People v. Mayberry

Opinion

RICHARDSON, J.

J. — (la) May law enforcement officers use police-trained dogs to detect the odor of narcotics emanating from transported containers in the baggage areas of public airports? Under the circumstances herein presented we conclude that they may and that the limited and nonintrusive olfactory investigation performed in this case did not constitute a “search” thereby invoking the constitutional limitations imposed by the Fourth Amendment to the United States Constitution or article I, section 13, of the California Constitution. Accordingly, we will affirm defendant’s judgment of conviction.

An amended information filed in the San Diego Superior Court December 12, 1979, charged defendant with: (1) transporting marijuana (Health & Saf. Code, § 11360, subd. (a)); (2) possessing marijuana for sale (id., § 11359); and (3) possessing concentrated cannabis (id., § 11357, subd. (a)).

Following the denial of defendant’s motion to suppress under Penal Code section 1538.5, he entered a plea of guilty to the charge of transporting marijuana. He was given a 3-year suspended sentence with 60 days’ confinement, and required to register pursuant to Health and Safety Code section 11590 and to submit to other conditions of probation. Defendant appeals from the denial of the section 1538.5 motion to suppress.

On August 8, 1979, Officers Cooper and Flores of the San Diego Police Department’s Narcotics Task Force (NTF) were on duty in the nonpublic portion of the baggage area at the San Diego Airport. With full permission of the airport authority and the airlines, Officer Cooper, assisted by a fully trained and qualified narcotics dog, “Corky,” was checking, for evidence of narcotics, all luggage from certain inbound aircraft flights originating in Florida. Defendant, flying to San Diego from Dayton, Ohio, at tlfe Dallas-Fort Worth Airport had boarded a flight originating in Miami. The officers had no previous information that defendant’s luggage contained any contraband, nor was there any other reason to be suspicious of his luggage.

After Corky “alerted” to defendant’s suitcase, an identifying tape was placed on it and it was transported to the baggage claim area with the rest of the luggage from the flight. When defendant picked up the suitcase, Officer Cooper identified himself and requested that defendant accompany him to an airport office for an investigation. Defendant agreed, and after having tieen informed of Corky’s “alert,” was asked to consent to a search of his luggage. Defendant orally agreed, but before he signed a written consent form Officer Cooper told him that the officer had never failed to get a warrant under similar circumstances. Defendant was advised of his Miranda rights; the suitcase was opened and found to contain marijuana.

The trial court made the following findings:

1. On the day in question, law enforcement officers and Corky were allowed to be anywhere at the airport including the baggage handling areas.

2. Both Corky and his handler, Officer Cooper, were fully trained in narcotics detection. j

3. Based on information as to the flow of narcotics from Florida to San Diego, the agents had reason to believe narcotics could be found in the luggage of incoming passengers from planes originating in Florida.

4. Law enforcement officers did not have specific information regarding defendant.

5. The sniffing of the luggage by Corky in the baggage area, and away from public view, was a minimal intrusion justified by the agents’ reasonable efforts to protect the public from the flow of narcotics from Florida.

6. The use of Corky to alert the agents to the suitcase was reasonable.

7. Defendant voluntarily consented to a search of his suitcase after being contacted by law enforcement.

8. The motion to suppress should be denied.

To the extent these findings resolve questions of fact, they must be upheld on appeal if supported by substantial evidence; yet we exercise our independent judgment in reviewing the legal question whether the officer’s conduct was reasonable under the Constitution. (See People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d 961].)

The NTF justifies its search of all luggage off incoming flights originating in Florida on its experience with a “high” frequency of narcotics seizures in luggage from such flights. During 1979, 25 narcotics cases involved incoming flights to San Diego. Of those 25 cases, 14, or 56 percent, were from flights originating in Florida. During the same period there were 5 flights a day from Florida to San Diego, or a total of 1,825 flights. Accordingly, less than 1 percent of these (approximately .76 percent) flights were found to have narcotics aboard. The record also demonstrates that the NTF has established excellent contacts in Florida, both among law enforcement officers and informants.

