Commonwealth v. Kozak

¶1Dissenting Opinion by

¶2I respectfully dissent.

¶3The appellant Dolores J. Kozak was arrested on May 4, 1973, for violation of The Controlled Substance, Drug, Device and Cosmetic Act1 and was subsequently found guilty by a judge sitting without a jury of possession of *359marijuana and possession with intent to deliver marijuana, 35 P.S. §780-113. She maintains that the search and seizure by the police of two suitcases containing the marijuana was unlawful and the evidence obtained should have been suppressed. I am constrained to agree with appellant in this case, and would suppress the evidence as a product of an unlawful, warrantless search and seizure.

¶4In the small hours of the morning of May 3, 1973, Stephen Patrick, an employee of Trans World Airlines whose major responsibility was to supervise the handling of baggage moving on the airlines, observed two suitcases resting some distance from the baggage claim area of the terminal, apparently mislaid. Since Mr. Patrick also conducted a daily operation of delivering lost or mishandled luggage to the owners as a sideline to his regular duties, he was familiar with the handling of such luggage and at the time he discovered the suitcases in question, he already had a number of other lost bags in his car for delivery. Therefore, instead of removing the two bags to the lost and found, which was closed at that hour, Mr. Patrick added them to the others in his car and, after completing his regular job and the deliveries of the other lost baggage, took them to his house. There his testimony indicates he first opened the bags to determine if there was any additional identification besides the baggage claim ticket affixed to the outside. The bags contained plastic and paper wrapped packages which curiosity prompted him to open. Inside was a grassy, leafy material which he testified had a sweet smell. Although Mr. Patrick, due to his limited experience in such matters, was unable to identify it, the substance aroused his suspicions that the suitcases actually contained marijuana. At this point Mr. Patrick determined that he needed assistance. The suitcases were closed again and the police were informed that a TWA employee was in possession of two suitcases suspected of containing marijuana.

¶5*360Officers familiar with narcotics work were dispatched to Mr. Patrick’s house to investigate the matter. Mr. Patrick explained the situation to them and then showed them the two closed bags. It is unclear from the record whether the officers actually opened the first suitcase or whether Mr. Patrick opened it for them. However, the lower court found that Mr. Patrick opened at least one of the suitcases and the officers investigated its contents, determining that the packaged substance was indeed marijuana. The bags were then returned to the lost and found where they were kept under surveillance. A search warrant was obtained, and the defendant was arrested when she attempted to claim the bags. Appellant moved to suppress the evidence revealed in the search of the luggage in Mr. Patrick’s home on the grounds that the search was unlawful because it was not conducted pursuant to a warrant and no exceptions to the constitutional requirement justified the lack of a warrant.2 She further moved to suppress all the evidence sought and seized at her arrest on May 4, 1973, on the grounds that the warrant under which the search was made had been issued as a result of evidence obtained in the prior illegal search.

¶6It is apparent that the validity of the first search conducted in Mr. Patrick's home must be upheld if any of the evidence complained of is to be admitted in this case.3 The facts advanced as probable cause, stated in the affidavit upon which the search warrant issued, are simply a recitation of the details of the first warrantless, exploratory search. Without that information, no independent basis could be found to arrest or search the appellant.

¶7*361The court below concluded that the initial search had been performed by a private individual unconnected with governmental wrongdoing and admitted the evidence of his discoveries and the subsequent police search at trial. Since the fourth amendment protection against unreasonable searches and seizures is designed to protect the citizen against arbitrary governmental action, it has been held that its limitations do not extend to searches by a private citizen. Byars v. United States, 273 U.S. 28(1927); Burdeau v. McDowell, 256 U.S. 465 (1921) (But see dissenting opinion by Justice Brandéis in which Justice Holmes concurs) ; Commonwealth v. Dingfelt, 227 Pa. Superior Ct. 380, 323 A.2d 145 (1974). The fruits of an individual’s search, where the search is not at the behest or with the assistance of official agency, are not subject to suppression. Burdeau v. McDowell, supra. Mr. Patrick, as an employee of TWA, was a private citizen and when he opened appellant’s bags for his own purposes he was not in violation of appellant’s fourth amendment rights. Had the evidence admitted at trial been the product of this search alone, I would have no dispute with the outcome of the case. But Mr. Patrick did not search and secure the evidence of contraband entirely on his own. Upon uncovering those perplexing packages he called for governmental assistance in completing the search and identifying the evidence.

¶8The police received information of a TWA employee’s suspicion that he had discovered some suitcases containing contraband. His relation to the officers of circumstances which would make it appear highly probable that his suspicions were justified cast him in the position of an informer, Cash v. Williams, 455 F.2d 1227 (6th Cir. 1972); United States v. Small, 297 F. Supp. 582 (D.C. Mass. 1969), and it is the action of the police at this point that is the critical issue in the case. United States v. Valen, 479 F.2d 467 (3d Cir. 1973). A search reasonable and lawful at its inception may broaden to violate *362the fourth amendment as its scope expands. Terry v. Ohio, 392 U.S. 1 (1968); United States v. Small, supra. Since the police in this case did not pause to obtain a warrant to conduct a search of the suitcases, it is necessary to consider whether their actions in pursuing the information obtained constituted a search.

¶9In Lustig v. United States, 338 U.S. 74 (1949), the Supreme Court considered the question of how much participation by federal officers will render a search which initially does not violate the fourth amendment unlawful. The decision concerns the interaction of state and federal officials at a time when searches by state officials were not subject to the fourth amendment. Since private citizens occupy an identical position with regard to the fourth amendment, the court’s delineation of a search in that case is instructive. “[A] search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter.4 The decisive factor ... is the actuality of a share by a federal official in the total enterprise of secur*363ing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it. . . . The fact that state officers preceded [the federal officers] in breach of the rights of privacy does not negative the legal significance of this collaboration in the illegal enterprise before it had run its course.” Id. at 78-79 (footnote added).

