Court of Appeals for the Second Circuit

United States v. Cynthia Edwards

1974 U.S. App. LEXIS 8411 · 498 F.2d 496

May 29, 1974 · Docket 575, Docket 73-2488

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Opinion

FRIENDLY, Circuit Judge:

This appeal from a conviction following a non-jury trial for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) is another in the growing list of cases relating to the validity of airport searches.1 Problems have multiplied as practical considerations have required that the “profile” method, on the basis of which this court first upheld the validity of an airport search, United States v. Bell, 464 F.2d 667 (2 Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972), should be relegated to a supplementary role2and that primary reliance should be placed on passage through a magnetometer 3 and the search of carry-on luggage.4 Although no one could reconcile all the views expressed in the opinions of the various circuits or, indeed, of this circuit alone, a consensus does seem to be emerging that an airport search is not to be condemned as violating the Fourth Amendment simply because it does not precisely fit into one of the previously recognized categories for dispensing with a search warrant,5 but only if the search is “unreasonable” on the facts. This is altogether in line with the command of the first clause of the Amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . . .” .Surprise has been expressed that “the Amendment nowhere connects the two clauses; it nowhere says in terms that one might expect it to say: that all searches without a warrant issued in compliance with the condition specified in the second clause are eo ipso unreasonable under the first.” Trial Manual for the Defense of Criminal Cases (Preliminary Draft No. 1, Sept. 29, 1966), Joint Committee on Legal Education of the A.L.I. and A.B.A., 28. But, as Professor Telford Taylor demonstrated in a brilliant lecture, Search, Seizure and Surveillance, this was not a lapse by the draftsmen. Rather “our constitutional fathers were not concerned about warrantless searches, but about overreaching warrants.” 6 While the heavy judicial gloss that a warrant-less search is invalid unless within an appropriate “exception” is surely here to stay, recognition of the historical background of the Amendment, with its stress on the seizure of books and papers on political affairs and the search of homes for illegally imported goods, helps to determine when an exception is justified. Nothing in the history of the Amendment remotely suggests that the framers would have wished to prohibit reasonable measures to prevent the boarding of vessels by passengers intent on piracy.

I.

The facts are stated in Judge Zavatt’s opinion, 359 F.Supp. 764 (E.D.N.Y.1973), and we shall limit ourselves to the essentials. Defendant Cynthia Edwards arrived at La Guardia Airport in New York City on the evening of August 23, 1972, to take an Eastern'Air Lines “shuttle” flight to Boston. The relevant regulations of the Federal Aviation Administration then in effect with respect to nonreservation flights such as the shuttle required that:

1. Where metal detectors are available
A. Each certificate holder shall prevent the carriage aboard its aircraft of baggage on or about the person of passengers unless that baggage has been examined by a responsible representative of the certificate holder or a law enforcement officer and,
. B. The certificate holder shall require each passenger to clear through a metal detector without indication of unaccounted for metal on his person prior to boarding.7

Near the entrance to the boarding gate were two large printed signs, plainly warning, among other things,

PASSENGERS AND BAGGAGE SUBJECT TO SEARCH.

When an Eastern employee announced over a loudspeaker that the flight could be boarded, he also announced that all carry-on luggage would be searched.

At this time Miss Edwards was in the line of boarding passengers, carrying a pocketbook and what she described as a “beach bag.” She activated the magnetometer — for what reason the record does not disclose.8 The Deputy United States Marshal who examined the beach bag found that it contained, among other things, a pair of slacks wrapped around a package. In answer to the Marshal, Miss Edwards said the package was a box of Tampax. Removing the slacks, the Marshal found that in fact the package contained a large number of glassine envelopes, each containing a white powder. He later found other such envelopes in three pockets in the beach bag, bringing the total to 1,664. Miss Edwards testified she knew that there were about 1,600 envelopes in the bag and that the white powder was heroin. The alleged illegality of the search is thus the sole ground of the appeal.