Defendant contends that Corky’s smelling of his luggage constituted an unreasonable exploratory search. His claim is supported by several California appellate cases which have invalidated similar canine procedures unless preceded by prior information or a reasonable suspicion that narcotics may be present in the subject area. (See People v. Denman (1980) 112 Cal.App.3d 1003, 1005-1007 [169 Cal.Rptr. 742]; People v. Nagdeman (1980) 110 Cal.App.3d 404, 410 [168 Cal.Rptr. 16]; People v. Lester (1980) 101 Cal.App.3d 613, 615 [161 Cal.Rptr. 703]; People v. Evans (1977) 65 Cal.App.3d 924, 933-936 [134 Cal. Rptr. 436]; People v. Williams (1975) 51 Cal.App.3d 346, 350 [123 Cal.Rptr. 891]; People v. Furman (1973) 30 Cal.App.3d 454, 457 [106 Cal.Rptr. 366].) Defendant argues that, standing alone, statistics disclosing a high relative frequency of drug traffic from Florida afford an insufficient basis for subjecting his luggage to an exploratory warrant-less sniff.

All of the foregoing cases are premised upon the proposition that similar canine olfactory ¡investigations constituted a “search,” the propriety of which would be governed by Fourth Amendment principles. A recent appellate case, however, People v. Matthews (1980) 112 Cal. App.3d 11, 19-20 [169 Cal.Rptr. 263], noting a series of recent contrary federal decisions,, has cast doubt upon this conclusion. In upholding a warrantless ¡sniff of narcotics at a Long Beach storage terminal, the Matthews court observed, “The use of narcotic trained detector dogs is not uncommon, and federal courts have . .. held that sniffing the air surrounding an object is neither an intrusion nor a search.” (P. 19, italics a4ded.) There is substantial authority supporting this conclusion. (United States v. Goldstein (5th Cir. 1981) 635 F.2d 356, 360 [airport]; United States v. Klein (7th Cir. 1980) 626 F.2d 22, 26 [same]; United States v. Sullivan (4th Cir. 1980) 625 F.2d 9, 13 [same]; United States v. Venema (10th Cir. 1977) 563 F.2d 1003, 1006 [storage locker]; United States v. Race (1st Cir. 1976) 529 F.2d 12, 14, fn. 2 [airline warehouse]; United States v. Bronstein (2d Cir. 1975) 521 F.2d 459, 463 [airport]; United States v. Fulero (D.C. Cir. 1974) 498 F.2d 748, 749 [bus terminal]; see also Doe v. Renfrow (7th Cir. 1980) 631 F.2d 91, rehg. den. (1980) 635 F.2d 582, cert. den. 451 U.S. 1022 [69 L.Ed.2d 395, 101 S.Ct. 3015] [high school]; United States v. Solis (9th Cir. 1976) 536 F.2d 880, 882 [semitrailer]; Annot. (1977) 31 A.L.R. Fed. 931; Comment (1976) 13 San Diego L.Rev. 410; Note (1976) 44 Fordham L.Rev. 973.)

We recognize that one recent federal case has departed from the foregoing line of authorities and has held that the use of trained police dogs to sniff luggage is a search for Fourth Amendment purposes. (United States v. Beale (9th Cir. 1982) 674 F.2d 1327.) No petition for certiorari has yet been filed in Beale, and, with due respect, we disagree with its conclusion. Beale stressed the sanctity of private luggage, and opined that “One who reposes his personal effects, including contraband, in a locked suitcase is surely entitled to assume that a trained canine will not broadcast its incriminating contents to the authorities.” (P. 1334, italics added.) To the contrary, one who secretes illegal narcotics in his suitcase has no protectable privacy interest in those narcotics, nor any legitimate objection to an unintrusive method of detection which reacts only to such contraband. As Beale itself acknowledges, detection of narcotics by trained sniffer dogs is a “minimal invasion of privacy,” involving “no risk that an innocent person’s privacy will be intruded upon.” (P. 1334, quoting from earlier authorities.)

