United States v. Clark

Decision Date08 March 1973
Docket NumberNo. 527,Docket 72-2147.,527
Citation475 F.2d 240
PartiesUNITED STATES of America, Appellee, v. Theron CLARK, Appellant.
CourtU.S. Court of Appeals — Second Circuit


Michael Young, New York City (Robert Kasanof, The Legal Aid Society, New York City, of counsel), for appellant.

Joan S. O'Brien, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Before LUMBARD, KAUFMAN and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

Theron Clark appeals from a judgment of conviction in the Eastern District of New York, following a jury trial before Judge Mark A. Costantino on two counts of an indictment charging that Clark knowingly and intentionally possessed, with intent to distribute (1) 211 grams of heroin, and (2) 18 grams of cocaine, both in violation of 21 U.S.C. § 841(a)(1) (1972). He was sentenced to two concurrent seven-year terms and an additional special parole term of three years, and is presently incarcerated at the Federal Penitentiary in Petersburg, Virginia. Because Clark and the public were excluded from the entire pretrial suppression hearing held to determine whether the drugs were lawfully seized from him as he was attempting to board an aircraft at LaGuardia Airport, we remand for another suppression hearing. And since the trial judge failed to give adequate and comprehensible instructions to the jury, we reverse the conviction and remand for a new trial.

This case arises in the context of a system of precautions taken by airline authorities and the Federal Aviation Administration to prevent the hijacking of commercial aircraft by identification of potential skyjackers through use of a "profile" screening method. See United States v. Bell, 464 F.2d 667 (2d Cir. 1972); United States v. Lopez, 328 F.Supp. 1077, 1082-1084 (E.D.N.Y.1971).1 Under the system a passenger who, at the time of his ticket purchase, fits the established profile criteria receives a specially marked ticket or envelope which identifies him as a "selectee." When a "selectee" is designated, the ticket agent alerts other appropriate airline personnel and/or one or more United States Marshals of the impending arrival of the "selectee" at the appropriate boarding gate. At the boarding gate, all passengers are required to pass through a magnetometer which detects the presence of metal objects.

If a "selectee" activates the magnetometer, he is informed of this and asked for his ticket and identification. If he produces satisfactory identification, he will normally be allowed to board the aircraft, but if he cannot do so he will be "interviewed" by an airline representative or a marshal or both in an attempt to determine the source of the magnetometer's reaction. Failing a satisfactory explanation, the "selectee" will be asked to submit to a patdown of his person and, if necessary, to a search of any articles he may be carrying, in order to determine whether whatever object activated the magnetometer presents a danger to the other passengers and crew members boarding the flight. It does not appear whether he is advised that he has a right to refuse to submit to the search if he decides not to board the plane. Nor is it clear that if he refuses to allow himself or his baggage to be searched, he will simply be turned away without a search and not be allowed to board the plane. If a marshal observes a bulge in his outer clothing which the marshal reasonably suspects may be a weapon, the marshal apparently conducts a protective frisk of the "selectee" anyway.

In the present case, a Deputy United States Marshal, Vincent LaRosa, searched a small handbag carried by appellant as he was proceeding to board a plane bound for Raleigh, North Carolina, and seized from within it the illicit drugs which formed the basis for appellant's prosecution and subsequent conviction. Clark moved to suppress the drugs as the product of an unconstitutional search, and a pretrial hearing was held on the motion.

The Suppression Hearing

At the commencement of the suppression hearing appellant was not present. The government made a formal motion, at the instance of the court, that Clark be excluded from the proceedings and that the hearing be conducted in camera "to insure that the hijacker profile will remain secret in order to deal with potential skyjackers." The motion, to which defense counsel voiced no objection, was granted. Clark and the public were excluded from the entire suppression hearing, though appellant was represented throughout the course of the hearing by counsel.

