PEOPLE v. BLEILE (1973)

By information appellant was charged with possession for sale of marijuana in violation of Health and Safety Code section 11530.5. After denial of appellant's motion to suppress evidence under Penal Code section 1538.5, the cause was submitted on the testimony contained in the preliminary hearing transcript after the necessary waivers of constituional rights. The court found appellant guilty of possession of marijuana in violation of Health and Safety Code section 11530, a lesser but necessarily included offense. Appellant was sentenced to 90 days in the county jail, imposition of sentence was suspended and appellant was placed on probation. This appeal is taken from the judgment of conviction.

Deputy United States Marshal Ronald Nichols, assigned to the air piracy detail, was on duty the morning of May 26, 1972, at Gate 58, Los Angeles International Airport, checking the boarding of Western Airlines flight 84 to San Francisco. A magnetometer thorough which all boarding passengers were required to pass gave a high reading when appellant passed through it, carrying a luggage bag. Marshal Nichols requested appellant to pass through the machine again without the bag, whereupon an acceptable reading was given. Marshal Nichols requested appellant to step around the corner to a position at a table and to open his bag for inspection, which appellant did.

Upon opening the luggage Marshal Nichols saw a large yellow plastic bag, about three feet by two and a half feet in size. The plastic bag was tied in a knot at the top. Marshal Nichols smelled the odor of marijuana emanating from the yellow bag. Prior to becoming a Deputy U.S. Marshal, Nichols had been with the Los Angeles Police Department for five years. He had smelled marijuana approximately 300 times. He concluded that the bag contained marijuana.

Nichols opened the yellow bag and inside it he discovered two clear cellophane bags containing marijuana. The yellow plastic bag also contained soiled laundry, and in this opinion we shall refer to it as the laundry bag, to distinguish it from appellant's carry-on flight bag and from the cellophane bags containing the marijuana.¹

Nichols arrested appellant and turned him and the evidence over to the Los Angeles Police Department. The two cellophane bags contained 577 grams of marijuana.

Appellant's sole contention on this appeal is that the trial court erred in denying his motion to suppress the evidence under Penal Code section 1538.5, because the marijuana was procured as the result of an illegal search and seizure. In support of this contention appellant suggests and argues several proposed restrictions to the search.

At the outset, however, appellant concedes that the use of the magnetometer was not an improper search and also concedes that it was permissible to open appellant's flight bag to determine the source of the magnetometer's high reading. Marshal Nichols testified that when he saw the magnetometer reading, he requested appellant to step around the corner to a table and open his bag for inspection, and that appellant did so at his request. Appellant's counsel conceded at trial that appellant consented to the opening of the flight bag. This concession is in accord with case law upholding the search of carry-on luggage of boarding passengers. (People v. Botos, 27 Cal.App.3d 774, 779, 104 Cal.Rptr. 193; People v. DeStrulle, 28 Cal.App.3d 477, 482, 104 Cal.Rptr. 639; United States v. Slocum, 464 F.2d 1180, 1183 (3d Cir. 1972); United States v. Mitchell, 352 F.Supp. 38, 44 (E.D.N.Y.1972).)

Relying upon United States v. Meulener, 351 F.Supp. 1284, 1289–1290 (C.D.Cal.1972), appellant argues that the marshal had a duty to advise him, before opening the flight bag, that appellant had the option either to consent to a search of the flight bag or to leave without boarding the plane. Appellant argues that his consent to the search of the flight bag was invalid in the absence of such a warning. There is no merit to this contention. We have no doubt that the federal district court in the Meulener case was influenced by the closely analogous and at that time well established rule² in the Ninth Circuit that a consent to a search is not voluntary unless it is proved that the person granting the consent was advised of or knew that he had the right to refuse consent. It is equally well established under the law in California state courts that advice to a suspect that consent to search may be refused is not a prerequisite to a showing of voluntary consent. (People v. Tremayne, 20 Cal.App.3d 1006, 1014, 98 Cal.Rptr. 193; People v. Bustamonte, 270 Cal.App.2d 648, 653, 76 Cal.Rptr. 17; People v. Wheeler, 23 Cal.App.3d 290, 305, 100 Cal.Rptr. 198.) The United States Supreme Court recently adopted the California rule that such a warning is not a sine qua non of a voluntary consent to search. (Schneckloth v. Bustamonte, supra, —— U.S. ——, 93 S.Ct. 2041, 36 L.Ed.2d 854 (May 29, 1973), reversing Bustamonte v. Schneckloth, supra, 448 F.2d 699 (9th Cir. 1971).)

