PEOPLE v. HEFTY

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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Marlan Ray HEFTY, Defendant and Appellant.

Cr. 11494.

Decided: March 29, 1982

Latimer & Kenkel and Jerry J. Kenkel, Chico, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen. and Robert D. Marshall and Garrett Beaumont, Deputy Attys. Gen., for plaintiff and respondent.

During a routine airport security search, a quantity of cocaine was discovered in defendant's hand luggage.   Following denial of a motion to suppress the evidence (Pen.Code, § 1538.5), defendant was convicted upon a negotiated plea of guilty to possession of cocaine (Health & Saf. Code, § 11351), and placed on four years' probation.

We conclude the motion was properly denied.   In the airport security area, defendant was advised that his hand luggage, too large for the X-ray machines, would have to be hand searched.   Defendant did not verbally respond but unlocked the suitcase for the guard.

During the search, the guard, Linda McVey, removed a manila envelope from the pocket of a pair of pants.   She asked defendant what the envelope contained, to which defendant responded, “letters.”   because the contents “Definitely did not feel like letters,” McVey opened the envelope to look for dangerous objects.   Inside was another envelope containing two plastic baggies with white powder.   McVey advised a deputy sheriff, standing nearby, that the envelope possibly contained cocaine.   Shortly thereafter, defendant was arrested for cocaine possession.

On appeal defendant argues that (1) his consent to the search was coerced, (2) the People cannot rely on the administrative search exception to the warrant requirement on appeal because that theory was not raised in the trial court, and (3) in any event the administrative search exception is inapplicable.

The denial of the motion was proper.   First, the search may be upheld under the administrative search exception to the warrant requirement.   Defendant's contention that this theory was waived by the People in the court below does not find support in the record.

 Generally, the People may not inject a new theory into an appeal;  to do so would deprive a defendant of a fair opportunity “to present evidence in response to it, to cross-examine the prosecuting witnesses on testimony supporting the new theory, or to argue before the trier of fact the theory's invalidity or inapplicability.”  (People v. Miller (1972) 7 Cal.3d 219, 227, 101 Cal.Rptr. 860, 496 P.2d 1228.)

 In support of the motion to suppress defendant argued by brief and in his oral presentation that the search could not be justified under the administrative search exception to the warrant requirement, citing People v. Hyde (1974) 12 Cal.3d 158, 115 Cal.Rptr. 358, 524 P.2d 830.1  The record indicates that the applicability of the administrative search exception was clearly in issue.   The security guard testified she searched the envelope suspecting it might contain weapons.   Defendant responded to that testimony by attempting to distinguish the case from Hyde which deals with the administrative search exception to the warrant requirement.   That theory is applicable in this instance.   The People did not waive the theory nor was defendant in any way deprived of an opportunity to argue the invalidity or inapplicability of that theory before the trier of fact.  (See People v. Miller, supra, 7 Cal.3d at p. 227, 101 Cal.Rptr. 860, 496 P.2d 1228.)

 It is settled that preboarding airport searches made for the purpose of discovering weapons or explosives and deterring hijackers are constitutionally permissible.  (People v. Hyde, supra, 12 Cal.3d 158, 115 Cal.Rptr. 358, 524 P.2d 830;  People v. Stasi (1975) 45 Cal.App.3d 373, 119 Cal.Rptr. 447;  People v. Bleile (1975) 44 Cal.App.3d 280, 118 Cal.Rptr. 556;  People v. Goodyear (1975) 54 Cal.App.3d 157, 126 Cal.Rptr. 368.)   Moreover, as long as the initial intrusion is justifiable as a regulatory effort to prevent airplane hijacking, “the incidental discovery of contraband [during the search] does not offend the Fourth Amendment.”  (People v. Hyde, supra, 12 Cal.3d at p. 166, 115 Cal.Rptr. 358, 524 P.2d 830.)   However, “Like all searches subject to the Fourth Amendment, an administrative screening must be measured against the constitutional mandate of reasonableness.”  (Ibid.)

