United States v. Epperson, 71-1481.
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
| Writing for the Court | BOREMAN, Senior Circuit , and CRAVEN and FIELD, Circuit |
| Citation | 454 F.2d 769 |
| Parties | UNITED STATES of America, Appellee, v. Cecil Kenton EPPERSON, Appellant. |
| Docket Number | No. 71-1481.,71-1481. |
| Decision Date | 07 February 1972 |
454 F.2d 769 (1972)
UNITED STATES of America, Appellee,
v.
Cecil Kenton EPPERSON, Appellant.
No. 71-1481.
United States Court of Appeals, Fourth Circuit.
Argued December 6, 1971.
Decided February 7, 1972.
Andrew E. Colclough, Arlington, Va. (Court-appointed counsel) (Adams, Porter, Radigan & Mays, Arlington, Va., on the brief), for appellant.
K. Gregory Haynes, Special Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on the brief), for appellee.
Before BOREMAN, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges.
CRAVEN, Circuit Judge:
Epperson was convicted in the United States Magistrates Court, Alexandria, Virginia, of violating 49 U.S.C.A. § 1472(l) by attempting to board an aircraft engaged in interstate commerce while carrying a concealed dangerous weapon. After unsuccessful appeal to the United States District Court for the Eastern District of Virginia, the case is now before us for review. We affirm.
Epperson was arrested on November 29, 1970, at Washington National Airport while boarding a flight to New York City. After giving his ticket to an agent at the gate, he proceeded toward the airplane. Passengers on this flight were exposed to a metal detecting device called a magnetometer. As Epperson passed by the instrument it disclosed an unusually high reading. The United States Marshal using the magnetometer then asked Epperson if he were carrying a large amount of metal. Epperson produced several metal objects, but the device still gave a positive reading to his person. Thereupon the marshal searched the jacket Epperson was carrying and found a loaded .22 caliber pistol.
Epperson claims that the pistol and ammunition should not have been introduced into evidence because they were the products of an illegal search. He argues that (1) the use of the magnetometer was a "search", and (2) since there was no warrant and the circumstances do not fall within any of the recognized exceptions to the warrant requirement, the search was in violation of the Fourth Amendment.
We agree that the use of the magnetometer in these circumstances was a "search" within the meaning of the Fourth Amendment. By this device a government officer, without permission, discerned metal on Epperson's person. That he did so electronically rather than by patting down his outer clothing or "frisking" may make the search more tolerable and less offensive—but it is still a search. Indeed, that is the very purpose and function of a magnetometer: to search for metal and disclose its presence in areas where there is a normal expectation of privacy.
We also agree that the limited search by magnetometer does not fall within any of the recognized exceptions to the warrant requirement of the Fourth Amendment except that suggested by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We think that case controls this one, although the reason in Terry for dispensing with the ordinary warrant requirement is not the same as here.
In Terry an experienced police officer observed two men in broad daylight passing and peering into a store window 12 times. They walked away together and met a third man with whom they had talked briefly before. The confrontation then occurred, resulting in the officer's frisking their outer clothing and in the seizure of two weapons. There was no warrant, no probable cause for
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