State v. Birdwell

• Decision Date: 03 January 1972
• Docket Number: No. 926--I,926--I
• Citation: 492 P.2d 249,6 Wn.App. 284
• Parties: STATE of Washington, Respondent, v. Robert Raymond BIRDWELL, Appellant.
• Court: Washington Court of Appeals

Page 284

6 Wn.App. 284

492 P.2d 249

STATE of Washington, Respondent, v.Robert Raymond BIRDWELL, Appellant.

No. 926--I.

Court of Appeals of Washington, Division 1, Panel Two.

Jan. 3, 1972.

Miracle & Pruzan, William F. Nelson, Seattle, Court appointed, for appellant.

Christopher T. Bayley, King County Pros.Atty., Christopher J. Bell, Deputy Pros.Atty., Seattle, for respondent.

SWANSON, Judge.

Rober Birdwell claims he did not know that the trunk he picked up at Sea-Tac Airport on May 9, 1970, contained 13,000 grams of marijuana.Nevertheless, after two trials ¹he was found guilty of the charge of unlawful possession of marijuana with intent to sell.He appeals.

The pertinent facts giving rise to appellant Birdwell's arrest may be summarized as follows: On May 8, 1970, an airline freight agent in San Diego, California, became suspicious of the contents of a trunk because of the nervous behavior of one Susan Livingston who delivered it to the freight office for shipment to Seattle.When the agent opened the trunk and discovered what proved to be 29 pounds of marijuana, he called a California narcotics agent who obtained a search warrant for the trunk, executed it, and then notified Seattle police on May 9 that he was going to allow the shipment to go through.Seattle police officers obtained a Capitol Hill address by tracing a telphone number given by Susan Livingston as being that of appellantRobert Birdwell, the Seattle consignee, and then placed the freight pickup station at Sea-Tac Airport under surveillance.Some time between 4 and 4:30 p.m. on May 9th, the police observed appellant Birdwell arrive in a Volkswagen microbus and pick up the trunk.Birdwell took a somewhat indirect route to the Capitol Hill address, so that the police were unable to follow him without directing attention to their patrol car, and so proceeded directly to the Capitol Hill address, arriving shortly before Birdwell.After Birdwell arrived and entered the house, the police first observed that the trunk was still in the microbus, and then knocked on the door of the premises and were admitted.The police arrested Birdwell and his companion, one Merle Nichols, who proved to be the owner of the microbus, a resident of the house, and who now had the keys to the microbus in his possession.Although the police officers did not have a search warrant, they seized the trunk, removed it from the bus and placed it in the patrol car.They opened the trunk and found marijuana in it, as they had been informed by the California authorities they would.

At trial, Birdwell testified that Susan Livingston stayed at his house for 3 days in March or April, but he had only known her for a total of 6 or 7 days, and had neither seen nor heard from her since she left Seattle for San Diego.He said Merle Nichols told him she had consigned the trunk to him, and so he agreed to pick it up for her.He understood the trunk contained only her personal effects and stated he did not know it contained marijuana until the time of his arrest.

On this appeal from the conviction and sentence, appellant Birdwell, through 12 separate assignments of error, directs his arguments on appeal to

(1) the legality of the search and seizure of the trunk;

(2) the constitutionality of the presumption of intent to sell clause of RCW 69.40.070(5), and the validity of the court's instructions based on this statute;

(3) whether the defense of unwitting possession was properly submitted to the jury;

(4) the sufficiency of the evidence; and

(5) to claimed abuse of discretion in sentencing.

Appellant's search and seizure argument may be divided into two parts.First, he claims the search of the trunk at the San Diego airport was illegal because the air freight agent, one Charles Dowling, was acting as an agent of the California law enforcement officers.This made the information given to them by Dowling which was used as the basis for the search warrant obtained by the California authorities the product of an unlawful search and seizure, argues appellant, and so the evidence gained from the search should have been suppressed.

Only if we can say that the freight agent's conduct in opening the trunk is equivalent to doing so at the direction of a law enforcement officer does the Fourth Amendment prohibition against unreasonable searches and seizures become an issue.United States v. Winbush, 428 F.2d 357(6th Cir.1970);Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048(1921).As we stated in State v. Wolfe, 5 Wash.App. 153, 155, 486 P.2d 1143, 1145(1971):

The subsequent seizure of drugs by officers discovered as a result of a private search is not unlawful.Clayton v. United States, 413 F.2d 297(9th Cir.1969).

