State v. Johnson

• Decision Date: 25 August 1978
• Citation: 569 S.W.2d 808
• Parties: STATE of Tennessee, Petitioner, v. James JOHNSON, Respondent.
• Court: Tennessee Supreme Court

Page 808

569 S.W.2d 808

STATE of Tennessee, Petitioner, v. James JOHNSON, Respondent.

Supreme Court of Tennessee.

Aug. 25, 1978.

Robert A. Grunow, Asst. Atty. Gen. for petitioner.

Jimmie McIntyre and Tim J. Thompson, Memphis, for respondent.

OPINION

HENRY, Chief Justice.

This criminal action is before the undersigned member of the Court on Petition for Common Law Writs of Certiorari and Supersedeas.

The trial judge sustained respondent's motion to suppress evidence of certain drugs held to have been seized in violation of the Fourth Amendment to the Constitution of the United States. The effect of this action on the part of the trial judge, as a practical matter, was to end the prosecution.

At a former hearing on the petition I expressed the "tentative and preliminary opinion that the petition (was) meritorious" but held the matter in abeyance, pending a decision of the Court of Criminal Appeals. It now appears that the appeal has been dismissed under the authority of State v. Bonhart, 223 Tenn. 582, 448 S.W.2d 669 (1969), by an order reciting that "the State has no right of direct appeal from a trial court's interlocutory order suppressing evidence." For the purposes of this opinion, the Court accepts this to be a correct legal conclusion, although the writer of this opinion views this generally accepted proposition as being subject to serious and substantial doubt.

I. The Searches and Seizures

The first search and seizure occurred at the Los Angeles International Airport on October 27, 1976, when a customer service agent of United Airlines processed a package delivered by two visibly nervous women, which purportedly contained a suit of clothes to be air-expressed to Memphis. Upon X-raying the package, he observed five dark masses, and after doing so, opened the package for purposes of inspection. ¹ It developed that these masses were five individually wrapped packets. This action was wholly independent of any information, request or involvement of any law enforcement official.

As a result of this inspection it was determined that these packets contained a quantity of pills. Whereupon, a member of the Narcotics Division of the Los Angeles Police Department was contacted. Upon his arrival the package was open and the pills were in plain view. He conducted a field test and determined that they were amphetamine.

This police officer retained one packet of the drugs and placed the remaining four back in the box. He thereupon telephoned Sergeant Tom Wright of the Shelby County Sheriff's Department, advised him of the shipment, and made inquiry as to whether the Memphis authorities wished to pursue a "follow up investigation." Upon receiving an affirmative response, he permitted United Airlines to place the package upon its flight destined for Memphis.

After the flight arrived in Memphis, Sergeant Wright and other law enforcement officers observed the package and staked out the United Airlines counter. When respondent showed up and claimed the package, the seizure was made.

It was the Los Angeles search that was invalidated by the trial judge. After correctly recognizing that "(t)he Fourth Amendment does not protect against searches and seizures conducted by private parties without governmental involvement" (citing Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921)), the trial judge held the applicable and controlling authority to be Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949). The crux of the holding in Lustig with respect to the officer's involvement was that "(s)o long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it." 338 U.S. at 79, 69 S.Ct. at 1374, 93 L.Ed. at 1823.

In Lustig, the officer came upon the scene while the search was in progress and, therefore, "before the object of the search was completely accomplished." Here, the search had been completed before the Los Angeles police officer arrived upon the scene.

The case of United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973), is precisely in point. There a supervisor of air freight service in Los Angeles, noting the nervous behavior of a shipper of a suitcase destined for New York City, opened it and found fifteen bricks of marijuana. He then contacted the Los Angeles police, who, after inspecting the bag, notified the New York authorities of the shipment. When the suitcase was picked up in New York, it was seized by New York authorities.

After noting that "an inspection by a carrier is not a governmental search" and that "Emery Air Freight conducted the search Independently of any information or request received from government officials," (emphasis supplied) 487 F.2d at 450, the Court held that the search was not invalid under the Fourth Amendment.

