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COMMONWEALTH v. KOZAK (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
KOZAK, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, June T., 1973, No. 4697, in case of Commonwealth of Pennsylvania v. Dolores J. Kozak.

COUNSEL

Stanton D. Levenson, with him Watzman, Levenson & Snyder, for appellant.

Gordon L. Young, with him Robert L. Eberhardt, Assistant District Attorney, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Jacobs, J. Hoffman and Spaeth, JJ., join in this dissenting opinion.

Author: Price

[ 233 Pa. Super. Page 349]

Following a non-jury trial, the appellant, Dolores J. Kozak, was found guilty of possession of marijuana and possession with intent to deliver marijuana.*fn1 She contends

[ 233 Pa. Super. Page 350]

    that the search and seizure by the private individual of two suitcases containing the marijuana was unlawful and that the evidence obtained should have been suppressed, and that the search made pursuant to the warrant was also invalid because the warrant was based on illegally obtained information. We find no merit in these contentions and will, therefore, affirm the judgment of the lower court.

The facts reveal the following: early in the morning of May 3, 1973, Stephen Patrick, an employee of Trans World Airlines (TWA), noticed two suitcases sitting some distance from the baggage claim area of the airport. Mr. Patrick assumed the bags were misplaced, and since one of his responsibilities as a TWA employee was returning lost luggage to the proper owners, he placed these suitcases in his car with other luggage to be delivered.

By the time Mr. Patrick's work shift was over, the lost and found department was closed. He took the luggage to his house and opened the suitcases in an attempt to discover the identity of the owner. Although his search of the luggage failed to reveal the owner, he did find a number of packages wrapped in paper and plastic bags. He opened one of the packages and found a sweet smelling, grassy, leafy material. Mr. Patrick's experience with drugs was limited, and he was unable to make a positive identification of the substance. He did, however, suspect that the material was marijuana. He closed the suitcases and called his supervisor who in turn notified the police. Experienced narcotics agents were sent to Mr. Patrick's home to investigate.

Mr. Patrick showed the police the suitcases and explained what had happened. Although it is not clear from the record whether Mr. Patrick reopened the first suitcase or whether the police officers reopened it, the lower court found that Mr. Patrick reopened at least one of the suitcases. The officers examined the contents and immediately

[ 233 Pa. Super. Page 351]

    determined that the packaged substance was marijuana. The suitcases were closed and taken to the lost and found department at the airport where they were kept under surveillance. A search warrant was obtained and appellant was arrested when she claimed the luggage.

Appellant moved to suppress the evidence seized as a result of the search at Mr. Patrick's house on the ground that the search was conducted by police without a warrant. She also moved to suppress all the evidence seized at her arrest, alleging that the warrant used was invalid because it had been obtained as a result of information arising from an illegal search.

Although this case involves issues that present virgin territory beyond the expanding frontiers of the law in the Commonwealth, the points have been frequently covered by the federal courts.*fn2 It is well settled that a search conducted by a private individual is not subject to the restraints of the Fourth Amendment to the United States Constitution. Burdeau v. McDowell, 256 U.S. 465 (1921); Commonwealth v. Dingfelt, 227 Pa. Superior Ct. 380, 323 A.2d 145 (1974). However, a search initiated by a private citizen may lose its immunity if the police take an active part. Corngold v. United States, 367 F.2d 1 (9th Cir. 1966). Therefore, in order to agree with appellant that the warrantless search at Mr. Patrick's house was unlawful and that the evidence found should have been suppressed, we would have to find that the

[ 233 Pa. Super. Page 352]

    police participated to such an extent as to make the search a police action. This we do not find.

We are not dealing with a case wherein the police requested the search, Corngold v. United States, supra; aided the private citizen in making the search, United States v. Issod, 370 F. Supp. 1110 (E. D. Wis. 1974); exercised some control over the area to be searched, United States v. Small, 297 F. Supp. 582 (D. Mass. 1969); or allowed the search to be conducted while the object searched was in government custody, Cash v. Williams, 455 F.2d 1227 (6th Cir. 1972). We are instead dealing with a search made entirely by a private citizen on his own initiative with no police participation or control during the search.

Mr. Patrick opened the unlocked suitcases and searched them in his home in an attempt to ascertain the owner's identity. This was standard procedure as part of his job with the lost and found department of TWA. There is no doubt that the police were not in the house when Mr. Patrick first opened the suitcases, did not request the initial search, and had no knowledge of the search until Mr. Patrick's supervisor called them. These factors evidence a lack of police participation.

In the case of United States v. Issod, supra, a girl delivered two large trunks to a United Airlines Freight Terminal, to be shipped from California to Milwaukee. Due to the girl's actions and nervous behavior, the airline employee became suspicious and contacted a narcotics agent. After the agent arrived on the scene and conferred with the airline employee, the employee opened the trunks for the first time. The agent then determined that the trunks did contain marijuana.

Although this search after consultation with the narcotics agent renders Issod easily distinguishable from the present case, the court there discussed government intervention in a private search. The court stated: "A search cannot be viewed as a purely private action if it

[ 233 Pa. Super. Page 353]

    was encouraged or ordered by government officers. There must be a showing that any involvement of government officers did not influence the actions of a private party. (Citation omitted).

"Prior knowledge by government authorities that a search would be conducted is a crucial factor in determining government influence. Courts holding a seizure of evidence to be a private action have consistently looked to the lack of prior awareness on the ...


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