U.S. v. Herzbrun, 82-3065

• Decision Date: 23 January 1984
• Docket Number: No. 82-3065,82-3065
• Citation: 723 F.2d 773
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry E. HERZBRUN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 773

723 F.2d 773

UNITED STATES of America, Plaintiff-Appellee, v. Henry E. HERZBRUN, Defendant-Appellant.

No. 82-3065.

United States Court of Appeals Eleventh Circuit.

Jan. 23, 1984.

Ed Leinster, Orlando, Fla., for defendant-appellant.

Joseph T. Urbaniak, Jr., Robert W. Genzman, Asst. U.S. Attys., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, VANCE and CLARK, Circuit Judges.

TJOFLAT, Circuit Judge:

Henry E. Herzbrun appeals his conviction for possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (1976). He contends that the district court erred in denying his pretrial motion to suppress the cocaine. We find no error, and affirm.

I.

This case involves an attempt to smuggle cocaine through an airport security checkpoint onto an airplane. On March 20, 1982, Henry E. Herzbrun entered the Orlando International Airport and purchased a ticket for Delta flight 442 to Philadelphia, departing at 8:25 a.m. He was carrying a leather shoulder bag, with side pouches. To get to his flight, Herzbrun had to go through the security checkpoint on the Delta concourse, which was equipped with an X-ray machine and a magnetometer. Signs posted on the concourse informed passengers that if they passed through the checkpoint they would be subject to a search.

When he reached the checkpoint, Herzbrun placed his shoulder bag on the conveyor belt that fed the X-ray machine and walked through the magnetometer. The magnetometer did not alert, but Amina Buxo, who was operating the X-ray machine, noticed a large, dark, unidentifiable mass in the bottom of Herzbrun's shoulder bag. Buxo informed her co-worker, Rafaela Fonesca, of this fact, and Fonesca also viewed the bag on the X-ray screen. ¹ Fonesca's job was to open a bag if the machine disclosed an indistinguishable object, and determine whether the object was harmless. The purpose of the checkpoint was to ensure that no weapons, flammables, or explosives got on board or near an aircraft, and the checkpoint personnel were trained to inspect anything that did not appear to be harmless on the X-ray screen.

Fonesca was not satisfied that the mass in Herzbrun's bag, as it appeared on the X-ray screen, was harmless, so she decided to open the bag. Herzbrun told her that the bag only contained clothes and that he did not want it opened. She replied, "Sir, we have to open if you want to go on the plane." Fonesca then opened the bag and put her hand inside. She felt "something different in the bottom," a mass seemingly covered by a towel. She could tell it was not clothing. At this point Herzbrun said, "Take your hands off. I don't want you to search the bag." Herzbrun then shut the bag on Fonesca's hand. Walter Gallagher, an off-duty deputy sheriff, who happened to be passing through the checkpoint behind Herzbrun, identified himself and asked, "Can I help you, what's the problem?" Herzbrun replied, "There is no problem. I don't want to go on the airplane anyway and can she look in my bag?" Gallagher in turn replied that "If you are going to load on the aircraft, I believe she is required to know what's in the bag." At this point two Orlando police officers, Ken Lloyd and Julian Davis, summoned by Buxo through a silent alarm, arrived on the scene. Herzbrun was arguing with Fonesca. Fonesca told the officers that there was an unidentifiable mass in the shoulder bag which she needed to examine but that Herzbrun would not permit a search. Officer Lloyd informed Herzbrun that if he planned to board the plane, he would have to allow someone to inspect the bag. Herzbrun, clutching his shoulder bag, replied, "I don't want to fly," and made a hasty retreat toward the nearest exit and taxi stand. Lloyd and Davis followed him. As Herzbrun entered a cab, Lloyd and Davis placed him under arrest. They took him to an office in the terminal, near the baggage area, where he was given Miranda warnings, questioned briefly, and released. ² They kept his shoulder bag, however, and at 10:00 a.m. a detector dog alerted to the presence of narcotics in the bag. The officers then procured a search warrant, searched the bag, and uncovered over one pound of cocaine hydrochloride.

