PEOPLE v. McGREW

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

The PEOPLE of the State of California, Plaintiff and Appellant, v. Kenneth T. McGREW, Defendant and Respondent.

Cr. 3278.

Decided: February 17, 1969

James Don Keller, Dist. Atty., and Richard Bein, Deputy Dist. Atty., for plaintiff and appellant. George H. Chula, Santa Ana, for defendant and respondent.

OPINION

The People appeal from a Penal Code, section 1385 order dismissing their action against Kenneth T. McGrew based upon the granting of McGrew's motion to suppress evidence (Pen.Code, § 1238(7)).

McGrew was indicted for one count of transporting marijuana (Health & Saf. Code, § 11531) and one count of possessing marijuana for sale (Health & Saf.Code, § 11530.5). McGrew moved under Penal Code, section 1538.5 to suppress certain evidence which the People concede was indispensible to a conviction. The trial court granted McGrew's motion on the ground the evidence was the product of illegal searches and seizures. The dismissal followed because the People conceded they had no case without the suppressed evidence.

Neither party gives this court any assistance with a narrative summary of the facts. The district attorney devotes over 20 pages of his brief paraphrasing the testimony of each witness in the order the testimony was produced at trial. This results in a disjointed, redundant, nonchronological, overextended and unsatisfactory presentation of the facts. McGrew adopts the People's presentation, stating it is adequate and he does not want to burden this court with a lengthy factual repetition.

About 4:00 p. m. Sunday, June 25, 1967, McGrew took a loaded 112 pound new black footlocker to the United Air Lines freight office at San Diego's Lindbergh Field for shipment to San Francisco. McGrew signed an airway bill as ‘Kent McGraw’, stating the footlocker contained books and clothes. He consigned it to himself in San Francisco where he said he was destined on a midnight flight. McGrew said he would be back; he had more to ship which he could not put in his car at the same time as the black footlocker.

Charles J. Dowling, Jr., the United freight agent who waited on McGrew, suspected the footlocker contained marijuana. United Air Lines had had earlier experience with people shipping contraband. The airlines investigative unit had passed the word for freight handlers to be on the alert for new footlockers weighing 80 to 120 pounds, as marijuana had been shipped in such containers. In addition McGrew had appeared nervous, had long hair and looked like a ‘hippie.’

Dowling did not know the origin of the warning to be alert for heavy new footlockers. He had heard ‘scuttlebutt’ it may have come from Honolulu Police who had traced marijuana to a new footlocker airshipped through United.

Dowling called his supervisor, told him his suspicions. The supervisor gave him permission to open the footlocker. Dowling knocked the pins out of the hinges on the locked footlocker, opened the top and saw several bricks (packages wrapped in brown paper) of what he thought was marijuana. A month earlier Dowling had been present when a similar footlocker was opened. He saw inside marijuana bricks wrapped in plastic. The brown paper wrapped packages appeared to contain the same substance as the marijuana he had seen earlier.

Dowling again called his supervisor and told him what he had found. The supervisor instructed him to call the police. About 5:00 p. m. a Mr. Burgess from the San Diego Police Department responded to Dowling's call. Dowling took him to the footlocker and showed him the contents. Other officers arrived, including State Narcotics Agent McLaughlin. The officers removed all but one marijuana brick and replaced them with ballast bags.

Dowling alerted the Western Airlines freight office and passenger ticket personnel to watch for McGrew and to call United if he were seen. Agent McLaughlin also contacted several airlines, furnishing McGrew's description.

About 8:00 p. m. McGrew took a different footlocker to the Western Airlines freight office for shipment to San Francisco. McGrew again identified himself as ‘Kent McGraw’, consigned the footlocker to himself in San Francisco, said the locker contained books and dishes and said he would be taking a midnight flight to San Francisco.

Richard Sweeney, a Western Airlines freight agent, called United Air Lines because of Dowling's warning. Within minutes narcotics agents including Agent McLaughlin arrived at Western. McLaughlin compressed the top of the footlocker and detected an odor of marijuana coming from it. He asked Sweeney and Joseph Case, the air freight agent who had waited on McGrew, to open the footlocker. Sweeney removed the hinge pins, opened the footlocker, revealing brown paper wrapped Kilomarijuana bricks inside. All but one brick were removed and replaced with a sandbag and newspapers.

About 11:00 p. m. Case told Agent McLaughlin McGrew had just checked a blue suitcase at the Western Airlines ticket counter and purchased a ticket for San Francisco. Both Case and Dowling pointed McGrew out to McLaughlin in the airline terminal restaurant.

McLaughlin sat next to McGrew, showed his identification, said he was a State Narcotic Bureau agent, and asked McGrew's name. McGrew replied, ‘Kenneth McGrew.’ The agent gave McGrew a Miranda warning; McGrew said he understood it; McGrew admitted he had shipped a trunk that afternoon from the United Air Lines freight terminal. McLaughlin arrested him.

