People v. Scott

[725]

Opinion

DRAPER, P. J.

Found guilty by a jury of two counts of importing marijuana into the state (Health & Saf. Code, § 11531), and two counts of possessing marijuana for sale (Health & Saf. Code, § 11530.5), defendant was sentenced to concurrent prison terms on the importation counts. Sentence on the charges of possession for sale was stayed. Defendant appeals.

The core issue is whether the airport manager who found marijuana acted as a private citizen, to whom the rule excluding evidence seized in violation of the Fourth Amendment is inapplicable.

Appellant left his automobile, parked and unattended, under the wing of his airplane in an area reserved for airplane parking. Under airport safety regulations, vehicles other than airplanes were not permitted in this area. An airport employee reported the presence of the automobile to the airport manager, who went to the car intending to remove it himself or to find the owner in order to arrange for him, if he could be found somewhere in the airport, to remove it. The manager entered the car to seek the ignition key or the registration certificate. He found neither in the area of the front seat of the car, but noticed a burlap bag on the floor in front of the rear seat. Some newspapers lay over it. The manager removed the papers, and saw in the open sack a number of brick-shaped objects wrapped in red paper, each in a plastic bag. He removed one of the objects from the open bag. He had recently read newspaper articles which referred to an unusual odor of marijuana. His curiosity aroused, he smelled the object, but, because it was in a plastic bag, noted none. Running his thumbnail along one comer of the object, he made a small hole in the plastic bag. He then smelled an odor which was unfamiliar to him. He telephoned the sheriff’s office. A deputy experienced in narcotics investigation arrived, identified the odor as marijuana and arrested appellant. A warrant for search of the plane and the car was obtained, and a total of 252 pounds of marijuana was found in them. The pilot who had been employed to fly the plane to and from Mexico testified that some 10 days earlier he had piloted appellant on a like trip, in the course of which another large quantity of marijuana had been brought to the same airport. The airport is owned by the County of Contra Costa, and its manager is a county employee.