United States v. Meulener, Crim. No. 10931-CD.

• Decision Date: 04 December 1972
• Docket Number: Crim. No. 10931-CD.
• Citation: 351 F. Supp. 1284
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. John Kenneth MEULENER, Defendant.

351 F. Supp. 1284

UNITED STATES of America, Plaintiff, v. John Kenneth MEULENER, Defendant.

Crim. No. 10931-CD.

United States District Court, C. D. California.

December 4, 1972.

William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Chief, Crim. Division, Darrell W. Mac Intyre, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

Pines & Dunn, James R. Dunn, Beverly Hills, Cal., for defendant.

MEMORANDUM OPINION

FERGUSON, District Judge.

While attempting to board an American Airlines flight from Los Angeles International Airport to Chicago on August 2, 1972, the defendant was placed under arrest by a Deputy United States Marshal after a search of his suitcase and person revealed a quantity of narcotics. In a two-count indictment, the defendant is charged with violating 21 U.S.C. § 841(a)(1). He has moved to suppress the evidence found by the search.

The facts revealed at the hearing are as follows:

1. The defendant was the last passenger to attempt to board the flight; all other passengers were on board.

2. Carrying a small suitcase, he checked in at the boarding gate at approximately 12:25 A.M. The ticket agent determined that the defendant met the Federal Aviation Administration "profile" developed to detect potential hijackers, and notified the deputy marshal attending the magnetometer in front of the passageway to the aircraft.

3. As the defendant passed by the magnetometer, it registered positive for the presence of metal.

4. The marshal then ordered the defendant to open his suitcase, and, when he hesitated, repeated the order.

5. At that time, the defendant was under arrest although not told that he was. The marshal had made the determination that the defendant could not leave under any circumstances.

6. The marshal did not ask what was in the suitcase before searching it. Moreover, he did not indicate that the defendant had any choice regarding consent to the search, nor inform the defendant that he could choose not to undergo the search provided he did not board the aircraft.

7. The defendant testified that he would not have attempted to board the aircraft had he been given the opportunity to decline to undergo the search.

8. The defendant, after some hesitation, opened the suitcase with his key. The marshal detected an odor of marijuana. He then observed a white plastic bag in the rear of the suitcase and asked the defendant what it contained. The defendant replied, "It's not a bomb."

9. The marshal suspected that the bag might contain an explosive device and searched it, discovering a quantity of marijuana. At the time of the search of the suitcase, no attempt had been made to search the defendant's person.

10. The marshal then placed the defendant under formal arrest for possession of marijuana with intent to distribute it.

11. The defendant was taken to the marshal's office in the terminal, where a further search was made of the suitcase and, for the first time, of the defendant's person. A small box containing additional narcotics was found in the suitcase, and a quantity was also found in the defendant's pants pocket.

The court holds that the defendant's Fourth Amendment rights were violated when he was not told at the time the search was initiated that he had a right to refuse to submit to the search provided he did not board the airplane. As there was no probable cause for the defendant's arrest at the time he attempted to board, the only factors cited to support the search of his suitcase were that he met the hijacker profile and that the magnetometer registered positive. While the marshal was entitled to insist that the defendant undergo a carefully limited search for weapons or explosives if he attempted to board the airplane, the defendant was entitled to be given the choice of undergoing the search and boarding the airplane, or declining to be searched upon the condition that he not board the airplane. There is no indication that the defendant's behavior was such that the marshal was justified in searching or detaining him if he chose not to board the aircraft.

As a separate and independent ground of decision, the court finds that the search violated the defendant's Fourth Amendment rights because its scope was not limited in accordance with constitutional requirements.

The Fourth Amendment states, "The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated . . .." In United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), the Court held that "it is unreasonable searches that are prohibited by the Fourth Amendment," and that the test of reasonableness "depends upon the facts and circumstances —the total atmosphere of each case." 339 U.S. at 60, 66, 70 S.Ct. at 432, 435. The Rabinowitz standard was overruled in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which held that reasonableness was to be determined not in a pragmatic fashion, but rather in the context of the Fourth Amendment. The Chimel Court concluded that the government's "reasonableness" argument was

"founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point. . . ." 395 U.S. at 764-765, 89 S. Ct. at 2041.

