U.S. v. Gumerlock

• Decision Date: 02 February 1979
• Docket Number: Nos. 76-2732,76-2700,s. 76-2732
• Citation: 590 F.2d 794
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Howard GUMERLOCK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Marc Paul FANNON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 794

590 F.2d 794

UNITED STATES of America, Plaintiff-Appellee, v. Paul Howard GUMERLOCK, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Marc Paul FANNON, Defendant-Appellant.

Nos. 76-2732, 76-2700.

United States Court of Appeals Ninth Circuit.

Feb. 2, 1979.

Frank J. Ragen (argued), Baxley, Ragen & Ray, San Diego, Cal., on brief; Donald A. Nunn (argued), San Diego, Cal., for defendant-appellant.

Joseph Davies, Jr., Atty., Washington, D.C. (on the brief), Terry J. Knoepp, U.S. Atty., San Diego, Cal., Joseph Davies, Jr. (argued), Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before BROWNING, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED, KENNEDY, ANDERSON, HUG and TANG, Circuit Judges.

BROWNING, Circuit Judge:

Heroin was discovered in packages delivered to United Airlines by appellants for shipment. Appellants were charged with possession and conspiracy to possess in violation of 21 U.S.C. §§ 841(a)(1) and 846; their motions to suppress were denied and they were convicted.

On appeal, a panel of this court held the search of appellants' packages to have been governmental, rather than private, and therefore subject to Fourth Amendment requirements, which had not been met. United States v. Fannon, 556 F.2d 961 (9th Cir. 1977). It was undisputed that the packages were searched solely by United Airlines' employees, and that until the heroin was turned over to federal law enforcement officers no government official was involved. (Id. at 963.) The panel held, however, that section 204 of the Air Transportation Security Act of 1974, Pub.L. No. 93-366, Title II, 88 Stat. 415 (codified at 49 U.S.C. § 1511 (Supp. V, 1975)), subjected airfreight shipments such as these to "the government's administrative scheme to strengthen the security of air transportation" (Id. at 965); and that searches conducted pursuant to this government mandated program are subject to the Fourth Amendment, citing United States v. Davis, 482 F.2d 893 (9th Cir. 1973).

We took the case en banc to consider the panel's holding. We conclude that Congress did not intend to require that airfreight shipments be subjected to the security screening process mandated by the government for passengers and their carryon possessions. In any event, airfreight shipments are not subject to such a process, and, in particular, the two packages involved in this case were not examined as part of a government mandated security program. On the contrary, the search of these packages was a private one, conducted by the air carriers' employees without government intervention, and is therefore not subject to the Fourth Amendment.

The Air Transportation Security Act of 1974 is the second title of a two-title statute. The statute as a whole is directed to the problem of air piracy or hijacking. ¹ Title I, the "Anti-hijacking Act of 1974," is designed to implement the Convention for the Suppression of Unlawful Seizure of Aircraft (the Hague Convention). See H.R.Rep. No. 885, 93d Cong., 2d Sess. 9 (1974). Title II, the "Air Transportation Security Act of 1974," is intended to provide security "against acts of criminal violence against air transportation through the imposition at airports in the United States of such measures as the screening of passengers." Id. Committee reports and debates alike reflect a purpose to prevent the seizure of aircraft, primarily by subjecting passengers and their carryon possessions to a preboarding screening search to prevent the introduction of weapons and explosives into the cabin of aircraft. ²

Section 202 of Title II requires a preboarding search of passengers and their carryon possessions for weapons and explosives. The administrator of the Federal Aviation Administration is directed to "prescribe or continue in effect reasonable regulations requiring that all passengers and all property intended to be carried in the aircraft cabin in air transportation or intrastate air transportation be screened by weapon-detecting procedures or facilities employed or operated by employees or agents of the air carrier . . . prior to boarding the aircraft." 49 U.S.C. § 1356(a).

The purpose of this provision is to ratify regulations already issued by the administrator of FAA requiring air carriers to institute a preboarding screening program. ³ The pre-statutory screening program thus legislatively approved was the program dealt with in United States v. Davis, 482 F.2d 893 (9th Cir. 1973).

