Opinion
46566.
ARGUED SEPTEMBER 15, 1971.
DECIDED NOVEMBER 5, 1971.
Delinquent minor. Fulton Juvenile Court. Before Judge Dillon.
King Spalding, Robert W. Hurst, Russell French, for appellant.
Lewis R. Slaton, District Attorney, Joel M. Feldman, Carter Goode, Creighton W. Sossomon, for appellee.
1. The overruling of the motion to suppress was not error.
2. The evidence was sufficient to support a finding that the appellant was a delinquent.
3. Code Ann. § 24-2421 (b) (Ga. L. 1951, pp. 291, 303; 1968, pp. 1013, 1028) only authorized the commitment of a child for an indeterminate period.
ARGUED SEPTEMBER 15, 1971 — DECIDED NOVEMBER 5, 1971.
The appellant was tried in the Juvenile Court of Fulton County and was found guilty of the offense of violating the Georgia Drug Abuse Act and found to be a delinquent. He filed an appeal and the case is here for review.
The appellant and one Susan Corcoran were returning by air from San Francisco to Atlanta. Miss Corcoran testified that the appellant had paid her airfare from Atlanta to San Francisco and back, and had preceded her there. She stayed in San Francisco for a little over two days. She did not see appellant until he showed up at the apartment where she was staying to bring her back to Atlanta. At the apartment she observed appellant with a blue suitcase, which was carried with them to the airport in a taxicab, and checked on board the flight. The plane flew from San Francisco to Dallas to Atlanta, with a forty-five minute delay in Dallas.
After they arrived in Atlanta, appellant told her to pick up the suitcase at the baggage counter and meet him at his automobile. The next time she saw the bag it was at the baggage counter in Atlanta. She claimed it and was proceeding toward the exit when appellant joined her. They proceeded toward the exit together until they were stopped by Agent Joseph of the Federal Bureau of Narcotics, who, along with Agent Adams, placed her under arrest. The agents instructed appellant to accompany them but appellant broke, ran, and escaped.
Stuart Wasser, a Delta Airlines employee in Dallas, Texas, testified that as the suitcase was being unloaded in Dallas, it was placed on a conveyor belt from the plane. It "sprang open" and was removed from the conveyor belt so that it, and its contents, could be secured before being placed on the Atlanta-bound airplane. Wasser observed the bag's contents, and felt the same were suspicious. Among other things, the bag contained a great deal of green, dried vegetation. The vegetation did not look like cut grass, and contained small stems.
Wasser reclosed the bag, put it on the the ground, told his supervisor what he had seen in the bag, and turned the bag over to his supervisor. Wasser also identified several other items that he observed in the bag. Wasser heard that someone had called the Dallas police about the bag.
Federal Narcotic Agent Marion Joseph testified that approximately 6:50 p. m. on the date in question, while he was in his Atlanta office, he received a long distance call from a fellow narcotics agent in Dallas, Texas — John Morgan: "Mr. Morgan informed me that he had been notified by a United States Custom Agent that a light blue Travelmaster suitcase had come open accidently during baggage handling at the Dallas airport; that the contents of this bag had been suspicious and a Dallas City policeman assigned to duty at the airport had been summoned who had examined in turn the contents of the bag; that the United States Bureau of Customs had been notified of the description of the contents of the bag; that the bag had then been loaded on board Delta Flight No. 10, from Dallas to Atlanta, and Mr. Morgan furnished a description of the contents of the bag to me."
Since the flight was due to arrive in Atlanta within forty-five minutes, Agent Joseph accompanied by Agent Adams proceeded directly to the airport, without first obtaining a search warrant after having conferred with an assistant U.S. Attorney. His reason therefor was that time would not permit him to do so — that it would have taken in excess of forty-five minutes to do so. It would have taken him at least forty-five minutes to type up the warrant, an additional thirty-five minutes to drive from his office to the U.S. Commissioner's Office and find a place to park, and an additional forty-five minutes to the airport.
Upon arriving at the airport, the agents contacted the Delta Airlines supervisor, and advised him of their desire to intercept the suitcase. The supervisor, in their presence, called Delta Airlines in Dallas, and verified the Dallas incident. Armed with the bag's claim check number and its location on the plane, the agents awaited its arrival; and, upon its arrival, proceeded to the ramp and removed the bag. They examined its contents and ascertained that the green leafy vegetable material was marijuana. They then closed the bag, restored it to the baggage container, and placed it under surveillance until it was claimed by Miss Corcoran. Her claim check was compared by a baggage guard with the claim check on the bag. She then picked up the bag and proceeded toward the exit, at which point she was joined by appellant. Miss Corcoran was placed under arrest, the bag seized, and appellant told to accompany the agents. The appellant then broke away from Agent Adams, ran from the airport (pursued by the agents), and escaped.