With respect to the New York search the Court, after noting that the suitcase while in transit "remained legally seized," said:

Thus, when the agents and police in New York removed the bag from the back seat of the car appellants were in, they were Not making an initial seizure, but rather were merely Reasserting control of the suitcase which had Already been seized for legal purposes and which was merely being used as bait. (Emphasis supplied). 487 F.2d at 451.

Precisely the same results were reached in United States v. Ford, 525 F.2d 1308 (10th Cir. 1975). There the airline search took place in San Francisco and the seizure of the shipment occurred in Oklahoma City. The Court held that they constituted "one episode and must be considered together for Fourth Amendment purposes." Id. at 1310. The Court validated both the search and the seizure.

As I understand this record, the Memphis seizure Per se was not attacked. The contention is that it was tainted by an allegedly unconstitutional seizure in California. Aside from the reasoning reflected in the above cases, the Memphis seizure was made under exigent circumstances and was supported by compelling probable cause indeed the Memphis authorities knew to a certainty that contraband drugs were contained in the shipment. They were not able, however, to abide the Fourth Amendment requirement of "particularly describing the place to be searched, and the person or things to be seized," until after the respondent showed up to claim the shipment. It then became expedient and exigent that the seizure be made instanter.

I hold that the California search and the Tennessee seizure satisfied the requirements of the Fourth Amendment of the Constitution of the United States and of Article I, Section 7 of the Constitution of Tennessee.

II.

The Entitlement of the State to Relief under the Common Law

Writ of Certiorari

A. General

The caption of this section poses a problem of critical concern. I approach it within the context of a fixed opinion that the State's interest has been plainly and palpably prejudiced by the ruling of the trial judge; that under current concepts the State has no right of appeal from an interlocutory judgment (in this case it is in effect a judgment of acquittal); and that a denial of this writ would operate to cause the State to forfeit an interest it can never recapture.

I applaud the criminal law explosion of the last two decades resulting in a more enlightened system of criminal justice, but a decent regard for fundamental fairness compels the conclusion that the State and its citizenry have an interest in the enforcement of our criminal laws. Criminal procedures must meet the critical criteria of mutual fairness.

Blind adherence to precedents tends to preclude progress and frustrate fairness. In my view, it is unthinkable that the State should lose a major criminal case on an interlocutory ruling at the trial level with no right of review.

Being guided by these beliefs and by what I conceive to be the interest of justice, I am granting the State's petition for certiorari and supersedeas.

B.

The Nature and History of the Common Law Writ

Section 27-801, T.C.A., provides:

The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy.

Section 27-802, T.C.A., provides:

Certiorari lies: (1) On suggestion of diminution; (2) where no appeal is given; (3) as a substitute for appeal; (4) instead of audita querela; (5) instead of writ of error.

These two Code sections appeared in the Code of 1858 as Sections 3123 and 3124, respectively, and it is doubtful that they were intended to apply to the appellate courts. ² This, however, is of no significance, since they track the common law.

"The writ of certiorari does not owe its existence to constitutional provision ³ or statutory enactment." Tennessee Central Railroad Co. v. Campbell, 109 Tenn. 640, 645, 75 S.W. 1012, 1012 (1903). It is a common law writ of ancient origin and has been characterized as extraordinary, remedial, revisory, supervisory, and prerogative. ⁴

C. The General Rule

At the very outset, I recognize the General rule, as cogently stated in State ex rel. McMorrow v. Hunt, 137 Tenn. 243, 250, 192 S.W. 931, 933 (1917):

It must be borne in mind that the functions of certiorari are simply to ascertain the validity of proceedings before a court of justice, either on the charge of their invalidity, because the Essential forms of the law have not been observed, or on that of the Want of jurisdiction in the court entertaining them. The writ has never been employed to inquire into the correctness of the judgment rendered where the court had jurisdiction, and was therefore competent. Hence it has been held that the supervisory jurisdiction of the court on a certiorari must be Restricted to an examination into the external validity of the proceedings had in the lower court. It cannot be exercised to...