People v. Hyde ( 1974 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] OPINION

Defendant Frederick Weston Hyde III appeals from a judgment of conviction entered upon a plea of guilty to the charge of possessing restricted dangerous drugs (Health Saf. Code, § 11910) discovered in the course of an "airport search" of defendant's hand luggage. Defendant principally contends the evidence against him was the product of an unreasonable search in violation of the Fourth Amendment to the United States Constitution. We conclude the search in question was lawful according to the Fourth Amendment standards set forth below and therefore affirm the judgment.

The facts revealed here are a typical consequence of the airplane boarding procedures employed in recent years in California and throughout the United States.¹ On December 24, 1971, United States Deputy Marshal Budd Johnson stopped defendant as he attempted to board a Western Airlines flight from San Diego International Airport to Phoenix because defendant allegedly satisfied the Federal Aviation Administration's behavioral profile of a potential hijacker and activated a magnetometer indicating the presence of metal. Johnson asked defendant to place his hand luggage on a table. Defendant, saying nothing, complied with the request and proceeded to open his bag. Johnson looked inside, noticed a shaving kit, and, explaining that such containers often include items which normally set off a magnetometer, removed the kit and opened it. Johnson discovered therein a clear plastic baggy containing a substance which appeared to be marijuana. He returned the plastic baggy to the kit, closed it, and placed defendant under arrest for possession of marijuana. Johnson then conducted a pat-down search of defendant and escorted him to an office approximately 30 feet away. A further search of defendant's luggage revealed an estimated 100 tablets of what Johnson believed to be LSD.

At the outset we note there is no issue of consent, actual or implied. The trial court determined defendant had not consented to the search and the People on appeal do not challenge the factual finding.²

However, the People have contended on trial and appeal that Johnson's search of defendant's hand luggage was reasonable in view of the Fourth Amendment principles established by the United States Supreme Court in Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868]. Terry considered the extent of the rights under the Fourth Amendment accorded to an individual confronted on the street by a police officer investigating possible criminal activity. The court held that when a police officer is otherwise entitled to detain an individual to inquire into suspicious circumstances, he may conduct a limited pat-down search for weapons to protect himself if he has an articulable reason to believe the individual is armed and dangerous.

It is tempting to draw, in the manner of numerous jurisdictions, an analogy between Terry and the typical facts herein.³ In Terry, the court upheld a search undertaken without either a warrant or probable cause on the ground that the governmental interest in the protection of law enforcement officers, on balance, so outweighed the interest of the individual in being free from official intrusion of minimal scope as to satisfy the Fourth Amendment requirement of reasonableness. Here too, it is argued, airport searches can be validated by a similar balancing of the serious governmental interest in the prevention of airplane hijackings and the attendant danger to life and property with the minimally intrusive search necessary to reduce substantially the likelihood of a successful hijacking. However, an examination of the theoretical and practical underpinnings of Terry suggests the decision is in fact inapposite to the case at bar and the problem of airport searches.

A principal difficulty in applying Terry to the instant problem arises from the scope of the search which that case sanctioned. Terry was explicit in permitting an officer who makes an investigative stop of suspicious individuals on the street "to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." (392 U.S. at p. 30 [20 L.Ed.2d at p. 911].) Nowhere in the opinion can a suggestion be found that an officer in such circumstances is entitled to undertake a more thorough or intrusive search beyond a superficial pat-down for weapons. Indeed, the majority of federal decisions adopting theTerry rationale to justify airport seizures deal with the mere frisking of suspicious passengers resulting in the discovery of contraband and do not consider the possibility of extending that authority to justify an unrestricted baggage search. (See, e.g.,United States v. Lopez (E.D.N.Y. 1971) supra, 328 F. Supp. 1077;United States v. Lindsey (3d Cir. 1971) supra,451 F.2d 701; United States v. Epperson (4th Cir. 1972) supra,454 F.2d 769; United States v. Bell (2d Cir. 1972) supra,464 F.2d 667; United States v. Moreno (5th Cir. 1973)supra, 475 F.2d 44; but see United States v. Slocum (3d Cir. 1972) 464 F.2d 1180.) Therefore, assuming arguendo thatTerry is relevant to the question of airport seizures, we believe the decision at best approves a pat-down screening of suspicious passengers but cannot serve to justify Johnson's search of defendant's hand luggage.

