PEOPLE v. SEGOVIA (1970)

OPINION

Defendant appeals from his conviction of the offense of possession of marijuana upon a plea of guilty following denial of his motion to suppress under Penal Code, section 1538.5.

The issue on appeal is whether the court erred in denying defendant's motion to suppress evidence he was in possession of marijuana allegedly the product of an unlawful search and seizure.

A police officer was informed two men were going to pick up 15 kilos of marijuana and take them to San Francisco; was given a description of the men, but not their names; contacted an airline employee and advised the latter he, the officer, suspected two men of carrying contraband; gave the employee a description of the men; asked the employee, in the event the latter happened to see these men, to let the officer know. The employee, who had not met the officer before, told the latter ‘we would keep an eye open’. Thereafter the employee noted a man fitting the description of one of the individuals described by the officer check a suitcase with another employee, leave, and thereafter return with defendant whom he introduced as his buddy. After the suitcase was checked the employee took it into his custody; removed it to a back room; noted the odor of marijuana about the suitcase; opened it; and in a flight bag within the suitcase observed ‘six packages in a kind of a turquoise paper’ containing marijuana. Thereupon the employee notified the officer he had found marijuana in a suitcase checked by a person fitting the description given him by the officer. The officer went to the back room; saw the open suitcase with its contents; and took them into custody.

No one, including the officer, asked the employee to take the suitcase into custody or search it. The employee conducted the search in the exercise of his own discretion. On other occasions he had searched baggage he believed contained marijuana. In each instance his search was an exercise of his own descretion and was not requested by the police.

The motion to suppress was directed to all evidence relating to the marijuana seized by the officer, and was premised upon the ground the police jointly participated with the airline employee in the latter's search of the suitcase, citing the decision in Stapleton v. Superior Court, 70 Cal.2d 97, 73 Cal.Rptr. 575, 447 P.2d 967, in support of this position. The record shows the issue of joint participation was the only issue presented to, considered, and determined by the trial court. In a written ‘MEMORANDUM DECISION’ the trial judge, after stating he was ‘prepared to find as follows', related the evidence before him; distinguished the situation at bench from the situation in Stapleton v. Superior Court, supra, 70 Cal.2d 97, 73 Cal.Rptr. 575, 447 P.2d 967; stated the activity of the airline employee was upon his own initiative, and the activity of the police was similar to that presented in Gold v. United States, 9 Cir., 378 F.2d 588; and concluded: ‘For each of the foregoing reasons, both factual and legal, the motion of defendants will be denied.’

The memorandum decision of the trial judge may be used on appeal to determine the basis of his decision in the case. (Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740, 750, 47 P.2d 273; Winegar v. Gray, 204 Cal.App.2d 303, 312, 22 Cal.Rptr. 301; Arvin-Kern Co. v. B. J. Service, Inc., 178 Cal.App.2d 783, 793, 3 Cal.Rptr. 238.) Unless contradicted by the record, implied in an order of the court is a finding of every fact essential to support the order which is warranted by the evidence. (In re Estate of Rule, 25 Cal.2d 1, 10, 152 P.2d 1003; People v. Tannehill, 193 Cal.App.2d 701, 706, 14 Cal.Rptr. 615.)

Implied in the order of the court denying defendant's motion to suppress is a finding, expressed in the judge's memorandum decision, the airline employee, in searching the suitcase, acted on his own initiative and the police did not direct, request or in any way participate in his action. Defendant's contention the evidence does not support this finding is without merit. The conduct of a private citizen not acting under authority of the State is not subject to constitutional search and seizure proscriptions. (People v. Superior Court, 70 Cal.2d 123, 128–129, 74 Cal.Rptr. 294, 449 P.2d 230.)

Nevertheless, for reasons hereinafter stated, we reverse with directions to reconsider the motion.

Several months after the court denied defendant's motion to suppress, the Supreme Court, in People v. McGrew, 1 Cal.3d 404, 82 Cal.Rptr. 473, 462 P.2d 1 and Abt v. Superior Court, 1 Cal.3d 418, 82 Cal.Rptr. 481, 462 P.2d 10, applied to personal effects the rule probable cause to search and seize does not justify a search or seizure without a warrant unless the search and seizure is an incident of an arrest, ‘there is a danger of ‘imminent destruction, removal, or concealment of the property intended to be seized’, or where the evidence is in plain sight, which ‘is, in fact, no search for evidence.’' (People v. McGrew, supra, 1 Cal.3d 404, 409, 82 Cal.Rptr. 473, 476, 462 P.2d 1, 4; Abt v. Superior Court, supra, 1 Cal.3d 418, 421, 82 Cal.Rptr. 481, 462 P.2d 10; see also People v. Marshall, 69 Cal.2d 51, 56, 60, 69 Cal.Rptr. 585, 442 P.2d 665.)

Where seizure is without a warrant, as in the case at bench, the burden to justify such is upon the People. (People v. Marshall, supra, 69 Cal.2d 51, 56, 69 Cal.Rptr. 585, 442 P.2d 665.)

In light of the fact the trial court denied defendant's motion solely upon the ground the airline employee was not a police agent we may not infer it decided any of the factual issues essential to a determination whether the seizure occurring in the back room of the airport was within an exception to the rule requiring a warrant. The record indicates the probable existence of factual issues respecting whether the marijuana was in plain sight of the officer at the time of the seizure, or whether there was a danger of imminent removal of the marijuana which would frustrate any attempt to effect a seizure through a warrant. (Gen. see People v. Superior Court, 11 Cal.App.3d 887, 891, 90 Cal.Rptr. 123.) The suitcase containing the marijuana had been checked with the airline by a passenger with a ticket on a standby basis. We note this state of the evidence in light of the statement of the court in People v. McGrew, supra, 1 Cal.3d 404, 410, 82 Cal.Rptr. 473, 476, 462 P.2d 1, 4, that the footlockers containing the marijuana in that case ‘were safely in the custody of the airlines. Both footlockers had been shipped on a ‘space available’ basis, so that the airlines were not even under a contractual obligation to ship the footlockers before a warrant could be obtained.'

The judgment is reversed with directions to the trial court to set aside defendant's plea of guilty, set aside its order denying defendant's motion to suppress, and to reconsider that motion in light of the evidence before it and any additional admissible evidence the parties may produce.

COUGHLIN, Associate Justice.

GERALD BROWN, P. J., and WHELAN, J., concur. J., concur.