People v. Waring

• Decision Date: 13 January 1992
• Citation: 174 A.D.2d 16,579 N.Y.S.2d 425
• Parties: The PEOPLE, etc., Respondent, v. Deborah WARING, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 425

579 N.Y.S.2d 425

174 A.D.2d 16

The PEOPLE, etc., Respondent, v. Deborah WARING, Appellant.

Supreme Court, Appellate Division,

Second Department.

Jan. 13, 1992.

Philip L. Weinstein, New York City (Robert L. Abell and Richard Joselson, of counsel), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Anna Seminerio, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, SULLIVAN and LAWRENCE, JJ.

BRACKEN, Justice.

The defendant argues that the warrantless search of a package, which had been seized from her person after she had attempted to smuggle it through an airport security checkpoint, was unconstitutional, and that the contraband discovered during the course of that search, therefore, must be suppressed (U.S. Const., 4th, 14th Amends.; N.Y. Const. Art. I, § 12; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081). The defendant argues that neither the consent nor the emergency exception to the warrant requirement may be applied, and that no other exception is available. As did the hearing court, we hold that neither the consent nor the emergency exception need be invoked in order to justify the warrantless search of a package, the presence of which is discovered during an airport security checkpoint search, and the contents of which, it is reasonably suspected, might include a weapon or explosives.

On December 13, 1988, at approximately 5:00 P.M., the defendant presented herself at a screening point located within the Delta Airlines terminal at LaGuardia Airport in New York. The defendant passed routinely through a magnetometer, that is, an "archway which [detects] any metal". The magnetometer was activated upon the defendant's first passage through. After she had been given two opportunities to remove various metal objects from her person, the defendant passed through the magnetometer a second time, and then a third time, and the magnetometer was activated on each try.

The defendant then consented to undergo a manual search, which was conducted by a private security guard with the use of a "hand wand". During the course of this manual search, a Port Authority Police Officer observed a bulge under the defendant's sweater, protruding from the small of her back. The officer, alert to the "possible risk of a bomb [or] a gun" conducted an immediate pat down search and recovered a package which was approximately six inches by five inches by three inches in size.

After the seizure of the package, the defendant consented to accompany the officer to a security room. The defendant initially claimed that the package contained money which belonged to another individual, and that she had been instructed to allow no one to open it. The package was placed on a table in the security room while a further hand search of the defendant proved to be negative for weapons.

A second police officer arrived at the security room sometime later. This officer requested permission to open the package. Although the present record supports the conclusion that the defendant, after an initial refusal, gave her consent, the hearing court, in its decision, made no express finding that the defendant in fact consented to the opening of the package. The search of the package revealed the presence of a white powdery substance which a field test proved to be cocaine, and was followed by the defendant's arrest.

The hearing court denied a subsequent motion to suppress the cocaine and statements made by the defendant to the Port Authority Police Officer. As noted above, the court did not expressly rely on the consent exception to the warrant requirement, although the weight of the evidence would have supported a conclusion that the search of the defendant's package was legal for this reason. Nor did the court find it necessary to determine whether "the facts as they unfolded were sufficient to establish the emergency exception [to the warrant requirement]". Instead, the hearing court essentially held that the search of the defendant's package was lawful because it was reasonable under all of the circumstances (citing United States v. Edwards, 498 F.2d 496 [2d Cir.]; United States v. Albarado, 495 F.2d 799 [2d Cir.]; United States v. Kroll, 481 F.2d 884, 886 [8th Cir.]; United States v. Mitchell, 352 F.Supp. 38 [E.D.N.Y.], affd. 486 F.2d 1397).

On appeal, the defendant argues that the fact that the search of her package might have been reasonable under all of the circumstances does not render it lawful. She argues that the consent exception to the warrant requirement is unavailable because the People failed to urge this theory in the Supreme Court and because the Supreme Court itself did not rely on this theory. She also argues that the emergency exception is inapplicable (see generally, People v. Mitchell, 39 N.Y.2d 173, 177-178, 383 N.Y.S.2d 246, 347 N.E.2d 607, cert. denied 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191; People v. Smith, 135 A.D.2d 190, 525 N.Y.S.2d 244). Because we agree with the analysis employed by the hearing court, we affirm.

