United States v. Ruiz-Estrella, 784

• Citation: 481 F.2d 723
• Decision Date: 11 June 1973
• Docket Number: No. 784,Docket 73-1007.,784
• Parties: UNITED STATES of America, Appellee, v. Vinicio E. RUIZ-ESTRELLA, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

481 F.2d 723 (1973)

UNITED STATES of America, Appellee, v. Vinicio E. RUIZ-ESTRELLA, Appellant.

No. 784, Docket 73-1007.

United States Court of Appeals, Second Circuit.

Argued April 12, 1973.

Decided June 11, 1973.

Phylis Skloot Bamberger, New York City (Robert Kasanof, The Legal Aid Society, New York City), for appellant.

Raymond J. Dearie, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., of counsel), for appellee.

Before SMITH, HAYS and TIMBERS, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This case presents us with a distressingly familiar situation — the possession of a dangerous weapon by one attempting to board an airliner. On May 17, 1972, Vinicio Ruiz-Estrella was preparing to board a Miami-bound National Airlines flight at John F. Kennedy International Airport. A federal sky marshal searched the shopping bag that he was carrying, and found a sawed-off shotgun inside. After an unsuccessful attempt to suppress this evidence before Judge Neaher in the Eastern District of New York, Ruiz-Estrella stipulated that the minutes of the suppression hearing might serve as those of a trial to the court, and was convicted of various firearms offenses.

The major questions presented for review center on the seizure of the shotgun and the exclusion of both the defendant and the public from a portion of the suppression hearing. For the reasons below, we reverse the judgment of the district court.

I.

The background facts may be quickly summarized. On the day in question, David Falen was serving as the ticket agent for National Airlines, checking passengers' tickets for the Miami flight. In the location of his ticket counter, and in the general boarding area, there were several posters reading as follows: "It is a Federal crime to: Carry concealed weapons aboard aircraft Interefere with flight crews Passengers and baggage subject to search under: Federal Laws and FAA Safety Regulations."

Pursuant to the FAA hijacking "profile," Falen identified Ruiz-Estrella as a suspect when the latter sought to check in for the Miami flight.¹ Falen marked appellant's ticket accordingly, and then asked for identification, which was produced in the form of a bank book, social security card, and union card.

Falen directed appellant to the seat location counter and gate area. He then notified David Angielski, the gate agent, that a profile "selectee" was approaching. In accordance with a prearranged signal, Angielski turned over appellant's ticket to John LaSota, a uniformed federal sky marshal.

LaSota then asked Ruiz-Estrella for identification. He was not satisfied with the bank book, since it had only a name on it, and lacked identifying remarks or an address. LaSota then took appellant into a stairwell at the end of the boarding ramp, and closed the door behind them. He asked for further identification, and was handed the social security and union cards. The former had the typed name "Vinicio Ruiz" on it, but was signed "Vinicio Ruiz-Estrella"; the latter bore the first name "Vincent." LaSota thought these to be discrepancies, but admitted that even if the identification had been letter-perfect, he nonetheless would have sought to examine the shopping bag which appellant was carrying.

Consequently, LaSota "told him appellant he would have to go through a baggage search."² Ruiz-Estrella handed over the shopping bag, which appeared upon first glance to be filled with toys. LaSota picked up a box purportedly containing a toy truck, and found that the box was unexpectedly heavy. Before putting it down, he further noticed that the original cellophane wrapping on the package had been opened and retaped. He opened the box and found the shotgun, along with several shells inside.³

II.

The first point raised on appeal concerns the conduct of the suppression hearing. Falen was the first government witness at that hearing. Pursuant to the practice in the Eastern District, see United States v. Lopez, 328 F.Supp. 1077 (E.D.N.Y.1971); United States v. Bell, 464 F.2d 667 (2d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972), the government moved to exclude the defendant and the public from the courtroom during Falen's testimony, which was to deal with the secret "profile." Defense counsel objected on "the confrontation and the Sixth Amendment," but the motion was granted, and the courtroom cleared.

In United States v. Bell, supra, we held that the exclusion of the defendant and the public from that portion of a suppression hearing dealing with the necessarily confidential hijacking "profile" abridged neither the right to confrontation nor that to a public trial. We emphasized the strong public policy behind confidentiality in such circumstances, and noted that the rights of the defendant involved, while surely important, were not absolute. Consequently, emphasizing the limited nature of the exclusion involved, we upheld the in camera procedure employed in Bell.

