Defendant was charged
with violating Comprehensive Drug Abuse Prevention and Control Act of 1970. On
motion to suppress evidence, the District Court, Ferguson, J., held that mere
fact that defendant who sought to board aircraft while carrying small suitcase
assertedly met hijacker profile and that magnetometer registered positive did
not constitute probable cause for arrest of defendant. The Court further held
that search of such suitcase was constitutionally impermissible because
defendant was not given opportunity to decline to submit to search on condition
that he not board plane and alternatively because initial pat down was not made
of defendant's outer clothing for metal object responsible for positive
magnetometer reading.
Motion granted.
1. Arrest 71.1(1)
Searches and Seizures «3.3(5), 7(27)
Grounds which may
justify physical search by law enforcement officer in absence of a search
warrant are existence of probable cause for arrest, consent to search, or, for
purposes of permitting a limited search for weapons, that there is a reason to
believe by reasonably prudent officer that person to be searched is armed and
dangerous and that safety of officer or of others is endangered. U.S.C.A.
Const. Amend. 4.
2. Arrest 63.4(2)
Mere fact that
defendant who sought to board aircraft while carrying small suitcase assertedly
met hijacker profile and that magnetometer registered positive did not
constitute probable cause for arrest of defendant.
3. Searches and Seizures 7(28)
Search may be
justified if subject's voluntary consent has been given, but consent to search
amounts to a waiver of a constitutional right and such a waiver cannot be
conclusively presumed from a verbal expression of assent; rather, court must
determine from all circumstances whether verbal assent reflected an
understanding, uncoerced, and unequivocal election to grant officer license
which person knows may be freely and effectively withheld. U.S.C.A. Const.
Amend. 4.
4. Constitutional Law 43(1)
"Waiver of a
constitutional right" means intentional relinquishment of a known right or
privilege.
See publication Words and Phrases for other judicial
constructions and definitions.
5. Searches and Seizures 7(28)
To meet constitutional
requirements, consent to search must be proved by clear and positive evidence
to be voluntary, unequivocal, specific and intelligently given rather than
resulting from duress or coercion, whether actual or implied. U.S.C.A. Const. Amend.
4.
6. Searches and Seizures 7 (28)
Where defendant, who
sought to board aircraft while carrying small suitcase, who assertedly met
hijacker profile and who caused magnetometer to register positive as he passed
by it, opened suitcase only after he was ordered to do so by marshal at time
when defendant was not free to leave or avoid search, defendant did not consent
to search, though signs in boarding area indicated that passengers and baggage
were subject to search. U.S.C.A. Const. Amend. 4.
7. Constitutional Law 83(1)
Government cannot
condition exercise of constitutional right to travel on voluntary
relinquishment of Fourth Amendment rights. U.S.C.A. Const. Amend. 4.
1285
8. Searches and Seizures 7(1)
Test for determining
whether search is allowable in absence of probable cause for arrest or of
consent is the reasonableness of search in light of Fourth Amendment principles
of "the particular governmental invasion of a citizen's personal security",
limitations are that search is permissible only if a reasonably prudent man in
the circumstances would be warranted in belief that his safety or that of
others is in danger and that search must be related in nature and scope to
justification for it and must initially consist of a limited exploration for
arms. U.S.C.A. Const. Amend. 4.
9. Searches and Seizures 7(10)
Search of small
suitcase of defendant, who sought to board aircraft while carrying such
suitcase, who assertedly met hijacker profile and who caused magnetometer to
give positive reading as he passed by it, was constitutionally impermissible
where defendant was not given opportunity to decline to submit to search on
condition that he not board plane. U.S.C.A. Const. Amend. 4.
10. Searches and Seizures 7(10 )
Even if defendant, who
sought to board aircraft while carrying small suitcase, who assertedly met
hijacker profile and who caused magnetometer to give positive reading as he
passed by it, was given opportunity to decline to submit to search on condition
that he not board plane, search of his suitcase violated his constitutional
rights where initial pat down was not made of defendant's outer clothing for
metal object responsible for positive magnetometer reading. U.S.C.A. Const.