McLaughlin impounded McGrew's blue suitcase, searched it and found 18 more Kilo marijuana bricks. At no time did the government agent act under authourity of a search or arrest warrant.

The trial court suppressed: evidence of the two marijuana ladened footlockers and the marijuana filled blue suitcase; United and Western airway bills and a baggage claim check for the blue suitcase all of which McLaughlin found on McGrew's person; and McGrew's statements.

The trial court found Dowling acted as a police agent in opening the black footlocker at United Air Lines. The court reasoned agency resulted because the police had asked the airlines to assist in locating marijuana air shipments, and the footlocker opening was the direct and indirect result of police suggestion and instigation.

There was no evidence the police requested or ordered Dowling to open the footlocker. Dowling stated: ‘I opened it up on my own with no instructions from anyone except the permission of the supervisor to do it.’ Whether the suggestion airlines be on the alert for such footlockers originated from the police is immaterial. (The court's finding it did apparently rests on Dowling's testimony of ‘scuttlebutt’.) The police do not necessarily make agents of citizens they warn concerning crimes. One who sees a wanted poster in a post office does not become an FBI agent should he later recognize the wanted suspect, interrogate him and hear incriminating admissions. A parent who heeds a police warning to be on the lookout for marijuana and dangerous drugs with children does not become a police agent when alertly emptying a teenage son's pockets to ready his clothing for the laundry.

While the Fourth Amendment's prohibition against unreasonable searches and seizures applies to the states and renders inadmissible in state courts evidence obtained in violation of that amendment, it does not apply to non-governmental searches by private individuals (People v. Superior Court etc., 70 A.C. 129, 135, 74 Cal.Rptr. 294, 449 P.2d 230). Moreover, a motion to suppress evidence under Penal Code, section 1538.5 is directed solely to searches and seizures conducted by government agents (People v. Superior Court, supra, 70 A.C. 129, 134, 74 Cal.Rptr. 294, 449 P.2d 230). Here Dowling did not act in a joint enterprise with, or as an agent of the governmental law enforcement agency. The government's participation, if any, fell short of coloring Dowling's conduct with the taint of governmental authority. (See Stapleton v. Superior Court etc., 70 A.C. 101, 103–106, 73 Cal.Rptr. 575, 447 P.2d 967.) The trial court's finding Dowling acted as a police agent when he first opened the black footlocker is not supported by substantial evidence. We need not decide whether Dowling had probable cause to search or whether the airline's tariff, which allows inspection of shipments, justified the search, because the Fourth Amendment does not make Dowling's discovered evidence inadmissible.

When Dowling, based upon his previous experience, recognized marijuana in the footlocker, his report to the police gave them probable cause to believe the footlocker contained contraband. Where the police have probable cause to believe an automobile contains marijuana they may make a warrantless search of it not incident to arrest. (Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538; Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 283–284, 69 L.Ed. 543; People v. Madero, 264 A.C.A. 126, 129, 70 Cal.Rptr. 159.) The rule has its basis in the mobility of motor vehicles. In Carroll v. United States, supra, the rule was formulated, in part, upon an analogy to goods in the course of transportation, which Congress has historically treated differently with regard to search authorization than it has goods in a fixed dwelling or other building. (Carroll v. United States, supra, 267 U.S. 132 at pp. 150–153, 45 S.Ct. at pp. 284–285, 69 L.Ed. 543.)

Here McGrew had placed the two footlockers and the suitcase in the course of transportation. One of two things was bound to happen unless the police seized them. Either they would be shipped out of the jurisdiction to San Francisco or the owner might return and remove the shipments from transit.

It is our opinion the rule allowing a warrantless search of motor vehicles, not incident to an arrest, where the police have probable cause to believe contraband is present, applies with equal reason to goods in the course of transportation. Support for this view is found in Hernandez v. United States, 9 Cir., 353 F.2d 624.

Having probable cause to search the footlocker at United Air Lines the police had equal cause to search the footlocker at Western Airlines. It was shipped by a person matching the description of the United shipper, who gave the same name and told the same travel plans.

When Dowling and Case identified McGrew in the restaurant as the shipper, the police had probable cause to arrest and search him. The search of the blue suitcase was justified both as incident to McGrew's lawful arrest and because the police had reason to believe it contained marijuana.

The trial court found there was sufficient time for the police to have secured search warrants for both the footlocker at United Air Lines and the footlocker at Western Airlines. We need not determine whether the finding is supported where the shipments were made on a Sunday evening, each would have been shipped within three hours and McGrew could have withdrawn the shipments from the course of transportation. The finding is irrelevant. In Cooper v. State of California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730, the correct rule is stated:

‘It is no answer to say that the police could have obtained a search warrant, for ‘[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’'

The order of dismissal is reversed and the order suppressing evidence vacated.

BROWN, Presiding Justice.

COUGHLIN and WHELAN, JJ., concur.