United States v. Lopez

Decision Date14 May 1971
Docket NumberNo. 70 Cr 813.,70 Cr 813.
Citation328 F. Supp. 1077
PartiesUNITED STATES of America, Plaintiff, v. Frank Lorenzi LOPEZ, Defendant.
CourtU.S. District Court — Eastern District of New York

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Edward R. Neaher, U. S. Atty., E. D. New York, Brooklyn, for plaintiff; Daniel M. Armstrong, Asst. U. S. Atty., of counsel.

Milton Adler, Legal Aid, New York City, for defendant; Edward J. Kelly, Brooklyn, New York City, of counsel.

Grunewald & Turk, Brooklyn, N. Y., amicus curiae; Raymond Bernhard Grunewald, Brooklyn, N. Y., of counsel.

MEMORANDUM

WEINSTEIN, District Judge.

Defendant is charged with concealing and facilitating the transportation of heroin and of conspiring to commit that crime. 21 U.S.C. §§ 173, 174. He has moved to suppress heroin taken from his person.

Presented is the question of whether the anti-hijacking system used at our airports is constitutional. For the reasons indicated below, we hold the system valid. Nevertheless, because in this particular case the elegant and objective method devised by the government to deter and apprehend hijackers was distorted in an irrational and prejudicial way by airlines personnel, defendant's motion must be granted.

I. FACTS

With his companion, Ernesto Perez Gonzalez, defendant, Frank Lorenzi Lopez, was apprehended on November 14, 1970 at John F. Kennedy International Airport as he was about to board a Pan American flight bound for Puerto Rico. Two Deputy United States Marshals had been called from a trailer adjacent to the Pan American premises where they were stationed in connection with the government's anti-hijacking program. An employee of Pan American had pointed out the two passengers as "selectees" —persons whose "profile" suggested a substantial likelihood that they were potential hijackers; who had activated a magnetometer, a metal detection device; and who, upon request, had failed to produce identification.

The Marshals approached the two and asked if they would walk through the magnetometer installation again, first with, and then without, a small blue bag that Gonzalez was carrying. Each of them did so, activating the device on both trips. The Marshals again requested identification but none was produced. At this time Gonzalez identified himself by his proper name, indicating that the name Julio Lopez, which appeared on his ticket, was erroneous.

The two travelers were then asked to accompany the Marshals to a private area adjacent to the passenger boarding ramp where their outer clothing was patted down ("frisked") for weapons. A Marshal felt a hard object about 4 inches wide, 6 inches long, and three-quarters of an inch deep under Lopez's clothing. A tinfoil covered plastic envelope tightly packed with white powder had been discovered. Field tested, the powder proved positive for heroin. Gonzalez and Lopez were then arrested.

Both were charged with concealment and facilitating the transportation of the packet of narcotics found on Lopez and with conspiring to commit this crime. The government's evidence at the suppression hearing made it apparent that there was no case against Gonzalez, even if the heroin was admitted. Accordingly, a judgment of acquittal was granted after the government and Gonzalez waived a jury and agreed that the hearing testimony would be deemed received at the trial.

II FEDERAL AERONAUTICS ADMINISTRATION SYSTEM FOR DISCOURAGING AND APPREHENDING POTENTIAL HIJACKERS

In October 1968 a Task Force was appointed to consider methods of combating the increasing number of airline hijackings. Cf. Bibliography on Airplane Hijacking, 26 The Record of the Assoc. of the Bar of the City of New York, 325-332 (1971). A number of interested agencies including the Federal Aeronautics Administration, the Department of Justice and the Department of Commerce were represented. This Task Force included individuals trained in several disciplines including psychology, law, engineering and administration. Dr. John T. Dailey, a well-trained psychologist with a broad practical background in education and government personnel, took a leading role in developing and testing the Task Force ideas. At the hearing he testified at length and impressed the Court with his skill and honesty.

One of the serious problems faced by the Task Force was that many millions of passengers use air transportation. Any practical procedure would have to permit maximum access to aircraft with minimal inconvenience and embarrassment to passengers and almost no delay in the operations of the airlines.

Among the investigations undertaken by this group were a detailed study of the characteristics of all the then known hijackers and of the air traveling public. Background investigations of hijackers as well as visual and photographic studies of boarding air passengers were relied upon. Among the findings were (1) hijackers were generally not highly motivated and resourceful and (2) they shared certain characteristics markedly distinguishing them from the general traveling public. In addition, engineering studies were undertaken of available weapon detection devices.

After thorough field testing of equipment and various screening techniques, the present anti-hijacking system was instituted. Although we are concerned primarily with the preflight apprehension aspect of the system its principal focus is on deterrence. Involved are the following elements:

1. Heavy penalties.

A severe statute with possible death penalties for hijacking was adopted. There already were in force various regulations and statutes prohibiting the carrying on board of firearms and other weapons.