The bag's contents were again checked at the airport by the agents, and found to contain, in addition to the marijuana, four green plastic bags containing powder, and four capsule boxes. The marijuana and powder were subsequently examined by federal chemists, who made a report thereof. The contents were approximately $50,000 worth of LSD (retail), and 13,000 empty capsules.
After losing appellant, the agents returned to the airport security office and advised Miss Corcoran of her constitutional rights (they having turned her over to a security officer) when appellant broke and ran. She was asked if the suitcase was hers, and who the appellant was. She told them his name was Eduardo, and that he drove a blue car. She was subsequently removed to the agent's office, and while there received a telephone call from her attorney. She subsequently identified a photograph of appellant, and stated that the bag was appellant's, and that he told her to pick it up at the baggage counter.
The agents subsequently obtained information as to appellant's identity, and secured an arrest warrant for him. An additional quantity of illegal drugs was seized by officers at the residence where the defendant was arrested.
The defendant's motion to suppress evidence was overruled by the trial judge and enumerated as error in this court.
1. The appellant contends that the trial judge erred in denying his motion to suppress because the evidence introduced to establish his delinquency was seized through exploitation of evidence which was illegally seized.
The appellant argues that the search at the airport having been illegal, the subsequent search can not stand because the probable cause for it was established by the prior void search. Merritt v. State, 121 Ga. App. 832 (4) ( 175 S.E.2d 890).
Counsel for the appellant insists that the search of the suitcase at the airport was illegal because there was no search warrant obtained and there were no circumstances which might have justified a search without one. The appellant relies on Corngold v. United States, 367 F.2d 1, and other cases, where the search was held to be illegal because the search was made without a warrant.
However, the Corngold case is distinguishable from the case sub judice. In that case the search was of the suitcase at the airport and was made by an airline employee "solely to serve the purposes of the government." In the present case the airline's employee's actions in examining the suitcase, and his discovery of the contraband was for the airline's purpose to prevent loss and breakage of its contents after it "sprang open" while on a conveyor belt. Under these circumstances the airline search was a private search not covered by the fourth amendment. Clayton v. United States, 413 F.2d 297; Wolf Low v. United States, 391 F.2d 61.
In regard to the officer's failure to obtain a search warrant to search the suitcase at the airport, he testified that he did not have time to obtain the warrant because he received the phone call just 45 minutes from the time the plane was due to arrive in Atlanta. The test of whether the search was legal is whether the search was reasonable. "Where a search of an automobile is made by a police officer without a warrant, the test of its legality is whether the search was reasonable. In applying this test reasonableness is not determined by the hindsight of appellate court judges after weeks of academic deliberation; it is determined by the foresight of the policeman on the scene who must act in the public interest in a very short space of time. The reasonableness of his action must be judged in relation to the circumstances then existing and is in the first instance a question for the trial judge to determine." Croker v. State, 114 Ga. App. 43 (1) ( 150 S.E.2d 294).
In our opinion there were sufficient "exigent circumstances" present to allow the search of the suitcase without a warrant. In the Clayton case it is stated: "Appellant next suggests the heroin was seized after a warrantless and hence illegal search and seizure of his air express shipment — either (a) by the employees of the airline, or (b) Los Angeles police officers, or (c) by both of them, or (d) by Chicago officers. This heroin was clearly discovered as a result of a private search which was, hence, not unlawful. Gold v. United States, 378 F.2d 588, 591 (9th Cir. 1967). The subsequent acts of the police did not constitute a search. Wolf Low v. United States, 391 F.2d 61, 63 (9th Cir. 1968). The exigencies of time and the possible removal of the contraband to another state created an emergency — an `exigent circumstance.' United States v. Rabinowitz, 339 U.S. 56 ( 70 SC 430, 94 LE 653) (1950); Boyden v. United States, 363 F.2d 551, 554 (9th Cir. 1966). The facts of this case are not like Corngold v. United States, 367 F.2d 1 (9th Cir. 1966), but are closely parallel to United States v. Spencer, No. 22,623 (9th Cir. filed May 27, 1969)." The overruling of the motion to suppress was not error.
2. The evidence was sufficient to support a finding that the appellant was a delinquent.
3. The appellant was committed to the Division for Children and Youth, Department of Family and Children Services for a period of one year, subject to annual extensions. This was in violation of Code Ann. § 24-2421 (1 b) (Ga. L. 1951, pp. 291, 303; 1968, pp. 1013, 1028) which was in force at that time, which only authorized the commitment of a child for an indeterminate period.
Judgment affirmed in part; reversed in part with direction that the appellant be sentenced in accordance with this opinion. Jordan, P. J., concurs. Evans, J., concurs in the judgment only.