A close working relationship between the police and the airline freight agent may be tantamount to joint action and make the freight agent's actions in opening suspicious baggage police action.People v. McGrew, 1 Cal.3d 404, 82 Cal.Rptr. 473, 462 P.2d 1(1969);Corngold v. United States,367 F.2d 1(9th Cir.1966).See alsoStapleton v. Superior Court, 70 Cal.2d 97, 73 Cal.Rptr. 575, 447 P.2d 967(1968).

The record ² before us discloses substantial evidence indicating that the San Diego air freight agent Dowling was not acting in concert with, or at the direction of, the California law enforcement authorities when he opened the trunk.The freight agent testified that he acted only in his capacity as an airline employee and on his own initative.This evidence provides ample support for the trial judge's denial of the motion to suppress the evidence gained from this search.We upheld similar conduct by an Oregon air freight agent in opening a suspicious package and finding contraband in State v. Wolfe, Supra.³See alsoGold v United States, 378 F.2d 588(9th Cir.1967);People v. Temple, 276 Cal.App.2d 402, 80 Cal.Rptr. 885(1969);People v. Superior Court, 11 Cal.App.3d 887, 90 Cal.Rptr. 123(1970);United States v. Averell, 296 F.Supp. 1004(E.D.N.Y.1969).Our review of the evidence does not support the conclusion urged upon us by appellant.

The second half of Birdwell's search and seizure argument focuses upon the warrantless seizure of the trunk in the Volkswagen microbus and its subsequent search.If we are to uphold the admission of evidence gained from this search we must be satisfied that it passes the test of reasonableness; if not, it is offensive to the Fourth Amendment's prohibition against such searches.Such a determination depends upon the facts, circumstances, and exigencies of the situation confronting the police officers.State v. Gibson,76 Wash.2d 814, 459 P.2d 22(1969).

Appellant does not challenge the legality of his arrest nor that probable cause existed to justify the officers' belief that the trunk they saw in the microbus contained marijuana.But appellant does contend that the state failed to bear its burden of showing an exception to the warrant requirement.We cannot agree.

The officers knew of the identity of the vehicle carrying the contraband for only the period of time involved in proceeding in the somewhat circuitous course Birdwell took from the airport to Nichols' home on Capitol Hill, about one-half hour.During this time the officers did not know what Birdwell intended to do with the trunk--that is, whether he planned to take it into the house, leave it in the vehicle or secrete it elsewhere.They hoped that Birdwell would take the trunk into the house and thereby permit further investigation and the possible apprehension of confederates.When Birdwell left the trunk in the microbus and entered the house, the police were placed in an awkward position.Under these emergency conditions, they elected to act and proceed with an arrest.If they had not done so, the appellant might have escaped, leaving them 'holding the bag.'The failure to obtain a search warrant under these circumstances was not unreasonable.⁴The seizure of the trunk was justified under the doctrine of Carroll v. United States, ⁵267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543(1924), which was followed and reaffirmed in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419(1970), and amplified in Coolidge v. New Hampshire, ⁶403 U.S. 443, 459--460, 91 S.Ct. 2022, 2034, 29 L.Ed.2d 564, 579(1971), where the court said:

The underlying rationale of Carroll and of all the cases which have followed it is that there is 'a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where It is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.'

See alsoScher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151(1938);State v. Larsen, 4 Wash.App. 356, 481 P.2d 462(1971).

The opening of the trunk itself took place at the specific request of Merle Nichols⁷ in the presence of appellant Birdwell.Birdwell ⁸ also wanted to know what was in the trunk, and nowhere in the record is there any indication that he objected to the trunk being opened.The motion to suppress was properly denied.

Appellant next questions the constitutionality of RCW 69.40.070(5)⁹ which contains a statutory presumption that possession of 40 grams of marijuana is prima facie evidence of intent to sell.¹⁰

If a criminal conviction is to be upheld, the state must bear the burden of proving all elements of the crime beyond a reasonable doubt.State v. Finister, 5 Wash.App. 44, 486 P.2d 114(1971).But as stated in Finister at 46, 486 P.2d at 116:

However, it is permissible to supply proof of some elements by use of presumptions which, if unrebutted, allow but do not compel the trier of fact to find the presumed fact on the basis of proved facts.Leary v. United States, 395 U.S. 6, 89...