Furthermore, if there is reason to believe that a boarding passenger is a potential hijacker, we disagree with appellant's argument that the governmental interest in protecting the security of airlines and airline passengers is satisfied by permitting the suspect to leave the boarding area rather than to submit to search. A potential hijacker might very well proceed to the boarding area of another flight where security officers might be less observant. Even if the potential hijacker did not successfully board a different flight, he may still represent an extreme danger to persons and property inside the terminal. Most hijackers are seriously disturbed and desperate people, and if a hijacker carrying a weapon is prevented from boarding a plane, he might decide to use it at the airport. If the hijacker is carrying a bomb, it might explode at any time.³

Appellant argues further that even if it was proper for the marshal to open the flight bag, the search was impermissibly extended in scope when the laundry bag was opened. We disagree.

When Marshal Nicols opened appellant's flight bag, he observed the laundry bag and smelled the odor of marijuana emanating from it. Nichols' qualifications to recognize the smell of marijuana were unquestioned. It is apparent then, that when Marshal Nichols smelled the odor of marijuana emanating from the laundry bag, he had probable cause to believe that the bag contained contraband. It is well established that a police officer may rely upon all of his senses in determining the presence of probable cause. Reasonable grounds for believing a package contains contraband may be afforded by the odor which the package emits. An officer who smells marijuana has probable cause to believe contraband is present. (People v. McKinnon, 7 Cal.3d 899, 916–917, 103 Cal.Rptr. 897, 500 P.2d 1097; Mann v. Superior Court, 3 Cal.3d 1, 7–8, 88 Cal.Rptr. 380, 472 P.2d 468; People v. Gordon, 10 Cal.App.3d 454, 460–461, 89 Cal.Rptr. 214; In re Elizabeth H., 20 Cal.App.3d 323, 328, 97 Cal.Rptr. 565; People v. Lovejoy, 12 Cal.App.3d 883, 887, 91 Cal.Rptr. 94; People v. Anderson, 9 Cal.App.3d 80, 85, 88 Cal.Rptr. 4; People v. Peterson, 9 Cal.App.3d 627, 633, 88 Cal.Rptr. 597; People v. Christensen, 2 Cal.App.3d 546, 548–549, 83 Cal.Rptr. 17; People v. Nichols, 1 Cal.App.3d 173, 175, 81 Cal.Rptr. 481.)

Here the laundry bag was contained inside appellant's carry-on flight bag, which appellant intended to take with him onto the airplane. In People v. McKinnon, supra, 7 Cal.3d 899, 907–910, 103 Cal.Rptr. 897, 500 P.2d 1097, the Supreme Court held that when the police have probable cause to believe a chattel consigned to a common carrier contains contraband, they may seize and search it without a warrant because otherwise it will be shipped out of the jurisdiction. The well established rule that because of its mobility an automobile may be searched without a warrant if there is probable cause to believe it contains contraband (Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); People v. Laursen, 8 Cal.3d 192, 104 Cal.Rptr. 425, 501 P.2d 1145) was applied to boxes, trunks and other things readily moved. The McKinnon principle is applicable here. Had appellant been permitted to do so, he would have taken the bag out of the jurisdiction on an airplane. Since Marshal Nichols had probable cause to believe the laundry bag contained marijuana, he was entitled to search the bag without a warrant. (People v. McKinnon, supra, 7 Cal.3d at 916–917, 103 Cal.Rptr. 897, 500 P.2d 1097; People v. Thompson, 25 Cal.App.3d 132, 142, 101 Cal.Rptr. 683; People v. Gordon, supra, 10 Cal.App.3d 454, 460–461, 89 Cal.Rptr. 214.)

