People v. Superior Court In and For Butte County

• Citation: 79 Cal.Rptr. 904,275 Cal.App.2d 489
• Court: California Court of Appeals
• Decision Date: 07 August 1969
• Parties: The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF BUTTE, Respondent, Gary Jerome FLYNN, Real Party in Interest. Civ. 12224.

Page 904

79 Cal.Rptr. 904

275 Cal.App.2d 489

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF BUTTE, Respondent, Gary Jerome FLYNN, Real Party in Interest.

Civ. 12224.

Court of Appeal, Third District, California.

Aug. 7, 1969.

Hearing Denied Oct. 1, 1969.

Thomas C. Lynch, Atty. Gen. by Doris Maier, Asst. Atty. Gen., and Jack R. Winkler, Deputy Atty. Gen., Sacramento, for petitioner.

McPherson, Mulkey & Aisthorpe, by Lloyd H. Mulkey, Jr., Chico, for real party in interest.

QUESTION PRESENTED

BRAY, Associate Justice (Assigned).

Was the opening by a postman of the contents of a mailed first-class package, where the outer carton had broken by chance, an unlawful search requiring application of the exclusionary rule?

RECORD

Real party in interest, Flynn (hereinafter referred to as defendant), was charged in an information filed in Butte County Superior Court with the crime of possession of marijuana. After certain other proceeding, ¹ defendant moved to suppress evidence. The motion was granted. This petition followed, seeking appellate review pursuant to Penal Code, section 1538.5, subdivision (o).

FACTS

On the morning of July 27, 1968, Grant J. Magill, a United States postman for 11 years, was delivering mail in the City of Chico. When he opened a bundle of mail to put it into his satchel, a first-class package fell out onto the seat of his car. The package measured 4 3 1/2 5 inches in size. The outside wrapping was addressed from San Francisco to defendant at his Chico address. When the package fell out on the seat the outside wrapping came apart, as did a Carnation Instant Breakfast box wrapped in it, and a brown paper bag fell out of the box. The bag was not sealed in any way. Magill opened the bag and, looking in, saw two plastic bags, each containing green leafy material, which turned out to be marijuana. Magill had not seen any green leafy material until he opened the paper bag. He removed some of this material from the plastic bags and then put the package back together again. Going to the address shown on the package, he asked the man who answered his knock on the door if his name was Flynn. When the man said it was, Magill handed him the package.

Magill went with a police officer to the police station and turned the marijuana over to the police. He then made a written statement and described defendant. Magill was not a police officer or working for the police, nor was he a postal inspector or any kind of law enforcement officer. No one had asked him to watch defendant's home or mail, nor to look inside the package or remove any of its contents. His only instruction was to deliver loose articles found in the mail to his supervisor. No police or postal authorities had instructed him what to do if he found contraband in the mail.

Officer Reese, to whom Magill talked and to whom he gave the written statement, testified that Magill had said that when the package broke open some green substance had fallen out and that the portion which he gave Reese had fallen out. Magill, although he testified he could have so stated, did not recall so stating. In any event, it seems conceded that the marijuana had not fallen out.

Officer Reese then sought a search warrant, signing an affidavit setting forth that the package had been broken in handling, that part of the 'contents' had spilled out, and that Magill, looking into the package, had observed a green leafy substance containing seeds. The affidavit further stated that Reese believed that at defendant's home there were two plastic Baggies containing bulk marijuana. A search warrant was issued.

Knocking at defendant's door, which was opened by defendant, Reese handed defendant the search warrant and supporting affidavit and searched defendant's apartment, finding a small amount of marijuana near a Carnation Instant Breakfast carton, a brown wrapping paper bearing a postmark an defendant's name and address, and a brown paper bag containing three plastic bags which contained marijuana.

IS THE EXCLUSIONARY RULE APPLICABLE?

With exceptions not here applicable, federal law (hereinafter cited) prohibits a postal employee from looking into a first-class mail package. Defendant attacks the validity of the search warrant on the ground that it was based upon an unlawful search and seizure.

A search warrant is invalid if it is obtained upon information which was the product of an unlawful search. (People v. Carswell (1959) 51 Cal.2d 602, 606, 607, 335 P.2d 99; People v. Roberts (1956) 47 Cal.2d 374, 377, 303 P.2d 721.)

