495 F.2d 799 (2nd Cir. 1974), 323, United States v. Albarado

Docket Nº:323, 73-1954.
Citation:495 F.2d 799
Party Name:UNITED STATES of America, Appellee, v. Ramon ALBARADO, Appellant.
Case Date:April 01, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 799

495 F.2d 799 (2nd Cir. 1974)

UNITED STATES of America, Appellee,

v.

Ramon ALBARADO, Appellant.

No. 323, 73-1954.

United States Court of Appeals, Second Circuit.

April 1, 1974

Argued Oct. 26, 1973.

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William Epstein, New York City (Robert Kasanof, The Legal Aid Society, New York City, of counsel), for appellant.

David DePetris, Asst. U.S. Atty. (Robert A. Morse U.S. Atty., for the Eastern District of New York, Paul B. Bergman, Asst. U.S. Atty., on the brief), for appellee.

Before SMITH, FEINBERG and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This case is an addition to the growing body of case law 1 developing around 'airport searches,' now a part of everyday air travel, resulting from the threat to the traveling public and to the airlines from hijacking. Here, in the course of a 'pat-down' by a United States Customs Security officer following activation of a magnetometer by appellant, a would-be passenger, counterfeit bills were found on appellant's person in a package wrapped in aluminum foil. Prior to trial on a one-count indictment charging possession of counterfeit currency with intent to defraud in violation of 18 U.S.C. § 472, a suppression hearing was held on appellant's motion challenging the legality of the search and the admissibility of statements made by him subsequent to and as a result of the search. The district court denied all aspects of the motion and following conviction after a two-day jury trial appellant was sentenced to three years' imprisonment, to serve six months, with execution of the remainder suspended and probation imposed for two and one-half years.

Appellant, an older man who does not speak English but does speak Spanish,

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was approaching the boarding area of Pan American Flight 233 from Kennedy Airport to Santo Domingo at 7:25 a.m. on October 26 1972. Throughout the Pan Am terminal and at the boarding gate to Flight 233 there were signs posted in both Spanish and English stating that it is a federal crime to board an aircraft carrying a weapon and that passengers are subject to search. In addition, there was evidence that from time to time announcements are made at boarding time in both Spanish and English advising passengers that there would be a search conducted, although there was no specific evidence to the effect that these particular announcements were made as to Flight 233 or that appellant himself heard them.

The initial security procedure there in operation was basically that which has also been used for other international and domestic flights: the passenger places his carry-on luggage on a table where it is then searched, and the passenger then proceeds through a magnetometer, a device that is activated solely by metal on the person of the would-be passenger. There is no indication whatsoever that appellant up to the time of his passage through the magnetometer at the gate to Flight 233 had engaged in any conduct that could in the slightest way be considered suspicious. The much-heralded 'profile' procedure, whereby through observation a given individual is said to have an appearance or characteristics similar to those who have engaged in hijacking with the result that he is subject to subsequent further search or closer scrutiny, was not in use because it was not part of the screening procedure for international flights.

Appellant's boarding line consisted of approximately 30 or 40 individuals ahead of him. We are told that five or six of these were stopped and patted down after they set off the magnetometer. Again, there is no specific evidence that appellant saw these individuals being patted down. In any event, when his turn in line came, he did place his carry-on luggage on the table and it was presumably searched. He then passed through the magnetometer and activated it. The United States Customs Security officer, Ronald Bliss, then motioned for appellant to come over and open his coat. This he did, in the immediate vicinity of the magnetometer. Bliss then patted him down and felt a bulge in appellant's inside jacket pocket. At Bliss's request appellant removed the object, a package wrapped in aluminum foil with a frontal size approximately that of United States currency and a thickness of about one-quarter inch or a little bigger. Bliss indicated to appellant to open one end of it. Appellant complied, without protest, and Bliss observed what he thought was a counterfeit $20 bill. Appellant was then taken to another room, where the package was ascertained to consist of 51 bogus $20 bills, and after being shown a Spanish language 'rights card' by a Spanish-speaking Customs Security officer, appellant claimed that a stranger had approached him in front of his house and asked him to exchange the money in question. He explained the wrapping of the bogus bills (so that they would not get wet). He also had approximately $2,360 in genuine currency on his person that was not wrapped in foil. We do not know whether the magnetometer had been activated by the foil.

