People v. McKinnon

• Decision Date: 13 September 1972
• Docket Number: Cr. 15379
• Citation: 7 Cal.3d 899,103 Cal.Rptr. 897,500 P.2d 1097
• Parties: , 500 P.2d 1097 The PEOPLE, Plaintiff and Appellant, v. Lloyd George McKINNON et al., Defendants and Respondents. In Bank
• Court: California Supreme Court

Page 897

103 Cal.Rptr. 897

7 Cal.3d 899, 500 P.2d 1097

The PEOPLE, Plaintiff and Appellant, v. Lloyd George McKINNON et al., Defendants and Respondents.

Cr. 15379.

Supreme Court of California,

In Bank.

Sept. 13, 1972.

Hecsh, Hegner & Philbin, Michael S. Hegner, Woolley, Crake, Collins & Ward and William O. Ward III, San Diego, for defendants and respondents.

Edwin L. Miller, Jr., and James Don Keller, Dist. Attys., Richard H. Bein and Terry J. Knoepp, Deputy Dist. Attys., for plaintiff and appellant.

MOSK, Justice.

In this typical air freight search case we are called upon to reconsider People v. McGrew (1969) 1 Cal.3d 404, 82 Cal.Rptr. 473, 462 P.2d 1, and Abt v. Superior Court (1969) 1 Cal.3d 418, 82 Cal.Rptr. 481, 462 P.2d 10, in the light of supervening developments in the law. As will appear, we conclude that the rule of those decisions is no longer to be followed, and that a chattel consigned to a common carrier for shipment may lawfully be searched upon probable cause to believe it contains contraband.

Defendants Lloyd George McKinnon and John Scott Turk were charged with transporting marijuana (Health & Saf.Code, § 11531) and possession of marijuana for sale (Health & Saf.Code, § 11530.5). Both defendants filed motions to suppress the evidence on the ground of illegal search and seizure. (Pen.Code, § 1538.5.) The court granted the motions, dismissed the charges as to McKinnon (Pen.Code, § 1385), and set aside the information as to Turk (Pen.Code, § 995). The People appeal. (Pen.Code, § 1238, subds. (a)(1) and (a)(7).)

The matter was submitted on the transcript of the preliminary examination. Mitchell Gos, an air freight agent, testified that on March 10, 1969, McKinnon and Turk brought five cardboard cartons to the United Airlines freight counter at the San Diego airport. McKinnon stated he wished to ship the cartons to Seattle; he described the contents as 'personal effects,' and gave the name 'L. McKinnon' of 'Balboa Supply Company' as the consignor and 'L. McKinnon' as the consignee. Turk assisted in providing the information entered on the air bill.

Gos had not seen either man before, but suspected that the cartons contained contraband. After defendants left, Gos asked a fellow employee to note the make and license number of their car. He then obtained his supervisor's permission to open one of the cartons for purposes of inspection. In the presence of the supervisor and other employees, Gos slit the tape on one of the cartons and put his hand inside. Beneath some paper he felt brick-shaped packages of what seemed to be soft tobacco or grass. He then lifted the lid of the carton, took out one of the packages, and pinched it open. Upon finding that it contained what he believed to be marijuana, he telephoned the police.

In response to the call, Officer McLaughlin of the State Bureau of Narcotics Enforcement arrived at the air freight counter 20 or 30 minutes later. He looked at the air bill, then entered a back room where the cartons had been placed. The carton that Gos had inspected stood open on the floor; it contained a large brown plastic bag, which was also open. As Officer McLaughlin approached the carton, he saw inside a number of brick-shaped packages wrapped in red cellophane. Each was 10 to 12 inches long, about 6 inches wide, and 2 to 3 inches thick. Officer McLaughlin formed the opinion that the substance in the packages was marijuana. He proceeded to open one of the packages, and verified its contents.

Officer McLaughlin next learned that a passenger by the name of 'L. McKinnon' had a reservation on a flight due to leave for Seattle within the hour. He obtained from Gos a description of the two men who had pesented the cartons for shipment, together with the make and license number of their car. Shortly afterward Officer McLaughlin located the car in the parking lot, and arrested Turk as he entered it. The officer then returned to the departure area and arrested McKinnon on board a United Airlines flight waiting to take off for Seattle.