It is commonly accepted that a “search” is a governmental intrusion upon, or invasion of, a citizen’s personal security in an area in which he has a reasonable expectation of privacy. (See Terry v. Ohio (1968) 392 U.S. 1, 9, 16-19, and fn. 15 [20 L.Ed.2d 889, 898, 902-905, 88 S.Ct. 1868]; People v. Hyde (1974) 12 Cal.3d 158, 164 [115 Cal. Rptr. 358, 524 P.2d 830]; People v. Edwards (1969) 71 Cal.2d 1096, 1100-1104 [80 Cal.Rptr. 633, 458 P.2d 713].) Most of the foregoing federal cases have concluded that dog-sniffing investigations of the type here employed are neither intrusions nor invasions of anyone’s reasonable expectation of privacy. The courts so holding have stressed that such procedures involve no physical entry into one’s home or possessions, or invasion of one’s person, or use of mechanical or electronic equipment, or examination of, or prying into, one’s private communications or noncriminal personal affairs. Additionally, as the Second Circuit Court of Appeals stressed in Bronstein, supra, police dogs are trained to “alert” or react only to contraband, unlike mechanical investigatory aids or devices (magnetometers, telescopes, recorders, etc.) which intrude in sweeping and indiscriminate fashion into one’s private affairs and personal effects. (521 F.2d at p. 463; see Hyde, supra, at p. 164.)

Did Corky breach any reasonable, protectable expectation of privacy as to any odors emanating from defendant’s concealed contraband? We think not. Rather, we share the views recently expressed by the Fifth Circuit Court of Appeals in Goldstein, supra. In rejecting such expectation, it held that although an airline passenger may reasonably anticipate that the contents of his luggage will not be exposed in the absence of consent or a search warrant, “the passenger’s reasonable expectation of privacy does not extend to the airspace surrounding that luggage.” (635 F.2d at p. 361; accord United States v. Sullivan, supra, 625 F.2d 9, 13, stressing that narcotic-trained dogs are used “in response to the need to control the rise in illegal drug trafficking, while preserving, at the same time, an airline passenger’s reasonable expectation of privacy.”) j

In our view, the escaping smell of contraband from luggage may be likened to the emanation of a fluid leaking from a container. The odor is detectable by the nose, as the leak is visible to the eye. We discern no constitutionally significant difference in the manner of escape, and conclude that any privacy right is lost when either escapes into the surrounding area. Given Corky’s training, our conclusion is not altered by the fact that it is his nose and not his handler’s which detected the odor.

From the foregoing, wje conclude that, at least within the context of an airport luggage search, passengers (and others transporting narcotics) have no reasonable expectation of privacy which would preclude the use of sniffer dogs such as Corky even when there is an absence of prior specific suspicion that narcotics are present.

We add two cautionary notes. Prior appellate cases quite properly have required an adequate demonstration of the dog’s training and experience in narcotics detection before the dog’s reaction to a particular suitcase or other object is admitted into evidence. (E.g., People v. Evans, supra, 65 Cal.App.3d 924, 933; People v. Furman, supra, 30 Cal.App.3d 454, 457.) Such condition was met in the present case, as reflected in the trial court’s findings, and defendant does not challenge this.

Moreover, as the People readily acknowledge, a police dog’s positive reaction to a suitcase ordinarily is not sufficient cause to search and seize it without a warrant. In the absence of either exigent circumstances or consent by the owner, the investigating officers must first obtain a search warrant upon a proper showing of probable cause. (See People v. Denman, supra, 112 Cal.App.3d 1003, 1010-1011 [consent]; People v. Lester, supra, 101 Cal.App.3d 613, 615 [search warrant]; cf. United States v. Goldstein, supra, 635 F.2d 356, 361; United States v. Sullivan, supra, 625 F.2d 9, 13.)

The trial court found that defendant had consented to a search of his luggage after Corky “alerted” to the presence of narcotics therein. Although defendant maintains that his consent was involuntary, being a “mere submission to authority,” this was a factual matter which the trial court, in light of all the circumstances, resolved adversely to defendant. (People v. James (1977) 19 Cal.3d 99, 107 [137 Cal.Rptr. 447]; People v. Reyes (1974) 12 Cal.3d 486, 501 [116 Cal.Rptr. 217, 526 P.2d 225]; People v. Denman, supra, 112 Cal.App.3d 1003, 1010-1011.) Nor, in our view, was the defendant’s consent to the search nullified by the oificer’s comment to defendant that a search warrant could readily be obtained. (People v. Ruster (1976) 16 Cal.3d 690, 701 [129 Cal.Rptr. 153, 548 P.2d 353, 80 A.L.R.3d 1269]; People v. Nagdeman, supra, 110 Cal.App.3d 404, 411.) Rather, our review of the record discloses substantial evidence supporting the trial court’s finding of consent.

The judgment is affirmed.

Mosk, J., Newman, J., Kaus, J., and Broussard, J., concurred.