Another obstacle to deciding the instant case under Terry principles is the level of suspicion that case requires an officer to possess before he may initiate a pat-down search of a detained individual. A protective frisk may be predicated only upon "specific and articulable facts" which would warrant "a reasonably prudent man in the circumstances . . . in the belief that his safety or that of others was in danger." (392 U.S. at pp. 21, 27 [20 L.Ed.2d at pp. 906, 909].) The People suggest because defendant satisfied the anti-hijacking profile and activated a magnetometer, Johnson acted reasonably in proceeding to search defendant according toTerry. In 1971, however, when hijackings posed a more repetitive menace than currently, available surveys indicated only 1 out of every 15 passengers who both fit the profile and set off a magnetometer was likely to be found with a weapon. (United States v. Lopez (E.D.N.Y. 1971) supra, 328 F. Supp. 1077, 1097.) There is grave doubt that an approximately 6 percent probability of discovering weapons would warrant a reasonably prudent man in the belief that a particular individual was "armed and presently dangerous." (392 U.S. at p. 30 [20 L.Ed.2d at p. 911].) Moreover, if the level of suspicion required by Terry is reduced, there appears no discernible limitation to an extension permitting the wholesale frisking of the general public whenever a serious threat of crime emerges. California courts have consistently rejected such a blunderbuss approach since Wirin v. Horrall (1948) 85 Cal.App.2d 497 [193 P.2d 470], insisted upon Fourth Amendment protection for highway travellers. Properly viewed, therefore, the magnetometer and the FAA profile represent instruments of convenience which help to expedite pre-departure screening procedures, but do not, in themselves, generate adequate information to support a pat-down under Terry.

In any event, even were we to conclude the profile and the magnetometer are sufficient together to sustain a Terry search, the People offer no justification for subjecting passengers to a magnetometer screening in the first place. (1) The magnetometer, though minimally intrusive, unquestionably operates to search individuals within the meaning of the Fourth Amendment: the machine reveals the presence of metal objects in areas under personal control as to which the individual maintains a reasonable expectation of privacy and freedom from governmental inspection. (Katz v. United States (1967) 389 U.S. 347 [19 L.Ed.2d 576, 88 S.Ct. 507].)⁴ As a result, our justification of the ultimate search under Terry on the basis of a magnetometer reading would constitute bootstrapping to an impermissible degree. If the magnetometer is to be relied upon as a ground for a search, it must itself first be legitimated under the Fourth Amendment.

The Terry rationale presents another problem when applied to airport searches. The case emphasizes that at the heart of the decision to allow a pat-down search of individuals whom an officer has detained and believes to be dangerous is the recognition of society's paramount interest in the self-protection of its police force. "[I]n addition [to the governmental interest in the efficient investigation of crime], there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." (392 U.S. at p. 23 [20 L.Ed.2d at p. 907]; see also United States v. Robinson (1973)414 U.S. 218 [38 L.Ed.2d 427, 94 S.Ct. 467].) In airport searches, on the other hand, the People concede that the danger purportedly justifying the search occurs after the plane is airborne, at which time the law enforcement officers remain safely on the ground. It might be argued that Terry contemplates the protection of innocent bystanders as well, in light of the high court's statement that the "sole justification of the search in the present situation is the protection of the police officerand others nearby." (Italics added.) (392 U.S. at p. 29 [20 L.Ed.2d at p. 911].) The discussion in the case makes clear, however, that the safety of bystanders is a relevant factor to support a search only when those persons are placed in a position of danger as an immediate consequence of the police officer's act of detaining for investigation an individual involved in suspicious conduct.

It follows from the foregoing analysis that Terry will not serve to justify either the search in the instant case or airport searches in general as they are routinely conducted in the absence of special circumstances which may bring a particular search within its rationale.

Nevertheless, we do find support under the Fourth Amendment for the pre-departure screening of prospective passengers in the series of United States Supreme Court decisions relating to administrative searches. (United States v. Biswell (1972)406 U.S. 311 [32 L.Ed.2d 87, 92 S.Ct. 1593]; Wyman v. James (1971) 400 U.S. 309 [27 L.Ed.2d 408, 91 S.Ct. 381]; ColonnadeCorp. v. United States (1970) 397 U.S. 72 [25 L.Ed.2d 60, 90 S.Ct. 774]; See v. City of Seattle (1967) 387 U.S. 541 [18 L.Ed.2d 943, 87 S.Ct. 1737]; Camara v. Municipal Court (1967)387 U.S. 523 [18 L.Ed.2d 930, 87 S.Ct. 1727]; see also UnitedStates v. Davis (9th Cir. 1973) 482 F.2d 893; United States v. Schafer (9th Cir. 1972) 461 F.2d 856; Downing v. Kunzig (6th Cir. 1972) 454 F.2d 1230.) (2) These cases recognize that "searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched." (United States v. Davis (9th Cir. 1973) supra, 482 F.2d 893, 908.)