The Court held that the "facts and circumstances" of the Rabinowitz test "must be viewed in the light of established Fourth Amendment principles." 395 U.S. at 765, 89 S.Ct. at 2041.

The Chimel holding has met with reluctance on the part of lower courts. For example, in United States v. Slocum, 464 F.2d 1180 (3rd Cir.), decided as recently as July 19, 1972, the court still speaks of reasonableness in the sense of Rabinowitz.

In cases involving areas of great public concern, it is easy to succumb to the expediency of the moment and, contrary to the Constitution, adopt the principle that the end justifies the means.

All reasonable men are aware that aircraft hijacking and the traffic in narcotics have reached serious proportions. These problems, however, as all other great problems of the past and the future, must be solved in the context of our Constitution, or else the principles upon which this Nation was founded will have disappeared in the cloud of fear.

There are three grounds relevant to the instant case which may justify a physical search by a law enforcement officer in the absence of a search warrant: (1) the existence of probable cause for arrest; (2) consent to the search; or (3) a limited search for weapons, where a reasonably prudent officer has reason to believe that the person to be searched is armed and dangerous and that the safety of the officer or of others is endangered.^*

Probable Cause

It is clear that in the instant case, probable cause was not present. See Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); United States v. Epperson, 454 F.2d 769, 770-771 (4th Cir.), cert. denied, 406 U. S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972); United States v. Lopez, 328 F. Supp. 1077, 1093 (E.D.N.Y. 1971). And "it is axiomatic that an incident search may not precede an arrest and serve as part of its justification." Sibron v. New York, 392 U.S. 40, 63, 88 S. Ct. 1889, 1902, 20 L.Ed.2d 917 (1968).

Consent

A search may be justified if the subject's voluntary consent has been given. However, consent to a search amounts to a waiver of a constitutional right, and

"waiver, in this context, means the `intentional relinquishment of a known right or privilege'. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Such a waiver cannot be conclusively presumed from a verbal expression of assent. The court must determine from all the circumstances whether the verbal assent reflected an understanding, uncoerced, and unequivocal election to grant the officer a license which the person knows may be freely and effectively withheld. . . ." Cipres v. United States, 343 F.2d 95, 97 (9th Cir. 1965).

To meet constitutional requirements,

"the consent must be proved, by clear and positive evidence, to be voluntary, unequivocal, specific and intelligently given rather than resulting from duress or coercion, whether actual or implied. United States v. Como, 340 F. 2d 891, 893 (2d Cir. 1965); United States v. Smith, 308 F.2d 657, 663 (2d Cir. 1962), cert. denied, 372 U.S. 906, 83 S.Ct. 717, 9 L.Ed.2d 716 (1963)."

United States v. Bell, 335 F.Supp. 797, 803 (E.D.N.Y. 1971).

See also 8A J. Moore, Federal Practice ¶ 41.074, at 41-79.

It is clear that in the instant case, the defendant did not give consent to a search of his suitcase. He opened it only after he was ordered to do so by the marshal at a time when he was not free to leave or to avoid the search. Under such circumstances, the search was inherently coercive. Cipres v. United States, supra, 343 F.2d at 98; United States v. Page, 302 F.2d 81, 83-84 (9th Cir. 1962). The defendant's conduct "hardly amounts to an `unequivocal, specific, and intelligently given' consent." Lopez, supra, 328 F.Supp. at 1093; see Bell, supra, 335 F.Supp. at 803. The government argues that the presence of signs in the boarding area indicating that passengers and baggage were subject to search amounts to implied consent. This contention, however, must clearly fail, both because such consent does not meet the constitutional standards set forth in Cipres, supra, and because "the government cannot condition the exercise of the defendant's constitutional right to travel on the voluntary relinquishment of his Fourth Amendment rights." Lopez, supra, 328 F.Supp. at 1092-1093; Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

Limited Search for Weapons

Terry v. Ohio, 392 U.S. 1, 88 S. Ct....