United States v. Cyzewski

• Decision Date: 29 August 1973
• Docket Number: No. 72-3368.,72-3368.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Donald A. CYZEWSKI, a/k/a J. Scalzi, and James Peter Herbert, a/k/a J. Daly, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

484 F.2d 509 (1973)

UNITED STATES of America, Plaintiff-Appellant, v. Donald A. CYZEWSKI, a/k/a J. Scalzi, and James Peter Herbert, a/k/a J. Daly, Defendants-Appellees.

No. 72-3368.

United States Court of Appeals, Fifth Circuit.

August 29, 1973.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellant.

Thomas E. Henderson, Tampa, Fla., court-appointed, for Herbert.

W. DeHart Ayala, Jr., Tampa, Fla., for Cyzewski.

Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges.

RONEY, Circuit Judge:

In this case, an airport security search goes one step further than any to which this Court has previously given constitutional approbation. We are asked to discern any constitutional defects in the removal and warrantless search of checked luggage as part of the investigation of potential hijackers. The Government appeals, under the authority of 18 U.S.C.A. § 3731, from the District Court's suppression as evidence of five pounds of marijuana discovered by the search. We reverse.

On October 5, 1971, at Tampa International Airport, James P. Herbert and Donald A. Cyzewski, traveling on a group ticket under the names of J. Daly and J. Scalzi, respectively, sought to board Eastern Air Lines Flight No. 114 to Atlanta. At the boarding area, ticket attendants pointed them out to deputy United States marshals as potential hijackers, or "selectees," according to characteristics described in the confidential Federal Aviation Agency's Behavior Pattern Profile.

Deputies Charles Johnston and John Hardman accosted the defendants and requested them to furnish identification. The airline tickets with the false names were presented, and the defendants explained that all their identification papers were inside their luggage, which had been checked. To confirm the identification, the deputies gave the baggage checks to an airlines' employee with instructions to retrieve the luggage from the plane and then escorted the defendants to the marshal's office near the boarding area.

As the luggage was brought to the office, both Herbert and Cyzewski removed from their pockets and presented to the marshals identification with their real names. The defendants made no explanation regarding the false names on the tickets. Upon requests, they refused to open their luggage for inspection, but did agree to be subjected to the magnetometer test for metal objects.

The magnetometer indicated, when Herbert stepped through it, that he had no metal on his person. Deputy Johnston next requested Herbert to pass through the device with his bag, a small, plaid, zippered suitcase. This time the magnetometer detected metal.

Deputy Johnston placed the bag on a desk, explained the results of the magnetometer test to Herbert, and requested to see the metal object. At first refusing to open the bag, Herbert stated that the only metal objects in it were buckles on a pair of shoes and volunteered to be subjected to the magnetometer test again if he could remove the shoes from the suitcase. Without receiving a reply from the marshals, Herbert unzippered one side of the bag and placed his hand inside and out of view. At that point, Deputy Hardman, exclaiming, "I'll take over from here," grabbed the bag.

Deputy Hardman opened the suitcase, began to search it, and found an aerosol can. He then removed a five-pound bag and asked Herbert about its contents. It was laundry, replied the defendant. Unconvinced, the deputy opened the bag and discovered five pounds of marijuana.

The defendants were immediately arrested and transported to jail. The motion to suppress was granted after the defendants were charged with possession with intent to distribute marijuana, in violation of 21 U.S.C.A. § 844.

This Court's task is to determine any constitutional infirmity in the search of Herbert's luggage. In the context of the exigent circumstances of this case and the plight of American aviation, we deem the search to have been reasonable.

Airplane hijacking, the unlawful seizure and diversion of aircraft to unscheduled destinations, is a contemporary phenomenon with potentially catastrophic consequences.¹ The high incidence of air piracy — jeopardizing passengers' lives, threatening commercial airlines' personnel and property, wreaking substantial economic loss upon both, and inhibiting citizens' exercise of the constitutional right to travel² — has demonstrated civil aviation's urgent need for security measures.