In his attempt to bolster his argument appellant relies on a statement in People v. Marshall, 69 Cal.2d 51, 59, 69 Cal.Rptr. 585, 422 P.2d 665, that ‘plain smell’ is not the equivalent of ‘plain view.’ Appellant's reliance upon Marshall is misplaced. In Marshall, the officers entered a house without a warrant, and rummaged throughout the house, eventually opening a brown paper bag in a closet when they smelled marijuana. The court held that the evidence should have been suppressed because the officers had conducted a search of the package without a warrant. The court had no quarrel withe the proposition that the officer's sense of smell gave him probable cause to believe the package contained marijuana. It held, however, that in the absence of an emergency, a dwelling may not be searched without a warrant no matter how strong the probable cause to believe that contraband will be found. (People v. Marshall, supra, 69 Cal.2d at 57 and n. 2, 69 Cal.Rptr. 585, 442 P.2d 665.) There was no lack of probable cause in Marshall, but this did not excuse the requirement for a warrant under the circumstances present in that case. In the instant case, however, the requirement of a warrant was excused because of the special circumstance of the mobility of the item to be searched.

Appellant suggests that since the purpose of the inspection of appellant's luggage was to locate weapons or other paraphernalia of a hijacker, it was beyond the scope of the marshal's duties to concern himself with marijuana. While it was not the duty or the purpose of the marshal to search for narcotics, when he opened appellant's luggage to search for the source of the high reading on the magnetometer, and smelled marijuana in the laundry bag, he was not required to blind himself to the felony being committed in his presence, and he was authorized to arrest appellant for it. (People v. Lacey, 30 Cal.App.3d 170, 175–176, 105 Cal.Rptr. 72; United States v. Lopez, 328 F.Supp. 1077, 1098 (E.D.N.Y.1971).)

The search of appellant's laundry bag was justified even without regard to the officer's probable cause to believe that it contained marijuana. In approaching this question we keep in mind the fact that what the Constitution forbids is not all searches and seizures but unreasonable searches and seizures. (Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); People v. Orr, 26 Cal.App.3d 849, 857, 103 Cal.Rptr. 266.) The Fourth Amendment guarantee against unreasonable searches and seizures must be shaped by the context in which it is asserted. (Terry v. Ohio, supra; People v. Botos, 27 Cal.App.3d 774, 778, 104 Cal.Rptr. 193.) There is no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion which the search or seizure entails. (Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. 1868, 20 L.Ed.2d 889.)

The governmental interest in preventing airplane hijacking is overwhelming. The obvious dangers of airplane hijacking involve the lives and security of hundreds of innocent passengers and millions of dollars of property. When these obvious dangers are considered in light of the inherent difficulty of preventing hijackings, an individual's expectation of privacy in boarding an airplane should not be as great as it may be in other places or situations. Therefore searches of passengers and their luggage without a warrant are reasonable and justified in the context of protecting both passengers and the public from hijackers. (People v. Botos, supra, 27 Cal.App.3d 774, 778–779, 104 Cal.Rptr. 193; People v. De Strulle, supra, 28 Cal.App.3d 774, 481–482, 104 Cal.Rptr. 639; People v. Lacey, supra, 30 Cal.App.3d 170, 174, 105 Cal.Rptr. 72; United States v. Bell, 464 F.2d 667, 674 (2d Cir. 1972); United States v. Slocum, supra, 464 F.2d 1180, 1182, 1183 (3d Cir. 1972); United States v. Epperson, 454 F.2d 769, 771 (4th Cir. 1972), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334; United States v. Lindsey, 451 F.2d 701, 703 (3d Cir. 1971), cert. denied, 405 U.S. 995, 92 S.Ct. 1270, 31 L.Ed.2d 463; United States v. Moreno, 475 F.2d 44 (5th Cir. 1973).)

