People v. McGrew
| Decision Date | 17 December 1969 |
| Docket Number | Cr. 13413 |
| Citation | 1 Cal.3d 404,462 P.2d 1,82 Cal.Rptr. 473 |
| Parties | , 462 P.2d 1 The PEOPLE, Plaintiff and Appellant, v. Kenneth T. McGREW, Defendant and Respondent. |
| Court | California Supreme Court |
James Don Keller, Dist. Atty., and Richard H. Bein, Deputy Dist. Atty., for plaintiff and appellant.
George H. Chula, Santa Ana, for defendant and respondent.
The People appeal from an order of the San Diego Superior Court dismissing felony charges against defendant Kenneth T. McGrew.
McGrew was charged by indictment with transporting marijuana (Health & Saf.Code, § 11531) and with possession of marijuana for sale (Health & Saf.Code, § 11530.5). After pleading not guilty to both charges and waiving jury trial, McGrew moved the trial court to suppress all evidence of the charged offenses (under Pen.Code, § 1538.5) and to dismiss the indictment (under Pen.Code, § 1385). Both motions were granted. The People have appealed.
McGrew brought a new, securely locked footlocker to the United Airlines freight service at the San Diego airport in the afternoon of June 25, 1967, to be shipped to San Francisco. The freight agent, one Dowling, observed that McGrew was wearing walking shorts and a T-shirt and had 'quite long' hair. Dowling's supervisor had told him 'to be on the alert fot footlockers and suspicious people, and so on, that they had been shipping marijuana, * * *' to check out any suspected contraband, to 'See what is in there, and if it is marijuana * * * call the police.' Dowling was suspicious, because of McGrew's 'general appearance,' and because the locker, which McGrew declared contained books and clothes, had an 'exceptional weight' of 112 pounds, although Dowling admitted that the weight was consistent with a shipment of two-thirds clothes and one-third books.
After McGrew paid for the shipment and left, Dowling called his supervisor, who told him to open up the footlocker to see what it contained. Using a nail and hammer to knock out the hinge pins, Dowling opened up the locker 'a couple inches,' just 'enough to see what was in there.' He observed several bricks or small packages, wrapped in brown paper or newspaper. He could not see the contents of the packages and he did not open any of them. He closed the lid of the footlocker and after calling his supervisor again, called the police.
San Diego Police Officer Burgess came, and Dowling 'told him what had happened, and he said he would like to see (the locker).' Dowling 'took him back and opened it up and showed him' the footlocker. The officer removed and inspected one of the packages. A federal narcotics agent then arrived, removed and examined the packages, and decided that the packages contained marijuana. 1 The officers inquired about fill, to weigh down the emptied footlocker, and Dowling furnished ballast. Using the ballast and one brick of marijuana, the officers repacked the locker for shipment to San Francisco.
Dowling notified other airlines about McGrew and the shipment. About eight p.m. McGrew brought a blue footlocker, which he said contained books and dishes to the Western Airlines freight service, where it was received by the freight clerk, one Case, who wrote up the airbill, and accepted the footlocker from McGrew. A fellow employee named Sweeney called United Airlines to tell them about the footlocker. The federal narcotics officer involved in the United Airlines transaction and two other officers went to the Western Airlines freight office. The footlocker was closed and locked. The federal narcotics agent 'detected an odor of marijuana' by compressing the top of the footlocker and asked Sweeney and Case to open it, although they 'were under no obligation to do so.' Sweeney and Case opened the footlocker, on the suggestion of one of the officers, by knocking 'the hinge pins out of the rear,' using a hammer and nail. Sweeney opened up the lid, and the federal agent removed and opened the packages, which were wrapped in brown paper. The footlocker was then repacked in the same manner as the one checked with United Airlines.
About 11 p.m., McGrew returned to the Western Airlines counter, purchased a ticket for San Francisco, and checked a suitcase. Case notified officers and told them that he had last seen McGrew walking through the terminal in the direction of the restaurant. The Officers, Case and Dowling, went to the restaurant and found McGrew sitting at the end of the counter. Both Case and Dowling identified him, and the officers placed him under arrest. An officer found a Western Airlines baggage claim ticket in searching the person of McGrew. The officer returned to the Western Airlines luggage counter with the baggage claim ticket and secured the suitcase. He opened it and found marijuana.
