People v. Hyde

Decision Date25 July 1974
Docket NumberCr. 17154
Citation524 P.2d 830,12 Cal.3d 158,115 Cal.Rptr. 358
CourtCalifornia Supreme Court
Parties, 524 P.2d 830 The PEOPLE, Plaintiff and Respondent, v. Frederick Weston HYDE, III, Defendant and Appellant. In Bank

George H. Chula, Santa Ana, for defendant and appellant.

Evelle J. Younger, Atty. Gen. Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Daniel J. Kremer, Mark L. Christiansen and Alan S. Meth, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant Frederick Weston Hyde III appeals from a judgment of conviction entered upon a plea of guilty to the charge of possessing restricted dangerous drugs (Health & Saf.Code, § 11910), discovered in the course of an 'airport search' of defendant's hand luggage. Defendant principally contends the evidence against him was the product of an unreasonable search in violation of the Fourth Amendment to the United States Constitution. We conclude the search in question was lawful according to the Fourth Amendment standards set forth below and therefore affirm the judgment.

The facts revealed here are a typical consequence of the airplane boarding procedures employed in recent years in California and throughout the United States. 1 On December 24, 1971, United States Deputy Marshal Budd Johnson stopped defendant as he attempted to board a Western Airlines flight from San Diego International Airport to Phoenix because defendant allegedly satisfied the Federal Aviation Administration's behavioral profile of a potential hijacker and activated a magnetometer indicating the presence of metal. Johnson asked defendant to place his hand luggage on a table. Defendant, saying nothing, complied with the request and proceeded to open his bag. Johnson looked inside, noticed a shaving kit, and, explaining that such containers often include items which normally set off a magnetometer, removed the kit and opened it. Johnson discovered therein a clear plastic baggy containing a substance which appeared to be marijuana. He returned the plastic baggy to the kit, closed it, and placed defendant under arrest for possession of marijuana. Johnson then conducted a pat-down search of defendant and escorted him to an office approximately 30 feet away. A further search of defendant's luggage revealed an estimated 100 tablets of what Johnson believed to be LSD.

At the outset we note there is no issue of consent, actual or implied. The trial court determined defendant had not consented to the search and the People on appeal do not challenge the factual finding. 2

However, the People have contended on trial and appeal that Johnson's search of defendant's hand luggage was reasonable in view of the Fourth Amendment principles established by the United States Supreme Court in Terry v. Ohio (1967) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Terry considered the extent of the rights under the Fourth Amendment accorded to an individual confronted on the street by a police officer investigating possible criminal activity. The court held that when a police officer is otherwise entitled to detain an individual to inquire into suspicious circumstances, he may conduct a limited pat-down search for weapons to protect himself if he has an articulable reason to believe the individual is armed and dangerous.

It is tempting to draw, in the manner of numerous jurisdictions, an analogy between Terry and the typical facts herein. 3 In Terry, the court upheld a search undertaken without either a warrant or probable cause on the ground that the governmental interest in the protection of law enforcement officers, on balance, so outweighed the interest of the individual in being free from official intrusion of minimal scope as to satisfy the Fourth Amendment requirement of reasonableness. Here too, it is argued, airport searches can be validated by a similar balancing of the serious governmental interest in the prevention of airplane hijackings and the attendant danger to life and property with the minimally intrusive search necessary to reduce substantially the likelihood of a successful hijacking. However, an examination of the theoretical and practical underpinnings of Terry suggests the decision is in fact inapposite to the case at bar and the problem of airport searches.

