People v. Smith

• Decision Date: 28 February 1977
• Docket Number: Cr. 2422,2440
• Citation: 67 Cal.App.3d 638,136 Cal.Rptr. 764
• Parties: The PEOPLE, Plaintiff and Respondent, v. Stuart Spence SMITH, Jr., Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Patrick O'NEILL, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Hubbard William SHAWHAN, Jr., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 764

136 Cal.Rptr. 764

67 Cal.App.3d 638

The PEOPLE, Plaintiff and Respondent, v. Stuart Spence SMITH, Jr., Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Patrick O'NEILL, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Hubbard William SHAWHAN, Jr., Defendant and Appellant.

Cr. 2422, 2440.

Court of Appeal, Fifth District, California.

Feb. 28, 1977.

Hearing Denied May 19, 1977.

Nielsen, Hales & Hayden and Leon L. Anderson, San Jose, for defendant and appellant in 2422.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Paul V. Bishop, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

Rose & Dettmer Law Corp., and Ronald W. Rose, San Jose, Michael Stepanian, San Francisco, for defendant and appellant in 2440.

Charles C. Marson, Margaret C. Crosby, Alan L. Schlosser, San Francisco, Donald Glasrud, Fresno, amicus curiae for defendants-appellants.

GARGANO, Associate Justice.

In February 1975 the grand jury of Tuolumne County returned indictments in the superior court of that county charging appellants Stuart Smith, Patrick O'Neill and Hubbard Shawhan with a conspiracy to transport marijuana and to possess marijuana for sale (Pen.Code, § 182, subd. 1; Health & Saf.Code, §§ 11359, 11360). In addition, Smith and O'Neill were charged with transporting marijuana and with possession of the contraband for sale; Shawhan was charged with attempting to transport marijuana and with possession of the contraband for sale. Thereafter each man entered pleas of not guilty to all charges and moved to suppress evidence pursuant to section 1538.5 of the Penal Code; their motions were denied. Thereupon, Hubbard Shawhan entered a plea of guilty to the count charging him with an attempt to transport marijuana; the remaining charges against him were dismissed, the execution of sentence was suspended, and he was admitted to probation for a term of five years on condition that he serve one year in the county jail; the imprisonment condition was stayed pending Shawhan's service of eighteen months in a federal prison on another offense. Stuart Smith and Patrick O'Neill entered pleas of guilty to conspiracy, and the other charges against them were dismissed; as to each man the court suspended the imposition of sentence and granted probation on condition that they serve one year in the county jail.

Appellants have appealed claiming that the evidence upon which the grand jury indictments were grounded was the product of an unlawful search and seizure. (Pen.Code, § 1538.5, subd. (m); People v. Hill (1974) 12 Cal.3d 731, 739, fn. 2, 717 Cal.Rptr. 393, 528 P.2d 1.) ¹ Briefly, they maintain that the marijuana evidence involved in their convictions was gathered by the police through the use of a transponder which was installed in an airplane that had been rented by appellant Smith, and that the installation constituted a search within the ambit of the Fourth Amendment of the United States Constitution. Appellants assert that their Fourth Amendment rights were violated because the search was made without Smith's knowledge or consent, without probable cause, without a warrant and without exigent circumstances.

We recite the facts in detail.

On Monday, January 20, 1975, a caller telephoned the police department of the City of San Jose in Santa Clara County and informed Officer Robert Jones that a Stuart Smith and a Patrick O'Neill were going to fly an airplane to Mexico to pick up a large load of marijuana; the caller stated that the men were going to transport the contraband back to the United states and were planning to land the airplane somewhere in the Santa Cruz Mountains. Officer Jones took the caller's name, address and telephone number. He also asked the informant several questions; the answers to these inquiries satisfied Jones that the caller, who was not a regular police informant, was not involved in the criminal activity he was reporting.

About half an hour later the informant called back and told Officer Jones that the aircraft that Stuart Smith was going to fly to Mexico was a Cessna and that Smith was in the local area already and in the process of renting the airplane from an aircraft agency; he said the airplane would be leaving for Mexico that day. Thereupon, Officer Jones ultimately contacted a firm known as Aero Trends, Incorporated, and talked to the owner, Bud Terry; Terry told the officer that Stuart Smith was a member of a flying club operated by Aero Trends and that Smith just had taken off in a rented Cessna airplane owned by the firm; Terry gave the officer the serial and identification numbers of the aircraft. Officer Jones then called the Departure Control Center operated by the Federal Aviation Administration in the San Francisco Bay Area, and he ultimately concluded that the Cessna had landed at Watsonville in Santa Cruz County. The officer next called the Drug Enforcement Administration in San Francisco and requested assistance; he was told that he would be contacted by Agent Michael Leonard.