In response to this ubiquitous hijacking menace, the Federal Aviation Agency has established an elaborate pre-flight passenger surveillance system. With deterrence as their fundamental objective, a series of obstacles has been posed for potential hijackers: an identifying behavioral profile, an electronic examination, interrogation, and a physical search. Although all passengers today are subjected to the magnetometer and search of hand luggage, there seems to have been no mandatory procedure for screening passengers at the time of the subject incident. Generally, airlines' personnel would designate an individual as a "selectee" on the basis of the profile and would request identification. If there were any confusion regarding the selectee's identity, he would be interrogated and subjected to the magnetometer test by the airline's officer or an air marshal. If metallic objects were detected on his person, he probably would be frisked for weapons.

Recently, our Court in United States v. Moreno, 475 F.2d 44, 45 (5th Cir. 1973), performed the "difficult and sensitive task of balancing the individual rights protected by the fourth amendment against the overwhelming public interest in effective protection from the threat posed by air piracy" and sustained a search which revealed heroin, rather than weapons. We held that, where Moreno appeared evasive and hesitant and lied about his destination when confronted by police, security officials had a legitimate interest in making a conclusive determination regarding the subject's conduct and presence at the airport. Expressing the belief that the sheer urgency of the current air piracy problem alone is insufficient justification for a warrantless airport search, we recognized, nevertheless, that reasonableness is the ultimate standard to guide the constitutional propriety of the warrantless airport search.

Two other airport security searches have subsequently been considered by this Court. In United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973), we analogized the search of persons presenting themselves for boarding an air carrier to a border search and held that such searches may be based on mere or unsupported suspicion. Because Skipwith met the FAA anti-skyjack profile and stated he had no identification, a boarding agent detained him. The federal marshal discovered that the name on the defendant's ticket was false, brought him into his office, and — suspecting that a bulge in the suspect's pocket was a gun — ordered him to empty his pockets, revealing a plastic bag of cocaine. The Court concluded that the marshal

was justified in undertaking a search with sufficient scope to reveal any object or instrumentality that Skipwith could reasonably have used to effect an act of air piracy.

Skipwith, supra, 482 F.2d at 1277. Thus, the Fourth Amendment does not require suppression of narcotics found when the airline ticketholder is searched for weapons on the basis of mere suspicion by a federal marshal at the boarding gate.

The rationale of Moreno was the basis of this Court's decision in United States v. Legato, 480 F.2d 408 (5th Cir. 1973). There, the FBI had received an anonymous tip, Legato's conduct and hand baggage matched the information, and he and his companion departed from the terminal building to the airport parking lot when it was announced that their flight had been delayed because of a bomb threat. Approached by security officers, Legato, who was using an assumed name, denied both ever possessing the subject bag and being acquainted with his companion, who was carrying the bag and who consented to the search in the parking lot. We held that the tip and deceit provided a sufficient factual basis for the federal agent's fear of a hijack.

Although some searches in the vicinity of air terminals, thereby generally regarded as "airport searches," have been found unlawful, see, e. g., United States v. Soriano, 482 F.2d 469 (5th Cir. 1973); United States v. Garay and Torres, 477 F.2d 1306 (5th Cir. 1973); and Gold v. United States, 378 F.2d 588 (9th Cir. 1967), these are unrelated to the security problem. The courts have consistently held airport security measures constitutionally justified as a limited and relatively insignificant intrusion of privacy balanced against the need to protect aircraft and its passengers. United States v. Bell, 464 F.2d 667 (2d Cir. 1972); United States v. Slocum, 464 F.2d 1180 (3rd Cir. 1972); United States v. Epperson, 454 F.2d 769 (4th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972).

In Bell, the magnetometer's use was found to be constitutionally sound.³ Defendant Bell matched the behavioral profile, activated the magnetometer, and identified himself for the federal marshal at the airport as having recently been released from prison on bail. The marshal searched him, requested that he remove a hard object which proved to be a brown paper sack, and found heroin therein. Defendant's motion to suppress the evidence as the product of an unlawful search was denied.

Although expressing some reservations had the search been based solely on the magnetometer test since that device is sensitive to common items carried by a large proportion of airlines passengers, the District Court approved the use of the magnetometer as "only one of a series of screening procedures; a procedure that serves as much as a deterrent to air piracy as it does a detector." United States v. Bell, 335 F.Supp. 797, 802 (E...