In Byars v. United States (1927) 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520, it was held that evidence illegally obtained was inadmissible in federal court when obtained in a joint operation of federal and state officers. In Gambino v. United States (1927) 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293, the evidence was likewise inadmissible where state officers conducted searches and seizures solely to acquire evidence to turn over to federal officials. Gambino distinguished Weeks v. United States (1914) 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652, where it had been held that evidence obtained through an unreasonable search and seizure by state officers without any knowledge or cooperation of federal officers was admissible in a federal court. This holding was characterized as the 'silver platter' doctrine by Mr. Justice Frankfurter. (Lustig v. United States (1949) 338 U.S. 74, 79, 69 S.Ct. 1372, 93 L.Ed. 1819.) In Elkins v. United States (1960) 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, this doctrine was overruled and finally in Mapp v. Ohio (1961) 367 U.S. 643, 657, 81 S.Ct. 1684, 6 L.Ed.2d 1081, the court declared that 'the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments' and imposed the exclusionary rule on criminal actions in state courts. Mapp clearly indicates that evidence unconstitutionally seized by Federal agents is inadmissible in a State criminal trial. Petitioner, in the instant case, is actually attempting to apply the defunct 'silver platter' doctrine.

Section 1538.5 Penal Code provides for a pretrial motion to suppress on the ground, among others, of 'violation of federal or state constitutional standards' (subd. (a)(2)(v)). The superior court is required to determine 'the validity of a search or seizure de novo on the basis of the evidence presented at a special hearing' (subd. (i)). Under this section 'a full hearing is held on the issues before the superior court sitting as a finder of fact.' (People v. Heard (1968) 266 A.C.A. 812, 814, 72 Cal.Rptr. 374, 375.) This hearing is different from the magistrate's initial determination of the question of whether probable cause exists for the issuance of a search warrant. There, the magistrate may accept the truth of the matters set forth in the affidavit for the warrant. On the motion to suppress, however, it may be shown that the matters stated by the affiant are not true or that the information set forth in the affidavit was obtained in violation of constitutional rights and privileges.

Honorable J. F. Good, the judge below, found in effect that, from the postman's statement to Reese, the latter was justified in believing that when the package broke open, marijuana spilled out and that the portion obtained by the postman was recovered from the seat of the vehicle rather than as a result of the exploratory invasion into the contents of the bag, and that Reese acted in good faith in the allegations he made in the affidavit for the search warrant.

Because Magill opened the paper bag, the judge found that the marijuana in question was not accidentally discovered, but was discovered by an act in clear violation of the federal statutes and postal regulations protecting the privacy of first-class parcels and letters. The judge then said: 'The thrust of the Fourth Amendment is not aimed solely at the police or law enforcement agencies of government; it is a guaranty against invasion by any governmental agency of the right of privacy guaranteed therein.' The court concluded that sound public policy requires holding that postal employees are included in the class intended to be included in the exclusionary rule insofar as they violate the law and postal regulations in opening first-class mail.

There can be no doubt that, in view of the judge's finding as to what Magill told Officer Reese and the finding that Reese acted in good faith in making the affidavit for the search warrant, probable cause for the issuance of that warrant existed and was shown. The question we have to determine is whether that probable cause is so tainted by being based upon information obtained by a postal employee's illegal act that contraband obtained through such act must be excluded in a criminal prosecution.

The record fails to disclose Magill's purpose in looking into the paper bag--whether for idle curiosity, or because he felt it necessary to know how fragile its contents were for rewrapping, or for some other reason. In view of a lack of explanation, his action in peering into the bag was prima facie illegal, and the prosecution had the burden of proof of justifying the warrantless search by the postman. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23.)

The protection against unreasonable search and seizure of one's papers or other effects, guaranteed by the Fourth Amendment, extends to their presence in the domestic mails. Thus, first-class mail packages moving entirely within the United States cannot be seized and retained, nor opened and searched, without the authority of a search warrant. (Ex parte Jackson (1878) 96 U.S. 727, 732--733, 24 L.Ed. 877; Lustiger v. United States (9 Cir.1967) 386 F.2d 132, 139; United States v. Beckley (6 Cir.1964) 335 F.2d 86, 88; Oliver v. United States (8 Cir.1957) 239 F.2d 818, 61 A.L.R. 1273; annot., 61 A.L.R.2d 1282 (1958).) The...