2. Notice to the Public.

Signs in English and Spanish are posted at the boarding gates where passengers' tickets are checked reading as follows:

AIRCRAFT HIJACKING IS A FEDERAL CRIME PUNISHABLE BY DEATH ____________________________________ CARRYING CONCEALED WEAPONS ABOARD AIRCRAFT IS PUNISHABLE BY PRISON SENTENCES & FINES ____________________________________ PASSENGERS AND BAGGAGE SUBJECT TO SEARCH

These signs are eleven by fourteen inches with half inch high letters. Warnings of the same or larger dimensions are conspicuously posted at other parts of the air terminal.

While probably not required to give notice of the applicable law and penalties, these signs fill that function. Cf. Lambert v. California, 355 U.S. 225, 228-230, 78 S.Ct. 240, 242-243, 2 L.Ed.2d 228 (1957) (felon registration ordinance); United States v. Mancuso, 420 F.2d 556 (2d Cir. 1970) (failure to register as a narcotics law violator before leaving the country). They serve to deter and to reduce the possibility of embarrassment should a passenger's boarding progress be interrupted.

3. Profile.

If a passenger meets a prescribed "profile" he is focused on by airline employees. The details of the profile and its use are set out below.

4. Magnetometer.

A magnetometer is installed in the passageway leading to the plane so that all passengers must pass through it. It is set to flash a warning light when metal equal to or greater than an average 25 caliber gun in magnetic force deflecting power is carried by. This device is described in more detail below.

5. Interview by Airlines Personnel.

A person who triggers the magnetometer and meets the profile requirements is "interviewed" by airlines personnel. If he provides satisfactory identification, he is permitted to proceed unimpeded. Otherwise he is designated a "selectee" and is denied boarding until a Deputy United States Marshal is summoned.

6. Interview by Marshal.

The Marshal again requests identification of those designated as "selectees." If satisfactory identification is not furnished it is suggested that the person go through the magnetometer once more. Before walking through, he is asked if he has any metal on his person or in any baggage he is carrying. If he replies in the negative and still sets off the magnetometer, a request is made that he submit to a "voluntary" search. It is explained that this search is part of an attempt by the government to prevent hijacking.

7. Frisk.

The Marshal pats-down the external clothing of the subject in order to discover if he is carrying any weapons. Depending upon what is found as a result of the frisk, boarding is permitted or the person is detained.

The program is designed to speed passengers who are unlikely to present danger and to isolate, with the least possible discomforture or delay, those presenting a substantial probability of danger. At each successive screening stage an attempt is made to permit as many as possible to complete boarding.

While no single screening technique can by itself completely protect the flying public—without creating an objectionable level of disturbance and inconvenience —probabilities are increased by combining several approaches, thus sufficiently reducing the size of the population which must ultimately be physically interfered with to a practicable and socially acceptable level. Cf. Rosado v. Wyman, 322 F.Supp. 1173, 1180-1181 (E.D. N.Y.), aff'd, 437 F.2d 619 (1970) (collecting authorities on use of mathematics in the law); Finkelstein and Fairley, A Bayesian Approach to Identification Evidence, 83 Harv.L.Rev. 489 (1970).

The system seems to serve this purpose well. Whether because of it or for other reasons hijacking decreased in 1970 to approximately 50% of what it was in 1969. No flight fully protected by the program has been hijacked.

One sample consisting of 500,000 screened passengers showed that only 1,406 satisfied the profile—.28%. Approximately one-half of those were nevertheless permitted to board immediately after failing to activate the magnetometer, leaving 712, or .14% to be interviewed. Of those interviewed, 283, approximately one-third, were actually searched. Therefore, only .05% of the sample were ultimately subjected to a preventive weapons frisk. Twenty persons were denied boarding—approximately 1/15...

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    • United States
    • California Court of Appeals Court of Appeals
    • June 5, 1973
    ...Winters testified that he was 'looking for' persons who met the 'profile' or set off the magnetometer. Defendant relies upon United States v. Lopez, 328 F.Supp. 1077, setting forth a procedure used in 1970 at John F. Kennedy International Airport to deter and apprehend hijackers. Lopez hold......
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    ...of the suppression hearing, during which description of the hijacker profile was given, was permissible. See also United States v. Lopez, 328 F.Supp. 1077, 1087 (E.D.N.Y.1971). (FAA hijacker profile case in which profile information would be disclosed during suppression hearing: "Despite th......
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    • June 2, 1982
    ...trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. See United States v. Lopez, , 328 F.Supp. 1077 (E.D.N.Y.1971); McCormick on Evidence, "Judicial Notice," p. 746. The significant point is that the trial court makes this determina......
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    • U.S. Court of Appeals — Third Circuit
    • March 16, 1978
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1 books & journal articles
  • Criminal Law Newsletter
    • United States
    • Colorado Bar Association Colorado Lawyer No. 8-10, October 1979
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