People v. McGrew
| Decision Date | 17 February 1969 |
| Docket Number | Cr. 3278 |
| Citation | 75 Cal.Rptr. 378 |
| Parties | The PEOPLE of the State of California, Plaintiff and Appellant, v. Kenneth T. McGREW, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
The People appeal from a Penal Code, section 1385 order dismissing their action against Kenneth T. McGrew based upon the granting of McGrew's motion to suppress evidence (Pen.Code, § 1238(7)).
McGrew was indicted for one count of transporting marijuana (Health & Saf. Code, § 11531) and one count of possessing marijuana for sale (Health & Saf.Code, § 11530.5). McGrew moved under Penal Code, section 1538.5 to suppress certain evidence which the People concede was indispensible to a conviction. The trial court granted McGrew's motion on the ground the evidence was the product of illegal searches and seizures. The dismissal followed because the People conceded they had no case without the suppressed evidence.
Neither party gives this court any assistance with a narrative summary of the facts. The district attorney devotes over 20 pages of his brief paraphrasing the testimony of each witness in the order the testimony was produced at trial. This results in a disjointed, redundant, nonchronological, overextended and unsatisfactory presentation of the facts. McGrew adopts the People's presentation, stating it is adequate and he does not want to burden this court with a lengthy factual repetition.
About 4:00 p. m. Sunday, June 25, 1967, McGrew took a loaded 112 pound new black footlocker to the United Air Lines freight office at San Diego's Lindbergh Field for shipment to San Francisco. McGrew signed an airway bill as 'Kent McGraw', stating the footlocker contained books and clothes. He consigned it to himself in San Francisco where he said he was destined on a midnight flight. McGrew said he would be back; he had more to ship which he could not put in his car at the same time as the black footlocker.
Charles J. Dowling, Jr., the United freight agent who waited on McGrew, suspected the footlocker contained marijuana. United Air Lines had had earlier experience with people shipping contraband. The airlines investigative unit had passed the word for freight handlers to be on the alert for new footlockers weighing 80 to 120 pounds, as marijuana had been shipped in such containers. In addition McGrew had appeared nervous, had long hair and looked like a 'hippie.'
Dowling did not know the origin of the warning to be alert for heavy new footlockers. He had heard 'scuttlebutt' it may have come from Honolulu Police who had traced marijuana to a new footlocker airshipped through United.
Dowling called his supervisor, told him his suspicions. The supervisor gave him permission to open the footlocker. Dowling knocked the pins out of the hinges on the locked footlocker, opened the top and saw several bricks (packages wrapped in brown paper) of what he thought was marijuana. A month earlier Dowling had been present when a similar footlocker was opened. He saw inside marijuana bricks wrapped in plastic. The brown paper wrapped packages appeared to contain the same substance as the marijuana he had seen earlier.
Dowling again called his supervisor and told him what he had found. The supervisor instructed him to call the police. About 5:00 p. m. a Mr. Burgess from the San Diego Police Department responded to Dowling's call. Dowling took him to the footlocker and showed him the contents. Other officers arrived, including State Narcotics Agent McLaughlin. The officers removed all but one marijuana brick and replaced them with ballast bags.
Dowling alerted the Western Airlines freight office and passenger ticket personnel to watch for McGrew and to call United if he were seen. Agent McLaughlin also contacted several airlines, furnishing McGrew's description.
About 8:00 p. m. McGrew took a different footlocker to the Western Airlines freight office for shipment to San Francisco. McGrew again identified himself as 'Kent McGraw', consigned the footlocker to himself in San Francisco, said the locker contained books and dishes and said he would be taking a midnight flight to San Francisco.
Richard Sweeney, a Western Airlines freight agent, called United Air Lines because of Dowling's warning. Within minutes narcotics agents including Agent McLaughlin arrived at Western. McLaughlin compressed the top of the footlocker and detected an odor of marijuana coming from it. He asked Sweeney and Joseph Case, the air freight agent who had waited on McGrew, to open the footlocker. Sweeney removed the hinge pins, opened the footlocker, revealing brown paper wrapped Kilomarijuana bricks inside. All but one brick were removed and replaced with a sandbag and newspapers.
About 11:00 p. m. Case told Agent McLaughlin McGrew had just checked a blue suitcase at the Western Airlines ticket counter and purchased a ticket for San Francisco. Both Case and Dowling pointed McGrew out to McLaughlin in the airline terminal restaurant.
McLaughlin sat next to McGrew, showed his identification, said he was a State Narcotic Bureau agent, and asked McGrew's name. McGrew replied, 'Kenneth McGrew.' The agent gave McGrew a Miranda warning; McGrew said he understood it; McGrew admitted he had shipped a trunk that afternoon from the United Air Lines freight terminal. McLaughlin arrested him.
McLaughlin impounded McGrew's blue suitcase, searched it and found 18 more Kilo marijuana bricks. At no time did the government agent act under authourity of a search or arrest warrant.
The trial court suppressed: evidence of the two marijuana ladened footlockers and the marijuana filled blue suitcase; United and Western airway bills and a baggage claim check for the blue suitcase all of which McLaughlin found on McGrew's person; and McGrew's statements.
The trial court found...
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...and dismissed the charges. On the People's appeal the Court of Appeal held the evidence admissible, and reversed. (People v. McGrew (Cal.App.1969) 75 Cal.Rptr. 378.) In the case at bar, the magistrate at the preliminary hearing relied on the Court of Appeal decision in McGrew in overruling ......
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...certain woman was sending illegal drugs and as a result the agents searched a package shipped by that woman); People v. McGrew (1969), 95 Cal.App. 251, 75 Cal.Rptr. 378, 272 P. 791, vacated on other grounds (1969), 1 Cal.3d 404, 82 Cal.Rptr. 473, 462 P.2d 1 (search of footlockers was privat......
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