Irwin v. Superior Court , 1 Cal. 3d 423 ( 1969 )

MOSK, J.

I dissent.

At the airport, the petitioner denied to Officer Simmons that he had any luggage. If the bags lying at petitioner’s feet had previously been in his possession, at the moment of his disclaimer for all practical and legal purposes their status was changed to that of abandoned property. The rule has always been, as repeated in Martin v. Cassidy (1957) 149 Cal.App.2d 106, 110 [307 P.2d 981], that: “Abandonment is defined as the ‘voluntary giving up of a thing by the owner because he no longer desires to possess it or to assert any right or dominion over it and is entirely indifferent as to what may become of it or as to who may thereafter possess it.’ ”

I am aware of no restriction upon the right, perhaps the duty, of law enforcement officers to take and to inspect personal property abandoned in a public place. (Civ. Code, § 1872.)

When externally examined, the property, a paper bag, gave forth the unmistakable aroma of marijuana (see dissent in People v. Marshall (1968) 69 Cal.2d 51, 62 [69 Cal.Rptr. 585, 442 P.2d 665]) and upon being opened revealed marijuana and other personal property, including an envelope with petitioner’s name thereon and an airplane ticket for transportation for defendant from Denver to Los Angeles. These circumstances justified a reasonable inference that petitioner, despite his disclaimer, did in fact have constructive custody of the bag containing contraband, and thus warranted placing petitioner under arrest.

The circumstantial prima facie case presented by the prosecution suggests no reason justifying denial of an opportunity for petitioner to explain at trial, if he chooses to do so, how his airplane ticket came to be in a bag containing marijuana. The superior court denied the motion to suppress evidence, and the Court of Appeal denied an extraordinary writ. Issuance by this court of a peremptory writ directing the superior court to suppress the paper bag and its marijuana contents is unjustified.

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

The petition of the real party in interest for a rehearing was denied January 14, 1970. McComb, J., Mosk, J., and Burke, J., were of the opinion that the petition should be granted.