As we have said, the usual airport search consists of an examination of the individual passenger and the opening of carry-on luggage and a look at its contents. 2 The search of the individual is made initially by a magnetometer; then, if the device is activated, further investigation is made. 3 The search

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of the carry-on luggage may be made manually or by X-ray machines where available. Each aspect of the procedure is, however, a search within the meaning of the fourth amendment.

Even the unintrusive magnetometer walk-through is a search in that it searches for and discloses metal items within areas most intimate to the person where there is a normal expectation of privacy. United States v. Epperson, 454 F.2d 769, 770 (4th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972). While subject to the fourth amendment's requirement of reasonableness, nevertheless, such a search is carried out upon each and every passenger without a warrant or without probable cause. 4

The airport search is a direct reaction to the wave of airplane hijackings which began in 1968, at which time popular feelings of fear and anger, and ultimately rage, called out for some program to safeguard air flights, and understandably so. Airplane hijacking is a particularly frightening crime. Many hijackers have been psychotic or political fanatics, for whom death holds no fear and little consequence, willing to bargain with the lives of defenseless passengers for money, transportation to a safe haven, the release of 'political' prisoners, or some other otherwise unattainable demand. Congress's penalty for hijacking reflects the public mood: death, if the jury so recommends. 49 U.S.C. § 1472(i)(1)(A). The present antihijacking system did not spring full blown into life. 'Profiles' and selective investigation came first; plainclothes sky marshals became regular forward seat passengers; anathema as it was to some to do so, diplomatic overtures were made to Cuba to eliminate it as a refuge for hijackers. Finally, technology with magnetometers, metal detection devices and X-rays was brought to bear. Today, the general methodology of the airport search has become more or less routine. 5

Inevitably, the legality of these searches has been contested, and courts have responded differently. 6 Our own circuit has indeed demonstrated in its confrontations with the problem 7 that it has no unanimous point of view. This is not surprising perhaps when one considers the fact that neither component of the usual airport search of the person 8 -- the use of the magnetometer or the frisk-- seems to fit readily within

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any of the traditional exceptions to the warrant requirement, 9 and yet each seems reasonable in light of the overwhelming public acceptance of the search, and the necessity for it. It is helpful to consider these two components separately. Before doing this, however, we note our guideline for decision lies in the language-- through not the specific holding-- of Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), that 'the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures,' since an airport search 'as a practical matter could not be subjected to the warrant procedure.' The ultimate standard of the fourth amendment on which we must base our opinion, therefore, is one of reasonableness. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct 2523, 37 L.Ed.2d 706 (1973). And the reasonableness of a search depends upon the facts and circumstances and the total atmosphere of each case. Chimel v. California,395 U.S. 752, 765, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Our inquiry here must be directed to the basic issue whether in the totality of circumstances such a search is reasonable.

In treating each component of the airport search, it is necessary to focus on the governmental interest which supposedly justifies intrusion on the privacy of the person, or simply to focus on the need to search. Terry v. Ohio, 392 U.S. at 20-21, 88 S.Ct. 1868. See also Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

In 1969 the number of successful hijackings and hijacking attempts of United States carriers peaked at 33 and 40, respectively. FAA, Office of Air Transportation Security, Hijacking Attempts on U.S. Registered Aircraft (Oct. 5, 1973). As the airport searches became more widespread and other aspects of the anti-hijacking program took effect, the number of successful hijackings dramatically declined to 10 in 1972, and, surprisingly, there have been no successful hijackings of a commercial airliner in the United States in over a year. Id. 10...

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