Because of the simplicity of the facts, the appeal presents, in clear and uncomplicated form, the basic question whether the FAA regulations with respect to the search of carry-on baggage in force in August, 1972, violated the Fourth Amendment. There were here no makeweights, such as suspicious behavior; false identification, meeting of the “profile,” and the like,9 that have assisted the Government in cases such as United States v. Bell, supra, 464 F.2d 667; United States v. Riggs, 474 F.2d 699 (2 Cir.), cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973); United States v. Moreno, supra, 475 F.2d 44; and United States v. Skipwith, supra, 482 F.2d 1272. On the other hand, the search was strictly in accordance with the regulations; there was no removal of Miss Edwards to another area as in United States v. Ruiz-Estrella, 481 F.2d 723, 724 (2 Cir. 1973); and the case presents no such questions concerning a search of her person as were considered in Albarado. There is likewise no suggestion that the marshal was acting in response to any tip that Miss Edwards was transporting narcotics rather than in a good faith effort to carry out the regulations.

In my concurring opinion in United States v. Bell, supra, 464 F.2d at 675, I wrote concerning searches designed to prevent airplane hijacking:

When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.

While that view was not accepted by a majority, neither was it rejected. Judge Mulligan, who wrote for the court, had no occasion to consider the question; while Judge Mansfield expressed some misgivings, the facts did not require him to consider the special problem of the conceded inapplicability of the “profile” method to shuttle flights. United States v. Ruiz-Estrella, supra, left the question open in this circuit since the majority there refused to infer on the basis of the record that the posters had apprised the defendant of his ability to avoid search by not boarding the flight, 481 F.2d at 728-729. Approving references to the view expressed in the concurring opinion in Bell have been made in United States v. Doran, 482 F.2d 929, 932 (9 Cir. 1973), and United States v. Skipwith, supra, 482 F.2d at 1276.10 We apply it on the facts here.1111

The reasonableness of a warrantless search depends, as many of the airport search opinions have stated, on balancing the need for a search against the offensiveness of the. intrusion. We need not labor the point with respect to need; the success of the FAA’s anti-hijacking program should not obscure the enormous dangers to life and property from terrorists, ordinary criminals, or the demented. The search of carry-on baggage, applied to everyone, involves not the slightest stigma, see United States v. Albarado, supra, 495 F.2d at 807. More than a million Americans subject themselves to it daily; all but a handful do this cheerfully, even eagerly, knowing it is essential for their protection. To brand such a search as unreasonable would go beyond any fair interpretation of the Fourth Amendment. If experience should demonstrate that the Government is abusing its authority and is using the airport search not for the purpose intended but as a general means for enforcing the criminal laws, a means for limitation can be found in the suggestion in Judge Aldrich’s dissenting opinion in United States v. Skipwith, supra, 482 F.2d at 1280-1281. See also United States v. Davis, supra, 482 F.2d at 909-910 & n. 44. But unless and until there should be evidence of abuse, we hold to the traditional rule that if the search is proper, it is of no moment that the object found was not what the officer was looking for, Abel v. United States, 362 U.S. 217, 238, 80 S.Ct 683, 4 L.Ed.2d 668 (1960).

The factual element of knowledge of the ability to withdraw that was held to be wanting by the majority in Ruiz-Estrella was clearly present here, as the district judge found, 359 F.Supp. at 767. Whereas in Ruiz-Estrella the Government for tactical reasons, see 481 F.2d at 728 n. 4, did not rely on the signs, here it does.12 To be sure, while the signs state “PASSENGERS AND BAGGAGE SUBJECT TO SEARCH,” they do not say in ipsissimis verbis that search can be avoided by not proceeding to the designated area. But the signs and the announcement made over the loudspeakers did say that it was only “passengers” whose baggage was subject to search. Although we cannot understand why, rather than permit continued argument on this point, the Government has not taken the simple step of adding to the signs language with respect to withdrawal so plain that he who runs may read, it would outrage common sense to suppose that an intelligent woman, neither blind nor deaf nor ignorant of the language, was not aware as the district judge found “that she was as free to step out of the line of passengers (as she had been to enter that line) if she did not want her baggage to be searched,” 359 F.Supp. at 767. Miss Edwards simply miscalculated the odds.

We thus have no occasion to consider the correctness of the district court’s further finding of consent. While we do not necessarily agree with everything said on this subject in Albarado, supra, 495 F.2d at 806-807, the Bell concurring opinion does not rely on consent of the sort that would validate an otherwise unlawful search, see Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The point is rather that in order to bring itself within the test of reasonableness applicable to airport searches, the Government must give the citizen fair warning, before he enters the area of search, that he is at liberty to proceed no further.

