People v. Lee

Decision Date05 June 1973
Docket NumberCr. 10823
Citation108 Cal.Rptr. 555,32 Cal.App.3d 773
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Hubert Gan LEE, Defendant and Appellant.

Wells & Chesney, Inc., Berkeley, for defendant-appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, William D. Stein, Nancy S. Reller, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment of conviction 1 for violation of Health and Safety Code section 11911 (possession for sale of restricted dangerous drugs) entered upon a plea of guilty following a denial of his motion to suppress evidence made pursuant to Penal Code section 1538.5. The appeal is based solely upon grounds involving a search and seizure the validity of which was contested pursuant to said section. (Rule 31(d), Cal.Rules of Court.)

On August 14, 1971, at 7:30 p. m., Deputy United States Marshal Stanley Winters was assigned to the San Francisco International Airport under the federal anti-hijacking program. He was stationed at gate 41 through which passengers were boarding Western Airlines flight 748 for Eugene, Oregon.

Winters was informed by ticket agent Woods that defendant had set off the magnetometer. Winters approached defendant and identified himself as a United States Marshal. He informed defendant that he had met the 'profile' and that 'we would like to check his carry-on luggage and . . . a body frisk to reveal what metal he had on him.' Defendant responded 'Fine.' Defendant was not informed that if he did not submit to the search he could not board the plane although refusal of permission to board was the usual sanction.

Winters and defendant then went into a hallway area. Upon request, defendant placed an unzipped red TWA bag on the floor. Winters had already formed an intention to complete his investigation by searching the bag. Defendant was asked by Winters to supply identification and he did so. Although he was not asked if he had any metal which might have triggered the magnetometer, defendant volunteered that the offending metal was a metal sieve. He offered to again walk through the gate without the sieve. He was not permitted to do so. Winters proceeded to search the TWA bag. The search revealed a variety of illegal drugs. Defendant was then arrested.

Defendant contends that the search of his luggage violated the Fourth Amendment in that Winters failed to comply with procedures prescribed by federal authorities and in that the prosecution failed to prove that the search was justified. He also asserts that he was denied due process, effective assistance of counsel, and the right of confrontation when he was denied the right to cross-examine relative to the 'profile.' The People contend that there is no support in the record for the contention that the government failed to comply with its own procedures; that defendant consented to the search, and that, in any event, the search was reasonable.

Adverting to the contention that Winters did not comply with federal procedures under anti-hijacking programs, we first observe that the record does not disclose what these procedures are. Winters testified that he was 'looking for' persons who met the 'profile' or set off the magnetometer. Defendant relies upon United States v. Lopez, 328 F.Supp. 1077, setting forth a procedure used in 1970 at John F. Kennedy International Airport to deter and apprehend hijackers. Lopez holds that these procedures survive constitutional scrutiny. (At p. 1101.) Such a holding does not necessarily mean that procedures other than those approved in Lopez do violence to the Fourth Amendment.

Our immediate inquiry is whether defendant's initial detention was proper. The law is well established in this state that circumstances short of probable cause to make an arrest may justify the stopping by an officer of pedestrians or motorists on the streets for investigation or questioning. (Restani v. Superior Court, 13 Cal.App.3d 189, 195, 91 Cal.Rptr. 429; People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531; People v. Mickelson, 59 Cal.2d 448, 450-451, 30 Cal.Rptr. 18, 380 P.2d 658.)

