Santiago v. State

• Decision Date: 09 October 1981
• Docket Number: No. 92,92
• Citation: 50 Md.App. 20,435 A.2d 499
• Parties: Jorge SANTIAGO, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 20

50 Md.App. 20

435 A.2d 499

Jorge SANTIAGO, Jr. v. STATE of Maryland.

No. 92.

Court of Special Appeals of Maryland.

Oct. 9, 1981.

Donald Daneman, Baltimore, with whom was William B. Purpura, on the brief, for appellant.

Michael A. Anselmi, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Warren B. Duckett, Jr., State's Atty. for Anne Arundel County, and William R. Roessler, Asst. State's Atty. for Anne Arundel County, on the brief, for appellee.

Submitted before MASON, WILNER and COUCH, JJ.

WILNER, Judge.

Appellant was convicted in the Circuit Court for Anne Arundel County of possession of cocaine, for which he was fined $2,500 and placed on five years probation. His sole complaint in this appeal is that the cocaine in question and certain other incriminating items were discovered and seized unlawfully and should have been suppressed as evidence.

The search and seizure occurred at Baltimore-Washington International Airport. At about 8:30 a. m. on May 19, 1980, appellant attempted to pass through the security screening unit at Pier C, leading to the aircraft boarding areas. In accordance with standard and familiar procedures, he surrendered a piece of hand luggage for x-ray inspection. As the luggage passed through the machine on the conveyor belt, the security officer operating the machine one Warren Jordan observed in the x-ray scope a dark object that he was unable to identify. He immediately requested his assistant, Roberta Florey, to inspect the bag.

Mrs. Florey also saw the bag under the "scope," and she too noticed large, dark, unidentifiable objects. When the bag emerged from the machine, she put it on the table, where appellant identified it as his.

Mrs. Florey told appellant that she would have to look in the bag, to which he replied "okay" and proceeded to unlock it. She then opened the bag and began to search through it, in the course of which she discovered a box. Without objection from appellant, she opened the box and saw a large sum of money. ¹ She did not recall seeing anything else in the box. Becoming "suspicious," she handed the box to Maryland State Trooper Vernon Sarro, who, as part of the airport security team, was standing nearby. There is no indication in the record that appellant objected to this transfer.

Sarro had observed the search conducted by Mrs. Florey. He looked into the open box and saw not only the money but three other objects as well a clear see-through "baggie" containing a white powdery substance, an opaque film cannister, and a dark brown bottle containing a powdery substance. Sarro, who had had some police training in the identification of controlled dangerous substances, who had been on the State police force for nine years, and who, as a resident trooper in Carroll County, gave "talks" on controlled dangerous substances, immediately concluded (correctly, as it turned out) that there was indeed contraband in the box, whereupon he detained and ultimately arrested appellant.

Appellant does not contest the reasonableness of the x-ray examination of the luggage, or the cursory search made by Mrs. Florey. What he complains about is the handing over of the box to Trooper Sarro and the search and seizure made by him. We find no error.

Whatever may have been the case before "skyjacking" became popular either as gainful employment or as a form of political protest, airport searches such as that conducted here are, by now, generally regarded as permissible under the Fourth Amendment.

The use of airport searches as part of a program to eliminate air piracy began in 1968. From a statistical study of the behavioral characteristics of known hijackers, a "profile" of the potential hijacker was developed. A selective screening process, based upon that "profile," was then instituted. That early process, as described in Ingram, Are Airport Searches Still Reasonable? 44 J.Air Law & Com. 131, 134 (1978), was essentially as follows "(A)irline employees, such as ticket agents, applied the profile to passengers entering the airport. Those passengers fitting the profile were designated 'selectees' by the employees, and this information was forwarded to airline personnel at the boarding gate, usually by distinctive markings upon the selectee's ticket or boarding pass. Upon the selectee's arrival at the boarding gate, he was required to pass through a metal detector with his carry-on baggage. If the metal detector indicated the selectee was carrying an amount of metal equal to the mass of a small handgun, the airline employee on duty at the gate stopped him and requested identification. If satisfactory identification was not presented, a United States Marshal was summoned, and identification was requested again. If the selectee still refused or was unable to present satisfactory identification, he was requested to pass through the metal detector a second time. A second indication of metal on the person or in the baggage of the selectee provoked a request for submission to a voluntary 'pat-down frisk.' The selectee's carry-on baggage was also searched. If at any point in this procedure the selectee passed a particular test, further investigation was foregone and he was allowed to board the airplane." (Footnotes omitted.)

