People v. Superior Court

• Decision Date: 01 October 1970
• Citation: 90 Cal.Rptr. 123,11 Cal.App.3d 887
• Court: California Court of Appeals
• Parties: The PEOPLE, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent. Leonard Bousefield EVANS, Real Party in Interest. Civ. 36913.

Page 123

90 Cal.Rptr. 123

11 Cal.App.3d 887

The PEOPLE, Petitioner, v.SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, RespondentLeonard Bousefield EVANS, Real Party in Interest.

Civ. 36913.

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

Oct. 1, 1970.

Rehearing Denied Oct. 27, 1970.

Hearing Denied Nov. 25, 1970.

Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, and Eugene D. Tavris, Deputy Dist. Atty., for petitioner.

No appearance for respondent.

Irwin E. Evans, Los Angeles, for real party in interest.

THOMPSON, Associate Justice.

The People seek a writ of mandate compelling the respondentsuperior court to vacate its order granting the motion of real party in interest to suppress evidence pursuant to Penal Code, section 1538.5.We conclude that a peremptory writ of mandate should be issued.

Facts

Stated in the light most favorable to the order of the superior court suppressing evidence, the record reveals the following.At about 12:15 a.m., on January 8, 1970, real party in interest Evans and Wallace James Allen came to the air freight counter of United Airlines at the Los Angeles International Airport.Evans told John E. Medina, the clerk on duty, that he would like to ship a box to Chicago and inquired how soon he could get the box shipped.Medina replied that there were United flights leaving at 7:30 and 9:00 a.m. Evans asked if the package could be shipped on the 7:30 flight and Medina replied in the affirmative.The package consisted of a cardboard carton 2 feet long by 18 inches wide by 4 inches thick, weighing approximately 2 pounds.Medina, in order to prepare an airbill in accordance with applicable tariff regulations, inquired concerning the content and value of the package.Evans declared that the package contained a man's sweater and was worth $200.He asked that it be insured for $400.Evans paid charges of $14.50 for the shipment.

After Evans departed, Medina picked up the package to put the airbill and 'stickers' on it.He noticed that something was rattling inside.Fearing that the package might contain 'glass or something which might be already broken,' Medina informed his supervisor, Mr. Herbers.Herbers took the package to Robert Grantham, cargo supervisor for United Airlines.Medina and Herbers told Grantham that the shipper had declared the contents of the package to be clothing but that they doubted the truth of the declaration.Grantham handled and 'hefted' the package.He noted that it rattled.Grantham determined to open the package.His principal reason for opening the package was his conclusion from the rattling of the package that it did not contain a garment as declared by the shipper.He was suspicious that the package might contain contraband although he had no specific contraband in mind.Grantham's decision to open the package was based upon a government tariff contained in a Civil Aeronautics Board regulation.His job responsibility required that he open it.

Grantham opened the package.Within it he saw newspaper stuffed around mothballs and a substance which he thought to be hashish.(Grantham, over the past two and one-half years, had been in contact three times with Sergeant McKnight of the Los Angeles Police Department concerning shipments of contraband narcotics.He had in his file McKnight's card which contained McKnight's business and home telephone numbers.

Grantham telephoned McKnight.He then replaced some of the newspaper in the box, reclosed it, and set the box on the floor.While Grantham did not 'believe' the hashish was thereafter 'readily visible,'he was unsure whether the content of the package was actually visible.McKnight arrived about 35 minutes after the call.Grantham stated, 'I believe we have some hashish here; here it is.'He then opened the package to display the hashish to McKnight.Sergeant McKnight saw a 'brown cakey substance' 7 1/2 inches by 3 3/4 inches in size on top of some newspaper in the package when he entered Grantham's office.He broke the 'cake' in half, placed one-half back in the package, and kept the remaining one-half.McKnight tested the half retained by him and found it to be a form of marijuana.

The package containing the other one-half of the 'cake' was shipped to Chicago as designated by real party in interest Evans.The Chicago police were notified.Armed with a search warrant based upon information from the Los Angeles police, the Chicago authorities apprehended the consignee of the package as he took delivery.The consignee, after being advised of his Miranda rights, told the Chicago police that he obtained hashish and marijuana by telephoning Leonard Evans or Wallace Allen at a designated telephone number in Los Angeles.He gave the Chicago police descriptions of Evans and Allen and stated that they lived at 2508 9th Avenue in Los Angeles.The 2508 9th Avenue address coincided with the address of the telephone number which the consignee stated that he used to order marijuana and hashish from Los Angeles.It also corresponded to the address upon a vehicle registration issued to a red MG whose license plate number was noted by a security guard when he observed real party in interest Evans and Allen enter it after they had left the package at the United Airlines counter.

Based on the information in hand, the Los Angeles police obtained a search warrant for the premises at 2508 9th Avenue.In executing the warrant, they found 21 bags of marijuana and a quantity of cocaine, pentobarbital, and disoxephedrine.After a preliminary hearing, real party in interest Evans and Allen were bound over for trial.Real Party in interest moved in the superior court to suppress evidence pursuant to Penal Code, section 1538.5, 'the object of the motion * * * to be the contents of the package that was being shipped.'After a hearing in which the trial court considered evidence presented at the preliminary examination and further testimony, it found that Grantham acted as the agent of the police in reopening the package after Sergeant McKnight entered Grantham's office.The trial court granted the motion suppressing all evidence, including that obtained in the Chicago and Los Angeles searches pursuant to warrant as well as that obtained from the examination of the package at the airport.The People then sought review of the order by application for a peremptory writ of mandate addressed to this court.

Our examination of the record indicates that the trial court erred in concluding that the evidence suppressed by it is the product of an illegal search and seizure.Accordingly, we issue our peremptory writ of mandate.

The Package at the Airport

If otherwise lawfully present, police officers may seize contraband 'in plain sight' which is observed by them without a search.(People v. Roberts, 47 Cal.2d 374 379, 303 P.2d 721.)That principle validates Sergeant McKnight's seizure of the package of hashish at the airport.Sergeant McKnight was lawfully present in Grantham's office when the latter pointed out the package in which the hashish was seen by McKnight.Since the rule excluding evidence obtained by an illegal search is not applicable to searches by private persons (People v. Randazzo, 220 Cal.App.2d 768, 775, 34 Cal.Rptr. 65, cert. den.377 U.S. 1000, 84 S.Ct. 1933, 12 L.Ed.2d 1050), the contraband observed by the police officer was in plain view without a preceding official search unless Grantham in opening the package was acting as an agent of the police.(People v. Superior Court(Smith r.p.i.), 70 Cal.2d 123, 129, 74 Cal.Rptr. 294, 449 P.2d 230;seePeople v. Fierro, 236 Cal.App.2d 344, 347, 46 Cal.Rptr. 132.)While the trial court found that Grantham was acting as an agent of the police, that finding is totally unsupported by the record.It is that lack of evidentiary support which renders the order here reviewed by us erroneous.

The evidence is uncontroverted that Grantham originally opened the package in the course of his duties as an employee of United Airlines.He suspected, with considerable reason, that the consignor of the package had misdeclared its content when asked about it in accord with applicable tariff regulations.Grantham, under those circumstances, was justified in opening the package to determine the validity of his suspicion.(Rules and Regulations, IssuedNovember 8, 1967, C.A.B. No. 96, rule No. 24.)While Grantham suspected that the package might contain some form of contraband, he testified unequivocally that the latter suspicion...