Amend. 4.
William D. Keller, U.
S. Atty., Eric A. Nobles, Asst. U. S. Atty., Chief, Crim. Division, Darrell W.
Mac Intyre, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.
Pines & Dunn,
James R. Dunn, Beverly Hills, Cal., for defendant.
MEMORANDUM OPINION
FERGUSON, District
Judge.
While attempting to
board an American Airlines flight from Los Angeles International Airport to
Chicago on August 2, 1972, the defendant was placed under arrest by a Deputy
United States Marshal after a search of his suitcase and person revealed a
quantity of narcotics. In a two‑count indictment, the defendant is
charged with violating 21 U.S.C. § 841(a) (1). He has moved to suppress the
evidence found by the search.
The facts revealed at
the hearing are as follows:
1. The defendant was
the last passenger to attempt to board the flight; all other passengers were on
board.
2. Carrying a small
suitcase, he checked in at the boarding gate at approximately 12:25 A.M. The
ticket agent determined that the defendant met the Federal Aviation
Administration "profile" developed to detect potential hijackers, and
notified the deputy marshal attending the magnetometer in front of the
passageway to the aircraft.
3. As the defendant
passed by the magnetometer, it registered positive for the presence of metal.
4. The marshal then
ordered the defendant to open his suitcase, and, when he hesitated, repeated
the order.
5. At that time, the
defendant was under arrest although not told that he was. The marshal had made
the determination that the defendant could not leave under any circumstances.
6. The marshal did not
ask what was in the suitcase before searching it. Moreover, he did not indicate
that the defendant had any choice regarding consent to the search, nor inform
the defendant that he could choose not to undergo the search provided he did
not board the aircraft.
7. The defendant
testified that he would not have attempted to board the aircraft had he been
given the opportunity to decline to undergo the search.
1286
8. The defendant,
after some hesitation, opened the suitcase with his key. The marshal detected
an odor of marijuana. He then observed a white plastic bag in the rear of the
suitcase and asked the defendant what it contained. The defendant replied, "It's
not a bomb."
9. The marshal
suspected that the bag might contain an explosive device and searched it,
discovering a quantity of marijuana. At the time of the search of the suitcase,
no attempt had been made to search the defendant's person.
10. The marshal then
placed the defendant under formal arrest for possession of marijuana with
intent to distribute it.
11. The defendant was
taken to the marshal's office in the terminal, where a further search was made
of the suitcase and, for the first time, of the defendant's person. A small box
containing additional narcotics was found in the suitcase, and a quantity was
also found in the defendant's pants pocket.
The court
holds that the defendant's Fourth Amendment rights were violated when he was
not told at the time the search was initiated that he had a right to refuse to
submit to the search provided he did not board the airplane. As there was no
probable cause for the defendant's arrest at the time he attempted to board,
the only factors cited to support the search of his suitcase were that he met
the hijacker profile and that the magnetometer registered positive.
While the marshal was entitled to insist that the defendant undergo a carefully
limited search for weapons or explosives if he attempted to board the airplane,
the defendant was entitled to be given the choice of undergoing the search and
boarding the airplane, or declining to be searched upon the condition that he
not board the airplane. There is no indication that the defendant's behavior
was such that the marshal was justified in searching or detaining him if he
chose not to board the aircraft.
As a separate and
independent ground of decision, the court finds that
the search violated the defendant's Fourth Amendment rights because its scope
was not limited in accordance with constitutional requirements.
