d 957.)

We point out here, as in People v. Jones (1979) 96 Cal.App.3d 820, 825, 158 Cal.Rptr. 415, that the foregoing rule is predicated on the assumption that an individual is "stopped or detained." The issue here, as in Jones, is not whether Deputy Wolfe suspected appellant of criminal activity, but whether in the...