A federal grand jury indicted Herzbrun on March 31, 1982, for possession of cocaine with intent to distribute. Following his arraignment, Herzbrun moved the court to suppress the cocaine on the grounds that it was seized in violation of the fourth amendment. His motion was denied. Herzbrun submitted to a bench trial and was found guilty. He now appeals.

Herzbrun concedes, at the outset, that if Officers Lloyd and Davis had probable cause to arrest him, their seizure of his shoulder bag was legal. The definition of probable cause is, of course, well established. See, e.g., United States v. Elsoffer, 671 F.2d 1294, 1298-99 (11th Cir.1982). Probable cause exists if " 'the facts and circumstances within [the arresting officer's] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925)). See also e.g., United States v. Preston, 608 F.2d 626, 632 (5th Cir.1979) cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980). The arresting officer need not have in hand sufficient evidence to convict, because when assessing probable cause "we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id., citing Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). In other words, probable cause must not be judged with clinical detachment, but with a common sense view to the realities of normal life. United States v. Agostino, 608 F.2d 1035 (5th Cir.1979).

II.

A.

This circuit has recognized that airport security checkpoints and loading gates are sui generis under the fourth amendment. Due to the intense danger of air piracy, we have long held that these areas, like international borders, are "critical zones" in which special fourth amendment considerations apply. The progenitor of our holdings is United States v. Skipwith, 482 F.2d 1272 (5th Cir.1973). In that case the defendant presented himself for boarding at an airport gate. He fit the FAA "skyjacker" profile, was traveling under an alias, and had a visible bulge in his right front trouser pocket about three inches long by two inches thick. Sky marshals ordered him to a private office and searched him. The search uncovered a bag of cocaine in his trouser pocket. We upheld the validity of the search even though it was not based upon probable cause. Noting the "bitter experience" with air piracy, we stated Reasonableness requires that the courts must weigh more than the necessity of the search in terms of possible harm to the public. The equation must also take into account the likelihood that the search procedure will be effective in averting the potential harm. On the opposite balance we must evaluate the degree and nature of intrusion.... [In this case] [t]he search procedures have every indicia of being the most efficacious that could be used. The group being screened is limited to persons with the immediate intention of boarding aircraft .... [There is an] almost complete absence of any stigma attached to being subjected to search at a known, designated airport search point ... the person to be searched must voluntarily come to and enter the search area. He has every opportunity to avoid the procedure by not entering the boarding area. Finally, the circumstances under which the airport search is conducted make it much less likely that abuses will occur.... [T]hese searches are made under supervision and not far from the scrutiny of the traveling public. Moreover, the airlines, which have their representatives present, have a definite and substantial interest in assuring that their passengers are not unnecessarily harassed.

Id. at 1275-76.

In Skipwith, we went on to hold that a search in an airport gate area or security checkpoint did not require probable cause or even reasonable suspicion, but instead "mere suspicion of possible illegal activity." Id. at 1276. We noted that this was not a stringent rein on police discretion, but cautioned that "the net can sweep no wider than necessary since the broad right to search is limited to the last possible point in time and space which could protect the aircraft, the boarding gate (or secure corridor entrance)." Id. at 1276-77. In Skipwith we also dispensed with any notion that a traveler can attempt to enter the secure area and then beat a retreat if the search proves not to his liking. "Such an option would constitute a one-way street for the benefit of a party planning airport mischief, since there is no guarantee that if he were allowed to leave he might not return and be more successful." ³ We noted that an unimpeded exit would diminish the risk to skyjackers and increase attempts. Id. at 1281. Established search procedures are more valuable for what they discourage than what they discover, and this court in Skipwith saw no constitutional reason to afford a "heads-I-win, tails-you-lose" guarantee to criminals wishing to board aircraft. Id.

Skipwith thus stands for the proposition that travelers who enter airport security areas may be searched on mere suspicion. Moreover, those presenting themselves at a security checkpoint thereby consent automatically to a search, and may not revoke that consent if the authorities elect to conduct a search. Accord United States v. DeAngelo, 584 F.2d 46, 48 (4th Cir.1978) cert. denied, 440...