The Fourth Amendment
states, "The right of the people to be secure in their persons . . against
unreasonable searches and seizures, shall not be vio lated . . " In
United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950),
the Court held that "[i]t is unreasonable searches
that are prohibited by the Fourth Amendment," and that the test of
reasonableness "depends upon the facts and circumstance–the total
atmosphere of [each] case." 339 U.S. at 60, 66, 70 S.Ct. at 432, 435. The Rabinowitz standard was overruled in
Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which
held that reasonableness was to be determined not in a pragmatic fashion, but
rather in the context of the Fourth Amendment. The Chimel Court concluded that
the government's "reasonableness" argument was
"founded on little more than a subjective view
regarding the acceptability of certain sorts of police conduct, and not on
considerations relevant to Fourth Amendment interests. Under such an unconfined
analysis, Fourth Amendment protection in this area would approach the
evaporation point. . ." 395 U.S. at 764‑765, 89 S. Ct. at 2041.
The Court held that
the "facts and circumstances" of the Rabinowitz test "must be viewed in the light of established
Fourth Amendment principles." 395 U.S. at 765, 89 S. Ct. at 2041.
The Chimel holding has met with reluctance
on the part of lower courts. For example, in United States v. Slocum, 464 F.2d
1180 (3rd Cir.), decided as recently as July 19, 1972, the court still speaks
of reasonableness in the sense of Rabinowitz.
In cases involving
areas of great public concern, it is easy to succumb to the expediency of the
moment and, contrary
1287
to the Constitution,
adopt the principle that the end justifies the means.
All reasonable men are aware that aircraft hijacking and
the traffic in narcotics have reached serious proportions. These problems,
however, as all other great problems of the past and the future, must be solved
in the context of our Constitution, or else the principles upon which this
Nation was founded will have disappeared in the cloud of fear.
[1] There are three grounds relevant to the
instant case which may justify a physical search by a law enforcement officer
in the absence of a search warrant: (1) the existence of probable cause for arrest; (2) consent to the search; or (3)a limited search for weapons, where a
reasonably prudent officer has reason to believe that the person to be searched
is armed and dangerous and that the safety of the officer or of others is
endangered.*
Probable Cause
[2] It is clear that in the instant case, probable cause was
not present. See Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct.
1921, 32 L.Ed.2d 612 (1972); Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13
L.Ed.2d 142 (1964); United States v. Epperson, 454 F.2d 769, 770‑771 (4th
Cir.), cert. denied, 406 U. S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972);
United States v. Lopez, 328 F. Supp. 1077, 1093 (E.D.N.Y. 1971). And "[i]t is
axiomatic that an incident search may not precede an arrest and serve as part
of its justification." Sibron v. New York, 392 U.S. 40, 63, 88
S. Ct. 1889, 1902, 20 L.Ed.2d 917 (1968).
Consent
[3‑5] A search may be
justified if the subject's voluntary consent has been given. However, consent to a search
amounts to a waiver of a constitutional right, and
"[w]aiver, in this context, means the
'intentional relinquishment of a known right or privilege'. Johnson
v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Such a waiver cannot be conclusively presumed from a verbal
expression of assent. The court must determine from all the circumstances
whether the verbal assent reflected an understanding, uncoerced, and
unequivocal election to grant the office[r] a license which the person knows may be freely and effectively
withheld. . ." Cipres v. United States, 343 F.2d 95. 97 (9th Cir.
1965).
To meet constitutional
requirements,
"the consent must be proved, by clear and positive
evidence, to be voluntary, unequivocal, specific and intelligently given rather
than resulting from duress or coercion, whether actual or implied.
United States v. Como, 340 F. 2d 891, 893 (2d Cir. 1965); United States v.
Smith, 308 F.2d 657, 663 (2d Cir. 1962), cert. denied, 372 U.S. 906, 83 S.Ct.
717, 9 L.Ed.2d 716 (1963 )."
* There may be other
circumstances, not here relevant, in which a law enforcement officer may
constitutionally make a search without a warrant. Such circumstances may include:
(1) the search of a moving vehicle, in the presence of "substantial
ground" to believe a crime is being committed, Brinegar v. United States,
338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States,
267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); (2) the search of a vehicle
which has been impounded pursuant to statute pending forfeiture proceedings,
where the search is closely related to the reason for the arrest, Cooper v.