We hold that in pursuit of his duty to determine the object or objects in appellant's luggage which caused the magnetometer to give a high reading, Marshal Nichols was entitled to open the laundry bag and to search its contents. When he looked inside the laundry bag, Marshal Nichols could see the marijuana in plain view because it was contained in two clear plastic or cellophane bags. Nichols could of course seize contraband in plain sight. (People v. Block, 6 Cal.3d 239, 243, 103 Cal.Rptr. 281, 499 P.2d 961; People v. Marshall, supra, 69 Cal.2d 51, 56, 69 Cal.Rptr. 585, 442 P.2d 665.)

Appellant complains that Nichols had no right to open the laundry bag and examine its contents. He argues, based on analogy to Terry v. Ohio, supra, 392 U.S. 1, 30–31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that the officer was limited to a ‘pat-down’ of the laundry bag to determine if he could feel any objects that were metallic or might be a weapon or a bomb.

Appellant's suggestion that the officer should merely have frisked or patted down the laundry bag to see if he could feel a weapon is without merit. A mere pat-down of the laundry bag would be unlikely to detect any number of weapons or tools of the hijacker. Even a weapon as large as a gun could have been tucked in the center of the soiled laundry and not apparent to the touch of the outside of the bag.

In United States v. Bell, supra, 464 F.2d 667 (2d Cir. 1972), a passenger who fit the government's profile of a potential hijacker and who failed the magnetometer test was frisked and hard lumps were felt in his coat pockets. Upon request he removed from his pocket a brown paper bag closed with a rubber band at the top. The bag was opened and found to contain narcotics. The court held that the officer was justified in opening the package and was not limited to a mere pat-down and removal of the bag. It said: ‘Moreover, the weapon of the skyjacker is not limited to the conventional weaponry of the bank robber or of the burglar. His arsenal may well include explosives. [Footnote omitted.] When Deputy Marshal Walsh felt hard lumps in both coats about 5 inches by 3 inches, he was clearly correct in requesting Bell to remove one of the objects. The fact that it was a brown paper bag with a rubber band at the top should not have precluded a further look to determine the contents. It could have been gunpowder or some other explosive or deleterious substance which a hijacker might well use to cow the crew and passengers. . . . The fact that the object was not metal should not have concluded the inquiry.’ (Id. at p. 674.)⁴ United States v. Slocum, supra, 464 F.2d 1180 (3d Cir. 1972), is another case where the luggage of a passenger who fit the government's profile and failed the magnetometer test was searched. The officer found a rolled up sock containing a foreign substance. When the defendant was asked about its contents, he responded only that he did not wish the sock unrolled. The officer opened the sock and discovered cocaine. The search was held to be proper.

Therefore Marshal Nichols was quite justified in opening appellant's laundry bag rather than merely frisking it. In the words of a recent decision by the Fifth Circuit upholding the admission of packages of heroin discovered in a search of the coat of a suspicious behaving passenger, ‘In applying Terry were we to hold that airport security officials must always confine themselves to a ‘pat down’ search where there is a proper basis for an air piracy investigation, we think that such a per se restriction in the final analysis would be self-defeating. We have already pointed out that the hijacker can conceal explosives or weapons in places which might be overlooked in the course of a cursory pat down.' (United States v. Moreno, supra, 475 F.2d 44 (5th Cir. 1973).) We also note that a thorough search of the contents of a passenger's flight bag is in many ways less an intrusion upon his privacy and personal dignity than a frisk of his person.

We also reject appellant's alternative argument that instead of opening the laundry bag the officer should have taken it back to the magnetometer to determine whether the laundry bag contained any metal. When he first determined to inspect appellant's flight bag, Marshal Nichols requested him to step around the corner of the jetway to a table to permit the bag to be opened. This was certainly reasonably, not only to leave the jetway free of congestion for the other boarding passengers, but also to protect appellant's privacy by removing his luggage to a more remote area for search. The magnetometer was about 25 feet away, and it would be unreasonable to expect the officer to take each and every closed contained within appellant's luggage back to the magnetometer to test it separately. If security officials had to test each and every package in the flight bag separately, it would create intolerable and unreasonable delays in the boarding and inspection processes.

