PEOPLE v. KAPSA (1981)

Appellant, James E. Kapsa, was charged in an information with transportation of heroin (Count I: Health & Saf.Code, § 11352) and possession of heroin for sale (Count II: Health & Saf.Code, § 11351). Motion to dismiss information and suppress evidence (Pen.Code, §§ 995 and 1538.5) were denied. Appellant changed his plea to guilty of Count I and was granted probation.

Kapsa contends the court erred under United States Constitution, Amendments IV and XIV, and under California Constitution, Article 1 and § 13, in overruling appellant's objection to the detention and search of his package.

Kapsa brought a package to United Airline Freight Offices on August 27, 1979, at about 7:30 p. m. for shipment to Fresno. When asked about the contents of the package by Kittrick Ireland and Skip Edwards, airline employees, he was unspecific, vague, and unsure, arousing suspicions in the minds of the employees as to the contents of the package. Edwards advised his supervisor of his suspicions. The package was placed in a secure area and law enforcement officials were advised. The next morning, Narcotics Task Force Agent John Walker advised Charles Dowling, day supervisor at the freight office, that a narcotics detecting dog had a positive reaction to the package and that he would obtain a search warrant.

After taking an affidavit to the district attorney, NTF Agent Walker learned the search warrant could not be processed until the next day. At this time Dowling advised Walker that a second “detection” dog had a negative reaction. Walker advised Dowling of the problems in obtaining a search warrant until the next day and that Dowling would have to hold the package.

Dowling, the freight supervisor, decided he had a responsibility to the customer to either search the package or send it on its way. Despite Walker's order to hold the package, Dowling opened it and found a brown powdery substance. Walker was informed that the package had been opened at about 4:25 p. m. and went to the office.

It was determined that the package contained heroin and Kapsa was arrested.

Kapsa contends, on appeal, that the detention of the package until the next day was overlong, that the dog inspection was illegal because the police lacked reasonable grounds to suspect the package contained contraband, that the action of the airline agent in opening the package without a warrant was illegal and further, that activities of the freight agent were, in effect, the action by a state agent.

Respondent replies that the detention for 20 hours was reasonable under the circumstances, that the use of the dogs was proper and that the airline agent's search was a search by a private individual and not subject to Fourth Amendment rules.

Was the detention of the package a violation of Kapsa's Fourth Amendment rights? We find that the Fourth Amendment has, at the very best, only a remote concern with the detention of an article of personalty such as the package in this case. We shall not so stretch it in view of the fact that the initial detention was by non-law enforcement personnel and further, that when law enforcement first came on the scene a narcotics detection dog, making an airport baggage check, had a positive reaction. The seizure for 20 hours, in view of the nature of the bailment, was certainly not unduly long, although one might reasonably anticipate delivery of intrastate air freight on the same day.

The case of United States v. Van Leeuwen (1970) 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282, headnotes 3, 4, 5 and 6, is almost on all fours with the facts of this case. In Van Leeuwen, a delay of 29 hours to obtain a search warrant, after suspicions were aroused as to contents of the package to be mailed and the sender, was found to be reasonable. Justice Douglas stated that detention of suspicious packages produced by defendant for first class mailing did not constitute an “invasion of the right ‘to be secure’ in the ‘persons, houses, papers, and effects' protected by the Fourth Amendment against ‘unreasonable searches and seizures.”’ (Id., at p. 252, 90 S.Ct. at p. 1032.) Kapsa's contention that the detention was unreasonable is meritless. The detention was proper.

Was the use of the narcotic detection dogs proper? The investigation of the package in this case was not for general, exploratory purposes, but was admittedly based upon the suspicions aroused by Kapsa's uncertainty as to the contents of the package. Defendant's cited authorities, People v. Furman (1973) 30 Cal.App.3d 454, 106 Cal.Rptr. 366, United States v. Solis (1976) 9th Cir., 536 F.2d 880, and the People's authorities, Furman, Solis, and People v. Lester, 101 Cal.App.3d 613, 161 Cal.Rptr. 703, all stand for the proposition that use of dogs to sniff luggage is proper if it is not a mere exploratory search. In this case, the record is sparse as to the use of the dog or dogs. The handler, Agent Phil Cooper, did not testify. The inspection was conducted after the air freight employees related their suspicions. It was reasonable to detain the package until it could be checked by using the dogs. Again, United States v. Van Leeuwen, supra, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282, would allow the use of the narcotic detection dog during an ongoing investigation. The use of the dog was reasonable and not violative of any of the strictures contained in the cited authorities.

Kapsa contends that the initial detention failed to show specific facts to justify the one-half day delay until the dog could check out the package. We hold that U.S. v. Van Leeuwen, supra, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed. 282, disposed of this argument. We find that the conditions for detention and narcotic dog detention were satisfied. A delay of less than one day in delivery of allegedly “unperishable” goods was not unreasonable under the circumstances.

Was the search by the freight supervisor, a private individual, in effect, the search by a state agent? The evidence is overwhelming that the opening of the package was done without the authority of Narcotics Task Force Officer Walker, and clearly, contra to instructions “not to open the package until a search warrant could be obtained.” People v. McKinnon (1972) 7 Cal.3d 899, 103 Cal.Rptr. 897, 500 P.2d 1097, would seem to dispose of all of Kapsa's contentions. The search in this case was conducted by a private citizen, not, at the time, involved with law enforcement in any manner. Private airline employees need not have probable cause to open a package (People v. McKinnon), unless they are chargeable as acting as police agents. Clearly such conduct on the part of Dowling is not proscribed by the Fourth or Fourteenth Amendments to the United States Constitution, and he was not acting as a law enforcement agent.

Judgment affirmed.

FOOTNOTES

FOOTNOTE.  

KILGARIF,* Associate Justice. FN* Superior Court Judge sitting under assignment by the Chairperson of the Judicial Council.

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