The United Airlines employee, Dowling, testified that at the airlines training school he had been instructed that 'we had the right to inspect shipments;' that an agent could open 'anything that arouses your suspicions;' that the concern of the airlines was for 'aircraft safety,' for improperly declared goods going at a cheaper rate, and for overvalued goods, such as a TV set claimed to be good but in fact with 'the picture tube * * * kicked in.' He could not recall being instructed to check to see whether contraband was being shipped.
He testified in connection with the McGrew search that he was not concerned about aircraft safety or rate structures; that when he opened up the locker he was looking for one thing, to determine whether marijuana was contained in the locker. He did not, however, smell marijuana before opening the locker.
He further testified that in searching the footlocker he was following his orders to assist the police; that he suggested and furnished ballast to the police in response to their inquiry about fill, to weigh down the emptied footlocker and that in so doing he was following his orders to assist the police; that before the McGrew incident, he had opened two other footlockers, in the presence of the police, having obtained the combination to the locks from the police; that he found contraband in the two lockers, and that he knew of two other footlockers having been opened by fellow employees, in which contraband was not found.
The People stipulated that the officers did not have a search warrant for either search.
The trial court found that the United Airlines employee, in opening the footlocker, acted solely for police purposes and in response to police suggestion, and in reopening the footlocker in the presence of the police, acted solely for police purposes; that the information obtained from the United Airlines search led to the search of the footlocker at Western Airlines; that the Western Airlines employee who opened the footlocker acted solely for police purposes and at the request of the police; that the police had no warrant; that there was sufficient time to obtain a warrant; and that the arrest of the defendant directly resulted from the searches of the United and Western footlockers. The court concluded that both searches were unlawful, the arrest was unlawful, and all evidence should be suppressed.
We find it unnecessary to determine whether Dowling, the United Airlines employee, must be considered an agent of the police in opening the footlockers because, even assuming that he was not, the subsequent searches by law enforcement officers or at their express and specific direction (cf. Stapleton v. Superior Court of Los Angeles County, 70 A.C. 101, 104, 73 Cal.Rptr. 575, 447 P.2d 967), were unlawful and the evidence must be suppressed.
People v. Marshall, 69 Cal.2d 51, 57, 69 Cal.Rptr. 585, 588, 442 P.2d 665, 668, makes clear that with certain exceptions, probable cause to believe that 'a search will reveal contraband * * * does not justify a search without a warrant.' Where there is probable cause, a warrant still must be obtained, absent an emergency, for a search not incident to a valid arrest even though a warrant would not be needed for a search incident to an arrest. (E.g., People v. Harris, 62 Cal.2d 681, 682--683, 43 Cal.Rptr. 833, 401 P.2d 225.)
The exceptions to the requirement of a search warrant, aside from searches incident to an arrest, are where there is a danger of "imminent destruction, removal, or concealment of the property intended to be seized" or where the evidence is in plain sight, which 'is, in fact, no search for evidence.' (People v. Marshall, supra, 69 Cal.2d 51, 56--57, 61, 69 Cal.Rptr. 585, 591, 588, 442 P.2d 665, 671, 668.)
Our decision in Marshall is not limited to dwelling houses. The Fourth Amendment protection of 'effects' includes securely closed footlockers shipped through common carriers. Neither the language of the Fourth Amendment, nor of any of the cases interpreting the protection of that amendment, suggest that warrants apply to 'houses' but not to 'effects.' The exceptions to the requirement of a warrant are based on circumstances and not on categories of items. The requirement of a warrant, unless otherwise excused, applies to whatever is protected by the Fourth Amendment. (See Katz v. United States (1967) 389 U.S. 347, 356--357, 88 S.Ct. 507, 19 L.Ed.2d 576.) 2
None of the exceptions apply to the United or Western Airlines searches of the footlockers. When the footlocker checked with United Airlines was searched by the police, McGrew 'was neither present nor arrested until several hours after the search.' (People v. Marshall, supra, 69 Cal.2d 51, 61, 69 Cal.Rptr. 585, 591, 442 P.2d 665, 671.) His whereabouts were similarly unknown when the footlocker checked with Western Airlines was searched. Nor was there any likelihood that the lockers would be removed or the contraband destroyed; both footlockers were safely in the custody of the airlines. Both footlockers had been shipped on a 'space available' basis, so that the airlines were not even under a contractual obligation to ship the footlockers before a...
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