In applying the administrative search doctrine to the instant case, we bear in mind that the essential purpose of the anti-hijacking system established by the FAA is not to ferret out contraband or to preserve for trial evidence of criminal activity. Nor, as appears above, are airport searches intended to provide a means of self-protection for investigators performing official duties as in Terry. (3) Instead, pre-departure screening procedures are a central phase of a comprehensive regulatory program designed to insure that dangerous weapons will not be carried onto an airplane and to deter potential hijackers from attempting to board. (United States v. Lopez (E.D.N.Y. 1971) supra,328 F. Supp. 1077, 1082-1083; McGinley Downs, Airport Searchesand Seizures — A Reasonable Approach (1972) supra, 41 Fordham L.Rev. 293, 304; Sen. Rep. No. 93-14 (1973).)

The fact that airport searches, by virtue of sheer numbers, will inevitably lead to the detection of some individuals involved in criminal conduct unrelated to the commandeering or destruction of aircraft does not alter the fundamentally administrative character of the screening procedure. If the initial intrusion is justifiable as part of a regulatory effort to prevent the hijacking of airplanes, the incidental discovery of contraband does not offend the Fourth Amendment. (Harris v.United States (1968) 390 U.S. 234 [19 L.Ed.2d 1067, 88 S.Ct. 992].)

(4) Like all searches subject to the Fourth Amendment, an administrative screening must be measured against the constitutional mandate of reasonableness. In the case of administrative searches, however, "there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails." (Camara v. Municipal Court (1967) supra, 387 U.S. 523, 536-537 [18 L.Ed.2d 930, 940].) It is ironic, therefore, that by adopting the administrative search doctrine to evaluate the validity of airport screening procedures we must undertake a similar process of balancing to that which would have followed from a reliance upon Terry. (5a) The governmental interest in the prevention of airplane hijackings is substantial. Air piracy offers a unique opportunity for the political terrorist, the extortionist, or the mentally disturbed to command attention by placing in jeopardy the lives of passengers and crew, as well as private property worth millions of dollars. Hijackings constitute a significant threat to the orderly operation of air commerce and to the stability of international relations. Furthermore, the dangers posed by air piracy are in no way hypothetical: although the FAA boarding procedures have considerably reduced the number of these occurrences in the United States, in 1972 a total of 28 hijackings of American passenger aircraft took place. (Note, Constitutionality of the 1973 Airport Searches: A FactualAnalysis (1973) 8 U.S.F.L.Rev. 172.)

When weighed against the gravity of the governmental interest involved, a pre-departure screening of all passengers and carry-on baggage sufficient in scope to detect the presence of lethal weapons or explosives cannot be viewed as unreasonable. Unlike the suspects in a criminal investigation, prospective airline passengers generally welcome routine inspection procedures because they are the direct and immediate beneficiaries of the screening system; security precautions increase the likelihood of safe arrival at their chosen destination. If for no other reason than the airline's economic stake in the satisfaction of its passengers, airport searches are customarily conducted in a courteous and expeditious manner, and thus are not comparable to the "annoying, frightening, and perhaps humiliating experience" of a criminal search. (Terry v.Ohio (1968) supra, 392 U.S. 1, 25 [20 L.Ed.2d 889, 908].) Moreover, the airport departure lounge is "the one channel through which all hijackers must pass before being in a position to commit their crime. It is also the one point where airport security officials can marshal their resources to thwart such acts before the lives of an airplane's passengers and crew are endangered." (United States v. Moreno (5th Cir. 1973)supra, 475 F.2d 44, 51.) As stated in Camara v. MunicipalCourt (1967) supra, 387 U.S. 523, 527 [18 L.Ed.2d 930, 934], and quoted in United States v. Schafer (9th Cir. 1972)supra, 461 F.2d 856, 859, "it is doubtful that any other canvassing technique would achieve acceptable results." Little can be done to deter the hijacker once he has successfully boarded the airplane, and as yet no unerringly accurate procedure has been devised to restrict pre-departure searches only to those who are potential hijackers.