California, 386 U.S. 58, 87 S.Ct, 788, 17 L.Ed.2d 730 (1967 (1967); (3) the
search of a house for persons and weapons, where "the exigencies of the
situation" require a speedy search to apprehend a suspected armed felon
who was observed entering the louse, Warden v. Hayden, 387 U.S. 294, 298‑300,
87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); and, possibly, (4) electronic
surveillance authorized by the Attorney General in cases involving foreign
espionage, see United States v. United States District Court, 407 U.S. 297, 321‑322,
92 S.Ct. 2125, 32, L.Ed.2d 752 (1972); United States v. Smith, 321 F.Supp. 424,
426 (C.D. Cal. 1971).
1288
United States v. Bell,
335 F.Supp. 797, 803 (E.D.N.Y. 1971).
See also 8A J. Moore,
Federal Practice ¶ 41.07[4], at 41‑79.
[6, 7] It is clear that in the instant case, the defendant did not give consent to a search of his
suitcase. He opened it only after he was ordered to do so by the marshal at a
time when he was not free to leave or to avoid the search. Under such
circumstances, the search was inherently
coercive. Cipres v. United States, supra., 343 F.2d at 98; United
States v. Page, 302 F.2d 81, 83‑84 ( 9th Cir. 1962). The defendant's
conduct "hardly
amounts to an 'unequivocal, specific, and intelligently given' consent." Lopez,
supra, 328 F.Supp. at 1093; see Bell, supra, 335 F.Supp. at 803. The government
argues that the presence of signs in the boarding area indicating that
passengers and baggage were subject to search amounts to implied consent. This
contention, however, must clearly fail, both because such consent does not meet
the constitutional standards set forth in Cipres, supra, and because "the
government [cannot] condition the exercise of the defendant's constitutional
right to travel on the voluntary relinquishment of his Fourth Amendment rights." Lopez, supra, 328 F.Supp. at 1092‑1093;
Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).
Limited Search for Weapons
[8] Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
1868, 20 L.Ed.2d 889 (1968), Sibron v. New York, supra, and Adams v. Williams,
supra, establish that there are circumstances in which a law enforcement
officer may constitutionally search a suspect in the absence of probable cause
for arrest or of consent:
"[A] police officer may in appropriate circumstances
and in an appropriate manner approach a person for purposes of investigating
possibly criminal behavior even though there is no probable cause to make an
arrest." Term, supra, 392 U.S. at 22, 88 S.Ct. at 1880.
These circumstances,
however, and the scope of the resulting permissible search, are both severely
limited. The test as to whether the search is allowable is the reasonableness
in light of Fourth Amendment principles of "the particular governmental invasion of a citizen's
personal security." Term, supra., at 19, 88 S.Ct. at 1878; Chimel, supra, 395 U.S. at 765, 89 S.Ct.
2034. The limitations are that (1) the search is permissible only if "a
reasonably prudent man in the circumstances would be warranted in the belief
that his safety or that of others was in danger. . . [because the suspect] was
armed and dangerous," Term, supra, 392 U.S. at 27, 30, 88 S.Ct, at 1883,
1884; and (2) the search must be related in "nature and scope" to the
justification for it and must initially consist of a "limited exploration
for arms," Sibron, .supra, 392 U.S. at 65, 88 S.Ct. 1889.
Several courts have
recently applied the Terry and Sibron standards to airport search
situations with respect to: (A) the hijacker profile; (B) the search by
magnetometer; and ( C ) the physical search of the subject's person, clothing,
or luggage.
A. The Profile
The FAA hijacker
profile was developed as a device to pinpoint those ticket holders who are most
likely to be hijackers, while eliminating the necessity for most passengers to
undergo physical searches. The use of the profile was upheld in Slocum, supra,
464 F.2d at 1183, and in Lopez, supra, 328 F.Supp. at 1086‑1087. Under
established procedures, passengers are not to be searched unless they (1) meet
the profile, (2 ) activate the magnetometer, and (3) fail to provide
satisfactory identification. See Lopez, supra, at 1083.
