PEOPLE v. MAYBERRY

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

The PEOPLE, Plaintiff and Respondent, v. Joseph Patrick MAYBERRY, Defendant and Appellant.

Cr. 11686.

Decided: March 25, 1981

Walter Maund, San Diego, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen. and Richard D. Garske and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

Corky's Concentration Concerning Cannabis

An amended information filed December 12, 1979, charged appellant with: (1) transporting marijuana (Health & Saf. Code, s 11360, subd. (a)); (2) possessing marijuana for sale (Health & Saf. Code, s 11359); and (3) possessing concentrated cannabis (Health & Saf. Code, s 11357, subd. (a)).

After appellant's motion to suppress under Penal Code section 1538.5 was denied, he entered a plea of guilty to the charge of transporting marijuana. He was given a three-year suspended sentence with 60 days confinement, required to register pursuant to Health and Safety Code section 11590 and submit to other conditions of probation.

Mayberry appeals the denial of the 1538.5 motion to suppress.

On August 8, 1979, Officers Cooper and Flores of the San Diego Police Department's Narcotics Task Force were on duty at the San Diego Airport. Officer Cooper was checking all luggage from certain inbound flights originating in Florida for evidence of narcotics assisted by a fully trained and qualified narcotics dog, Corky. The airport authority and the airlines had granted law enforcement officers permission to be in the baggage area to check incoming luggage.

Appellant was flying to San Diego from Dayton, Ohio. He had boarded American Airlines flight 683 from Miami at the Dallas-Ft. Worth Airport. No law enforcement officer had received any tip that appellant's luggage contained contraband, nor was there any other reason to be suspicious of appellant's luggage.

The Narcotics Task Force justifies its search of all luggage off incoming flights from Florida by the “high” probability a Florida flight will have narcotics on board. Examination of the testimony shows in the year 1979 there were 25 narcotics cases made from all incoming flights to San Diego. Of those 25 cases, 14, or 56%, were from flights originating in Florida. During 1979, there were five flights a day from Florida into San Diego, or 1825 flights. Less than 1% (approximately .76%) of the Florida flights were found to have narcotics aboard.

Testimony further shows the NTF has excellent contacts in Florida, both law enforcement officers and informants.

When Corky “alerted” to appellant's luggage an identifying tape was placed on the suitcase and it was sent out with the rest of the luggage from the flight. After appellant picked up the suitcase, Officer Cooper identified himself to appellant and requested that appellant accompany him to an airport office for an investigation. Appellant agreed. Appellant was then informed of Corky's “alert.” Officer Cooper requested permission to search appellant's luggage. Officer Cooper told appellant he had never failed to get a warrant under similar circumstances before appellant signed a written consent form, but after appellant had consented orally.

Appellant was advised of his Miranda rights before the suitcase was actually opened.

Three requirements are to be met before the use of a narcotics dog will be upheld. (See People v. Evans (1977) 65 Cal.App.3d 924, 933, 134 Cal.Rptr. 436.)

(1) The dog and its handler must be fully qualified;

(2) The dog and its handler must make their observations from a place where they have a right to be and where they are not committing a trespass on private property; and

(3) The investigation with the dog must not be a “general exploratory search.” (People v. Nagdeman (1980) 110 Cal.App.3d 404, 410, 168 Cal.Rptr. 16; People v. Williams (1975) 51 Cal.App.3d 346, 349, 125 Cal.Rptr. 253.) There must be “some preknowledge or reasonably strong suspicion that contraband is to be found in a particular location ” (People v. Evans, supra, 65 Cal.App.3d at p. 933, 134 Cal.Rptr. 436.) Appellant has stipulated that the first two requirements have been met.

The question presented here is whether the use of the narcotics dog to check all luggage from Florida flights was a constitutionally impermissible invasion of appellant's reasonable expectations of privacy. We hold it was.

California cases “have consistently held that reliable trained dogs may be used to corroborate an informant's tip on the presence of narcotics in specific pieces of luggage (citations).” (People v. Nagdeman, supra, 110 Cal.App.3d at p. 410, 168 Cal.Rptr. 16; see also People v. Lester (1980) 101 Cal.App.3d 613, 615, 161 Cal.Rptr. 703; People v. Furman (1973) 30 Cal.App.3d 454, 457, 106 Cal.Rptr. 366.) They may also be used to corroborate a police officer's suspicions based on her own observations made in the course of her duties. (People v. Denman (1980) 112 Cal.App.3d 1003, 1010, 169 Cal.Rptr. 742.) Federal cases are in accord. (See, e. g., United States v. Bronstein (2d Cir. 1975) 521 F.2d 459; United States v. Solis (9th Cir. 1976) 536 F.2d 880.)

However, use of narcotics dogs in a more general, exploratory search not directed at a particular target has been upheld only in clearly exceptional circumstances. The exploratory searches upheld in People v. Matthews (1980) 112 Cal.App.3d 11, 169 Cal.Rptr. 263, and United States v. Race (1st Cir. 1976) 529 F.2d 12, were port of entry searches by customs agents. If the inspection is non-intrusive not even suspicion is necessary at a border crossing. (Henderson v. United States (9th Cir. 1967) 390 F.2d 805, 808.) In United States v. Venema (10th Cir. 1977) 563 F.2d 1003, an exploratory search of storage lockers was upheld when the defendant had notice that an exploratory search might be made. The defendant was found to be “in a poor position to assert that he had a justifiable expectation to (sic) privacy” when he conceded that he had been warned by the manager at the time he rented the locker, that she allowed police officers with marijuana detecting dogs to check the premises.

Doe v. Renfrow (N.D.Ind.1979) 475 F.Supp. 1012, upheld an exploratory search with narcotics dogs in a public school setting, “an area where courts have not granted full application of the Fourth Amendment's protections.” (Id., at p. 1020.) The case was a civil action. In upholding the search the court stressed the “in loco parentis” status of the school officials, the extensive drug activity discovered at the school in the days immediately before the search and the agreement with the police officer handling the dog that no arrests would occur as a result of finding any drugs upon students.

The facts of the present case do not appear to put it within any exceptional category, but within the general requirement that the dog “not (be) employed in a dragnet operation directed against all flight passengers but rather on the basis of reliable information that reasonably triggered the surveillance ” (United States v. Bronstein (2d Cir. 1975) 521 F.2d 459, 463.)

The People contend that a general exploratory search of all incoming flights from Florida should be upheld on the basis of their statistical data and intelligence indicating a great deal of narcotics trafficking in Florida. These data show that of all narcotics arrests made from flights into San Diego, more than half were from flights originating in Florida. This they contend gives them a reasonable suspicion that narcotics will be aboard any flight from Florida. In 1979, fourteen cases were made from approximately 1825 flights. Narcotics were found on less than one in a hundred flights. We find no basis for placing this transaction in any exceptional category and cannot uphold the general exploratory search. Hence, Corky's efforts were unlawful and the motion to suppress was erroneously denied.

The judgment is reversed with directions to dismiss the action.

FOOTNOTES

FOOTNOTE.  

TODD, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

GERALD BROWN, P. J., and WORK, J., concurs.