People v. Salih

• Decision Date: 30 October 1985
• Citation: 173 Cal.App.3d 1009,219 Cal.Rptr. 603
• Court: California Court of Appeals Court of Appeals
• Parties: , 54 USLW 2291 The PEOPLE of the State of California, Plaintiff and Respondent, v. Abdur Rahman SALIH, Defendant and Appellant. A020291.

Page 603

219 Cal.Rptr. 603

173 Cal.App.3d 1009, 54 USLW 2291

The PEOPLE of the State of California, Plaintiff and Respondent, v. Abdur Rahman SALIH, Defendant and Appellant.

A020291.

Court of Appeal, First District, Division 4, California.

Oct. 30, 1985.

Review Denied Feb. 20, 1986.

Elizabeth Sapanai, Mill Valley, for defendant and appellant.

John K. Van de Kamp, Atty. Gen. of the State of Cal., Ronald E. Niver, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

CHANNELL, Associate Justice.

Following pretrial motions pursuant to Penal Code sections 1538.5 and 995, ¹ appellant pled guilty to possession for sale of heroin (Health & Saf. Code, § 11351) and admitted possessing more than one-half ounce of heroin. ( s1203.07, subd. (a)(1).) ² He was sentenced to state prison for a lower term of two years. A timely notice of appeal was filed. ( s1538.5, subd. (m).)

We are called upon to decide whether the following acts by government agents were lawful: (1) the warrantless installation and monitoring of a radio transmitting device placed in a mail parcel lawfully opened by a U.S. postal inspector, and (2) the subsequent reopening of the package without a warrant at a police station after the package had been removed from appellant's car. Following decisions by the United States Supreme Court, we conclude that no constitutional rights of appellant were violated.

I. FACTS

In early December 1981, U.S. Postal Inspector William Halonen was informed by customs officials at Los Angeles International Airport that, after being alerted by a narcotics-sniffing dog, they had opened a parcel mailed from Thailand and found in it a white powder which tested positive for the presence of heroin. The parcel was addressed to "House of ---, [sic ] 3402 Kerner Street, San Rafael, California 94901, U.S.A." Customs officials closed the package and forwarded it to Halonen in San Francisco, so he could arrange a controlled delivery. ³

On December 4, 1981, Halonen obtained a federal search warrant, authorizing him to open and search the mail parcel. On opening the parcel, Halonen found a plastic bag filled with white powder, identified by a forensic chemist as 41 grams of 95 percent pure heroin. ⁴

Halonen repackaged and rewrapped the mail parcel. In doing so, he installed a small directional radio transmitter device, or "beeper," in the package lining. This device was designed to transmit a beeping signal every three seconds. It could be heard for an optimum distance of 300-400 feet. While the listener could determine it was within a certain distance, one would not know the direction from which it came, and its location could only be approximated. The package was also rigged with a thin wire which, when opened, would cause the device to increase its beeps to 10 per second. Although the federal search warrant authorized the mail parcel to be opened and searched, it did not expressly authorize the installation or use of any electronic devices.

The controlled delivery was scheduled for December 9, 1981. Shortly before 10 a.m. on that date, the parcel was given to the local mail carrier for delivery to the Kerner Street address. Meanwhile, Halonen and several federal and local law enforcement officers went to the vicinity of the Kerner Street address to set up surveillance. As the mailman approached within a block of the house, Halonen was able to monitor the beeping signals. The mailman placed the package into the mailbox at 3402 Kerner. Within minutes, two men came out of the house and started to enter a car. One noticed the mail in the mailbox, and then disappeared for three to four minutes with the package. He returned to the car and both men left. They returned about 45 minutes later. During their absence, Halonen continued to hear the beeper.

At approximately 11 a.m., appellant drove up in an orange Datsun and entered the house. About 20 minutes later, he came out with a box and briefly entered the passenger side of the vehicle. Appellant then went back to the house, and returned with what appeared to be a brown paper bag in his hand. He got into the car and drove away. As he departed, the sound of the beeping signal faded away. Halonen immediately radioed the other officers in the area that the beeping had stopped and that the mail parcel was probably in the departing Datsun. They were told to stop the car.

Police officers followed and stopped appellant's car. The package was observed on the front seat next to a nine-inch butcher knife. Appellant was placed under arrest and turned over to federal agents. About an hour later, the arresting officer gave the unopened package to a supervising officer who, in turn, took it to the police station. At the police station, Investigator Fred Castillo removed the brown outer wrapping from the package for fingerprint analysis. The plastic bag containing the white powder was removed and retained as evidence.