The only point requiring further discussion is whether the marshal’s search of the beach bag was too extensive. Our prior decisions settle that issue in favor of the Government. As Judge Mulligan wrote in Bell, supra, 464 F.2d at 674 :

[T]he weapon of the skyjacker is not limited to the conventional weaponry of the bank robber or the burglar. His arsenal may well include explosives. .. . . [The object found] could have been gunpowder or some other explosive or deleterious substance which a hijacker might well use to cow the crew and passengers. . The fact that the object was not metal should not have concluded the inquiry.

See also United States v. Albarado, supra, 495 F.2d at 809.

Affirmed.

.

. Footnote 1 to Judge Oakes’ opinion in United States v. Albarado, 495 F.2d 799, at 801 n. 1 (2 Cir. 1974), lists 18 decisions by courts of appeals on this subject since the initial one in United States v. Lindsey, 451 F.2d 701 (3 Cir. 1971), cert. denied, 405 U. S. 995, 92 S.Ct. 1270, 31 L.Ed.2d 463 (1972). Three more can now he added, United States v. Crain, 485 F.2d 297 (9 Cir. 1973); United States v. Ogden, 485 F.2d 536 (9 Cir. 1973); and United States v. Palazzo, 488 F.2d 942 (5 Cir. 1974).

1 (2 Cir. 1974), lists 18 decisions by courts of appeals on this subject since the initial one in United States v. Lindsey, 451 F.2d 701 (3 Cir. 1971), cert. denied, 405 U. S. 995 , 92 S.Ct. 1270 , 31 L.Ed.2d 463 (1972).Three more can now he added, United States v. Crain, 485 F.2d 297 (9 Cir. 1973); United States v. Ogden, 485 F.2d 536 (9 Cir. 1973); and United States v. Palazzo, 488 F.2d 942 (5 Cir. 1974)..

. Within a few days after the decision in United States v. Bell, there occurred the first hijacking of a shuttle flight — for which the profile method is totally inapplicable.

.

. Magnetometers have become increasingly sophisticated and are being used at a growing number of airports. Even where magne*498tometers are in use, however, there is considerable variation in the procedures when a passenger has activated the device, see United States v. Albarado, supra, 495 F.2d at 802 n. 3.

Even where magne tometers are in use, however, there is considerable variation in the procedures when a passenger has activated the device, see United States v. Albarado, supra, 495 F.2d at 802 n.3..

. We are not here required to and do not consider what circumstances may justify the search of checked baggage, a procedure routinely followed by at least some airlines on international flights from the United States. Compare United States v. Garay, 477 F.2d 1306 (5 Cir. 1973), and United States v. Palazzo, supra, with United States v. Cyzewski, 484 F.2d 509 (5 Cir. 1973), relating to more particularized searches of checked baggage.

Compare United States v. Garay, 477 F.2d 1306 (5 Cir. 1973), and United States v. Palazzo, supra, with United States v. Cyzewski, 484 F.2d 509 (5 Cir. 1973), relating to more particularized searches of checked baggage..

. An analogy has been found in the border search, see United States v. Moreno, 475 F. 2d 44, 51 (5 Cir.), cert. denied, 414 U.S. 840, 94 S.Ct. 94, 38 L.Ed.2d 76 (1973); United States v. Skipwith, 482 F.2d 1272, 1275 (5 Cir. 1973). However, the principle that seems most nearly applicable to the airport search is that recognized in Colonnade Catering Corp. v. United States, 397 U.S. 72, 76, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and applied in United States v. Biswell, 406 U.S. 311, 314-317, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), sustaining warrantless searches of records maintained or products held by regulated industries. Such “administrative searches,” conducted pursuant to a general regulatory scheme rather than an investigation to secure evidence of a crime, have regularly been upheld where the statutory procedures have been deemed reasonable. Cf. Wyman v. James, 400 U.S. 309, 318, 324-325, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971); Downing v. Kunzig, 454 F.2d 1230 (6 Cir. 1972); United States v. Schafer, 461 F.2d 856, 858 (9 Cir.), cert. denied, 409 U.S. 881, 93 S.Ct. 211, 34 L.Ed.2d 136 (1972) ; United States v. Miles, 480 F.2d 1217, 1218-1219 (9 Cir.) cert. denied, 414 U.S. 1008, 94 S.Ct. 369, 38 L.Ed.2d 245 (Nov. 5, 1973). But since an attempt to fold airport searches under the rubric of this type of administrative search would entail the question of reasonableness, as well as the need for dealing with language in Almeida-Sanchez v. United States, 413 U.S. 266, 271, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the issue of reasonableness may as well be faced directly.