B. Search. by Magnetometer
The use of a
magnetometer to detect metal at airport boarding gates was upheld in Epperson,
supra, and Slocum, supra. The Epperson court stated that:
"the
search for the sole purpose of discovering weapons and preventing
1289
air piracy, and not for the purpose of discovering
weapons and pre‑criminal events, fully justified the minimal invasion of
personal privacy by magnetometer. The use of the device, unlike frisking,
cannot possibly be 'an annoying, frightening, and perhaps humiliating
experience,' Terry, supra at 25, 88 S.Ct. at 1882 . . . . " 454 F.2d at
771.
The court found
"an overwhelming governmental interest" in protecting airline
passengers from hijackings, and found that this interest justified the routine
subjecting of passengers to magnetometer searches. It should be noted, however,
that about 50% of the passengers who pass by the magnetometer activate it, and
that an object as small as a nail file will trigger it. Lopez, supra, 328
F.Supp. at 1086; Bell, supra, 335 F. Supp. at 802; Note, Airport Security
Searches and the Fourth Amendment, 71 Colum. L. Rev. 1039, 1040 (1971).
C. Physical Search of Person, Clothing or Luggage
Terry and Sibron
established a limited justification for a warrantless search "in
appropriate circumstances." The search must "be strictly
circumscribed by the exigencies which justify its initiation," and
"must . . be confined in scope to an intrusion reasonably designed to
discover guns, knives, clubs, or other hidden instruments for the assault of
the police officer." Term, supra, 392 U.S. at 26, 29, 88 S.Ct. at 1882,
1884; see Tinney v. Wilson, 408 F.2d 912, 916 (9th Cir. 1969).
The search
of the defendant's suitcase in the instant case was impermissible under the Fourth Amendment for two separate and
distinct reasons: (1) the defendant was not told at the time the search was
initiated that he had a right to refuse to submit to the search provided he did
not board the plane; and (2) the search was not sufficiently limited in scope,
as required by Term and Sibron.
1. Right to Decline Search
[9]The search of either the defendant's person or of his
suitcase was constitutionally impermissible because the defendant was not given
the opportunity to decline to submit to the search upon the condition that he
not board the plane.
The governmental interest which justifies the physical
search of the defendant's person or carry‑on luggage is to prevent
"armed piracy of a passenger aircraft in flight," and the justification
for the search arises from "the reasonable fear of the marshal for the
safety of airline passengers [entitling him], for their protection, to conduct
a carefully limited search . . in an attempt to discover weapons which might be
used for air piracy." Epperson, supra, 454 F.2d at 772. The class of
persons with respect to which the governmental interest in preventing air
hijackings extends consists of the passengers and crew on the airplane. As the
Epperson count noted in applying Terry
to delineate the class of persons protected by this governmental interest:
"The
rationale of Terry is not limited to
protection of the investigating officer, but extends to `others in danger.' Terry, supra, 392 U.S. at [271, 88 S.Ct.
1868, 20 L.Ed.2d 889. That all passengers are endangered by the presence of
weapons on aircraft needs no
exposition." 454 F.2d at 772. (Emphasis added.)
If the defendant in
this case was not in fact going to board the plane–and he testified that he
would not have attempted to board had he been given the opportunity to decline
to undergo the search–he would pose no danger to the passengers and crew on the
aircraft. Accordingly, the governmental interest which justifies a physical
search of the person or hand luggage of a prospective passenger in the process
of boarding an airliner is lacking in the case in which the prospective
passenger declines to board the plane. To meet Fourth
1290
Amendment guarantees, the prospective
passenger must be advised that he has to submit to a search if he wants to
board the plane, but that he can decline to be searched if he chooses not to
board the aircraft.
The Fourth Amendment
rights of a prospective passenger who chooses not to board an airliner should
be coextensive with those of anyone else in the air terminal. The mere fact of
meeting the profile and activating the magnetometer does not establish grounds
for a forced search. The subject who declines to board the plane can, like
anyone else in the air terminal, be monitored by marshals and airline personnel.