See also United States v. Davis, 482 F.2d 893 (9th Cir. 1973).

By September, 1971, the FAA concluded that the selective screening program had not proved adequate. New regulations were therefore adopted in February, 1972, requiring that the air carriers screen all passengers on reservation flights. The screening process itself, however, was somewhat flexible. Though not spelled out in the regulation (see 41 C.F.R. § 121.538 (1973)), the FAA permitted the screening to be accomplished "by one or more of the following systems: behavioral profile, magnetometer, identification check, physical search." See 3 LaFave, Search and Seizure 330 (1978) quoting FAA Press Release No. 72-76 (February 6, 1972). That too proved insufficient; hijackings continued such that by January 5, 1973, all passengers on all flights in the United States were required to undergo metal detector screening and inspection of carry-on baggage before being allowed to board the airplane. ²

Predictably, the courts were soon called upon to consider the constitutionality of these increasingly pervasive intrusions. Almost without exception, they have determined that passenger searches and searches of luggage sought to be taken aboard commercial aircraft are "reasonable" (and thus permissible) if conducted in accordance with the rules and procedures adopted or required by the Federal Aviation Administration. See, for example, United States v. Edwards, 498 F.2d 496 (2d Cir. 1974); United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973); State v. White, 26 Ariz.App. 505, 549 P.2d 600 (1976); People v. Hyde, 12 Cal.3d 158, 115 Cal.Rptr. 358, 524 P.2d 830 (1974); People v. Dooley, 64 Cal.App.3d 502, 134 Cal.Rptr. 573 (1976), all involving luggage searches; and see United States v. Bell, 464 F.2d 667 (2d Cir.), cert. den. 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972); United States v. Epperson, 454 F.2d 769 (4th Cir.), cert. den. 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972), involving personal searches. But see People v. Sortino, 68 Misc.2d 151, 325 N.Y.S.2d 472 (1971) (search held unconstitutional in absence of probable cause).

Although in agreement as to the end result the validity of searches conducted in accordance with FAA regulations the courts have been unable to reach a consensus on a proper rationale for such searches, other than the pragmatic need for them. See generally, Weinstock, The Airport Search and the Fourth Amendment: Reconciling the Theories and Practices, 7 UCLA-Alaska L.Rev. 307 (1978).

The United States Courts of Appeal for the Second and the

Seventh Circuits initially upheld warrantless airport searches on the basis that activation of hijacker detection devices produces sufficient articulable suspicion to justify a weapons search under the standards established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See United States v. Bell, supra, 464 F.2d 667; United States v. Fern, 484 F.2d 666 (7th Cir. 1973). That type of analogy did not find favor among the other circuits, however, and, with the advent of the newer FAA regulations requiring the indiscriminate screening of all passengers and all carry-on luggage, even the Second Circuit has discarded it in favor of a more general reasonableness standard. See United States v. Edwards, supra, 498 F.2d 496. ³

In contrast, the Ninth Circuit and State courts in California and Arizona have upheld the screening of airline passengers and their carry-on luggage on the ground that they are akin to the administrative searches upheld in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). ⁴ The Fifth Circuit has given airport searches the green light by analogizing them to "border" searches, treating the aircraft boarding area as a type of "critical zone," justifying a search upon "mere suspicion." See United States v. Moreno, 475 F.2d 44 (5th Cir.) cert. den. 414 U.S. 840, 94 S.Ct. 94, 38 L.Ed.2d 76 (1973), and United States v. Skipwith, supra, 482 F.2d 1272.

Regardless of the approach taken, the courts which have ruled on the matter have, in the end, engaged in a balancing of governmental versus individual interests; and through that balancing process, nearly all have reached the conclusion that in light of the potential consequences of aircraft hijacking, the intrusion into protected rights by a search reasonable in scope is more than counterweighed the government's legitimate interest in preventing such harm. See United States v. Davis, supra, 482 F.2d at 910 (administrative search theory); United States v. Edwards, supra, 498 F.2d at 500 (general reasonableness theory); United States v. Skipwith, supra, 482 F.2d at 1275 (border search analogy); United...