United States v. Marquez ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30243
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00450-RSL
SERGIO RAMON MARQUEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Chief District Judge, Presiding
Argued and Submitted
April 6, 2005—Seattle, Washington
Filed June 7, 2005
Before: William C. Canby, Jr., Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Tallman
6503
UNITED STATES v. MARQUEZ 6505
COUNSEL
Timothy R. Lohraff, Assistant Federal Public Defender, Seat-
tle, Washington, for the defendant-appellant.
Michael J. Lang, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.
OPINION
TALLMAN, Circuit Judge:
Sergio Ramon Marquez was randomly selected for second-
ary security screening at Seattle-Tacoma International Airport
and found to be in possession of two kilograms of cocaine
lodged underneath his pants. He challenges the denial of his
motion to suppress the evidence obtained during this adminis-
trative airport search. He questions whether an airport screen-
ing procedure subjecting passengers to a handheld
magnetometer wand scan, in addition to the standard walk-
through magnetometer and x-ray luggage scan, is constitu-
tionally reasonable where the passenger is randomly selected
6506 UNITED STATES v. MARQUEZ
for more intrusive screening upon or before entering the
Transportation Security Administration (“TSA”) security
checkpoint. We hold that this random, additional screening
procedure is reasonable under the Fourth Amendment.
Accordingly, we affirm the district court’s denial of Mar-
quez’s motion to suppress.
I
On the afternoon of October 3, 2002, Marquez attempted to
board a domestic flight to Anchorage from Seattle. After
checking in for his flight, he proceeded to the TSA security
checkpoint where he was diverted to Checkpoint B, the “se-
lectee lane.” A passenger chosen for the selectee lane is sub-
jected to more thorough search procedures, regardless of
whether or not the x-ray luggage scan reveals something
suspicious or the walkthrough magnetometer sounds an alarm.
The primary additional procedure involves a full-body wand-
ing with a handheld magnetometer that uses technology
similar to, but more sensitive than, the walkthrough magne-
tometer. According to testimony, a passenger is randomly
selected for the selectee lane either by the airlines at the time
of check-in or by TSA employees stationed at the security
checkpoint entrance when the passenger presents his or her
identification and boarding pass.1 It is not clear whether Mar-
quez was selected by his airline or by the TSA employee who
checked his identification and boarding pass before he entered
the security line. For purposes of the constitutional analysis it
is immaterial because there was no showing that the decision
was supported by any articulable reason other than completely
random selection.
Once in line, Marquez took off his coat and shoes and
placed them on the x-ray scanner conveyor belt along with his
1
The district court properly determined that testimony regarding TSA
policy was sufficient to establish random selection and that it was unnec-
essary to perform in camera review of the TSA policy in question.
UNITED STATES v. MARQUEZ 6507
carry-on luggage. He walked through the magnetometer2 and
was instructed to sit down in the screening area. At this point,
TSA screener Petersen, who was in charge of wanding the
passengers in the selectee lane when Marquez passed through,
retrieved Marquez’s personal items from the x-ray belt. Peter-
sen then approached Marquez and began to scan his person
with the handheld magnetometer, screening Marquez’s feet
first, then having him stand up to screen the rest of his body.
Thus far, the wand had not indicated the presence of any-
thing suspicious. However, the wand “alarmed” when it
passed over Marquez’s right hip. Petersen testified that he
understood TSA policy to require him to determine the cause
of the alarm. Thus, Petersen informed Marquez that he had to
touch Marquez’s hip in order to ascertain what had triggered
the alarm. Marquez denied Petersen permission to touch his
hip, and swatted Petersen’s hand away when he tried to touch
the area. Nonetheless, Petersen felt a “hard brick type of
thing” and, on the basis of his experiences in the military and
his TSA training, Petersen feared that the object might be C-
4 explosives.
After swatting Petersen’s hand away, Marquez continued to
protest Petersen’s subsequent attempts to determine the
source of the alarm, telling Petersen that the wand must have
been triggered by a metal rivet on his pants, and that there
was no need to look any further. Petersen persisted as well,
telling Marquez that he needed to determine what set off the
wand, and Marquez continued to refuse, repeating that it was
“[just] a rivet.”
Petersen called for his supervisor. Marquez was becoming
2
The record is unclear whether Marquez set off any alarm when he
walked through the magnetometer. He would have been subjected to the
handheld magnetometer scan either way, and the district court assumed,
for purposes of deciding the motion to suppress, that Marquez did not set
off an alarm.