However, the principle that seems most nearly applicable to the airport search is that recognized in Colonnade Catering Corp. v. United States, 397 U.S. 72, 76 , 90 S.Ct. 774 , 25 L.Ed.2d 60 (1970), and applied in United States v. Biswell, 406 U.S. 311, 314-317 , 92 S.Ct. 1593 , 32 L.Ed.2d 87 (1972), sustaining warrantless searches of records maintained or products held by regulated industries.Such “administrative searches,” conducted pursuant to a general regulatory scheme rather than an investigation to secure evidence of a crime, have regularly been upheld where the statutory procedures have been deemed reasonable.Cf.Wyman v. James, 400 U.S. 309, 318, 324-325 , 91 S.Ct. 381 , 27 L.Ed.2d 408 (1971); Downing v. Kunzig, 454 F.2d 1230 (6 Cir. 1972); United States v. Schafer, 461 F.2d 856, 858 (9 Cir.), cert. denied, 409 U.S. 881 , 93 S.Ct. 211 , 34 L.Ed.2d 136 (1972) ; United States v. Miles, 480 F.2d 1217, 1218-1219 (9 Cir.) cert. denied, 414 U.S. 1008 , 94 S.Ct. 369 , 38 L.Ed.2d 245 (Nov.5, 1973).But since an attempt to fold airport searches under the rubric of this type of administrative search would entail the question of reasonableness, as well as the need for dealing with language in Almeida-Sanchez v. United States, 413 U.S. 266, 271 , 93 S.Ct. 2535 , 37 L.Ed.2d 596 (1973), the issue of reasonableness may as well be faced directly..

. Taylor, Two Studies in Constitutional Interpretation 41 (1969). Although the lecture was delivered early in 1967, unhappily it did not become available until 1969, and then under an unilluminating title. It is finally getting the attention it deserves, see United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771.

Although the lecture was delivered early in 1967, unhappily it did not become available until 1969, and then under an unilluminating title.It is finally getting the attention it deserves, see United States v. Edwards, 415 U.S. 800 , 94 S.Ct. 1234 , 39 L.Ed.2d 771 ..

. Department of Transportation Press Release No. 103-72, dated December 5, 1972, extended these requirements to all flights. Where metal detectors were not available, the directive required that “each passenger [submit] to a consent search prior to boarding,” 37 Fed.Reg. 25934 (1972).

Where metal detectors were not available, the directive required that “each passenger [submit] to a consent search prior to boarding,” 37 Fed.Reg.25934 (1972)..

. Contrary to what is now the usual procedure, Miss Edwards was carrying her pocketbook and the beach bag when she passed through the magnetometer. Her pocketbook contained keys, coins and perfume containers with metal caps which could well have been responsible for activation. The marshal searched the pocketbook without finding weapons or contraband before searching the beach bag.

Her pocketbook contained keys, coins and perfume containers with metal caps which could well have been responsible for activation.The marshal searched the pocketbook without finding weapons or contraband before searching the beach bag..

. While the activation of the magnetometer would be a suspicious circumstance with respect to Miss Edwards’ person and the pocketbook she was carrying, its pertinence to the beach bag had been attenuated to the point of exhaustion by the discovery that the pocketbook contained innocent objects capable of causing activation and no dangerous ones, see fn. 8.

8..

. In addition, Judge Browning reached essentially the same conclusion in his thorough opinion for the court in United States v. Davis, 482 F.2d 893, 910-912 (9 Cir. 1973).

.

. Although our decision here is limited to shuttle flights, since that is the sole issue before us, we do not wish to be understood as intimating that we would decide otherwise with respect to reservation flights. When such a case arises, the Government would be well advised to make a factual presentation why the FAA extended the magnetometer-search regulations to such flights, see fn. 7, rather than continuing to rely on the “profile.”

When such a case arises, the Government would be well advised to make a factual presentation why the FAA extended the magnetometer-search regulations to such flights, see fn.7, rather than continuing to rely on the “profile.”.

. This case is further distinguishable from Ruis-Estrella in that there the search of the carry-on baggage did not take place in the course of and as a necessary incident to boarding the flight.