People v. McGrew

MOSK, J.

I dissent.

Section 11531 of the Health and Safety Code makes it a felony for any person to transport marijuana. The section applies not only to one who arranges shipment, as the defendant here, but it would also apply to any airline employee who knowingly transports marijuana. Thus if an airline employee reasonably believes a shipment contains a substance the transportation of which is illegal, he has the right and perhaps a duty to inspect the package or container. The purpose of such inspection is not to act as an agent of the police, but to insulate himself from any criminal culpability.

When the defendant arranged for the shipment of his footlocker he signed a “rapid airbill” which stated as one of the “conditions of contract” that it was accepted subject to governing classifications in effect on that date and filed in accordance with law. One of the Civil Aeronautics Board rules *415provides that “The carrier has the right, but not the obligation, to inspect shipments.”1

In People v. Edwards (1969) 71 Cal.2d 1096 [80 Cal.Rptr. 633, 458 P.2d 713], this court indicated that in determining admissibility of evidence the significant criterion is the defendant’s “reasonable expectation of privacy” in maintaining actual or constructive possession of the objects at issue. While undoubtedly this defendant hoped to avoid detection in shipping contraband, I find it difficult to conclude that he had a reasonable expectation of privacy when he shipped a footlocker by an interstate carrier which had a right of inspection given to it by the administrative agency regulating the airline and its operations. This defendant declared to one carrier he was shipping “clothing and books” and to the other he represented he was shipping “books and dishes.” The rates charged for shipment were based on those representations, which were knowingly false. If, for any reason, an airline employee doubted the shipments contained the objects indicated, he had an unquestioned right to open the containers for inspection. This right of the airline is not diluted by the fact that contraband was discovered—which could not be shipped at any rate—rather than some legal perishable commodity, which could be shipped at a rate different from that prescribed for clothing, books and dishes.

To deny the airline through its employees a right of inspection when they doubt, for any reason, that a package contains the objects represented by the shipper to be therein, results in compelling the airline, an innocent third party, to blind itself to reality and thus to assist the defendant in his illicit commercial enterprise of transporting marijuana. This is the unfortunate result of the majority opinion.

The majority lean heavily on Corngold v. United States (9th Cir. 1966) 367 F.2d 1. In Corngold the transportation agent was initially contacted by government agents who directed him to a specific package and asked him to open it. Our case is factually closer akin to a more recent Ninth Circuit decision which carefully circumscribed the Corngold rule: Gold v. United *416States (9th Cir. 1967) 378 F.2d 588, in which at pages 590-591, the court held Corngold inapplicable to a situation in which the transportation personnel, with “suspicions aroused . . . had no way to determine whether the contents were fit for carriage and properly classified except by opening them. This the carrier had the right to do under, its tariffs.” Indeed, the instant case is stronger than Gold, for here there was no prior direct contact between law enforcement officers and the airline employee. Dowling opened the footlocker at the direction of his company supervisor, not upon police suggestion.

It was not a law enforcement agency but Dowling who notified other airlines about the defendant "and his shipment. Pursuant to that warning Western Airlines employees Case and Sweeney observed the defendant’s footlocker and called United to report. Fortuitously the police had then arrived at United and they proceeded from there to the Western offices. They noted the footlocker pointed out to them by the Western employees and could readily detect from it “an odor of marijuana.” This justified the subsequent search and seizure. (See my dissent in People v. Marshall (1968) 69 Cal.2d 51, 62 [69 Cal.Rptr. 585, 442 P.2d 665].)

As this court recently held in People v. Superior Court (1969) 70 Cal. 2d 123, 128 [74 Cal.Rptr. 294, 449 P.2d 230]: “The conduct of a person not acting under the authority of a state is not proscribed by the Fourth or Fourteenth Amendments of the federal Constitution. There are no state standards for ‘search and seizure’ by a private citizen who is not acting as an agent of the state or other governmental unit. Therefore, acquisition of property by a private citizen from another person cannot be deemed reasonable or unreasonable (People v. Randazzo (1963) 220 Cal.App.2d 768, 775-776 [34 Cal.Rptr. 65] [citation] cert. den. 377 U.S. 1000 [12 L.Ed.2d 1050, 84 S.Ct. 1933] [citations], and a motion to suppress evidence so obtained cannot be made on the ground that its acquisition constitutes an unreasonable search and seizure under section 1538.5.”

Since the airline employees had a legal right to inspect the footlockers, I can see no impediment to their advising the police of the presence of contraband and to the police taking possession of and making evidentiary use of the contraband displayed to them. Indeed, that was the precise situation in People v. Superior Court (1969) supra, 70 Cal.2d 123, in which a private detective gave a copy of a tape recording to law enforcement officers. We properly declined to suppress the evidence prior to trial. To the same effect is Wolf Low v. United States (9th Cir. 1968) 391 F.2d *41761, 63, in which the court found proper the “conduct of the airline in turning over to the Government the fruits of its search of the defendant’s suitcases, and the conduct of the Government in making use of the information and evidence obtained by the airline’s search. . . .”

As the majority concede, People v. Hill (1968) 69 Cal.2d 550, 554 [72 Cal.Rptr. 641, 446 P.2d 521], holds that a “search is not unreasonable if made with the consent of a third party whom the police reasonably and in good faith believe has authority to consent to their search . . . .” The police belief was entirely reasonable and in good faith here, since it was founded upon the right legally conferred upon the airlines to inspect shipments in their possession, the inspections actually made pursuant to that right, the discovery of contraband legally ineligible for shipment, the reporting of these events to the police and the disclosure to the police of the actual contraband.

I would hold the searches were valid, the suppression of evidence erroneous, and the defendant should be required to stand trial in order to ascertain his innocence or guilt.

McComb, J., and Burke, J., concurred.

This is not demonstrably certain from the evidence offered on this subject by the prosecuting attorney.A copy of C.A.B. regulation No. 96 (Exh. 10) and a copy of United Airlines Tariff rules (Exh. 11) were received in evidence. The former became effective on August 1, 1967, and the latter on December 8, 1967. The offense charged in this case took place prior to both dates: June 25, 1967. However, Dowling testified Exhibit 10 was similar to pages used by him in his daily work, and the prosecutor represented to the court “that is the actual regulation that was in effect at the time we are interested in.” Defense counsel objected on numerous grounds to the admission of Exhibit 10, but he did not challenge the prosecutor’s representation. The court must have accepted the prosecutor’s statement as being factual for the exhibit was received in evidence; had it related only to dates subsequent to June 25, 1967, it would have been irrelevant.