(6) That airline officials may have no particularized suspicion a prospective passenger is armed or dangerous does not operate to vitiate the search. In Camara, the leading case in the field of administrative searches, the court held that administrative inspections to enforce community health and welfare regulations could be undertaken on less than probable cause to believe that particular dwellings were maintained in violation of the housing code. To initiate a regulatory search, an official need only show that "reasonable legislative or administrative standards for conducting an area inspection are satisfied." (Italics added.) (387 U.S. at p. 538 [18 L.Ed.2d at p. 941].) Since, as discussed above, the program to monitor aircraft boarding is reasonable under the Fourth Amendment, it follows from the area inspection concept of Camara that everyone entering airport departure facilities is equally subject to screening for dangerous weapons. A similar rationale was employed in United States v. Schafer (9th Cir. 1972) supra,461 F.2d 856, to approve administrative searches at airports for quarantined plants. Thus the validity of a particular search does not depend upon the individual creating a minimal level of initial suspicion by satisfying the profile, activating a magnetometer, or meeting any other indicia of questionable circumstances.⁵ (5b) In upholding airport screening procedures because of their regulatory nature, we recognize that "[t]he scope of the search must be ``strictly tied to and justified by' the circumstances which rendered its initiation permissible." (Terry v. Ohio (1968) supra, 392 U.S. 1, 19 [20 L.Ed.2d 889, 904], citing Warden v. Hayden (1967) 387 U.S. 294, 310 [18 L.Ed.2d 782, 793-794, 87 S.Ct. 1642] (Fortas, J., concurring); Preston v. United States (1964) 376 U.S. 364, 367-368 [11 L.Ed.2d 777, 780-781, 84 S.Ct. 881]; Agnello v.United States (1925) 269 U.S. 20, 30-31 [70 L.Ed. 145, 148, 46 S.Ct. 4, 51 A.L.R. 409].) Pre-boarding inspections must be confined to minimally intrusive techniques designed solely to disclose the presence of weapons or explosives.

It has been urged that airline officials should obtain a search warrant before inspecting individual passengers. AlthoughCamara required a warrant in the context of its particular holding, the court emphasized that its decision was not "intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations. See NorthAmerican Cold Storage Co. v. City of Chicago, 211 U.S. 306 (seizure of unwholesome food); Jacobson v. Massachusetts,197 U.S. 11 (compulsory smallpox vaccination); Compagnie Francaise v. Board of Health, 186 U.S. 380 (health quarantine); Kroplin v. Truax, 119 Ohio St. 610, 165 N.E. 498 (summary destruction of tubercular cattle)." (387 U.S. at p. 539 [18 L.Ed.2d at p. 941].) The proper inquiry, according to Camara, is "whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search." (Id. at p. 533 [18 L.Ed.2d at p. 938]; also see United States v. Schafer (9th Cir. 1972) supra, 461 F.2d at p. 858.)

Airport searches are singularly unsuited to the warrant procedure. Every day through airport terminals nationwide pass thousands of airline travellers, each of whom must be screened for weapons or explosives. The result is a form of ongoing emergency rendering it impracticable, if not impossible, for airline officials to seek a search warrant for individual passengers.⁶ Imposing a warrant requirement for airport screenings would lead either to inordinate and unacceptable delays in the boarding process, or else to the issuance of a pro forma warrant broad enough to cover all prospective passengers within a given period. In addition, two safeguards exist which mitigate whatever undesirable consequences flow from eliminating the need for a warrant to initiate an airport search. First, because all passengers are required to undergo a screening as a condition to boarding the airplane, there is no danger as there was in Camara that the decision to search a particular individual will be "subject to the discretion of the official in the field." (387 U.S. at p. 532 [18 L.Ed.2d at p. 937]; see also Almeida-Sanchez v. United States (1973)413 U.S. 266 [37 L.Ed.2d 596, 93 S.Ct. 2535].) Second, as indicated above, airport screening procedures must be as limited in intrusiveness as is consistent with their justification, and an individual may avoid submitting to a search altogether by electing not to board the airplane.

