People v. Superior Court

• Decision Date: 18 July 1973
• Citation: 109 Cal.Rptr. 143,33 Cal.App.3d 523
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent; Michael Boyd RANDALL et al., Real Parties in Interest. Civ. 13085.

Page 143

109 Cal.Rptr. 143

33 Cal.App.3d 523

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent;

Michael Boyd RANDALL et al., Real Parties in Interest.

Civ. 13085.

Court of Appeal, Fourth District, Division 2, California.

July 18, 1973.

[33 Cal.App.3d 525] Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., and Oretta D. Sears, Deputy Dist. Atty., for petitioner.

Frank L. Williams, Jr., Public Defender, Gale P. Hickman, Deputy Public Defender, Russell E. Parsons, Santa Ana and Michael D. Pursell, Anaheim, for real parties in interest.

No appearance for respondent.

OPINION

KERRIGAN, Associate Justice.

James Henry Clay, Calvin Larry Delaney, John Charles Gale, Edward Jeffery Lange, and Michael Boyd Randall (real parties in interest who will be described herein as 'defendants'), together with 41 other defendants, were charged in two multiple-count indictments with conspiracy to violate various sections of the Health and Safety Code involving narcotics and with violation of the sections.

Defendants moved in the superior court for suppression of certain evidence (Pen.Code, § 1538.5). The superior court granted the motion on March 5, 1973. We denied without opinion the People's petition for writ of mandate to compel the superior court to set aside its order suppressing the evidence. On May 16, the Supreme Court granted a hearing, directed that an alternative writ of mandate issue as prayed, and retransferred the matter to this court for a review on the merits. On May 23, we issued the alternative writ of mandate and ordered respondent court to show cause why a peremptory writ should not issue. ¹

George R. Corley, Special Agent of the Bureau of Customs, was the sole witness for the prosecution at the suppression hearing. On March 19, 1969, while he was assigned to Los Angeles International Airport to investigate importation of contraband, he received a telephone call from a customs inspector at the United Airlines freight terminal, saying he had two surfboards 'which he thought possibly contained narcotics.' Agent Corley went to the United Airlines terminal, accompanied the inspector to the enclosed area where merchandise is kept until cleared by customs, and inspected the two boards in question.

The manifest showed that the surfboards had been shipped from Karachi, Pakistan, and transshipped at New York. Corley was not himself a surfer, but had examined and actually handled about 25--50 surfboards on prior occasions in the course of his duties. In particular, he himself had found hashish in a surfboard shipped from Pakistan within the previous two months. On one or two later occasions, he had slit open surfboards from high narcotics areas, but had not found any contraband. He noticed that the two boards appeared not to have been used, because the skegs were smooth and unscratched. He lifted both boards and noted that they appeared to be about twenty pounds heavier than other boards he had handled of the same length. Because of these factors, he suspected the board might contain contraband and stuck his pocketknife into it. ²

When Agent Corley's knife penetrated the surfboard, there was a rush of gas from inside, with an odor which he recognized as that of marijuana. He then cut out a one-inch square and pried out some of the substance inside, which proved to be hashish. He replaced the plug, filled the holes with candlewax, and replaced the boards in the cloth sacks in which they had been wrapped. When the consignee, codefendant Ashbrook, claimed the boards the following day, he was followed by several federal agents and, with several other persons, arrested in the Hemet area of Riverside County. ³ A total of 39 pounds of hashish worth $100,000 was removed from the two boards.

In suppressing the hashish and the surfboards, the court found that, although the search was a 'border search,' permitted by section 482 of title 19 of the United States Code, Agent Corley did not have sufficient 'reasonable cause to suspect' that contraband would be found to justify his sticking his knife into the board.

The People contend (1) that defendants have no standing to challenge the validity of the search, and (2) that in any case, the agent had a sufficient suspicion to justify the search.

STANDING

The People cite several United States Supreme Court decisions, and quote at length from Alderman v. United States (1969) 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, for the proposition that only persons aggrieved may challenge the legality of a search. '(T)he general rule (is) that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.' (Alderman v. United States, Supra, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176, 187; see also Brown v. United States (1973) 411 U.S. 223, 93 S.Ct. 1565, 1569--1570, 36 L.Ed.2d 208, 214; Jones v. United States (1960) 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233.) If defendants were being prosecuted in the federal courts, they would have no standing in the circumstances of this case (see United States v. Wing (9th Cir. 1971) 450 F.2d 806, 810, cert. den., 405 U.S. 994, 92 S.Ct. 1267, 31 L.Ed.2d 462; Stassi v. United States (5th Cir. 1969) 410 F.2d 946, 952), but in the courts of the state of California the rule is otherwise.