Defendant relies upon United States v. Kroll (8th Cir. 1973) 481 F.2d 884, in support of his argument that his consent to the search was coerced.   In Kroll, the court stated, “Compelling the defendant to choose between exercising Fourth Amendment rights and his right to travel constitutes coercion;  the government cannot be said to have established that the defendant freely and voluntarily consent [sic] to the search when to do otherwise would have meant foregoing the constitutional right to travel.”  (P. 886.)   The rationale of Kroll is flawed.  (Cf. People v. Hyde, supra, 12 Cal.3d at p. 162, fn. 2, 115 Cal.Rptr. 358, 524 P.2d 830.)   Air transportation as a means of exercising one's so-called right to travel has been severely restricted by conditions requiring search or scrutiny of person and property.   That limitation is analogous to California's drug-alcohol limitation on the vehicular means of exercising the right to travel.

 The right to travel has not been impinged by such limitations or search conditions, only the means of accomplishing that right.   In the present instance, the defendant could have driven or utilized available rail or bus transportation without subjecting himself or his baggage to search.   At the time he was well aware of airport security precautions.   The right to travel is in no way restricted by airport security conditions.

 By voluntarily unlocking his suitcase to permit airport security search, defendant consented to the search.   The consent was not coerced;  he was not suspected of any crime and was free to leave without restraint.

 Upon discovery of the envelope, the security guard's suspicion was aroused when defendant told her it contained letters, because upon her touch, the contents “Definitely did not feel like letters.”   She testified the envelope was opened in order to look for weapons.   Such conduct was not unreasonable.   The immediate search of the envelope was necessary to ensure that defendant was “not carrying materials inimical to a safe air journey.”   (Hyde, supra, 12 Cal.3d at p. 169, 115 Cal.Rptr. 358, 524 P.2d 830.)   A search warrant was not necessary.  “Airport searches are singularly unsuited to the warrant procedure.”  (Id., at p. 168, 115 Cal.Rptr. 358, 524 P.2d 830;  see also People v. Goodyear, supra, 54 Cal.App.3d at pp. 162–163, 126 Cal.Rptr. 368.)   Nor was McVey required to put the envelope itself through the X-ray machine before opening it.   As was said in People v. Bleile, supra, 44 Cal.App.3d at page 285, 118 Cal.Rptr. 556, “If security officials had to test each and every package ․ separately, it would create intolerable and unreasonable delays in the boarding and inspection processes.”

The judgment is affirmed.

I concur in that portion of the majority opinion which holds that the search of defendant's hand luggage during a routine predeparture screening of prospective airline passengers was a valid administrative search under People v. Hyde (1974) 12 Cal.3d 158, 115 Cal.Rptr. 358, 524 P.2d 830.

I dissent, however, from that part of the opinion which holds the search was also justified under a theory of consent.   That theory, as applied to airport searches, was discredited in Hyde when the court observed that “․ the consent theory is inappropriate.   Consent, to be valid, must be free and voluntary.  (Bumper v. North Carolina (1968) 391 U.S. 543, 548 [88 S.Ct. 1788, 1791, 20 L.Ed.2d 797, 802].)  The court in United States v. Kroll (8th Cir. 1973) 481 F.2d 884, 886, pointed out that ‘Compelling the defendant to choose between exercising Fourth Amendment rights and his right to travel constitutes coercion;  the government cannot be said to have established that the defendant freely and voluntarily consent [sic] to the search when to do otherwise would have meant foregoing the constitutional right to travel.’ ”  (Id., at p. 162, fn. 2, 115 Cal.Rptr. 358, 524 P.2d 830.)

FOOTNOTES

1.   The prosecutor did not submit points and authorities in opposition to defendant's motion to suppress.

EVANS, Associate Justice.

PUGLIA, P. J., concurs.

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