United States v. Skipwith

• Decision Date: 14 June 1973
• Docket Number: No. 72-1932.,72-1932.
• Citation: 482 F.2d 1272
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lee SKIPWITH, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

482 F.2d 1272 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Lee SKIPWITH, III, Defendant-Appellant.

No. 72-1932.

United States Court of Appeals, Fifth Circuit.

June 14, 1973.

Herbert P. Sterling, Tampa, Fla., Court-appointed, for defendant-appellant.

John L. Briggs, U. S. Atty., William M. James, Jr., Asst. U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Before ALDRICH^*, SIMPSON and CLARK, Circuit Judges.

CLARK, Circuit Judge:

As a result of an airport security search which discovered not weapons but drugs, Lee Skipwith III was charged with and convicted of the possession of cocaine in violation of 21 U.S.C. § 844(a). He contends here that the evidence should have been suppressed, arguing that the search was unconstitutional. We hold that the search was lawful and that the contraband uncovered by it was properly admitted in the court below; thus we affirm.

On May 19, 1971, the defendant presented himself for boarding at the Eastern Airlines boarding gate at the Tampa International Airport, a place at which he knew or should have known he was subject to being searched. Because he met the F.A.A. anti-skyjack profile and stated he had no identification, the Eastern boarding agent detained him and called in a deputy United States marshal. The marshal, Rodriguez, asked the prospective passenger his name. The response was "S. Jackson." This name corresponded to the name on the ticket which the defendant presented. Upon further inquiry, the defendant informed the marshal that he had no identification. The marshal thereupon inquired as to whether a billfold-shaped bulge which was visible in the left rear pocket of defendant's tight-fitting trousers contained any identifying papers. Defendant acknowledged that the bulge was produced by a wallet, but insisted that there were no identifying papers in it since he had left his identification in St. Petersburg. The marshal insisted that he produce the wallet. Skipwith then confessed: "That S. Jackson isn't my name. That's my traveling name. My true name is Skipwith." With this disclosure, the marshal directed Skipwith to come with him to a private office. On the way to the office, another deputy marshal, Hardman, called Rodriguez' attention to a visible bulge in Skipwith's right front trouser pocket which was about three inches long and two inches thick. In the office Rodriguez examined the wallet and determined that it contained identification papers bearing the name Lee Skipwith III. According to Rodriguez' testimony, Skipwith was very nervous and appeared to be under the influence of either alcohol or some other drug. Rodriguez then ordered Skipwith to stand up and empty his pockets. Rodriguez testified that he "was inclined to believe that he had a gun in that pocket." Instead, the search revealed a plastic bag containing some white powder which was later determined to be cocaine.

I.

This court has recently discussed the permissible scope of airport searches in United States v. Moreno, 475 F.2d 44 (5th Cir. 1973). In that case the court held that suspicious activity by the defendant, a ticketed passenger, in the airport lounge area and en route toward a boarding gate made the security officers' search of the defendant's person a reasonable one. Relying on the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the court weighed the competing interests of law enforcement in the context of the present air piracy problem against the rights of individuals using the airport; it concluded that airport searches designed to protect the heavy volume of interstate and foreign travel by air could be conducted under a less stringent standard than ordinary probable cause because of the unique circumstances of time and place.¹

In Moreno constitutional reasonableness was found in suspicious activity by a ticketed passenger headed toward a boarding gate but still in the general airport area. Today we are called upon to apply the same standard of reasonableness to a situation factually unlike Moreno. Here the defendant, Skipwith, had actually presented himself at the boarding gate as a potential passenger. He could not have been where he was to look around, to greet friends or relatives or to say farewell. His only reason for being there had to be to board the aircraft. Because of the widespread publicity given to the government's efforts to cope with the piracy of aircraft, it was general knowledge that citizens boarding planes were subject to special scrutiny and to weapon searches. Unlike Moreno or Legato the officer did not go to Skipwith and stop and search him at a point where such a procedure was extraordinary or unexpected. Rather, Skipwith came to the specific part of the airport where he knew or should have known all citizens were subject to being searched.

Since Skipwith exhibited characteristics which corresponded to the F.A.A.'s likely skyjacker profile, it may be that this was all that was needed to validate his detention and search here. Undoubtedly this profile, developed from a distillation of characteristics attributable to previous skyjackers, is a valuable and useful tool in the hands of the airport security officers.² However, the factual matrix of the case at bar makes it unnecessary for us to decide whether an airport search based on the profile alone would satisfy the test of reasonableness in all cases.

The government contends that, in light of the magnitude of the perils created by air piracy, searches of boarding passengers are controlled by the same standard applied to customs searches at the national border—mere or unsupported suspicion.³ Bitter experience has taught us that the physical dangers of mass kidnapping and extortion posed by air piracy are even greater than the dangers against which the usual border search is directed. Necessity alone, however, whether produced by danger or otherwise, does not in itself make all non-probable-cause searches reasonable.⁴ Reasonableness requires that the courts must weigh more than the necessity of the search in terms of possible harm to the public. The equation must also take into account the likelihood that the search procedure will be effective in averting the potential harm. On the opposite balance we must evaluate the degree and nature of intrusion into the privacy of the person and effects of the citizen which the search entails.

In undertaking our calculation of the weight to be accorded to these three factors in the case at bar—public necessity, efficacy of the search, and degree of intrusion—we need not reiterate what was said in Moreno about the dangers posed by air piracy; suffice it to say that there is a judicially-recognized necessity to insure that the potential harms of air piracy are foiled. The search procedures have every indicia of being the most efficacious that could be used. The group being screened is limited to persons with the immediate intention of boarding aircraft. Metal detectors, visual inspection, and rare but potential physical searches appear to this court to provide as much efficiency to the process as it could have.⁵

On the other side of the judicial scales, the intrusion which the airport search imposes on the public is not insubstantial. It is inconvenient and annoying, in some cases it may be embarrassing, and at times it can be incriminating. There are several factors, however, which make this search less offensive to the searched person than similar searches in other contexts. One such factor is the almost complete absence of any stigma attached to being subjected to search at a known, designated airport search point. As one commentator has put it in the border search context, "individuals searched because of their membership in a morally neutral class have less cause to feel insulted. . . ."⁶ In addition, the offensiveness of the screening process is somewhat mitigated by the fact that the person to be searched must voluntarily come to and enter the search area. He has every opportunity to avoid the procedure by not entering the boarding area. Finally, the circumstances under which the airport search is conducted make it much less likely that abuses will occur. Unlike searches conducted on dark and lonely streets at night where often the officer and the subject are the only witnesses, these searches are made under supervision and not far from the scrutiny of the traveling public. Moreover, the airlines, which have their representatives present, have a definite and substantial interest in assuring that their passengers are not unnecessarily harassed. The officers conducting the search under these circumstances are much more likely to be solicitous of the Fourth Amendment rights of the traveling public than in more isolated, unsupervised surroundings.

Our conclusion, after this tripartite weighing of the relevant factors, is that the standards for initiating a search of a person at the boarding gate should be no more stringent than those applied in border crossing situations. In the critical pre-boarding area where this search started, reasonableness does not require that officers search only those passengers who meet a profile or who manifest signs of nervousness or who otherwise appear suspicious. Such a requirement would have to assume that hijackers are readily identifiable or that they invariably possess certain traits. The number of lives placed at hazard by this criminal paranoia forbid taking such deadly chances. As Judge Friendly has stated:

Determination of what is reasonable requires a weighing of the harm against the need. When the object of the search is simply the detection of past crime, probable cause to arrest is generally the appropriate test. . . . When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the test of

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