At about 10 p.m. that evening Agent Leonard telephoned Officer Jones from San Francisco. He informed Jones that an electrical device known as a 'transponder' was available and that it could be installed in the suspect aircraft to keep it under surveillance at all times during flight; Leonard explained that the 'transponder' he had was a piece of electrical equipment that generated a special, coded signal which appeared on a radar screen as a 'blip' distinctly different from ordinary radar 'blips.' Jones indicated that he wanted the tracking equipment placed into the aircraft if time permitted. Leonard replied that he would drive to Watsonville with the transponder and that he would arrive at about 1 a.m.

Following his conversation with Agent Leonard, Jones telephoned Bud Terry and informed him that the Cessna was in Watsonville. He told Terry that he believed that the airplane was enroute to Mexico to pick up marijuana and that he was going to try to install a 'transponder' on the aircraft if it was still in Watsonville. Terry agreed to cooperate; he said that he and his mechanic would install the transponder in the aircraft for the police if he received assurance that the Mexican Government would not impound the aircraft when it landed in that country.

At about 11:30 p.m., Officer Jones, Bud Terry and Terry's mechanic flew to Watsonville, arriving at the airport around midnight; they soon located the rented Cessna in the 'short-term parking area' of the airport. Jones walked up to the airplane and looked inside; he noticed that the rear seats had been removed.

At around 1 a.m., Agent Leonard and Agent Dennis Petrotta of the Drug Enforcement Administration arrived at the Watsonville Airport with the transponder. When Agent Leonard assured Bud Terry that the Mexican Government would not seize the Cessna, Terry unlocked the airplane's door with his key; Terry entered the aircraft and with the assistance of the mechanic installed the transponder behind the dashboard in the cockpit. Afterward, Terry flew the airplane around for 10 to 15 minutes to make certain that the equipment was working properly; when he landed, the time was around 2:30 a.m. Jones, Bud Terry and the mechanic then flew back to San Jose while Agents Leonard and Petrotta stayed at the airport to maintain visual surveillance over the aircraft.

On Tuesday, January 21 at 12:30 p.m., Stuart Smith and Patrick O'Neill drove into the Watsonville Airport in an automobile and got into the Cessna; the airplane took off with Smith at the controls. It subsequently landed at Gillespie Field near the City of San Diego. In the meanwhile, Agents Leonard and Petrotta notified agents of the Drug Enforcement Administration in Southern California of the aircraft's departure. As a consequence, when the Cessna landed at Gillespie Field, agents of the Drug Enforcement Administration and officers of the United States Customs Service took up the visual surveillance.

On the following day, at about 1:50 p.m., Smith and O'Neill left Gillespie Field in the Cessna and headed toward the City of Brawley in Imperial County. They were followed by two other airplanes; one was occupied by Agents Maxie Jarrel and Jim Plavin of the Drug Enforcement Administration, and the other by Officers Richard McMakin and Gene Gantert of the United States Customs Service. When the Cessna landed at Brawley Airport, the other airplanes remained aloft; from law enforcement officers on the ground, the officers flying in the airplanes above learned that the suspects were inquiring about Calexico, a city in Imperial County located just north of the border between the United States and Mexico. About 15 minutes after they landed Smith and O'Neill got back into the Cessna and flew it south to the City of Calexico; the police airplanes followed.

At Calexico, the Cessna landed at the airport and Smith and O'Neill went into the city. Then the airplane occupied by Agents Jarrel and Plavin also landed and refueled; when it took off again, the aircraft manned by United States Customs Service Officers McMarkin and Gantert landed at the airport. McMakin walked up to the Cessna and looked inside; he saw that the rear seats had been removed and that the rear cargo area was empty; he also noted that there were no curtains on the windows of the Cessna. Later, at about 5 p.m., Smith and O'Neill returned to the airport, got into the Cessna and flew it back to Brawley Airport.

After following the Cessna back to Brawley, the agents of the Drug Enforcement Administration decided to return to Brawley Airport at 5 a.m. the following day to take up surveillance from the ground; the United States Customs Service officers agreed to join the surveillance from the air at 6 a.m. However, when the agents returned to Brawley Airport on the next day as scheduled, they discovered that the Cessna...