People v. De Strulle

• Decision Date: 01 November 1972
• Docket Number: Cr. 20881
• Citation: 28 Cal.App.3d 477,104 Cal.Rptr. 639
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ronald Howard De STRULLE, Defendant and Appellant.

Page 639

104 Cal.Rptr. 639

28 Cal.App.3d 477

The PEOPLE, Plaintiff and Respondent, v. Ronald Howard De STRULLE, Defendant and Appellant.

Cr. 20881.

Court of Appeal, Second District, Division 1, California.

Nov. 1, 1972.

Hearing Denied Dec. 29, 1972.

Joseph Sack, San Francisco, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., and Howard J. Schwab and William R. Pounders, Deputy Attys. Gen., for plaintiff and respondent.

WOOD, Presiding Justice.

Defendant was accused in count 1 of violating section 11500 of the Health and Safety Code possession of cocaine), and in count 2 of violating section 11530 of said code (possession of marijuana). His motion to suppress evidence (Pen.Code § 1538.5) was denied. In a nonjury trial he was found guilty as charged on count 1; and count 2 was dismissed in the interests of justice. He appeals from the judgment and sentence.

Appellant contends that evidence obtained from him and from his luggage at an airport was obtained by illegal search and seizure; and that the evidence does not support the judgment.

The People's case on count 1 was submitted on the transcript of the preliminary examination and the transcript of the hearing on the motion to suppress evidence.

On February 11, 1971, Officer Wingenfeld was a Deputy United States Marshal employed in an 'anti-hijack detail' at the Trans World Airlines terminal at Los Angeles International Airport to 'keep weapons from going on planes.' In the boarding area of the terminal there were signs, in English and Spanish, that luggage was subject to search; and 'announcements are made prior to boarding the aircraft' that luggage will be searched. Also, a magnetometer is inside the 'jetway' (which is an 'accordionlike' enclosure or hallway through which passengers go when boarding an airplane at the terminal). The magnetometer consists of two poles, approximately six feet in height and 36 inches apart, which have a magnetic field surrounding them; and the magnetometer will detect any ferrous metal which might pass between the poles. ¹ Passengers who enter the jetway walk 'in single file' between the poles; and if they have any ferrous metal a blue light appears on the magnetometer. A passenger and his luggage pass between the poles, separately; and, on the day in question, the luggage was passed through the poles 'first.'

About 10 a.m., Officer Wingenfeld was using the magnetometer on a jetway to an airplane which was to go to New York; and Miss Ferguson was a ground hostess there. As defendant boarded the jetway, he handed his 'carry-on' luggage or bag to her; and his suitcase was passed between the poles. A blue light and a very high reading appeared on the magnetometer, which indicated to the officer that a weapon might to inside the suitcase. The light and a high reading also appeared when defendant passed between the poles.

The officer asked defendant whether he had any metal in his pockets; and he replied in the affirmative. At the officer's request, defendant removed several things from his pockets, including a metal clip with a burnt end, which the officer believed was a 'roach clip.' Then the officer asked him to pass between the poles again in order to see whether the reading would then be lowered. Defendant went between the poles, the reading was lower, and the things were returned to him.

Miss Ferguson then asked defendant whether the luggage (bag and suitcase) belonged to him and whether 'they' could look through the luggage. He replied in the affirmative; and Miss Ferguson unzipped the bag in order to search it; and the officer said that he 'would take it from there.' The officer took the luggage to a 'less conspicuous' place about 15 feet inside the jetway, and searched the bag for weapons. It was a plaid bag, approximately 2 1/2 feet long, 2 feet high, and 10 inches wide. He saw in the bag a 'baggie' which appeared to contain marijuana, and another small bag which contained white powder which appeared to be a narcotic. Defendant appeared nervous, and the officer took him and the luggage to the public relations office in order to search the luggage more thoroughly without interrupting other passengers who were boarding the airplane through the jetway. In the office, the officer removed everything from the bag and found a brick of marijuana. There was no weapon in the bag or suitcase; but, according to the officer, the metal reading by the magnetometer could have been caused by the rim and handle of the bag; and there was metal in the suitcase.

The officer also testified that it was his practice, when luggage registered a high rate on the magnetometer, to insist upon opening and inspecting the luggage whether or not the passenger granted permission therefor; and that he would insist that anything that might be metal be checked before the passenger boarded the airplane, whether the metal was 'on a person or in luggage.'

The luggage also contained letters addressed to the defendant and books which had his name on the inside of the covers. It was stipulated that a chemist would testify that the white powder found in the luggage contained cocaine, and that the plastic bag and the wrapped package found in the luggage contained marijuana.

With reference to appellant's contention that the evidence obtained from his luggage was obtained by illegal search, he argues that use of the magnetometer to search for weapons was prohibited by the Fourteenth Amendment, that his consent to the search was obtained by trickery in that the federal officer was in plainclothes and did not identify himself as an officer and in that use of the magnetometer upon passengers, being led down the jetway 'like cattle,' created 'a coercive atmosphere not conducive to the assertion of constitutional rights'; that he was not advised of his Miranda rights or of his right to refuse consent to the search; and that the search was 'merely a pretext for a general search for drugs.'

In People v. Botos, 27 Cal.App.3d 774, 104 Cal.Rptr. 193, the defendant therein accompanied one Wenger to a gate at an airport where he sought to board an airplane as a passenger. An airline employee stopped Wenger at the gate because he 'met' a 'hijacker profile' which federal officers had made from statistical information which described characteristics of likely hijackers. ² The employee asked Wenger for identification, and then called a federal officer who was assigned to the anti-hijacking detail at the airport. The officer asked permission to look through Wenger's pocket, and asked what the bulge was. Wenger said that it was a roach holder, and he removed the holder and keys from his pocket. At the officer's request, Wenger opened the suitcase with one of the keys; and the officer saw marijuana in the suitcase, and arrested Wenger and the defendant. Upon defendant's appeal therein from her...