In United States v. Clark, 475 F.2d 240 (2d Cir. 1973), we again faced the problem of excluding a defendant from the suppression hearing. The Clark defendant, however, had been excluded from the entire hearing, not just the limited portion dealing with the secret profile. We emphasized that the approval of the in camera procedure in Bell had been limited to the exigencies at hand, i. e., the protection of the secret profile. Consequently, exclusion from those parts of the hearing that dealt with other subjects was held to be an undue abridgement of the rights of confrontation and public trial. In view of the basic nature of those rights, we reversed the judgment of conviction.

The holding in Clark mandates reversal here. Only a small portion of the thirty pages of transcript covering Falen's testimony is devoted to the secret profile. Unlike the ticket agent in Bell, who had no independent recollection of the defendant and could only testify as to his general practice, Falen specifically remembered what had happened here, probably because the suppression hearing was held within about two months of the incident, and described the day's events in some detail.

The government candidly conceded at oral argument that the exclusion here "technically" violates the Clark rule. However, correctly noting that Clark involved a defendant who was excluded from the entire hearing, while appellant here was only excluded during Falen's testimony, the government urges that we find any error to be harmless in nature. Even assuming arguendo that denials of such fundamental rights as those to public trial and confrontation can ever be deemed harmless, but see United States v. Crutcher, 405 F.2d 239, 244 (2d Cir. 1968), cert. denied, 394 U. S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969); United States ex rel. Bennett v. Rundle, 419 F.2d 599, 608 (3d Cir. 1969) (en banc); Tanksley v. United States, 145 F.2d 58, 59, 10 Alaska 443 (9th Cir. 1944); Davis v. United States, 247 F. 394, 398 (8th Cir. 1917), we are unable to so conclude in this case. Falen's testimony here covered a multitude of points far outside the confidential scope of the profile. Inter alia, he maintained that he had "a recollection of this specific incident," recalled in detail the type of identification that Ruiz-Estrella produced, testified about the placement of the posters, remembered that appellant was carrying a shopping bag and that he had observed its contents, and testified that appellant did not act suspicious in any way, was accompanied by a girl who carried no luggage, and was the only selectee that day.

In light of the rather substantial amount of testimony wholly unrelated to the profile which both appellant and the public were barred from hearing, we are unable to conclude that the error here was "harmless beyond a reasonable doubt," Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). With such fundamental constitutional rights at stake, and particularly in view of the fact that the suppression hearing in this case served as a trial on the merits, we cannot exclude "any reasonable possibility of prejudice from defendant's absence," Peterson v. United States, 411 F.2d 1074, 1080 (8th Cir.), cert. denied, 396 U.S. 920, 90 S.Ct. 247, 24 L.Ed.2d 199 (1969), or from that of the public. Consequently, we hold that the district court erred in excluding appellant from all of Falen's testimony, and that the judgment of conviction must be reversed.

III.

Even if appellant had not been improperly excluded from portions of the suppression hearing, we would nonetheless be constrained to reverse the conviction here. We have concluded that the search of the bag and seizure of the shotgun by the sky marshal, under the particular circumstances of this case, cannot be justified under the Fourth Amendment.

At the outset, we think it patent that the seizure here was not predicated upon a showing of probable cause — indeed, the government does not so contend. The government conceded at argument that Ruiz-Estrella provided no one with any reason to be suspicious of him at the airport; Falen so testified during the suppression hearing. To be sure, Ruiz-Estrella did fit the hijacking profile, but no one contends that this statistical survey, which Judge Weinstein in Lopez described as identifying an armed individual about 6% of the time, 328 F.Supp. at 1097, can come close to supplying traditional probable cause for a search. See United States v. Meulener, 351 F.Supp. 1284 (C.D.Cal.1972).

Thus, if the seizure here is to be justified, a theory other than Fourth Amendment probable cause will have to be employed. We recognized this in Bell, supra, and upheld the seizure of narcotics from the person of a selectee there under the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Bell, the suspect had not only met the profile, but had activated a magnetometer when he passed through it, was unable to supply any...