Appellant's next argument is that before searching the laundry bag the officer should have discovered a safety razor which was in the flight bag and was apparently the source of the reading on the magnetometer. The simple fact is that Marshal Nichols saw the plastic bag first. We completely reject the suggestion that the court should instruct security guards, after the fact and as a matter of law, about the order in which the items in carry-on luggage must be searched. Appellant's contention is answered in United States v. Mitchell, supra, 352 F.Supp.38, 44 (E.D.N.Y.1972), where the passenger's luggage was searched and a paper bag was opened and found to contain heroin after a knife was found in the luggage. The court said:

‘. . . The occasion of a search being present, the marshals were not under any duty to stop short of a thorough search. The fact that they might have been satisfied to stop at the knife does not mean that they were under a duty to stop at that point even if, as is likely, the thought that the knife alone sufficed to explain the activation of the magnetometer. They were free to complete the search since, in popular report and public suspicion, the hijack threat includes not simply conventional weapons but bomb threats and other alternatives to the conventional pistol or grenade.’

We think that the restrictions suggested by appellant not only are not constitutionally required, but also are unworkable and would defeat the legitimate purposes of the air piracy prevention program. Once it is conceded that the carry-on luggage of boarding passengers may be searched when it activates the magnetometer, it follows that the luggage, including containers which might reasonably contain implements of a hijacker, can be thoroughly searched. To hold otherwise would mean that a hijacker could thwart the legitimate purposes of the baggage inspection merely by packing the tools of his trade inside another container within his luggage.

We therefore hold that the search of appellant's laundry bag was proper, and that the seizure of the marijuana observed in the bag was justified.

The judgment is affirmed.

I agree with the majority except for the analysis relative to People v. McKinnon, 7 Cal.3d 899, 103 Cal.Rptr. 897, 500 P.2d 1097, which is contrary to my understanding of that case. In the instant case, the officer had probable cause to arrest defendant. He had probable cause to believe the bag contained marijuana. The ascertainment of fact confirming the officer's belief having taken place immediately before rather than after defendant's arrest does not make his actions illegal. The general rule that probable cause to believe contraband will be found concealed in certain property does not justify a warrantless search that is neither consensual nor incident to an arrest absent an emergency. (People v. McKinnon, supra, at p. 907, 103 Cal.Rptr. 897, 500 P.2d 1097.) There was no danger (emergency) here that the bag and its contents might be removed or the contraband destroyed. Absent the release (non-arrest) of the bag's possessor, the bag was going nowhere. When Marshal Nichols determined that the bag contained contraband, defendant was subject to arrest for its possession, and the search was necessarily incident to that arrest.

FOOTNOTES

1.  Nichols originally testified that upon opening the flight bag he saw two large yellow plastic bags which smelled of marijuana and were packaged and felt similar to marijuana that he had observed on other occasions, and that it was these two bags which were opened and found to contain marijuana. This was apparently a mistake which was corrected by the officer in his later testimony. The evidence showed that in fact the marijuana was in two clear cellophane bags, in turn contained in the one yellow plastic laundry bag.

2.  Cipres v. United States, 343 F.2d 95, 97 (9th Cir. 1965); Schoepflin v. United States, 391 F.2d 390, 398–399 (9th Cir. 1968); Bustamonte v. Schneckloth, 448 F.2d 699, 700 (9th Cir. 1971), rev'd, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (May 29, 1973).

3.  Fourteen of the eighty instances of air piracy occurring prior to June 1970 involved the use of bombs. United States v. Epperson, 454 F.2d 769, 771 (4th Cir. 1972), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334.

4.  Marshal Nichols testified that when he opened the laundry bag, he expected to find marijuana rather than a metallic object. That he had strong reasons to ‘expect’ to find marijuana does not show that he did not also have a purpose to determine if the bag contained implements of a hijacker, including nonmetallic ones.

ASHBY, Associate Justice.

HASTINGS, J., concurs.