People v. Owens

Opinion

KINGSLEY, Acting P. J. Defendant was charged with possession for sale of a controlled substance, in violation of section 11378 of the Health and Safety Code. After his motion to suppress, made under sec[146]tion 1538.5 of the Penal Code, was denied he pled guilty and was granted probation. He has appealed.

The sole issue in the case at bench is the validity of an “airport search” of defendant’s checked luggage. We conclude that the search was constitutionally valid.

At about 7 p.m., defendant purchased a ticket for a flight from Los Angeles to Dallas-Fort Worth and checked luggage to accompany him on that flight. Suspicious that he might be a potential hijacker, an airline employee caused the checked baggage to be X-rayed. The X-ray disclosed suspicious objects. The airline employees opened the bag and discovered several bottles of pills which ultimately were determined to contain the controlled substance herein involved.

The contentions here made are: (1) That the inspection and search were mandated by federal regulations, so that the airline employees were acting as government agents subject to the Fourth Amendment; and (2) that a warrantless search of the luggage required a warrant.

We agree with defendant that the custody here was that of governmental agents. The People argue that the case on which defendant relies, United States v. Davis (9th Cir. 1973) 482 F.2d 893, does not here apply, because Davis dealt only with a search of the passenger and his carry-on luggage. However, contrary to the People’s contention, at the time herein involved, the federal regulations mandatorily required the institution and use of a security system applicable not only to the search of the passenger and his carry-on luggage, but to items to be checked. Title 14 Code of Federal Regulations subdivision (b) of section 121.538 of the applicable regulation promulgated by the federal aviation authority, expressly required the inspection herein involved. That provision reads: “(b) Each certificate holder shall adopt and put into use a screening system, acceptable to the Administrator, that is designed to prevent or deter the carriage aboard its aircraft of any explosive or incendiary device or weapon in carry-on baggage or on or about the persons of passengers, except as provided in § 121.585, and the carriage of any explosive or incendiary device in checked baggage. Each certificate holder shall adopt and put into use its security program prescribed in paragraph (c) of this section.” (Italics added.)