People v. Heimel

• Decision Date: 09 July 1991
• Docket Number: No. 91SA11,91SA11
• Citation: 812 P.2d 1177
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Bryan HEIMEL, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1177

812 P.2d 1177

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Bryan HEIMEL, Defendant-Appellee.

No. 91SA11.

Supreme Court of Colorado En Banc.

July 9, 1991.

John Suthers, Dist. Atty., Robert D. Jones, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

David F. Vela, State Public Defender, Theresa M. Cisneros, Deputy State Public Defender, Colorado Springs, for defendant-appellee.

Justice QUINN delivered the Opinion of the Court.

In this interlocutory appeal, the People challenge a district court ruling which suppressed illegal drugs seized from the defendant, Bryan Heimel, during a warrantless search of a small bag at a municipal airport after the defendant presented himself at a checkpoint station for security screening, submitted to the screening process, and then refused permission to search his bag and withdrew from the checkpoint station. The court ruled that there was not probable cause for the search of the contents of the bag and that, consequently, the officer who stopped and detained the defendant was entitled to do no more than feel the outside of the bag for a weapon in order to ensure the officer's safety during the temporary detention. We conclude that the warrantless search under the circumstances present here was pursuant to a legitimate regulatory program designed to secure the safety of persons and property in air commerce and did not violate either the federal or state constitutional proscription against an unlawful search or seizure. We accordingly reverse the suppression ruling and remand the case to the district court for further proceedings.

I.

The defendant is charged in the District Court of El Paso County with unlawful possession of psilocybin, a schedule I controlled substance, ¹ and unlawful possession of psilocybin with intent to sell or distribute. ² The charges are based on the seizure of illegal drugs from the defendant during an airport security search at the Colorado Springs Municipal Airport on August 3, 1990.

There is no dispute regarding the basic facts underlying the suppression ruling. Airport security screening procedures have their source in the Air Transportation Security Act of 1974, Pub.L.No. 93-366, 88 Stat. 415 (codified at 49 U.S.C.App. §§ 1301, 1356, 1357, 1472, 1511, 1515 (1989)), and are designed to prevent air piracy and other acts of criminal violence that pose a threat to the lives of persons traveling by means of air transportation. The statute requires the Administrator of the Federal Aviation Agency to prescribe "reasonable regulations requiring that all passengers and all property intended to be carried in the aircraft cabin in air transportation ³ or intrastate air transportation ⁴ be screened by weapon-detecting procedures or facilities employed or operated by employees or agents of the air carrier, intrastate air carrier, or foreign air carrier prior to boarding the aircraft for such transportation." 49 U.S.C.App. § 1356(a) (1989). The federal statute also charges the Administrator with the duty of requiring, by regulation, any air carrier, intrastate air carrier, or foreign air carrier to refuse to transport any person who does not consent to a search of his person or property for the purpose of determining whether the person is carrying or the property contains a "dangerous weapon, explosive, or other destructive substance." 49 U.S.C.App. § 1511(a)(1) and (2) (1989).

The federal regulations adopted pursuant to the Air Transportation Security Act of 1974 require all airport operators to institute and maintain an approved security program and to prohibit any person from entering a "sterile" area--that is, "an area to which access is controlled by the inspection of persons and property in accordance with an approved security program," 14 C.F.R. § 107.1(b)(5) (1991)--without submitting to the screening of his or her person and property. See generally 14 C.F.R. Parts 107, 108, & 129 (1991). In addition, each airport operator is required to provide "law enforcement officers in the number and in a manner adequate to support ... [i]ts security program ... and ... [e]ach passenger screening system." 14 C.F.R. § 107.15(a)(1) and (2) (1991).

The airport security area at the Colorado Springs Municipal Airport was clearly posted with signs that all bags would either be screened by X-ray or searched. The security program required potential passengers presenting themselves at the checkpoint station for access to the sterile or boarding area of the airport to pass through a magnetometer, which is designed to detect metal objects. Because small metal objects can pass through a magnetometer without detection, as can dangerous nonmetal instruments or substances, the screening process also required a person to submit any hand-carried objects for X-ray screening or physical examination of the contents.

When the defendant arrived at the checkpoint station, he was wearing a small cloth-type bag fastened to his side. He first walked through the magnetometer without activating any signal. Because the bag he was wearing was considered a carry-on item, the security agent attempted to inspect the bag and its contents. The defendant refused permission to search the bag and stated that he would wait outside the security area. He then withdrew, without the consent of the security agent, to a waiting room located a short distance away. The security agent at this point notified Officer Bronson of the Colorado Springs Police Department, who was assigned to the airport security unit.

Officer Bronson arrived at the checkpoint station and interviewed the security agent, who pointed out the defendant to the officer. The officer noted that the defendant, who was standing directly in front of the checkpoint station, was walking "back and forth" and was acting nervously. When the officer asked the defendant what he was doing, the defendant replied, "I'm picking up a friend on this United flight ... I'm waiting for [a] judge." The defendant then began to slowly move the bag behind him.

Officer Bronson told the defendant that he had to check for a weapon and took the defendant to the police airport security office, which was a short distance from the checkpoint station. At the security office, the officer again told the defendant that he was checking for a weapon and did not intend to make an arrest. When the defendant refused permission for the search of the bag, the officer told him that he was going to search the bag. The defendant then told the officer that he would not like what he found and handed the bag over.

Upon opening the bag, Officer Bronson observed eight clear plastic bags of dried mushrooms. ⁵ The defendant, in response to the officer's request, emptied his pockets and removed another plastic bag containing mushrooms. After taking possession of the plastic bags, the officer permitted the defendant to leave the airport. A presumptive field test and subsequent laboratory analysis of the mushrooms proved positive for psilocybin. An arrest warrant was issued for the defendant on September 13, 1990, and he was taken into custody approximately one week later.

In granting the motion to suppress, the district court initially distinguished cases dealing with airport-security searches from the present case on the basis that the airport search cases involved individuals who were attempting to board an airplane, while in the present case the defendant had departed from the sterile area of the airport and was not in a position to introduce a weapon or a dangerous object into an aircraft. The court reasoned that Officer Bronson, although justified in inquiring of the defendant about the reason for his presence at the airport, was not entitled to make anything more than a nonintrusive frisk of the exterior of the bag for the officer's own safety during the temporary detention. Based on that reasoning, the court concluded that the officer's search of the bag was without probable cause and exceeded the legitimate scope of a limited frisk for a weapon.

In challenging the suppression ruling, the People claim that Officer Bronson's search of the bag was a constitutionally valid search based on probable cause. We conclude that the search was constitutionally valid, but do so on the basis that it was pursuant to a legitimate airport-security search to which the defendant consented by presenting himself at the checkpoint station for security screening.

II.

The Fourth Amendment to the United States Constitution and Article II, section 7 of the Colorado Constitution proscribe unreasonable searches and seizures. It is a fundamental principle of search and seizure jurisprudence 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, 1730-31, 18 L.Ed.2d 930 (1967); see Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978); People v. Wright, 804 P.2d 866, 869 (Colo.1991). There is no question that airport preboarding security screening constitutes a "search" in the constitutional sense of that term. E.g., United States v. Davis, 482 F.2d 893, 904 (9th Cir.1973); 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).

One of the recognized exceptions to the warrant requirement is the regulatory search pursuant to a statutory or administrative program. Nonconsensual warrantless searches without probable cause or individualized suspicion have been constitutionally upheld when conducted pursuant to a regulatory program calculated to further a manifestly important governmental interest under circumstances where the program is reasonably tailored to further the governmental interest and where the intrusion on personal privacy or security is relatively slight in...