Only two witnesses, Marshal LaRosa and an Eastern Airlines Supervisor, Brian O'Neil, testified at the hearing. Except for a very brief description of the "profile" criteria by Mr. O'Neil, the testimony given in the defendant's absence was wholly concerned with the circumstances leading up to and following the seizure of the drugs. In essence, the witnesses testified that they had been alerted that a passenger on the flight to Raleigh had been designated a "selectee." When Clark appeared at the boarding gate for that flight bearing the distinctively marked boarding pass which identified him as a selectee, O'Neil asked him for it, ascertained that the ticket inside also indicated appellant was a selectee, and verified himself that Clark met the profile criteria. After Clark passed through the magnetometer and activated it, indicating the presence of metal, O'Neil introduced himself and Marshal LaRosa and requested identification. The testimony at the suppression hearing (at which Clark did not testify) indicated without dispute that Clark did not present any identification,2 and LaRosa consequently asked Clark if he would submit to a patdown, to which appellant reportedly replied, "Go ahead."3 Finding nothing which would have activated the magnetometer as a result of the frisk, LaRosa told Clark to open the locked bag he was carrying. Clark complied and LaRosa searched the bag looking for weapons. Noticing a bulky object wrapped in a towel, he unwrapped it and uncovered a box which he opened with the thought that it might contain explosives. Instead, the box was found to contain substances which later testing showed to be heroin and cocaine. The handbag also contained a medallion, a tie clip, and a can of shoe polish which would have triggered the magnetometer.

It is readily apparent and not surprising that the suppression hearing covered a wide range of testimony besides the profile criteria in order to determine the validity of the search. At the conclusion of the in camera hearing, the district court found that "the method in which defendant was stopped and frisked was reasonable under the circumstances and in accordance with the profile that has been established a reasonable search was conducted and the finding of the contents should not be suppressed." What was surprising and wholly improper was the exclusion of the appellant and the public from the course of an entire pretrial proceeding designed to determine, from evidence of events in which the appellant participated, whether his constitutional right to be free from an unreasonable search and seizure was violated.

In United States v. Bell, 464 F.2d 667 (2d Cir. 1972), we recently upheld the exclusion of a defendant and the public from that limited portion of a suppression hearing restricted to the testimony of Ralph Whitfield, an airlines ticket agent, which concerned a description of the criteria of the "hijacker profile," against the contention that the partial in camera procedure employed in that case denied the defendant his right to confront the witnesses against him, to have the effective assistance of counsel, and to have a public trial. We laid stress, however, on the persuasiveness of the "government's justification for the barring of the public and the defendant, while permitting his counsel to participate," namely, "the compelling urgency of protecting the confidentiality of the profile which has been devised as a method to reduce the threat of hijacking." Id. at 669. We found "protection of the air travelling public" to be sufficient "justification for the limited exclusion" of the public. Id. at 670. Although the claim that exclusion of the defendant denied him his constitutional right to confrontation was found to be of "substance," it was rejected after a searching analysis of the testimony of the sole witness heard in camera, which was restricted to a description of the essential elements of the secret "profile." In particular, we noted that his testimony "bore no relationship at all to the question of Bell's guilt or innocence of the crime charged. He could not identify the defendant and had no independent recollection of the transaction. Whitfield simply testified to the fact that he knew the criteria of the profile (which he delineated), that the ticket to the flight in question was sold by him, that his identifying number was on the ticket which was introduced into evidence, as well as the envelope distinctively marked to indicate to ramp personnel that the passenger was a selectee, that a passenger who purchased a ticket fit the profile, and that no personal exercise of judgment on his part in determining selectees was involved." Id. at 671. We specifically observed that "Bell was present and represented by counsel who cross-examined the marshal and the ramp ticket agent who were present at the time of the stop and frisk, which revealed the contraband which led to his arrest," and ultimately concluded that "the circumstances attending the exclusion of the defendant, limited as it was, in our opinion did not jeopardize his ability to confront the witnesses testifying as to his guilt and the incidents surrounding his frisk, or hinder the effectiveness of his counsel's assistance." Id. at 672.

The case now before us presents a wholly...

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