II. INSTALLATION AND MONITORING OF BEEPER DEVICE

A. Initial Opening of Mail Parcel

Appellant contends the warrantless installation and use of the electronic tracking device was an unlawful search. The United States Supreme Court has held that if the initial opening of a container is lawful, the installation and monitoring of an electronic tracking device in the container does not violate the Fourth Amendment, unless the monitoring reveals information that could not have been obtained through visual surveillance. (United States v. Karo (1984) 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530; United States v. Knotts (1983) 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55.) There was no violation of these principles in this case.

First, we note that appellant challenges neither the initial customs inspection at Los Angeles International Airport nor the probable cause for Halonen to obtain the federal search warrant to open the mail parcel on December 4. It is now settled that exposing personal property to the sniff of a trained narcotics detecting dog is not a "search" for Fourth Amendment purposes. (United States v. Place (1983) 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110; People v. Mayberry (1982) 31 Cal.3d 335, 182 Cal.Rptr. 617, 644 P.2d 810.) ⁵ Once alerted by the reactions of the dog, the customs officials had reasonable cause to suspect the international mail parcel might contain contraband and therefore they were authorized to open it. (United States v. Ramsey (1977) 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617; United States v. Dubrofsky (9th Cir.1978) 581 F.2d 208, 211.) When field tests of the white powder indicated the presence of heroin, the forwarding of this information to Postal Inspector Halonen provided him with ample probable cause to obtain the search warrant permitting him to again open the mail parcel after he received it in San Francisco.

B. Installation of Beeper

Appellant's complaint seems to focus on the fact that the search warrant did not expressly authorize either the installation or the monitoring of the beeper. That factor, however, is not controlling under the circumstances of this case. (See fn. 9, infra.)

The installation of a beeper in the circumstances of this case violated no one's Fourth Amendment rights. (United States v. Karo, supra, 468 U.S. at ----, 104 S.Ct. at pp. 3301-3302, 82 L.Ed.2d at p. 539; United States v. Dubrofsky, supra, 581 F.2d at p. 211.) Nor did the transfer of the beeper-laden package to any recipients at the Kerner Street address constitute a "search" or a "seizure" within the meaning of the Fourth Amendment. (United States v. Karo, supra, 468 U.S. at pp. ---- - ----, 104 S.Ct. at pp. 3301-3302, 82 L.Ed.2d at pp. 539-540.) A "search," the Supreme Court said, occurs " 'when an expectation of privacy that society is prepared to consider reasonable is infringed.' " (Id., 468 U.S. at p. ----, 104 S.Ct. at p. 3302, 82 L.Ed.2d at p. 539.) A "seizure" of property occurs when " 'there is some meaningful interference with an individual's possessory interests in that property.' " (Id., 468 U.S. at p. ----, 104 S.Ct. at p. 3302, 82 L.Ed.2d at p. 540.)

Although the mail parcel may have contained an unknown and unwanted foreign object once the beeper was installed, there was no meaningful interference with anyone's possessory interest. At most, there was a technical trespass of the space occupied by the beeper. (Ibid.) Thus, no Fourth Amendment interest of appellant nor any other person was infringed by the installation of the beeper. ⁶

C. Monitoring of Beeper

The more significant question is whether there was any impairment of privacy interests occasioned by the monitoring of the beeper. The critical issue here is whether or not the monitoring of the beeper revealed information that could not have been obtained through visual surveillance. (See United States v. Karo, supra, 468 U.S. at pp. ---- - ----, 104 S.Ct. at pp. 3302-3305, 82 L.Ed.2d at pp. 540-544; United States v. Knotts, supra, 460 U.S. at pp. 280-285, 103 S.Ct. at pp. 1084-1087.)

In 1983, the Supreme Court held in Knotts that the warrantless monitoring of a beeper inside a container of chemicals did not violate the Fourth Amendment. In that case, law enforcement officials, with the consent of the seller, installed the beeper in a five-gallon can of chloroform and monitored the beeper after delivery of the can to the buyer in Minneapolis, Minnesota. Officers then followed the car carrying the can of chloroform, maintaining contact both by visual surveillance and by monitoring the beeper signals. Ultimately, the beeper enabled officers to locate the can in the area of a secluded cabin in Wisconsin. This information, together with three days of intermittent visual surveillance of the cabin, enabled the officers to obtain a search warrant which led to the discovery of a drug laboratory within the cabin.

In analyzing the case, the court in Knotts stated that, "The governmental surveillance conducted by means of the beeper in this case amounted...