6508 UNITED STATES v. MARQUEZ
increasingly agitated, and, upon arrival, the supervisor recom-
mended that he “[c]alm down a little bit” because they had “to
get through this if [Marquez] wanted to fly.” Both Petersen
and his supervisor again attempted to obtain Marquez’s per-
mission to continue with the wanding and determine the
source of the alarm, but Marquez refused. Ultimately, after
entering a private screening room and in response to the
supervisor’s repeated requests to determine what caused the
wand to alarm, Marquez quickly pulled down his pants,
revealing “bricks of stuff in his crotch area . . . with a pair of
[spandex leggings] over the top.” Port of Seattle Police were
summoned, and an agent from the Drug Enforcement Agency
(“DEA”) also responded. The officers searched and ques-
tioned Marquez and then retrieved four wrapped bricks of
cocaine from his person.
Marquez was charged with one count of possession with
intent to distribute over 500 grams of cocaine, in violation of
21 U.S.C. § 841(a)(1). Marquez moved to suppress the evi-
dence, arguing that the additional screening procedures were
unreasonable because they were not based on individualized
suspicion of wrongdoing. The district court denied the motion
to suppress, concluding that the additional screening in the
selectee lane was reasonable. Marquez entered into a condi-
tional plea agreement with the Government and was sen-
tenced to 60 months in prison. This appeal followed.
II
Motions to suppress are reviewed de novo. See United
States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en
banc). However, the trial court’s factual findings are reviewed
for clear error. See United States v. Bynum, 362 F.3d 574, 578
(9th Cir. 2004).
This case presents a legally novel, yet practically ubiqui-
tous, set of facts. The issue here is whether the random selec-
tion of Marquez to go to the selectee lane, where he would
UNITED STATES v. MARQUEZ 6509
automatically be subjected to the wanding of his person with
the handheld magnetometer in addition to the walkthrough
magnetometer and the x-ray luggage scan, was reasonable.
We conclude that it was.
A
[1] Airport screenings of passengers and their baggage con-
stitute administrative searches and are subject to the limita-
tions of the Fourth Amendment. United States v. Davis, 482
F.2d 893, 908 (9th Cir. 1973) (noting that airport screenings
are considered to be administrative searches because they are
“conducted as part of a general regulatory scheme” where the
essential administrative purpose is “to prevent the carrying of
weapons or explosives aboard aircraft”); see also id. at 895,
904. Thus, airport screenings must be reasonable. See Torbet
v. United Airlines, Inc., 298 F.3d 1087, 1089 (9th Cir. 2002).
To judge reasonableness, it is necessary to balance the right
to be free of intrusion with “society’s interest in safe air trav-
el.” United States v. Pulido-Baquerizo, 800 F.2d 899, 901 (9th
Cir. 1986).
B
[2] In Davis and its progeny, we have established a general
reasonableness test for airport screenings. “An airport screen-
ing search is reasonable if: (1) it is no more extensive or
intensive than necessary, in light of current technology, to
detect weapons or explosives; (2) it is confined in good faith
to that purpose; and (3) passengers may avoid the search by
electing not to fly.” Torbet, 298 F.3d at 1089 (citation omit-
ted); see also Davis, 482 F.2d at 913; Pulido-Baquerizo, 800
F.2d at 901.
1
[3] “Little can be done to balk the malefactor after [weap-
ons or explosives are] successfully smuggled aboard, and as
6510 UNITED STATES v. MARQUEZ
yet there is no foolproof method of confining the search to the
few who are potential hijackers.” Davis, 482 F.2d at 910.
Thus, airport screenings of passengers and their carry-on lug-
gage in order to detect weapons and explosives and deter
potential passengers from carrying such items aboard is “rea-
sonably necessary” and not overly intrusive in light of the
interests at stake. Id.; see also Chandler v. Miller, 520 U.S.
305, 323 (1997) (suggesting that, “where the risk to public
safety is substantial and real, blanket suspicionless searches
calibrated to the risk may rank as ‘reasonable’ ”). It is also
necessary to provide for screening procedures designed to
detect non-metallic threats to air safety. See WAYNE R.
LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT § 10.6(d) (4th ed. 2005). The intensity and extent
of screening must take into account the fact that “[h]ijackers
as well as airport officers know of the existence of plastic
explosives or even ordinary dynamite.” United States v.
Albarado, 495 F.2d 799, 809 (2d Cir. 1974); see also Pulido-
Baquerizo, 800 F.2d at 901 (noting that weapons and explo-
sives can be “small and easily concealed” and that “[t]heir
detection is difficult”).
We have previously found airport screenings which require
passengers to walk through a magnetometer and submit carry-
on luggage for x-ray screening to be reasonable. See, e.g.,
United States v. Doran, 482 F.2d 929, 932 (9th Cir. 1973);
Pulido-Baquerizo, 800 F.2d at 901-02; Torbet, 298 F.3d at
1089-90. Generally, such a search “is brief, is less intrusive
than the typical search warrant execution, does not have a
stigma attached to it, is not made by armed police, and is
often made only with advance notice.” LAFAVE, supra,
§ 10.6(c).