If he acts in a manner which would make him liable to search under the usual
search standards, he can then be searched. But to require submission to a forced search
under the facts presented here would establish a unique Fourth Amendment
standard for prospective passengers at airline boarding gates. While there is a
governmental interest justifying a search in the case of passengers who
actually board the plane, there is no such interest with respect to persons who
merely appear at the boarding gate and choose not to board, and accordingly a
physical search of one's person or luggage is held to be impermissible under
those circumstances.
The court's holding is
consistent with airline and FAA approved procedures. On most airlines,
"[i]f the
magnetometer indicates that a passenger . . . carries an amount of metal
equivalent to a dangerous weapon, he is invited out of line and courteously
interviewed by a ticket agent. If the interview is satisfactory the passenger
moves on to the aircraft. But if he is uncooperative, or the ticket agent has
reason to consider him a security risk, he is denied passage on the
aircraft." Note, Airport Security Searches and the Fourth Amendment,
supra, 71 Colum. L. Rev. at 1040.
Under FAA approved
procedures, if a Deputy United States Marshal is summoned and the passenger,
after meeting the profile and activating the magnetometer, fails to produce
satisfactory identification, "a request is made that he submit to a
`voluntary' search." Lopez, supra, 328 F.Supp. at 1083.
The government argues
that the search is permissible under Adams v. Williams, supra. But Adams is
readily distinguishable from the instant case. In Adams, a patrolman in a high‑crime
area was told by an informant known to him that the defendant, seated in a
nearby automobile, was carrying narcotics and had a gun at his waist. The
officer approached the car and asked the occupant to open the door. The
defendant responded by rolling down the window. The officer then reached into
the car and removed a loaded revolver from the defendant's waistband, just
where the informant had said it would be. The Court held that the search was
permissible under Terry, but emphasized three factors that are lacking in the
instant case: (1) the proven credibility of the informant, (2) the danger to
the officer, and (3) the defendant's actions after he was approached by the
officer. The Court stated that:
"[W]e believe that Sgt. Connolly acted justifiably
in responding to his informant's tip. The informant was known to him personally
and had provided him with information in the past. This is a stronger case than
obtains in the case of an anonymous telephone tip. The informant had come
forward personally to give information that was immediately verifiable at the
scene. Indeed, under Connecticut law, the informant might have been subject to
immediate arrest for making a false complaint . . . Thus, . . . the information
carried enough indicia of reliability to justify the officer's forcible stop of
Williams.
1291
"While properly investigating the activity of a
person who was reported to be carrying narcotics and a concealed weapon and who
was sitting alone in a car in a high‑crime area at 2:15 in the morning,
Sgt. Connolly had ample reason to fear for his safety. When Williams rolled
down his window, rather than complying with the policeman's request to step out
of the car so that his movements could more easily be seen, the revolver
allegedly at Williams' waist became an even greater threat. Under these
circumstances the policeman's action in reaching to the spot where the gun was
thought to be hidden constituted a limited intrusion designed to insure his
safety, and we conclude that it was reasonable. . ." 407 U.S. at 146‑148,
92 S.Ct. at 1923.
Thus, the elements
which were crucial to the Court's holding in Adains, especially the presence of
a tip from a reliable informer, are lacking in the instant case.
2. Scope of the Search
[10] While this decision is based on the fact
that the defendant was not given an opportunity to decline to submit to the
search if he chose not to board the plane, there is a second, independent
ground for holding that the search violated the defendant's Fourth Amendment
rights: the search was not sufficiently limited in scope, as required by Terry
and Sibron.
In Sibron, a police
officer observed the defendant talking with known narcotics addicts over an
eight‑hour period and then searched his pocket, discovering heroin.