A principal difficulty in applying Terry to the instant problem arises from the scope of the search which that case sanctioned. Terry was explicit in permitting an officer who makes an investigative stop of suspicious individuals on the street 'to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.' (392 U.S. at p. 30, 88 S.Ct. at p. 1885.) Nowhere in the opinion can a suggestion be found that an officer in such circumstances is entitled to undertake a more thorough or intrusive search beyond a superficial pat-down for weapons. Indeed, the majority of federal decisions adopting the Terry rationale to justify airport seizures deal with the mere frisking of suspicious passengers resulting in the discovery of contraband and do not consider the possibility of extending that authority to justify an unrestricted baggage search. (See, e.g., United States v. Lopez (E.D.N.Y.1971) supra, 328 F.Supp. 1077; United States v. Lindsey (3d Cir. 1971) supra, 451 F.2d 701; United States v. Epperson (4th Cir. 1972) supra, 454 F.2d 769; United States v. Bell (2d Cir. 1972) supra, 464 F.2d 667; United States v. Moreno (5th Cir. 1973) supra, 475 F.2d 44; but see United States v. Slocum (3d Cir. 1972) 464 F.2d 1180.) Therefore, assuming Arguendo that Terry is relevant to the question of airport seizures, we believe the decision at best approves a pat-down screening of suspicious passengers but cannot serve to justify Johnson's search of defendant's hand luggage.

Another obstacle to deciding the instant case under Terry principles is the level of suspicion that case requires an officer to possess before he may initiate a pat-down search of a detained individual. A protective frisk may be predicated only upon 'specific and articulable facts' which would warrant 'a reasonably prudent man in the circumstances . . . in the belief that his safety or that of others was in danger.' (392 U.S. at pp. 21, 27, 88 S.Ct. at p. 1883.) The People suggest because defendant satisfied the anti-hijacking profile and activated a magnetometer, Johnson acted reasonably in proceeding to search defendant according to Terry. In 1971, however, when hijackings posed a more repetitive menace than currently, available surveys indicated only one out of every 15 passengers who both fit the profile and set off a magnetometer was likely to be found with a weapon. (United States v. Lopez (E.D.N.Y.1971) supra, 328 F.Supp. 1077, 1097.) There is grave doubt that an approximately 6 percent probability of discovering weapons would warrant a reasonably prudent man in the belief that a particular individual was 'armed and presently dangerous.' (392 U.S. at p. 30, 88 S.Ct. 1868.) Moreover, if the level of suspicion required by Terry is reduced, there appears no discernible limitation to an extension permitting the wholesale frisking of the general public whenever a serious threat of crime emerges. California courts have consistently rejected such a blunderbuss approach since Wirin v. Horrall (1948) 85 Cal.App.2d 497, 193 P.2d 470, insisted upon Fourth Amendment protection for highway travellers. Properly viewed, therefore, the magnetometer and the FAA profile represent instruments of convenience which help to expedite pre-departure screening procedures, but do not, in themselves, generate adequate information to support a patdown under Terry.

In any event, even were we to conclude the profile and the magnetometer are sufficient together to sustain a Terry search, the People offer no justification for subjecting passengers to a magnetometer screening in the first place. The magnetometer, though minimally intrusive, unquestionably operates to search individuals within the meaning of the Fourth Amendment: the machine reveals the presence of metal objects in areas under personal control as to which the individual maintains a reasonable expectation of privacy and freedom from governmental inspection. (Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.) 4 As a result, our justification of the ultimate search under Terry on the basis of a magnetometer reading would constitute bootstrapping to an impermissible degree. If the magnetometer is to be relied upon as a ground for a search, it must itself first be legitimated under the Fourth Amendment.

The Terry rationale presents another problem when applied to airport searches. The case emphasizes that at the heart of the decision to allow a pat-down search of individuals whom an officer has detained and believes to be dangerous is the recognition of society's paramount interest in self-protection of its police force. 'In addition (to the governmental interest in the efficient investigation of crime), there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.' (392 U.S. at p. 23, 88 S.Ct. at p. 1881; see also United States v. Robinson (1973) 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.) In airport searches, on the other hand, the People concede that the danger purportedly justifying the search occurs after the plane is airborne, at which time the law enforcement officers remain safely on the ground. It might be argued that Terry contemplates the protection of innocent bystanders as well, in light of the high court's statement that the 'sole justification of the search in the present situation is the protection of the police officer And others nearby.' (Italics added.) (392 U.S. at p. 29, 88 S.Ct. at p. 1884). The discussion in the case...

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