United States v. Charles Phillip Homburg , 546 F.2d 1350 ( 1977 )

TRASK, Circuit Judge:

Charles Phillip Homburg appeals his conviction for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and possession of cocaine in violation of 21 U.S.C. § 844. All issues presented on appeal revolve around the central question of the constitutionality of a search of appellant’s suitcase.

On September 16, 1975, appellant passed through security inspection at Western Airlines Gate One at San Diego International Airport. His carry-on suitcase was subjected to x-ray inspection and he went through the magnetometer. Just prior to his arrival at the inspection point, security officers there were notified that an anonymous bomb threat had been received at the airport.

As appellant passed through the inspection point, security officers observed a rectangular bulge in the front portion of his trousers, which he awkwardly attempted to conceal with his suitcase. Appellant asked for directions to the men’s room and an officer was instructed to follow him there. In the restroom, appellant went inside a toilet stall and the officer heard a “cracking or rustling sound, like a plastic bag or something of that nature” (R.T. at 64), coming from inside the toilet stall. Appellant remained inside the stall for about fifteen minutes. When he exited, the bulge in his trousers was gone and he was carrying his suitcase normally. Appellant then took his place in the boarding line, nervously watching security officers.

A security officer approached appellant and told him he would have to be reinspected before boarding the plane. Appellant complied and returned to the inspection area, but upon arrival indicated to the officer that he wanted to leave the boarding area. Testimony varies as to the precise words appellant used, but there is no dispute that appellant indicated that he wished to leave the boarding area and that he took a step or two in that direction before being forcibly detained. The suitcase was then opened, contraband discovered and appellant was placed under arrest. On a motion to suppress the evidence seized from his suitcase, the trial court held that the search was “reasonable . . . under the general implied consent doctrine.” (R.T. at 105.)

The government argues that the search of appellant took place in what it terms a “critical zone” which it compares to a border crossing and where, it argues, “special Fourth'Amendment considerations apply.” (Brief of Appellee at 17-18.) The government submits that “once a passenger enters a secured boarding area, he relinquishes any right to leave without being searched if a security officer’s suspicions are aroused.” (Brief of Appellee at 16.) The cases the government cites come primarily from the Fifth Circuit which does appear to have adopted a view of airports as similar to border crossings and qualitatively different from the home or the street for Fourth Amendment purposes. See, e. g., United States v. Cyzewski, 484 F.2d 509, 511 (5th Cir. 1973), petition for cert. dismissed, 415 U.S. 902, 94 S.Ct. 936, 39 L.Ed.2d 459 (1974); United States v. Skipwith, 482 F.2d 1272, 1276-77 (5th Cir. 1973); United States v. Legato, 480 F.2d 408, 411 (5th Cir.), cert. denied, 414 U.S. 979, 94 S.Ct. 295, 38 L.Ed.2d 223 (1973); United States v. Moreno, 475 F.2d 44, 51 (5th Cir.), cert. denied, 414 U.S. 840, 94 S.Ct. 94, 38 L.Ed.2d 76 (1973).

While there is authority from this circuit to support the government’s view of airports generally,¹ we cannot accept the government’s argument that a passenger in a secured boarding area may not, as a general proposition, leave the area rather than submit to additional searches. Such a view runs contrary to the rationale of United States v. Davis, 482 F.2d 893 (9th Cir. 1973). In that case, we held that the justification for warrantless screening searches is the implied consent of the passenger. “[A]s a matter of constitutional law,” we stated in Davis, “a prospective passenger has a choice: he may submit to a search of his person and immediate possessions as a condition to boarding; or he may turn around and leave.” 482 F.2d at 913. Davis does not state specifically that the consent to additional searches after a preliminary screening may be revoked if a passenger agrees not to board the plane. The above-quoted portion of Davis strongly indicates, however, that a party may revoke his consent to be searched any time prior to boarding the plane, even when he has passed beyond the initial screening point, if he agrees to leave the boarding area. Other decisions of this court have also recognized that a passenger always maintains the option of leaving. See, e. g., United States v. Miner, 484 F.2d 1075 (9th Cir. 1973); United States v. Moore, 483 F.2d 1361 (9th Cir. 1973). We must therefore reject the government’s view of its power to search within the boarding area as too sweeping. Since the undisputed evidence indicates that appellant wished to leave the boarding area, the trial judge erred in finding the search reasonable under the general doctrine of implied consent.

We think, however, that the search was reasonable under the principles enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Terry, as does this case, involved a necessarily swift action predicated upon on-the-spot observations of a law enforcement officer which could not be “subjected to the warrant procedure.” Id. at 20, 88 S.Ct. 1868. Terry held that searches arising under such circumstances must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures. Id. In assessing the unreasonableness of the search at issue, the Supreme Court in Terry first identified the governmental interests which allegedly justified the official intrusion upon the constitutionally protected interests of the private citizen. Id. at 23, 88 S.Ct. 1868. The Court then balanced the governmental interests identified against the invasion which the search entailed. Id. at 24-26, 88 S.Ct. 1868. In performing the balancing of interest and invasion, the Court applied an objective standard:

“[W]ould the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Id. at 21-22, 88 S.Ct. at 1880.

