People v. Lester

101 Cal.App.3d 613 (1980) 161 Cal. Rptr. 703 THE PEOPLE, Plaintiff and Respondent,

v.

ROY JOHN LESTER, Defendant and Appellant.

Docket No. 11239. Court of Appeals of California, Fourth District, Division One.

January 30, 1980. [614] COUNSEL

Savitz & McCabe, Michael J. McCabe, Beeson & Rakley and Martin Lee Rakley for Defendant and Appellant.

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, Jay M. Bloom and Alan S. Meth, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BROWN (Gerald), P.J. —

DUSTER'S DETECTION

Roy Lester appeals the judgment after he pleaded guilty to possessing marijuana for sale (Health & Saf. Code, § 11359) following the denial of his motion to suppress evidence (Pen. Code, § 1538.5). He received probation upon conditions, among them confinement to the sheriff's custody for 120 days and 500 hours of volunteer work in San Diego. These conditions were stayed pending appeal.

Lester, a law student in San Diego, went to Florida for a couple of days and returned with more than 10 pounds of hashish. He got caught [615] under circumstances where Duster the dog played no small part. Lester's Fourth Amendment rights remained intact.

Alexander, a United States Department of Justice official in San Diego, received a tip from the Ft. Lauderdale sheriff's office that Lester was suspected of carrying narcotics in his luggage on his flight to San Diego. A thorough description of Lester and his luggage was given. Alexander obtained the services of Duster and his handler from the United States Customs. When Lester's flight arrived, his bag was placed on the conveyer belt for transportation to the public baggage area. Alexander, who with other agents had the right to be in the area, removed the bag and placed it in a group of nearby bags. Duster, an expert in narcotics detection, was released and strongly alerted on Lester's bag, biting, gnawing, and scratching it. The bag was hidden from Duster in another group of bags close by. Again Duster alerted to it quickly. Alexander replaced the bag on the conveyer belt; the time from removal to replacement was insignificant, about three minutes. When Lester picked up the bag, an official asked him to accompany him to the harbor police office. Lester agreed. He was very nervous and urinated in his pants. When Lester refused permission to look in his bag, a search warrant was obtained and the contraband was revealed.