482 F.2d 893 (9th Cir. 1973), 71-2993, United States v. Davis

Docket Nº:71-2993.
Citation:482 F.2d 893
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles DAVIS aka Marcus Anderson, Defendant-Appellant.
Case Date:June 29, 1973
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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482 F.2d 893 (9th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles DAVIS aka Marcus Anderson, Defendant-Appellant.

No. 71-2993.

United States Court of Appeals, Ninth Circuit.

June 29, 1973

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John Keker, Asst. Federal Public Defender (argued), James F. Hewitt, Federal Public Defender, Earle Partington, Asst. Federal Public Defender, San Francisco, Cal., for defendant-appellant.

James L. Hazard, Asst. U. S. Atty. (argued), James L. Browning, U. S. Atty., F. Steele Langford, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before KOELSCH, BROWNING, and GOODWIN, Circuit Judges.

OPINION

BROWNING, Circuit Judge:

Appellant was convicted of attempting to board an aircraft while carrying a concealed weapon (49 U.S.C. § 1472( l)). The conviction was based upon the discovery of a loaded revolver in appellant's briefcase by a Trans World Airlines employee during a search of the carry-on luggage of boarding passengers. Appellant's motion to suppress was denied on the grounds that he "impliedly consented" to the search and that, in any event, "there was no governmental involvement."

We hold that the United States was sufficiently implicated in this airport screening search to require that it be conducted in compliance with the Fourth Amendment. We hold further that while airport screening searches per se do not violate a traveler's rights under the

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Fourth Amendment, or under his constitutionally protected right to travel, such searches must satisfy certain conditions, among which is the necessity of first obtaining the consent of the person to be searched. A remand is necessary in this case to determine whether appellant gave such consent.

On March 16, 1971, appellant and a friend checked in a few minutes before TWA Flight 743's scheduled 6:50 p. m. departure from San Francisco International Airport for Bangkok, Thailand, with an intermediate stop in Los Angeles. Appellant was ticketed for Los Angeles.

As appellant approached the loading gate, Malcolm Read, a TWA employee, told him that a routine security check was necessary, reached for his briefcase, opened it, and found a gun. 1 Mr. Read handed the gun to Donald Graub, a United States Customs Service security agent who had been standing some six feet away. Mr. Graub found the gun to be loaded. Mr. Read, Mr. Graub, and United States Deputy Marshal Douglas Aaron, who had been standing with other deputy marshals about 15 feet away, thereupon escorted appellant to a nearby room where the officials conducted a search of appellant's person. Following the search, Deputy Marshal Aaron formally took both appellant and the gun into custody.

Appellant was charged with a minor offense under 49 U.S.C. § 1472( l). He pleaded not guilty and filed a motion to suppress. An evidentiary hearing was held before a United States magistrate on both the motion to suppress and the general issue of guilt or innocence. The motion to suppress was denied on a finding of implied consent. Appellant was found guilty and sentenced to pay a fine of $250. 2

Appellant appealed to the district court (18 U.S.C. § 3402; Rule 8(d), Rules of Procedure for the Trial of Minor Offenses before United States Magistrates), urging error in the denial of the motion to suppress. The district court affirmed, concurring in the magistrate's finding of consent, and adding, as an alternate ground, that there was no governmental involvement in the search.

I

We consider first whether the United States was sufficiently involved to subject the search to the limitations of the Fourth Amendment.

"[S]earch is a functional, not merely a physical, process." Lustig v. United States, 338 U.S. 74, 78, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949). A search begins with the planning of the invasion and continues "until effective appropriation" of the fruits of the search "for subsequent proof of an offense."

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Id. The Fourth Amendment applies to a search whenever the government participates in any significant way in this total course of conduct. "The decisive factor . . . is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means." Id. at 79, 69 S.Ct. at 1374. 3

The search of appellant's briefcase was not an isolated event. It was part of a nationwide anti-hijacking program conceived, directed, and implemented by federal officials in cooperation with air carriers.