The defendant is incorrect in asserting that the present search may be upheld only by application of either the consent or the emergency exception to the warrant requirement. The rules which define the extent of those two exceptions to the warrant requirement have broad applicability to all persons or places searched and to all persons or things seized. It is clear from a review of the relevant case law that searches and seizures which occur at airport security checkpoints are to be examined in light of special rules which have evolved in response to the "jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane" (United States v. Bell, 464 F.2d 667, 675 [2d Cir., Friendly, J. concurring], cert. denied 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258). Searches which occur at airport security checkpoints are not, in other words, governed by the same standards as would be applied to searches conducted on the street, or in any other public or private place.

Courts have approved of the searching of carry-on luggage and the frisking of airline passengers on several theories. One theory is premised on the view that any passenger who attempts to board an aircraft or to enter a "sterile" area within an airport, implicitly consents to a full search of his or her person and effects. Pursuant to this theory, a search of carry-on luggage may be justified even in the absence of any reasonable suspicion, much less probable cause, to believe that the package in question might contain a weapon (see, e.g., People v. Heimel, 812 P.2d 1177 [Colo.]; State v. Kelsey, 67 Or.App. 554, 679 P.2d 335; cf., State v. Wiley, 69 Haw. 589, 752 P.2d 102; State v. Salit, 613 P.2d 245 [Alaska]. This implied consent theory evolves naturally from the simple realization that " 'it is common knowledge that all airline passengers and their luggage are subject to being searched' " ( People v. Brown, 113 A.D.2d 893, 894, 493 N.Y.S.2d 810, quoting People v. Price, 54 N.Y.2d 557, 563, 446 N.Y.S.2d 906, 431 N.E.2d 267; see also, People v. Ross, 157 A.D.2d 808, 550 N.Y.S.2d 410).

Another theory is premised on application of the administrative search exception to the warrant requirement (see, e.g., United States v. $124,570 U.S. Currency, 873 F.2d 1240 [9th Cir.]; United States v. Davis, 482 F.2d 893; State v. Cornwall, 810 P.2d 484 [Utah]; State v. Wiley, supra; State v. Salit, supra ). This theory is founded on the fact that Federal regulations (see, e.g., 14 CFR 107.1 et seq.; see also, 14 CFR 121.538) require airport operators to maintain appropriate security programs (see, People v. Heimel, supra ). Observance of these regulations has engendered the widespread practice of conducting warrantless searches of carry-on luggage at United States airports, searches which "more than a million Americans subject themselves to * * * daily" (United States v. Edwards, 498 F.2d 496, supra, at 500), and which have become part of daily life, involving no stigma.

The Supreme Court of the United States, citing cases such as United States v. Edwards, supra, United States v. Skipwith, 482 F.2d 1272 [5th Cir.], and United States v. Davis, supra, has stated that, in light of the Federal government's practice "of requiring the search of all passengers seeking to board commercial airliners, as well as the search of their carry-on luggage * * * the lower courts that have considered the question have [by applying the administrative search exception] consistently concluded that such searches are reasonable under the Fourth Amendment" (National Treasury Employees Union v. Von Raab, 489 U.S. 656, 675, n. 3, 109 S.Ct. 1384, 1395 n. 3, 103 L.Ed.2d 685). The court also noted that in the five years since the Federal government began requiring such searches, more than 9.5 billion persons have been screened and more than 10 billion pieces of luggage have been inspected (National Treasury Employees Union v. Van Raab, supra ). In light of these facts, it is difficult to see how anyone could assert a reasonable expectation of privacy in a package which is being brought onto an airplane or through an airport sterile area.

A third theory is premised on an analogy to the "border search" exception to the warrant requirement (see, e.g., United States v. Cyzewski, 484 F.2d 509, cert. dismissed 415 U.S. 902, 94 S.Ct. 936, 39 L.Ed.2d 459; see also, United States v. Moreno, 475 F.2d 44, cert. denied 414 U.S. 840, 94 S.Ct. 94, 38 L.Ed.2d 76; United States v. Herzbrun, 723 F.2d 773; United States v. Skipwith, supra [justifying searches based on mere suspicion]. This theory may not be applicable in all cases. Generally, it is the nature of the means of the travel (i.e. by airplane rather than by car or by foot) rather than the nature of the destination of the travel (foreign rather than domestic) which intensifies the concern for the traveller's safety. The historic...