Any criminal defendant brought before the California courts may challenge the admissibility of any evidence against him on Fourth Amendment grounds. This rule is not found within the Fourth Amendment itself (Alderman v. United States, Supra, 394 U.S. 165, 171--176, 89 S.Ct. 961, 22 L.Ed.2d 176, 185--188), but has been declared by the California Supreme Court as a rule of procedure for the courts of this state. (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 155--157, 98 Cal.Rptr. 649, 491 P.2d 1.) The states remain free under the Alderman decision and the U.S. Constitution, to establish their own rules of criminal procedure, and specifically 'to provide that 'illegally seized evidence is inadmissible against anyone for any purpose. '""' (Kaplan v. Superior Court, Supra, 6 Cal.3d 150, 155, 98 Cal.Rptr. 649, 651, 491 P.2d 1, 3, quoting Alderman v. United States, Supra, 394 U.S. 165, 175, 89 S.Ct. 961, 967, 22 L.Ed.2d 176, 188.)

The vicarious exclusionary rule has two purposes: (1) to deter law enforcement officers from violating constitutional provisions against unreasonable searches, and (2) 'to relieve the courts from being compelled to participate in such illegal conduct.' (Kaplan v. Superior Court, Supra, 6 Cal.3d 150, 155--156, 98 Cal.Rptr. 649, 652, 491 P.2d 1, 4.) The People might argue (though they do not) that the first of these reasons is inapplicable because the officers to be deterred are not state officers but federal customs officials. Such reasoning would appear to be contrary to the rationale of Elkins v. United States (1960) 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, which repudiated the 'silver platter' doctrine, but regardless of the applicability of the first reason, the second applies. The courts of this state will not condone violations of the Fourth Amendment by receiving evidence so obtained.

The United States Supreme Court has held that due process may require state courts to exclude certain evidence unfavorable to a criminal defendant (Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081) or to admit certain evidence favorable to an accused. (Chambers v. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297), but our attention has not been drawn to any decision holding that due process or any other constitutional principle requires a state court to Admit evidence Against a criminal defendant.

The motion to suppress the evidence was properly before the superior court.

THE SEARCH

Although standing to raise the issue is governed by the law of this state, the validity of the search must be determined in accordance with federal law (People v. Eggleston (1971) 15 Cal.App.3d 1026, 1029, 93 Cal.Rptr. 776, cert. den., 404 U.S. 1002, 92 S.Ct. 569, 30 L.Ed.2d 555; People v. Mitchell (1969) 275 Cal.App.2d 351, 355, 79 Cal.Rptr. 764, cert. den., 397 U.S. 1053, 90 S.Ct. 1394, 25 L.Ed.2d 669), because the search in question was a 'border search,' which is governed by federal statutes. ⁴ The term 'border search' is 'the courts' shorthand way of defining the limitation that the Fourth Amendment imposes upon the right to customs agents to search without probable cause,' a right that is 'predicated on the right and obligation of the government . . . to prevent the importation of contraband or of undeclared, and therefore untaxed, merchandise, and on the universal understanding that persons, parcels and vehicles crossing the border may be searched.' (United States v. Weil (9th Cir. 1970) 432 F.2d 1320, 1323, cert. den., 401 U.S. 947, 91 S.Ct. 933, 28 L.Ed.2d 230.)

Defendants assert that since Los Angeles 'at best may be characterized as a port of entry, far removed from any international border,' the search cannot be a border search. This contention has been consistently rejected in the cases. The border area includes not only land border crossing checkpoints, but also checkpoints at all ports of entry (United States v. Glaziou (2d Cir. 1968) 402 F.2d 8, 12--13, 6 A.L.R.Fed. 302, cert. den.,393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126, and international mail handling rooms. (United States v. Beckley (6th Cir. 1964) 335 F.2d 86, 89, cert. den. sub nom. Stone v. United States, 380 U.S. 922, 85 S.Ct. 921, 13 L.Ed.2d 807; see also Almeida-Sanchez v. United States (1973) --- U.S. ---, 93 S.Ct. 2535, 37 L.Ed.2d 596.)

Although a border search must meet the Fourth Amendment test of reasonableness, it requires neither a warrant nor probable cause, and may be conducted on the Mere suspicion of customs agents that contraband or undeclared, dutiable articles may be present. (United States v....