Opinion
For Opinion on Hearing, see 103 Cal.Rptr. 897, 500 P.2d 1097.
Opinion on pages 555 to 560 omitted.
HEARING GRANTED
James Don Keller, Dist.Atty. and Richard H. Bein, Deputy Dist. Atty., for plaintiff and appellant.
Hecsh, Hegner & Philbin and Michael S. Hegner, San Diego, for defendant and respondent McKinnon.
Woolley, Crake, Collins & Ward and William O. Ward, III, San Diego, for defendant and respondent Turk.
OPINION
GERALD BROWN, Presiding Justice.
Lloyd George McKinnon and John Scott Turk were charged with transporting marijuana (Health & Saf.Code § 11531) and possessing marijuana for sale (Health & Saf.Code § 11530.5). Both were bound over for trial on the charges after a preliminary hearing. Each moved to set aside the information under Penal Code section 995 and to suppress the marijuana evidence (Pen.Code § 1538.5). The court granted both motions to suppress dismissed the charges as to McKinnon under Penal Code section 1385 and granted Turk's Penal Code section 995 motion to set aside the information. The People appeal.
About 7:30 a.m. of March 10, 1969, McKinnon and Turk took five boxes to the United Airlines freight office at San Diego's Lindbergh Field for shipment to Seattle, Washington. McKinnon told Mitchell Gos, the air freight agent, to ship them to 'L. McKinnon' and he said the shipper was 'L. McKinnon' of the 'Balboa Supply Company.'
Gos suspected the boxes contained contraband. He made out an air bill and directed another employee to watch McKinnon and Turk to ascertain the license number and description of their car. Gos asked his supervisor for permission to open the boxes. When the permission was granted, he opened one of the boxes in the presence of his supervisor and other airline employees. He found wrapped bricks inside the box. Gos pinched open one of the wrapped bricks and found what appeared to be marijuana.
Gos called the office of the State Narcotics Agent, Charles McLaughlin. Responding to Gos' call, McLaughlin asked for, and was shown, the air bill. Gos then showed him the box he had opened. McLaughlin saw the wrapped bricks but could not see the marijuana through the wrappings. He could, however, smell the odor of marijuana. McLaughlin opened one of the marijuana bricks. McLaughlin did not see the marijuana exposed by Gos' pinching one of the bricks; in this connection he said 'There was possibly one already opened but I believe I might have opened another one.' He also said he relied on his sense of smell and his sight, i.e., 'The size and shape of the package inside the plastic bag and the odor.'
We must construe the evidence most favorably to the orders suppressing the evidence. The evidence supports the implied finding the marijuana was not in the plain sight of McLaughlin. It is obvious the wrapping of the bricks was opaque as [91 Cal.Rptr. 698]McLaughlin said he could not see the marijuana through the wrap.
'It is inherently impossible for the contents of a closed opaque container to be in plain view regardless of the size of the container or the material it is made of. A search of the container is necessary to disclose its contents. A search demands a search warrant.' (People v. Marshall, 69 Cal.2d 51, 59, 69 Cal.Rptr. 585, 589, 442 P.2d 665, 669; quoted in People v. McGrew, 1 Cal.3d 404, 410, 82 Cal.Rptr 473, 462 P.2d 1 and Abt v. Superior Court, 1 Cal.3d 418, 421, 82 Cal.Rptr. 481, 462 P.2d 10.)
McLaughlin did not have a search warrant. The People bore the burden of establishing the legality of his warrant-less search.
After finding the marijuana, McLaughlin again looked at the air bill, then asked Gos to ascertain whether a passenger named 'L. McKinnon' had reservations on a 9:00 a.m. flight to Seattle. McKinnon was on the passenger list.
Armed with Gos' description of the two shippers, their car and McKinnon's flight plans, McLaughlin arrested Turk in the airport parking lot as he entered the car, and McKinnon aboard the airplane scheduled to leave for Seattle at 9:00 a.m.
The boxes contained fifty kilos of marijuana. The police found marijuana debris in the clothing of Turk and McKinnon.