Promptly after making the arrests Officer McLaughlin opened the remaining four cartons. Each contained, like the first, 10 identical 'kilo' bricks of marijuana, making a total of 50. The parties stipulated at the hearing that this constituted a 'commercial quantity' of marijuana.

The defense was directed primarily to establishing the proposition that Gos was acting as an agent of the police when he opened the first carton presented by defendants. Gos testified that on four or five occasions during the preceding three years he had opened packages consigned for shipment as air freight and had found marijuana, and in that connection had called Officer McLaughlin or other law enforcement personnel. He denied, however, that the police had instructed him to open such packages. He explained that by virtue of a regulation of the Civil Aeronautics Board he was entitled to open any shipment for purposes of inspection, and that he does so, among other reasons, to forestall fraudulent insurance claims. ¹ His only instructions were from his company, directing him to obtain his supervisor's permission before opening a package; after that, it was company policy to notify the police if anything suspicious was found.

Gos further testified that it was his practice, if he found contraband in a package, to leave the package open so that when the police arrive 'there is no cause for illegal search or seizure.' He again denied he had been instructed to do so by the police. Instead, he explained that in a case three years earlier he had obtained police assistance in opening for inspection a pair of trunks secured by combination locks. Called to testify in that case, he learned that contraband found in the trunks was inadmissible because of the police participation in opening them. He discussed this and similar rulings with his fellow employees, and thereafter made it his practice simply to leave open any package that he found upon inspection to contain contraband.

Officer McLaughlin took the stand and acknowledged he had talked on various occasions with Gos and other airline employees, but denied ever having instructed them to open any packages or to leave them open for police examination. He testified his sole request to such employees was that they promptly contact him or some other law enforcement agency if they became suspicious of any person shipping goods or of the goods themselves.

The sole defense witness was Etta Durden, a legal secretary. At defense counsel's instigation Miss Durden had interviewed Gos a few days before the hearing, posing as a student doing research for a paper allegedly on the subject of preventing the transportation of marijuana. She testified that Gos told her the police had asked him and his fellow freight agents to 'be alert' for suspicious persons or packages, and if their suspicions were aroused 'they open the box and if there is any contraband in it, they leave it open and call the police.' According to Miss Durden, Gos explained that such suspicions may be caused by unusual appearance or conduct of the individual, a distinctive odor emananating from the package, or a discrepancy between the weight of the package and the weight it would have if it contained the articles claimed. Finally, Miss Durden testified Gos also told her that on a few occasions the police asked him to be on the lookout for particular named individuals.

After detailed arguments on the point, the court at the preliminary hearing made a specific finding of fact that Gos was not acting as an agent of the police when he opened the carton in question. ²

I

Inasmuch as Officer McLaughlin proceeded without benefit of a search warrant, the burden was on the prosecution to show proper justification for the search. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23.)

The record discloses that the various rulings of the courts below were directly responsive to the progress of an appeal in a closely similar case, People v. McGrew. There the defendant brought a new footlocker to the United Airlines freight counter at the San Diego airport, to be shipped to San Francisco. The employee on duty, one Dowling, became suspicious because of McGrew's general appearance and the apparently exceptional weight of the locker, which McGrew declared contained books and clothing. At the direction of his supervisor, Dowling opened the locker by knocking our the hinge pins. Inside, he observed several bricks or packages wrapped in brown paper or newspaper. He closed the lid and called the police. When an officer arrived, Dowling reopened the locker and showed him the contents. The officer inspected one of the packages, and a narcotics agent decided they contained marijuana. The police then removed all but one package, replacing them with ballast.

Dowling notified other airlines about McGrew and his shipment. A few hours later McGrew brought a second footlocker to the Western Airlines freight counter saying it contained books and dishes. The Western employees alerted the police, and the same narcotics agent responded. Although the locker had not been opened, by compressing the lid the agent detected an odor of marijuana. At his request, the airline employees then opened the locker by knocking out the hinge pins. The contents were bricks of marijuana wrapped in brown paper. McGrew was arrested some two hours later in the airport restaurant; a suitcase he had checked was also found to contain marijuana.

The trial court granted McGrew's motion to suppress the evidence on the ground of illegal search and seizure, 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 defendants' objections to the admission of the...