¶10In the present case the police were shown two closed suitcases suspected of containing marijuana. The suitcases were unlatched and opened either by the officers themselves or for their benefit by the airline employee. The contents of the inner packages was then examined and pronounced contraband by the expert narcotics officers. It is undisputed that the suitcases were entitled to fourth amendment protection against unreasonable searches. What a person “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967). Even though this privacy was violated first by the intrusions of a private individual, exempt from fourth amendment prohibitions, the conduct of the police in reopening the bags and examining the suspicious contents on their own initiative for the purpose of identifying it to further governmental ends, constitutes participation by officials in the securing of evidence against the defendant. Such action is as much a search in these circumstances as it would be if any informer communicated the belief that a certain parcel in a carrier’s hands contained contraband. See Commonwealth v. Dembo, 451 Pa. 1, 301 A.2d 689 (1973); Corngold v. United States, 367 F.2d 1 (9th Cir. 1966). The officers here were not passive recipients of the fruits of a private investigation, as they were in Burdeau v. McDowell, supra, the case which established the freedom of private persons from *364the strictures of the fourth amendment. On the contrary, they were critically involved in the investigation and identification of the evidence concealed in the suitcases.

¶11Although there are no cases in Pennsylvania resolving the issues presented by the facts of the instant case, the Supreme Court’s views in Commonwealth v. Dembo, supra, and decisions in other jurisdictions give some guidance. In Commonwealth v. Dembo, the Supreme Court held that the opening of fourth class mail by postal employees pursuant to a governmental investigation of the defendant was contrary to the fourth amendment and the marijuana discovered was found inadmissible. The Court, noting that the right to be free from unreasonable search and seizure must be vigorously protected stated: “[t]he record is barren of any facts that would have permitted the police officials ... to open this parcel and examine its contents. The Commonwealth seeks to sustain the search relying upon the fact that the postal authorities physically opened the package and not police officials. The Fourth Amendment reaches the very core of the American concept of the dignity of the individual, thus to allow its protection to be defeated by the most obvious subterfuge would reflect little deference to a heritage we have given so much to sustain.” Commonwealth v. Dembo, supra at 7-8, 301 A. 2d at 693.

¶12A case factually similar to the one at hand is Cash v. Williams, 455 F. 2d 1227 (6th Cir. 1972). There a wrecker operator who had towed an automobile to his garage, was searching the car for some indication of ownership when he discovered some bags containing a grassy substance. He left the items in the car and called the police to identify it. The court held that the search by the police had to meet the constitutional criteria to admit its fruits into evidence even though the initial search was by a private citizen. The garageman was no more than an informer who had come across information which he wished to reveal to the authorities and since the police *365search could not be justified by any recognized exception to the warrant requirement, a warrant should have been obtained.

¶13In United States v. Issod, 370 F. Supp. 1110 (E. D. Wis. 1974), an airport employee became suspicious of some trunks left for shipment and informed the police of his apprehension. The employee opened the trunks, found what he believed was marijuana and requested the police to investigate. The evidence that resulted was suppressed, the court noting the warrantless search by the police was official, performed strictly to further the governmental purpose of identifying contraband which posed no threat to the airline, and was therefore subject to the requirements of the fourth amendment. The initiation of the search by private parties provided no justification to the police.

¶14These cases and others, see, e.g., Williams v. State, 501 P.2d 841 (Okla. 1972) ;5 uphold the principle that officers of the law cannot use a private person to circumvent the warrant requirement and accomplish that which is impermissible in another circumstance where the officer is acting alone. An individual’s right to privacy and freedom from unreasonable search may yield when a private person uncovers evidence in an unofficial examination of the individual’s effects. But when the police are called to participate in the gathering of evidence and to take charge of a search for contraband, they have introduced the official element of the police force into the event and the fourth amendment protection will not permit them to rely upon the immunity of the private person who initiated the search.

¶15In this case there was no excuse for the failure to obtain a warrant. The defendant was not yet located so the search was not incident to any arrest. Chimel v. *366California, 395 U.S. 752 (1969). Nor was valid consent obtained from anybody. See, e.g., Corngold v. United States, supra. Furthermore, the police were not in an emergency situation such as had been found to justify other similar searches. See, e.g., United States v. Berger, 355 F. Supp. 919 (W. D. N. Y. 1973); People v. Thompson, 25 Cal. App. 3d 132, 101 Cal. Rptr. 683 (1972); People v. Howard, 21 Cal. App. 3d 997, 99 Cal. Rptr. 47 (1971). Here there was no possibility the suitcases would be carried away before a warrant was obtained. The bags were not even at the airport but were being held at the airline employee’s house. Nor did the bags pose any threats to the airline or to any person’s safety. Cf. United States v. Wilkerson, 478 F.2d 813 (8th Cir. 1973). There was therefore no pressure of time requiring a warrant-less search to be conducted on the basis of the information received.

¶16I can find no justification for the warrantless search of appellant’s effects by the police. Consequently I would have suppressed the evidence seized as a result of that search as well as that seized pursuant to the warrant which was issued on a statement of facts obtained from the first illegal search.

¶17I would reverse the judgment of sentence and grant a new trial.

¶18Hoffman and Spaeth, JJ., join in this dissenting opinion.