Matthews

Defendant appeals from judgment (order granting probation) entered on jury verdict of guilty of illegal transportation *15 of marijuana (§ 11360, subd. (a), Health & Saf. Code). The appellate issues relate primarily to search and seizure of the contraband narcotics.

Evidence Taken on the Motion to Suppress (§ 1538.5, Pen. Code)

Officer McCauley, a detector dog handler for the United States Customs Service was assigned to various areas to work with his dog Humphrey who is trained to alert for narcotics. 1 On December 26 he was assigned by customs to Pasha car terminal, Pier J, Berth 242, Long Beach, a terminal for the importation of automobiles into the United States; 66 privately owned cars had been taken from the ship and stored at Pasha awaiting a check for contraband narcotics by customs before delivery to the consignees. Officer McCauley’s function was to check the vehicles for contraband narcotics by using Humphrey to sniff the air surrounding them; he and Humphrey walked past the cars in this fashion and Humphrey registered no reaction until he came to the last car, a 1970 Maserati to which Humphrey alerted—he picked up the scent at the front of the vehicle,…

I dissent.

I

I respectfully dissent from the view of the majority for two reasons: First, the evidence adduced at the trial was not sufficient to establish that the search in this case took place at a border location or at its functional equivalent. Inasmuch as the prosecution did not meet its burden of proving this necessary prerequisite, the search was subject to the stringent Fourth Amendment requirement to obtain a search warrant prior to any search. Second, the dog was used to conduct an indiscriminate, exploratory search, which is invalid even at a border site.

Border searches were exempted from probable cause requirements by the First Congress of the United States, 1 and such searches are justified *26 by the interest in national self-protection. (Carroll v. United States (1925) 267 U.S. 132 [ 69 L.Ed. 543 , 45 S.Ct. 280 , 39 A.L.R. 790 ] (dictum); United States v. Ramsey (1977) 431 U.S. 606 [ 52 L.Ed.2d 617 , 97 S.Ct. 1972 ] (dictum).) It is well settled, however, that border searches must take place at a border or at “the functional equivalent” thereof. (Almeida-Sanchez v. United States (1973) 413 U.S. 266, 273 [ 37 L.Ed.2d 596, 603 , 93 S.Ct. 2535 ]; United States v.…

LILLIE, Acting P.J.

Defendant appeals from judgment (order granting probation) entered on jury verdict of guilty of illegal transportation of marijuana (§ 11360, subd. (a), Health & Saf. Code). The appellate issues relate primarily to search and seizure of the contraband narcotics.

Officer McCauley, a detector dog handler for the United States Customs Service was assigned to various areas to work with his dog Humphrey who is trained to alert for narcotics. [1] On December 26 he was assigned by customs to Pasha car terminal, Pier J, Berth 242, Long Beach, a terminal for the importation of automobiles into the United States; 66 privately owned cars had been taken from the ship and stored at Pasha awaiting a check for contraband narcotics by customs before delivery to the consignees. Officer McCauley's function was to check the vehicles for contraband narcotics by using Humphrey to sniff the air surrounding them; he and Humphrey walked past the cars in this fashion and Humphrey registered no reaction until he came to the last car, a 1970 Maserati to which Humphrey alerted — he picked up the scent at the front of the vehicle, proceeded toward the underside of the car, and…