[4] The added random screening procedure at issue in this
case involving a handheld magnetometer scan of Marquez’s
person was no more extensive or intensive than necessary in
order to detect weapons and explosives. It utilized the same
technology and reported results based on the same type of
UNITED STATES v. MARQUEZ 6511
information (e.g., the presence or absence of metal) as the
walkthrough magnetometer. See United States v. $124,570
U.S. Currency, 873 F.2d 1240, 1245 (9th Cir. 1989) (noting
that, unlike this case, “the court cannot sustain a subsequent
search that differs in material respects from the search ini-
tially approved”). While it arguably constituted a “slight pri-
vacy intrusion,” Pulido-Baquerizo, 800 F.2d at 902, it was
reasonably confined to procedures necessary to detect weap-
ons and explosives, including those that may evade detection
by the larger, less sensitive walkthrough magnetometer.
2
Airport screening procedures are conducted for two pri-
mary reasons: first, to prevent passengers from carrying
weapons or explosives onto the aircraft; and second, to deter
passengers from even attempting to do so. See Davis, 482
F.2d at 908.
In their briefs and at oral argument, neither party suggested
that there was any purpose or goal in the instant search other
than to detect weapons or explosives. TSA screener Petersen
stated that he was trained to look for “anything that would
bring a plane down” and that the search of Marquez was in
accordance with this goal. He further testified repeatedly that
he was not trained, nor told, to search for anything other than
weapons or explosives, and he said explicitly that he was not
trained to look for drugs: “Our job is to make the passengers
in the airplanes safe, and we don’t look for drugs.” Moreover,
nothing in the record indicates that he was looking for drugs
or criminal evidence; rather, the record supports his assertion
that he was trying to “ferret out firearms and explosive
devices[.]” Pulido-Baquerizo, 800 F.2d at 902; see also
$124,570 U.S. Currency, 873 F.2d at 1243 (noting that airport
searches conducted as part of a general regulatory scheme
rather than an attempt to secure evidence of a crime are valid).
Additionally, the randomness of the selection for the addi-
tional screening procedure arguably increases the deterrent
6512 UNITED STATES v. MARQUEZ
effects of airport screening procedures because potential pas-
sengers may be influenced by their knowledge that they may
be subject to random, more thorough screening procedures.
[5] The mere fact that a screening procedure ultimately
reveals contraband other than weapons or explosives does not
render it unreasonable, post facto. “Of course, routine airport
screening searches will lead to discovery of contraband and
apprehension of law violators. This practical consequence
does not alter the essentially administrative nature of the
screening process, however, or render the searches unconsti-
tutional.” Davis, 482 F.2d at 908. The screening at issue here
is not unreasonable simply because it revealed that Marquez
was carrying cocaine rather than C-4 explosives.
3
Finally, “airport screening searches are valid only if they
recognize the right of a person to avoid search by electing not
to board the aircraft.” Davis, 482 F.2d at 910-11; see also id.
at 913. However, a passenger must exercise his right to aban-
don air travel before beginning the screening procedures. See
Pulido-Baquerizo, 800 F.2d at 902 (“The requirement in
Davis of allowing passengers to avoid the search by electing
not to fly does not extend to a passenger who has already sub-
mitted his luggage for an x-ray scan.”). Any other rule would
allow potential hijackers to leave whenever detection seemed
imminent and permit them to try again another day. Id. (“A
rule allowing a passenger to leave without a search after an
inconclusive [screening] would encourage airline terrorism by
providing a secure exit where detection was threatened.”).
[6] In this case, Marquez checked in, went to the security
checkpoint, waited in line, placed his bag on the x-ray scan-
ner, and proceeded through the walkthrough magnetometer;
he had ample opportunity to choose to forego air travel in
order to avoid the screening.
UNITED STATES v. MARQUEZ 6513
III
It is hard to overestimate the need to search air travelers for
weapons and explosives before they are allowed to board the
aircraft. As illustrated over the last three decades, the poten-
tial damage and destruction from air terrorism is horrifically
enormous. See, e.g., Davis, 482 F.2d at 910; Pulido-
Baquerizo, 800 F.2d at 901. However, even with the grave
threat posed by airborne terrorist attacks, the vital and hal-
lowed strictures of the Fourth Amendment still apply: these
searches must be reasonable to comport with the Constitution.
[7] The random, additional screening procedure in this case
satisfies the Davis reasonableness test for airport searches.
The procedure is geared towards detection and deterrence of
airborne terrorism, and its very randomness furthers these
goals. This was a limited search, confined in its intrusiveness
(both in duration and scope) and in its attempt to discover
weapons and explosives.3 Given the randomness, the limited
nature of the intrusion, the myriad devices that can be used to
bring planes down, and the absence of any indicia of improper
motive, we hold that the random, more thorough screening
involving scanning of Marquez’s person with the handheld
magnetometer was reasonable. The district court properly
denied Marquez’s motion to suppress the contraband found
during TSA screening.
AFFIRMED.
3
This would, perhaps, be a different case if there were improper motives
established by the record below or argued in the briefs.