People v. Williams, Cr. 8005

• Decision Date: 12 September 1975
• Docket Number: Cr. 8005
• Citation: 124 Cal.Rptr. 253,51 Cal.App.3d 346
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Anthony Eden WILLIAMS, Defendant and Respondent.

Page 253

124 Cal.Rptr. 253

51 Cal.App.3d 346

The PEOPLE of the State of California, Plaintiff and Appellant, v. Anthony Eden WILLIAMS, Defendant and Respondent.

Cr. 8005.

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

Sept. 12, 1975.

Edwin L. Miller, Jr., Dist. Atty., Terry J. Knoepp and F. Dale Marriott, Deputy Dist. Attys., for plaintiff and appellant.

Defenders, Inc. by David A. Stevens, San Diego, for defendant and respondent.

GERALD BROWN, Presiding Justice.

BOURBON'S NOSE KNOWS, OR THE CASE OF BOURBON'S BUST

The People appeal an order dismissing their action on the court's own motion (Pen.Code § 1385) following the suppression of evidence (Pen.Code § 1538.5).

As is often necessary to say for the benefit of an appellant, we recite the evidence most favorably in support of the trial court's order to suppress, and follow the well-established rule, recently reiterated in People v. Superior Court (Keithley), 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 619, 530 P.2d 585, 587:

'A proceeding under section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as a finder of fact. (Citations.) The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings--whether express or implied--must be upheld if supported by substantial evidence. (Citations.)'

On June 6, 1974 Arlis Lee Nash was in the U.S. Navy, working as a member of its narcotics addiction team in marijuana detection. He was assisted by his dog Bourbon. Bourbon had been raised and tutored in marijuana detection by Chief Petty Officer Billy Smith, the trainer of the first marijuana dog in the Navy. Smith gave Bourbon to Nash. Bourbon's skill in sniffing out marijuana had achieved an accuracy of 92% In tests which had been conducted, beginning two years before. Although Bourbon had never graduated from or been certified by any marijuana sniffing school, he had been certified by the Commander, Navy Air Force, Pacific Fleet. Bourbon's experience included a lot of sniffing in military barracks checks where, apparently unhampered by any Fourth Amendment problems, he would ferret out as many as 10, 15 or 20 marijuana objects a day.

Nash was also an unsalaried Reserve Deputy Sheriff. In that capacity he, along with Bourbon, met Deputy Sheriff Richard D. Perkins in front of the San Diego International Airport, about 8:50 p.m., on June 6, 1974. The deputies were in plain clothes. Without a search warrant and without notice or knowledge of the possible presence of any narcotics, Perkins and Nash took Bourbon to the baggage staging area of the American Airlines, not open to the public, in the back of the terminal, in order that Bourbon might engage in a fishing expedition, or more accurately in this instance in a sniffing expedition, of a general, routine, exploratory nature, for marijuana, cocaine and heroin. They were not looking for weapons or bombs. Bourbon's expertise did not extend to detecting weapons or bombs; it only included marijuana, cocaine and heroin.

Bourbon had a shot at it. Soon he came to an alert, chewing and scratching at a small nylon bag in an airline baggage container. Nash then sniffed at the bag, followed by Perkins. Each thought he smelled marijuana. Perkins immediately opened the bag, found marijuana inside, took the bag to the ticket office, inquired which ticket agent could identify its owner and went with that person to a boarding gate where the agent called 'Mr. Williams' and Williams responded 'Yes.' Perkins arrested Williams, patted him down for weapons, felt something soft in his crotch which did not feel like a weapon, reached down the inside front of his pants, removed a baggie of marijuana, then handcuffed him. Williams had two other pieces of luggage. Perkins did not smell them, did not suspect they contained contraband, but he searched them anyway. Perkins testified he was following the instructions of his superiors in the San Diego County Sheriff's Department to seek out and arrest suspects possessing narcotics, using dogs.

Perkins and Nash had never personally received permission from American Airlines to conduct this type of search. Perkins testified his predecessor told him he had such permission and Perkins assumed he was its beneficiary when he took over the detail.

The American Airlines' manager of airport services in San Diego testified he had never given narcotics task force officers blanket authority to make general exploratory searches of luggage in the baggage area. Because of this case, he wrote a directive letter to the company's employees that they may not give permission to law enforcement officers to enter the airline's baggage room, nor to make searches. Of course, under CAB regulations, airline employees could search baggage (see People v. McKinnon, 7 Cal.3d 899, 913--914, 103 Cal.Rptr. 897, 500 P.2d 1097).

In a carefully drawn order...