In street detentions it has been held that to justify even a limited detention there must exist some suspicious or unusual circumstances which are sufficiently distinguishable from innocent activity so that taken together with the rational inferences to be drawn from the facts, they would reasonably lead one to believe that criminal activity may be afoot. (Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889; Cunha v. Superior Court, 2 Cal.3d 352, 356-357, 85 Cal.Rptr. 160, 466 P.2d 704; Remers v. Superior Court, 2 Cal.3d 659, 664-665, 87 Cal.Rptr. 202, 470 P.2d 11; Restani v. Superior Court, supra, 13 Cal.App.3d 189, 195, 91 Cal.Rptr. 429.) This rationale has recently been articulated in cases involving detentions respecting aircraft anti-hijacking programs. (See United States v. Lindsey, 451 F.2d 701, 703-704, cert. den. 405 U.S. 995. 93 S.Ct. 1270, 31 L.Ed.2d 463; United States v. Epperson, 454 F.2d 769, 771-772, cert. den. 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334; United States v. Lopez, supra, 328 F.Supp. 1077, 1083-1084, 1101; People v. Botos, 27 Cal.App.3d 774, 778-779, 104 Cal.Rptr. 193.) These cases recognize that an individual's expectation of privacy in an airline terminal is not the same as that in a street or park when considered in the light of the alarming increase in aircraft piracies over the last few years, the dangers presented to innocent bystanders, and the inherent difficulty of preventing hijackings. (See People v. Botos, supra; United States v. Lindsey, supra, 451 F.2d at p. 703; United States v. Epperson, supra, 454 F.2d at p. 771.) Accordingly, an investigative detention is justified at its inception where its sole purpose is to discover weapons and prevent air piracy because, when balanced with the well-known danger and the overwhelming interest of the government, the invasion of privacy is minimal. (United States v. Epperson, supra.)

In the light of the exigent national circumstances investigative detentions have been permitted when a person meets the hijacker 'profile' made up of statistical information describing specific characteristics (People v. Botos, supra. 27 Cal.App.3d 774, 777-778, 104 Cal.Rptr. 193) and in cases where the airline passenger activates a metal detecting device called a magnetometer to which he is exposed. (United States v. Epperson, supra, 454 F.2d 769, 770.)

In Epperson it was acknowledged that, indeed, the use of a magnetometer is in itself a 'search' since its purpose is to search for metal and disclose its presence in areas where there is a normal expectation of privacy, but that such a 'search' for the sole purpose of discovering weapons and preventing air piracy is 'justified at its inception.' (454 F.2d at pp. 770-771.)

We have found no case which holds that a search may be made of the person who meets the profile or of his hand luggage. In Botos it was held that where the investigative detention was justified at its inception, on the basis of the aircraft hijacker 'profile,' such detention is not limited to questioning for purposes of identification but may extend to a request to search the person's luggage because such a request is within the scope of the original investigation. (27 Cal.App.3d at p. 779, 104 Cal.Rptr. 193.) Botos does not discuss the alternatives if the request is refused since the case was decided on the basis that after the marshal requested permission to conduct the luggage search the defendant consented. (27 Cal.App.3d at p. 779, 104 Cal.Rptr. 193.)

In Epperson, a case involving a magnetometer 'search' and a resultant detention the search of the defendant's jacket was held to be proper. But this was only after the magnetometer to which he was exposed disclosed an unusually high reading, after he was asked if he carried a large amount of metal, after he produced several metal objects, and after the magnetometer still gave a positive reading to his person.

In Lopez it was held that a person who fits the 'profile' or who activates the magnetometer may be 'frisked' for weapons; that any intrusion beyond the legitimate scope of a weapons search is clearly unjustified and the fruits of such an excessive search would be inadmissible in a subsequent criminal proceeding; and that contraband discovered as a result of such a search is admissible in a subsequent criminal proceeding if the search was one that was conducted in good faith to locate weapons and did not go beyond what was required to uncover such an object. (328 F.Supp. at pp. 1098-1099.) In that case the defendant was detained because he met the 'profile' and because he had activated a magnetometer. He was asked to go through the magnetometer installation again, first with, and then without, a small bag he was carrying. On each trip the magnetometer device was activated. Lopez was then patted down ('frisked') for weapons in the course of which a hard object was felt. An examination of this object revealed the presence of heroin.

In the light of the principles articulated in the cases above cited we conclude that a person who meets the 'profile' or a person who gives a positive reading to the magnetometer may be detained for the sole purpose of discovering whether he has weapons or instruments that may be used in air piracy. In 'profile' cases he may be questioned as to his identification and a request may be made to search his person and hand luggage. If he refuses to consent to a search it would be proper in the governmental interest to refuse him passage on the aircraft. 2 In magnetometer surveillance cases when there is a positive reading to the subject's person or his hand luggage, the...

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