It is clear from the language of section 202, from references to this provision in the legislative history, ⁴ from the administrative background of the ratified regulations outlined in Davis, ⁵ and from the express language of the ratified regulations themselves, ⁶ that this screening program was concerned only with passengers and the possessions they carried aboard the aircraft, and not with airfreight.

Appellants do not argue to the contrary. Instead, they rely upon section 204 of the statute, 49 U.S.C. § 1511, ⁷ as did the panel opinion.

Section 204 does not in terms authorize or require searches by air carriers. Subsection (a) directs the administrator to require air carriers to refuse to transport passengers or property if consent to search is refused. The search referred to in subsection (a) of section 204 is the screening search required by section 202 (49 U.S.C. § 1356(a)), which, as we have seen, is limited to passengers and their carryon possessions; ⁸ neither appellants, nor the panel, rely upon subsection (a) as a basis for extending the government mandated screening search program to airfreight.

Appellants imply such an extension from subsection (b) of section 204. Subsection (b) provides that any agreement for carriage of persons or property by air for compensation "shall be deemed to include an agreement that such carriage shall be refused when consent to search such persons or inspect such property for the purposes enumerated in subsection (a) of this section is not given." This subsection, like subsection (a), seems to apply only to screening searches of passengers and their possessions, and not to inspection of airfreight. The structure and purpose of the statute strongly suggest it. Moreover, there was no need to grant air carriers the right to refuse to transport freight unless the shipper consented to inspection that right had been long and firmly established in carrier tariffs and by common law. ⁹

But whatever Congress may have intended to accomplish by subsection (b) of section 204, the Federal Aviation Administration has not included "airfreight shipments within the reach of an administrative scheme designed to enhance the security of air transportation from acts of criminal violence," United States v. Fannon, 556 F.2d at 964-65, much the less within the reach of an administrative scheme that involves opening and inspecting the contents of air-freight shipments.

Nor do the three amendments to the relevant regulations issued since the passage of the 1974 Act extend the government mandated security program to airfreight shipments. On April 12, 1975, the administrator modified various sections of Part 121 of the Federal Aviation Regulations to provide rules for carriage of deadly weapons and persons in custody. 40 Fed.Reg. 17551. ¹⁰ These rules are directed primarily to assuring that no weapons are available to passengers in flight. Id. The rules also prohibit carriers from knowingly allowing dangerous weapons in checked luggage, unless prescribed conditions are met; ¹¹ but the administrator expressly disavowed any intention to require carrier inspection of checked baggage, Id. at 17552. Freight shipments are not mentioned. Almost a year later, on March 12, 1976 (after the searches in this case), the administrator amended the regulations to extend the screening procedures to checked baggage. 41 Fed.Reg. 10911. ¹² Again, there is no reference to airfreight. Finally, on July 15, 1976, the administrator added subparagraph (k) to 14 C.F.R. § 121.538, directly responsive to subsection (a) of section 204 of the 1974 Act. 41 Fed.Reg. 30106. ¹³ By the express terms of the new regulation, the carrier's obligation not to carry persons or property applies when consent is refused to search in accordance with the screening system prescribed in subparagraph (b) of section 121.538. And as we have seen, ¹⁴ the system mandated by section 121.538(b) is expressly confined to passengers, their possessions, and, at the time the amendment was adopted, to checked luggage. It does not apply to airfreight.

It is true that from the inception, the government mandated airport screening program was only one element of a broader security program each carrier was required to adopt and submit to the administrator for approval.14 C.F.R. § 121.538(c) (1976) (set out in note 6). This regulation does not specify the other elements of this larger security program, except that the program is to be designed to accomplish certain listed objectives. One of these is to "(p) revent cargo and checked baggage from being loaded aboard the aircraft unless handled in accordance with the certificate holder's security procedures." 14 C.F.R. § 121.538(c)(3). This is the only mention of cargo in the regulation. This provision does not require carriers to adopt any particular security procedures with respect to cargo; specifically, it does not require inspection of cargo. ¹⁵ There is nothing in the record to indicate whether United Airlines in fact adopted any security procedures with respect to cargo, or, if it did, whether the procedures include inspections approved by the administrator. Since the burden of establishing government involvement in the search of their packages rests upon appellants, ¹⁶ we must assume that United Airlines has not adopted such a system in response to section 121.538(c) (3) which subjects airfreight to...