The major governmental effort to meet the threat of hijacking began in late 1968, when hijacking of commercial aircraft reached serious proportions, and intensified steadily thereafter.

Various techniques for the surveillance and search of potential air passengers have been a part of that effort. At no time since late 1968 could activities of this kind at the nation's airports have been described accurately as "an independent investigation by the carrier for its own purposes," Gold v. United States, 378 F.2d 588, 591 (9th Cir. 1967), and thus beyond the reach of the Fourth Amendment. The United States has "significantly involved itself" in airport searches from the beginning. Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967).

The first hijacking of an American commercial aircraft occurred in 1961. 4 Congress responded by passing a statute making aircraft hijacking and certain related activities federal crimes. 5 The statute also authorizes certain relevant conduct by the individual carriers: "Subject to reasonable rules and regulations prescribed by the [Federal Aviation] Administrator, any air carrier is authorized to refuse transportation to a passenger or to refuse to transport property when, in the opinion of the air carrier, such transportation would or might

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be inimical to safety of flight." 6 This statute, and related rules issued under the regulatory authority of the Administrator, 7 provide the basis for the antihijacking program.

In 1963 the United States joined in the Tokyo Convention, an international agreement addressed to some of the jurisdictional problems involved in international hijackings. 8 Little more occurred, however, until 1968.

Between 1961 and 1968, hijackings of United States aircraft averaged about one per year. In 1968, however, the number rose to 18. In 1969 there were 40 attempted hijackings of United States aircraft, 33 successful. 9

Spurred by these events, the United States entered into additional international conventions aimed at solving complications left unresolved by the earlier Tokyo Convention. 10 It also undertook domestic action to avert further hijacking episodes.

Beginning in October 1968, a Federal Aviation Administration task force, including representatives of the Department of Justice and the Department of Commerce, compiled a "profile" of objective characteristics to identify potential hijackers. 11 In December 1968, the Federal Aviation Administration held an intensive high-level symposium on the development of devices for the screening of individuals for possession of concealed weapons. 12 The FAA Task Force, working in cooperation with the carriers, then developed the initial anti-hijacking "system."

Although the specific elements varied over a period of time, the system generally included, first, the use of the "profile," next, the use of a magnetometer to detect the presence of metal on any prospective passenger who met the "profile," and finally, a weapons search of the carry-on luggage and/or person of anyone who activated the magnetometer. 13

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The FAA and the airlines worked together to put the system into operation at the nation's airports. 14 As a part of this cooperative effort, United States deputy marshals and Customs Service agents were made available to carry out searches and make arrests. 15 By September 1970, approximately 400 United States deputy marshals were assigned to surveillance and search activities at airport boarding gates. 16

On September 11, 1970, the President of the United States announced "A Program to Deal with Airplane Hijacking." Pertinent excerpts appear in the margin. 17 The President "directed" the Department of Transportation to have airlines extend the use of surveillance equipment and techniques to all appropriate airports in the United States. The President further stated that "the federal government will provide

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enforcement officers to work this equipment, to conduct searches when appropriate, and to make necessary arrests." 18

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Although "prepared to require it absolutely by rule," the Department of Transportation continued for a time to employ informal means to obtain the cooperation of air carriers. 19 By September 1971, however, the FAA had concluded that voluntary cooperation "had not satisfactorily provided . . . [the] needed protection in many instances," and proposed a new rule requiring all air carriers to submit a screening program to the FAA for approval. 20 On February 1, 1972, the FAA issued a rule requiring air carriers to adopt and put into use within 72 hours a screening system "acceptable" to the FAA "to prevent or deter the carriage aboard its aircraft of sabotage devices or weapons in carry-on baggage or on or about the persons of passengers." 21 This system was to require the screening of all airline passengers "by one or more of the following systems: behavioral profile, magnetometer, identification check, physical search." 22

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In July 1972, the President "ordered" the screening of all passengers and inspection of all carry-on baggage on all "shuttle-type" flights. 23 On August 1, 1972,...

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