475 F.2d 44 (5th Cir. 1973), 72-2484, United States v. Moreno

Docket Nº:72-2484.
Citation:475 F.2d 44
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Abraham Pina MORENO, Defendant-Appellant.
Case Date:March 12, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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475 F.2d 44 (5th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

Abraham Pina MORENO, Defendant-Appellant.

No. 72-2484.

United States Court of Appeals, Fifth Circuit.

March 12, 1973

Rehearing Denied April 10, 1973.

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Stanley D. Rosenberg, San Antonio, Tex. (Court-Appointed), for defendant-appellant.

William S. Sessions, U. S. Atty., Reese L. Harrison, Jr., Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before GEWIN, BELL and GODBOLD, Circuit Judges.

GEWIN, Circuit Judge:

In this appeal we are asked to decide the constitutional propriety of an airport search and seizure, the fruits of which resulted in Abraham Pina Moreno's arrest and non-jury conviction under 21 U.S.C. § 841(a)(1) 1 for the unlawful possession of 86.6 grams of heroin with an intent to distribute. Important questions of public policy are involved in this case. Resolution of the primary issue presented requires this court to perform the difficult and sensitive task of balancing the individual rights protected by the fourth amendment against the overwhelming public interest in effective protection from the threat posed by air piracy, a crime that has terrorized and threatened the lives of many people in recent years. The danger and the harm continue to be of national concern. For reasons which will be fully developed in subsequent discussion, we find that the search and seizure in this case did not offend the fourth amendment. Accordingly, we affirm the judgment of the district court.

I

On January 21, 1972 Moreno arrived in San Antonio International airport aboard a Braniff Airlines flight from which he was observed deplaning by Deputy U. S. Marshal Granados, a member of the airport's Anti-Air Piracy detail, who had 20 years experience as a law enforcement officer. When Moreno came into the lounge area, Granados noticed that he appeared to be looking for someone and was unusually wary of the airport security guards. He was visibly nervous as he proceeded into the main

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terminal area and Granados saw that this condition became more pronounced when he realized that he was under surveillance. Shortly thereafter he entered a taxicab and left the airport.

About two hours later, Moreno returned and once again Granados began observing him. He went first to the Braniff ticket counter and got in line. Obviously very nervous, he switched from one line to another, several times before going to the Southwest Airlines counter where he finally bought a ticket. After purchasing the ticket he headed toward the gate of Southwest Airlines, looked straight at Officer Granados who was walking towards him, and he then went into a restroom located nearby. Granados noticed that he seemed to be protecting or covering something, and inside the restroom where he was able to get a closer look, he saw that there was a prominent bulge on the left side of Moreno's coat. This aroused his suspicion that Moreno might be carrying some kind of weapon or explosive device that could be used in an air piracy attempt.

Thereupon Granados approached Moreno, identified himself and inquired whether anything was wrong. Moreno said he was a little nervous, adding that he had just arrived in San Antonio the day before and taken a taxicab to the Baptist Memorial Hospital downtown. He was unhappy with the taxicab fare that he was charged for the trip back to the airport. This account aroused Granados' suspicion still further because he knew that Moreno had arrived in San Antonio only a few hours earlier and that he had gone to a bus station upon leaving the airport and not to the hospital as he claimed. After being asked twice to produce some identification, Moreno did so only after substantial hesitation. Finally, he removed a wallet from the inside left pocket of his coat and gave it to Granados who by then was concerned that he might attempt to escape. Officer Granados stated that after he received the identification papers, Moreno "started to turn" and that he thought Moreno was going to attempt to "run out of the restroom" because there were several doors "leading outside from that restroom." At this point Grenados signaled another officer "to come give me a hand with him." Officer Chapa then joined Granados and they escorted Moreno to the security office.

At that point, Moreno was informed that he could make any complaints that he might have at the airport security office. At the preliminary hearing in this case, the evidence showed that Granados ordered Moreno to go to the security office and would have used any force necessary to prevent him from running away. As soon as they reached the security office a pat down search was conducted after which Moreno was asked what he had in his inside coat pocket. He pulled out some papers which obviously were not the cause of the bulge. He was then ordered to take his coat off and the ensuing search yielded three cellophane wrapped packages which contained the heroin involved in this case.

Prior to trial, Moreno filed a motion to suppress as to the heroin seized in the airport search. He contended that even if there were sufficient circumstances to justify a stop and frisk, the detention and subsequent search went far beyond the constitutionally permissible intrusion contemplated by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In denying the motion, the district court recognized "the strong need for reasonable searches and seizures in furtherance of the public interest against air piracy." Accordingly, it concluded that the arresting agents were reasonably justified in believing that Moreno might be armed and dangerous and in stopping and searching him pursuant to that belief.

II

After careful analysis, it is our considered judgment that the disposition of this case is controlled by the rationale and teachings of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 884 (1968)

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and subsequent decisions of circuit courts construing Terry in the context of an airport search. United States v. Slocum, 464 F.2d 1180 (3d Cir. 1972); United States v. Bell, 464 F.2d 667 (2d Cir. 1972); United States v. Epperson, 454 F.2d 769 (4th Cir. 1972); United States v. Lindsey, 451 F.2d 701 (3d Cir. 1971). While we are fully aware of the sheer urgency of the current air piracy problem, we do not believe that fact alone is sufficient justification for a warrantless airport search.

In our resolution of this issue it is important to review and analyze the considerations which lay at the heart of the Terry decision. In balancing the fourth amendment interests at stake against the practical requirements of effective law enforcement, the Supreme Court measured the constitutionality of the police officer's conduct by the following standard: whether the facts available to the officer at the moment of the seizure or the search would justify a man of reasonable caution in the belief that the action taken was appropriate. 392 U.S. 1, at 22, 88 S.Ct. 1880, 20 L.Ed.2d 889, at 906. Even though a serious intrusion upon the sanctity of the person was involved, the Court gave its approval to a limited weapons search of a suspect who was under investigation for possible criminal activity. It did so despite the fact that at the time the police officer...

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