U.S. v. $124,570 U.S. Currency

• Decision Date: 24 April 1989
• Docket Number: No. 88-5527,88-5527
• Parties: , 57 USLW 2664 UNITED STATES of America, Plaintiff-Appellee, v. $124,570 U.S. CURRENCY, Defendant. Appeal of Wayne G. CAMPBELL, Claimant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1240

873 F.2d 1240

108 A.L.R.Fed. 643, 57 USLW 2664

UNITED STATES of America, Plaintiff-Appellee, v. $124,570 U.S. CURRENCY, Defendant.

Appeal of Wayne G. CAMPBELL, Claimant-Appellant.

No. 88-5527.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 5, 1988.

Decided April 24, 1989.

Paul L. Gabbert, Santa Monica, Cal., for claimant-appellant.

Dwight B. Moore, Asst. U.S. Atty., Civil Div., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before POOLE, REINHARDT and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge:

Like more than a billion other airline passengers last year, Wayne G. Campbell passed through an airport security check on his way to a flight. During the course of the screening, the security officer discovered a large quantity of U.S. currency. Pursuant to an established arrangement, the officer notified agents of the United States Customs Service who paid her $250 for the tip. The tip led to Campbell's detention and confiscation of the currency.

Campbell challenges the legality of the search, raising fundamental questions about the extent to which law enforcement authorities may use airport security inspections to promote objectives unrelated to air safety.

I

On January 5, 1987, Campbell placed his locked briefcase on a conveyor belt leading through an x-ray scanner operated by United Airlines at the Seattle International Airport. Picking up a dark mass on the x-ray screen, the Flight Terminal Security (FTS) officer operating the scanner, Bonnie Boswell, asked Campbell to open the briefcase. First expressing reluctance, Campbell eventually agreed to do so privately, behind a screen. FTS officer Karen Kangas searched the case and found a very large quantity of currency. Kangas then questioned Campbell regarding his destination and eventually released him. Kangas returned the briefcase to Campbell, who proceeded to board United Airlines Flight 22 bound for Los Angeles.

FTS officers at the Seattle airport have a policy of reporting any sum of United States currency over $10,000 to the United States Customs Service and Airport Police. ¹ Employees who report the discovery of such sums are paid $250 as a reward. Consistent with this policy, Kangas telephoned United States Customs Service Officer Steve Symms immediately after she released Campbell. Kangas gave Symms a description of Campbell, his briefcase and its contents, and his destination. Symms relayed this information to a customs agent at Los Angeles International Airport (LAX), who in turn informed Roger Guevarra, a Drug Enforcement Administration agent.

Acting on this information, Guevarra and a second DEA agent, Christopher Amato, met Campbell's flight and began following Campbell around the airport terminal building. After Campbell retrieved his suitcase and exited the building, the agents approached him and identified themselves as special agents of the DEA. In response to their questioning, Campbell admitted that he had $130,000 in his briefcase, but contended that the money belonged to a friend of his in Encino who had hired him to ransom a stolen painting. Campbell further explained that he had traveled to Seattle to read books and visit friends, and had stayed with friends there. He had taken the money to Seattle with him because he was afraid to leave it at home. Campbell would not give the name and telephone number of the friend for whom he was ransoming the painting.

Skeptical of this story, the agents decided to take the briefcase to a nearby DEA office for further investigation. They advised Campbell that he was not under arrest and was free to go, but that they would be detaining his briefcase. Campbell decided to follow the agents to the DEA office. Once there, Amato asked Campbell to open the briefcase and told him that, should he refuse, the agents would attempt to obtain a search warrant.

Campbell opened the briefcase revealing bundles of currency in denominations between five and one hundred dollars. The agents also found a substantial quantity of cigarette rolling papers, and a receipt from a Seattle hotel indicating that Campbell had stayed there from January 3 to January 5, 1987.

The DEA agents photocopied the papers and returned to Campbell everything except the currency. On January 6, 1987, DEA agents used Smoky, a narcotics-detecting dog, to test the currency for the odor of cocaine, heroin, marijuana and marijuana derivatives. Smoky's reaction to the currency indicated that one or more of these substances had come in contact with one or more of the bills.