McLaughlin's search of defendant's shipment was illegal under the standards set in People v. McGrew, supra, 1 Cal.3d 404, 82 Cal.Rptr. 473, 462 P.2d 1 and Abt v. Superior Court, supra, 1 Cal.3d 418, 82 Cal.Rptr. 481, 462 P.2d 10. Both McGrew and, particularly, Abt involved searches factually very similar to the search here. McGrew says:
'People v. Marshall, 69 Cal.2d 51, 57, 69 Cal.Rptr. 585, 588, 442 P.2d 665, 668, * * * makes clear * * * with certain exceptions, probable cause to believe * * * 'a search will reveal contraband * * * does not justify a search without a warrant.' Where there is probable cause, a warrant still must be obtained, absent an emergency, for a search not incident to a valid arrest even though a warrant would not be needed for a search incident to an arrest. (Citation.)
'The exceptions to the requirement of a search warrant, aside from searches incident to an arrest, are where 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.' (Citation.)
'Our decision is Marshall is not limited to dwelling houses. The Fourth Amendment protection of 'effects' includes securely closed footlockers shipped through common carriers. Neither the language of the Fourth Amendment, nor of any of the cases interpreting the protection of that amendment, suggest that warrants apply to 'houses' but not to 'effects.' The exceptions to the requirement of a warrant are based on circumstances and not on categories of items. The requirement of a warrant, unless otherwise excused, applies to whatever is protected by the Fourth Amendment.' (People v. McGrew, 1 Cal.3d 404, 409-410, 82 Cal.Rptr. 473, 476, 462 P.2d 1, 4.)
Here, as in McGrew and Abt, we do not determine whether Gos acted as a police agent when he initially opened one of the boxes, although the defendants produced some evidence raising inferences Gos may have received directions from the police regarding the search of suspicious packages.
The People contend on appeal McGrew and Abt are distinguishable, because McLaughlin's search was justified as incident to the arrests of defendants. The People failed to raise this contention below. Rather than attempting to distinguish McGrew at the hearing of defendants' Penal Code 1538.5 and 995 motions the deputy district attorney said:
'[T]his was a case being continued for the McGrew matter to be brought down, and the People have no additional points [91 Cal.Rptr. 699]and authorities in this matter. I have read the transcript, that appears to be quite similar to the McGrew facts, although there are some differences. I don't intend to distinguish them at this time, and, therefore, I would just submit the case.'
Any factual determinations consistent with reasonable inferences from the record relating to whether the search was incident to defendants' arrests must be resolved against the People. Here, as in McGrew, Abt and Marshall, the defendants were not present and the police did not know where they were when the search was made. The arrests were effected in other areas of Lindbergh Field, apparently within an hour of the search. Under these circumstances the court's implied finding the search was not incident to the arrests is supported, if not compelled, by the record.
The People also contend McLaughlin had sufficient probable cause to arrest defendants when he saw the wrapped bricks in the open box and smelled marijuana. It is thus argued this probable cause to arrest was untainted by McLaughlin's act in later opening one of the bricks and a search of the four remaining, unopened, boxes could lawfully have been made as incident to defendants' arrests based on untainted probable cause. The People's argument assumes a search of the boxes in the air freight office could have been incidental to McKinnon's arrest aboard the plane or Turk's arrest in his car in the parking lot. Moreover, the question is not whether the police might have been able to conduct a reasonable search had they followed other procedures. The question is whether the search they conducted was reasonable. We hold it was not, absent a search warrant, a conclusion we are compelled to adopt by McGrew Abt and Marshall. The People failed to show they had no time to secure a search warrant as in People v. Gordon, 10 Cal.App.3d 454, 461, 89 Cal.Rptr. 214.
The continued vitality of McGrew and Abt is questioned in People v. Superior Court, 11 Cal.App.3d 887, 893, 90 S.Ct. 123, because of the later United States Supreme Court decision in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, which distinguishes between searches of fixed premises and searches of movables. If Chambers applies to the movables here (Chambers involved a car), then McGrew and Abt adopt a higher standard of reasonableness than that adopted by the U. S. Supreme Court. In that case the higher state standard controls (Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730.)
The orders dismissing the charges against McKinnon and setting aside the information as to Turk are each affirmed.
COUGHLIN and WHELAN, JJ., concur.