Distinguishing Sibron from Terry, the Court stated that
"Even assuming arguendo
that there were adequate grounds to search Sibron for weapons, the nature and
scope of the search conducted by Patrolman Martin were so clearly unrelated to
that justification as to render the heroin inadmissible. The search for weapons
approved in Terry consisted solely of a limited patting of the outer clothing
of the suspect for concealed objects which might be used as instruments of
assault. Only when he discovered such objects did the officer in Terry place
his hands in the pockets of the men he searched. In this case, with no attempt
at an initial limited exploration for arms, Patrolman Martin thrust his hand
into Sibron's pocket and took from him envelopes of heroin. . ." 392 U.S.
at 65, 88 S.Ct. at 1904.
In the reported
federal cases which have upheld airport searches following positive
magnetometer readings, the scope of the search was initially restricted to
"a limited patting of the outer clothing of the suspect for concealed
[weapons]." The scope of the search was not restricted in this manner in
the instant case.
In Epperson, supra,
the court upheld a search which revealed a gun in the jacket that the defendant
was carrying. The decision was quite narrow, however, in defining the
permissible scope of a search subsequent to a positive magnetometer reading:
"When the high metal indication of the magnetometer
was not satisfactorily explained by Epperson, the subsequent physical 'frisk'
of his jacket was entirely justifiable and reasonable under Terry. At this
stage . . . the reasonable fear of the marshal for the safety of airline
passengers increased and he was entitled, for their protection, to conduct a
carefully limited search of the clothing of Epperson in an attempt to discover
weapons which might be used for air piracy. . " 454 F.2d at 772. ( Emphasis
added.)
The court in United
States v. Lindsey, 451 F.2d 701, 704 (3rd Cir. 1971), concluded that
"[t]he use of four different names, defendant's
extremely anxious behavior and the very hard bulge in the coat pocket provided
a sufficient basis, in the context of an airline boarding, to stop defendant
and conduct a
1292
limited pat down."
(Emphasis added.)
In Bell, supra, a deputy marshal conducted
a pat‑down of the defendant's exterior clothing and felt two hard bulges,
which turned out to be narcotics. The court found that the limited pat‑down
search conformed to the Terry requirements and held that the narcotics was
admissible. And in Lopez, supra, the court ruled that narcotics which the
marshal felt as a hard object under the defendant's outer clothing in the
course of a pat‑down search was admissible under Terry, but granted the
defendant's motion to suppress on other grounds.
The only case called to the court's attention in which the
defendant's carryon luggage was searched, as here, is Slocum, supra. In that
case, the marshal requested identification after the defendant had activated
the magnetometer, but the defendant could produce none. The court concluded
that the subsequent search of the defendant's luggage was proper, but noted
that "[i]t was only after the frisk failed to disclose anything which
might have triggered the magnetometer that the Marshal requested that defendant
open his luggage." 464 F.2d at 1183.
In the instant case,
no evidence was adduced to show that the marshal made an "attempt at an
initial limited exploration for arms," as required by Terry and Sibron.
The evidence shows only that, subsequent to defendant's activating the magnetometer,
the marshal demanded that he open his suitcase for a search. The marshal did
not initially perform a pat‑down of the defendant's outer clothing, or
even ask him to produce identification, which is a required step under the FAA
approved procedures in airport search situations. See Lopez, supra, 328
F.Supp. at 1083.
This court holds,
independent of the other ground for decision, that the failure of the marshal
to make an initial pat‑down of the defendant's outer clothing before
searching his suitcase prevents the search from coming within the Terry penumbra and makes it violative of the
Fourth Amendment. A limited pat‑down search which reveals the
metal object responsible for the positive magnetometer reading obviates the
necessity for a search of the suitcase. Cf. Slocum, supra, 464 F.2d at 1184. Under the Fourth
Amendment, the marshal does not have a blank check to search anything in the
suspect's possession, and may not search the suitcase without an initial pat‑down
search for weapons that falls within Terry.
See Tinney v. Wilson, supra; United States v. Hostetter, 295 F.Supp.
1312 (D. Del. 1969).
The evidence sought to
be introduced by the prosecution was obtained in violation of the Fourth
Amendment, and the motion to suppress the evidence is granted.