(7) Given the foregoing articulated standards by which to judge the validity of airport screening programs, it becomes clear that the search at issue in the instant case was reasonable under the Fourth Amendment. Deputy Marshal Johnson and the Western Airlines officials had the right and the administrative duty to screen all boarding passengers for weapons or explosives. In order to expedite the screening procedure Johnson properly relied upon the profile and the magnetometer, which had been indiscriminately invoked, to select defendant as a candidate for further inspection. There is no evidence that Johnson abused his authority by conducting an exploratory investigation into defendant's bag or that the scope of the search exceeded its justification. Indeed, all indications point to the conclusion that Johnson took only the minimally necessary precautions to insure that defendant was not carrying materials inimical to a safe air journey. The marshal, therefore, acted lawfully in proceeding to search defendant's bag.⁷

The judgment is affirmed.

McComb, J., Burke, J., and Clark, J., concurred.

¹ On December 5, 1972, the Federal Aviation Administration (FAA) ordered that as of January 5, 1973, all carry-on items must be searched prior to boarding and all passengers must be screened at least through a magnetometer, a device designed to detect the presence of metal. (Dept. of Transportation Release No. 103-72, Dec. 5, 1972.) The search at issue in the instant case occurred before the promulgation of any formal regulations by the FAA requiring specified boarding procedures, but subsequent to the President's directive of September 11, 1970, that the Department of Transportation have airlines adopt appropriate surveillance techniques at whichever airports deemed necessary. (1970 Public Papers of Presidents of the United States: Richard Nixon 742-743 (G.P.O. 1971).)

Also, in October 1968 a task force comprised of representatives of the FAA, the Department of Justice, and the Department of Commerce was appointed to develop for the airlines, inter alia, a behavioral profile of objective characteristics common to all potential hijackers. (See United States v. Lopez (E.D.N Y 1971) 328 F. Supp. 1077, 1082; McGinley Downs, AirportSearches and Seizures — A Reasonable Approach (1972) 41 Fordham L.Rev. 293, 302.)

² In any event, the consent theory is inappropriate. Consent, to be valid, must be free and voluntary. (Bumper v. NorthCarolina (1968) 391 U.S. 543, 548 [20 L.Ed.2d 797, 802, 88 S.Ct. 1788].) The court in United States v. Kroll (8th Cir. 1973)481 F.2d 884, 886, pointed out that "Compelling the defendant to choose between exercising Fourth Amendment rights and his right to travel constitutes coercion; the government cannot be said to have established that the defendant freely and voluntarily consent [sic] to the search when to do otherwise would have meant foregoing the constitutional right to travel."

³ A number of federal cases have justified airport searches on the authority of Terry. See, e.g., United States v.Moreno (5th Cir. 1973) 475 F.2d 44; United States v. Bell (2d Cir. 1972) 464 F.2d 667; United States v. Epperson (4th Cir. 1972) 454 F.2d 769; United States v. Lindsey (3d Cir. 1971) 451 F.2d 701; United States v. Lopez (E.D.N.Y. 1971)supra, 328 F. Supp. 1077.

⁴ Although it could be argued that the widespread measures employed to combat hijackings have resulted in the elimination of all expectations of privacy at airports, such a concept would sanction an erosion of the Fourth Amendment by the simple and expedient device of its universal violation.

⁵ Airport screening techniques in many metropolitan airports have recently been supplemented by the use of X-ray machines which make a fluoroscopic examination of hand luggage.

Defendant contends he was denied due process of law because the trial court severely limited his ability to cross-examine Johnson as to the contents and reliability of the FAA profile. However, since the applicability of the profile is not a critical factor to sustain the search under the view adopted herein, such a limitation becomes irrelevant.

⁶ See generally Jesmore, The Courthouse Search (1974) 21 U.C.L.A.L.Rev. 797, 809. Some commentators have thrown up their hands and insisted "None of the existing exceptions to the warrant can be successfully adapted to validate the airport search system." (Note, The Constitutionality of AirportSearches (1973) 72 Mich. L.Rev. 128, 152.) The latter writer suggested "the courts should create a new exception that would cover airport procedures." (Ibid.)

⁷ The decision herein applies the now-settled administrative search doctrine in the context of airport boarding procedures and does not declare "new law." The opinion, therefore, is not merely prospective in effect, but bears upon any relevant cases pending on direct appeal. (Gallik v. Superior Court (1971) 5 Cal.3d 855, 859-860 [97 Cal.Rptr. 693, 489 P.2d 573], and cases cited.)