The United States then filed this civil forfeiture action pursuant to 21 U.S.C. Sec. 881(a)(6) (1982). Campbell filed a timely claim and answer, and moved to suppress the evidence uncovered by the search of his briefcase. The district court denied Campbell's motion to suppress and ruled that the currency was subject to forfeiture. Campbell appeals the district court's rulings.

II

Commercial air travel, once a luxury, has become a staple of modern existence. For many Americans, boarding an airplane to travel across the state or across the country is as ordinary and commonplace an event as boarding a bus or train fifty years ago, or mounting a horse-drawn carriage around the turn of the century. Students going home for the holidays, corporate executives traveling on business, grandmothers visiting their grandchildren, federal judges riding circuit: Airplane travel has become the lifeblood of American society in the latter part of the twentieth century. According to the Federal Aviation Administration, in 1987 there were 1,095,600,000 airline passengers, an average of more than four trips for very man, woman and child in the United States. See Office of Civil Aviation Security, Federal Aviation Administration, Semiannual Report to Congress on the Effectiveness of the Civil Aviation Security Program July 1, 1987-December 31, 1987, at exhibit 7 (1988); U.S. Dep't of Commerce, Statistical Abstract of the United States 7 (1988).

Along with the good comes the bad. While airline travel provides unparalleled speed, comfort and convenience to travelers who must cross vast distances in a short time, it also gives terrorists and other criminals a unique opportunity for inflicting death and destruction. Airplanes are peculiarly vulnerable to hijacking, as well as to attacks with firearms and explosives; airports, where large numbers of people congregate, can be attractive targets for terrorism. Aware of these dangers, Congress passed the Air Transportation Security Act of 1974, Pub.L. No. 93-366, 88 Stat. 415 (1974) (codified as amended in 49 U.S.C.App. Secs. 1356, 1357, 1371, 1372, 1472, and 1516) (1982 & Supp. III 1985). The Act empowers the Administrator of the FAA to establish and monitor security procedures for preventing acts of criminal violence and aircraft piracy. The Administrator has promulgated regulations under the Act which, among other security measures, require all passengers and carry-on property to be screened by weapon-detecting security procedures. 14 C.F.R. Sec. 108.9 (1988).

On the basis of 14 years' experience, we can say with some confidence that the Air Transportation Security Act has been a success. Airline hijackings and similar incidents are a rarity in the United States. The security system set up at airports throughout the country processes millions of passengers every day with relatively little delay or inconvenience. Aware of the system's life-saving purpose, Americans submit to metal detectors and x-ray devices without a second thought. The intrusion into our privacy--and an intrusion it surely is--is accepted by most travelers with equanimity. See Bennet, Six-Million-Dollar Man, New Republic, Jan. 23, 1989, at 18.

The unavoidable consequence of this exhaustive search for weapons is that security personnel will become aware of many personal items that do not pose a danger to air safety. X-rays reveal, in outline, the contents of packages, often giving a good indication as to their inventory. When packages are opened, or when pockets are emptied, FTS agents will see many items that are considered private.

Normally, the intrusion is small. Materials other than weapons and explosives are usually ignored by FTS personnel; the disclosure has no permanent consequences and the passenger is able to regain his privacy in the anonymous throngs of a busy airport. Not so, however, when FTS officials single out a particular passenger on account of the contents of his pocket or briefcase. At that point the intrusion becomes more permanent, the invasion of privacy more severe.

It is, moreover, an intrusion not automatically covered by the logic of the Air Transportation Safety Act. While narrowly defined searches for guns and explosives are constitutional as justified by the need for air traffic safety, United States v. Davis, 482 F.2d 893, 910 (9th Cir.1973), a generalized law enforcement search of all passengers as a condition for boarding a commercial aircraft would plainly be unconstitutional. Here we must consider whether the use of the airport security screening system to achieve ends unrelated to air safety violates the constitutional rights of commercial air travelers.

A. We start with the fundamental proposition that "except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967). See also Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856 (1964); United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951), rev'd on other grounds by Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Among the "carefully defined classes of cases" for which no warrant is...