Were Terry to be confined only to street encounters, these principles would be inapposite to this case. But these principles have not been confined merely to street encounters. They have been applied in other contexts, among them airports. See, e. g., United States v. Fern, 484 F.2d 666 (7th Cir. 1973); United States v. Bell, 464 F.2d 667 (2d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972); United States v. Epperson, 454 F.2d 769 (4th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972); United States v. Lindsey, 451 F.2d 701 (3d Cir. 1971). In this context, many courts have emphasized that Terry permits an officer to conduct a search of a dangerous person not only for his own protection but also for the protection of others nearby.² See, e. g., United States v. Bell, supra, 464 F.2d at 673; United States v. Epperson, supra, 454 F.2d at 772.

Applying these principles to the facts of this case, we first consider the nature and extent of the governmental interest involved. The government here had more than a general interest in detecting and preventing crime. Terry, 392 U.S. at 22-23, 88 S.Ct. 1868. From the moment he passed through the security inspection point, appellant acted in a highly suspicious manner. His awkward attempt to conceal a rectangular bulge in the front of his trousers, in light of a recently received anonymous bomb threat, naturally attracted the interest of the security officers in the area. His withdrawal to the restroom where he spent fifteen minutes inside a stall, during which time “cracking” noises were heard, coupled .with the fact that when he emerged from the stall the bulge in his trousers was gone and he was carrying his suitcase normally, caused the officers to entertain a reasonable fear that the suspicious bulge had been transferred from appellant’s pocket to his suitcase. That appellant thereafter nervously watched the security officers while he waited in the boarding line did nothing to dispel the officers’ worries. These facts make it clear that the officers were justified in believing that appellant might be carrying a bomb in his suitcase and that appellant was dangerous to the officers and others.

Our examination of the government’s interest in searching appellant’s suitcase does not end here, however. We take judicial notice of the fact that within the eighteen month period immediately preceding the episode with which we are concerned, there were three major bombings at airport facilities in this country.³ In addition, we note that two further bombings occurred within the four month period immediately following the incident at issue here,⁴ the most serious being at LaGuardia Airport in New York City on December 29, 1975, in which 11 persons were killed and approximately 75 others were injured.⁵ Acting against this backdrop, we find that the security officers had an immediate and compelling interest in taking steps to assure themselves that appellant did not detonate an explosive in the air terminal.

Having found that a legitimate and compelling governmental interest was involved, let us balance that interest against the invasion which the search entailed. The security officers searched appellant’s suitcase. We find such a search perfectly reasonable in light of the threat appellant imposed. In Terry, the officer feared the appellant and his cohorts were planning an armed robbery, and therefore the officer frisked for handguns. Under the circumstances, he acted reasonably. As the Supreme Court observed:

“[I]t would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” Terry, 392 U.S. at 24, 88 S.Ct. at 1881.

In the instant case, the officers had strong reasons to suspect that the bulge in appellant’s pocket had been transferred to the suitcase, and rationally inferred from their observations of appellant that the suitcase might contain an explosive. In light of these facts, the officers opened the suitcase. We hold that such a search was a necessary measure in determining whether appellant was in fact carrying an explosive and was a necessary measure in neutralizing his threat of physical harm. We hold that the search was limited to that which was necessary for the discovery of the explosives. Given these facts, that an immediate and compelling governmental interest justified a search that was carefully restricted “to what was appropriate to the discovery of the particular [item sought],” Terry, 392 U.S. at 30, 88 S.Ct. at 1884, we can reach no other conclusion but that the search of appellant’s suitcase was reasonable.

This conclusion is not at odds with this court’s decision in United States v. Moore, supra. One obvious difference between this case and Moore is that there was no bomb threat in Moore precipitating a need for rapid police action. Moreover, there was no indication in Moore that the suspect was either dangerous or engaged in some type of criminal activity. Rather, the facts of that case indicate that the officers searched an individual who was suspicious only because he appeared to be under the influence of alcohol or drugs and that the search at its inception was aimed toward discovery of contraband and not dangerous weapons. The court found that the officers lacked “sufficient trustworthy information ‘to warrant a prudent man in believing that the petitioner had committed or was committing an offense.’ ” 483 F.2d at 1364. To read Moore as preventing the search instigated in this case would be “a rigid and unthinking application of the exclusionary rule, in futile protest against [a practice] which it can never be used effectively to control.” Terry, 392 U.S. at 15, 88 S.Ct. at 1876. Such a reading of Moore would make it the very evil condemned by the United States Supreme Court in Terry: a judicial opinion pretending to comprehend the protean variety of the street encounter. Id. We hold that Moore does not prevent us from following the admonition of Terry and deciding this case on its own facts. Terry, 392 U.S. at 15 and 30, 88 S.Ct. 1868. Given those facts, we hold that the intrusion into the suitcase was proper and reasonable. Affirmed.

1 . United States v. Doran, 482 F.2d 929, 931 n. 1 (9th Cir. 1973).

2 . Terry v. Ohio, 392 U.S. at 24, 26, 29, 30, 88 S.Ct. 1868.

3 . John F. Kennedy International Airport, New York, May 1, 1974; Los Angeles International Airport, Los Angeles, California, August 6, 1974; and Logan International Airport, Boston, Massachusetts, August 16, 1974.

4 . Miami International Airport, Miami, Florida, October 17, 1975; and LaGuardia International Airport, New York, December 29, 1975.

5 . New York Times, December 31, 1975, at 1, col. 5.