State v. Blackshear
| Decision Date | 16 July 1973 |
| Citation | 511 P.2d 1272,14 Or.App. 247 |
| Parties | STATE of Oregon, Respondent, v. Jerry BLACKSHEAR, Appellant. |
| Court | Oregon Court of Appeals |
J. Reynolds Barnes, Portland, argued the cause for appellant. With him on the brief were Sherwood, Barnes, O'Dell & Laman, Portland.
John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and FORT, JJ.
Defendant appeals from conviction by the court of criminal activity in drugs: possession of heroin (ORS 167.207). The only assignment of error is that defendant's motion to suppress the evidence should have been allowed.
The search and seizure of heroin challenged by defendant's motion occurred at the Portland International Airport in an airline freight room where a customer service agent searched clothes taken from luggage which was to have been shipped by defendant from Portland to Beaumont, Texas. Defendant and two other negro men had brought five pieces of luggage to the fright office for shipment. The agent testified that defendant declared the value of the personal possessions in the luggage at $5,000, which was the highest declared value for that class of property that the agent had experienced during several years in such work and hundreds of similar shipments.
The agent testified that when the defendant signed the shipping invoice he hesitated, and started as though he were going to sign a different name, and then signed the name 'Paul Blackshear.' The agent had knowledge of a notice that airport police had given to all airlines alerting them to the fact that negro persons, particularly two negro females, were suspected of recently shipping stolen clothing to other cities, particularly Los Angeles, from the Portland airport. The defendant was dressed in a 'T' shirt and 'old' levis but was wearing two large diamond rings. One of the suitcases would not lock and the defendant asked the agent to bind it additionally.
The above-related factors were testified to by the agent as causing him to be suspicious about the contents of the luggage. He testified he called his supervisor to be a witness to his opening the luggate to examine its contents. He said:
'The company policy is if we have a suspect shipment we should first get a supervisor or another witness before we open any suspect luggage.'
He also testified:
'Q And do you know of your own knowledge why that (it) is that you inspect shipments?
The supervisor was busy and as a result the agent called the airport police office to have an officer come to act as a witness. The officer did come. He testified that he considered himself as an 'observer' only and that '* * * I didn't say yes, or I didn't say, 'No, don't open it. " The agent opened the first suitcase and while examining clothes therein found what appeared to be narcotics in the pocket or trousers. The search was forthwith stopped and narcotics officers were called, resulting in the ultimate arrest of defendant for the instant charge.
When the motion was argued before the trial court defendant's counsel urged that Corngold v. United States, 367 F.2d 1 (9th Cir. 1966), was in point and should control the decision in this case. The prosecution argued that Gold v. United States, 378 F.2d 588 (9th Cir. 1967), was more in point and that it should control. The court considered both cases and agreed with the prosecution. In Corngold federal custom agents had the defendant and two others under observation and asw them leave suspect packages at a TWA cargo loading platform. They told the airline agents that the packages were suspect, asked them to open them and helped with the opening of one. They alone proceeded with examining the contents, which were contraband, the presence of which resulted in defendant's arrest. In that case the Ninth Circuit Court of Appeals said that '* * * the TWA employee participated in the search solely to serve the purposes of the government * * *', and held that the warrantless search by the government officers was illegal. 367 F.2d at 5.
In Gold v. United States, supra, FBI agents had defendants under surveillance as suspects for shipping obscene film. They saw defendants deposit packages at an airline fright office. After the defendants left, the FBI agents informed airline employes that they had reason to believe the waybill for the packages was inaccurate and that they were suspicious. The FBI agents made no effort to inspect the packages. After they left, the manager for the airline decided to investigate further. With one of his supervisors he opened one of the packages and looked at the film he found therein. He then notified the same FBI agents who...
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