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Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

125 A.L.R.5th 281 (Originally published in 2005)

American Law Reports | The ALR databases are made current by the weekly addition of relevant new cases. ALR5th James L. Buchwalter, J.D.

Validity of Airport Security Measures

Federal and state courts have often addressed constitutional challenges to airport security measures, particularly preboarding screening procedures that have disclosed weapons or other contraband. Fourth Amendment issues have been a fertile source of dispute in this area, as in U.S. v. Hartwell, 296 F. Supp. 2d 596, 125 A.L.R.5th 701 (E.D. Pa. 2003), in which the court recognized that a prospective airline passenger impliedly consents to a search when placing hand– held luggage on an X–ray belt and walking through a magnetometer, and, once this procedure begins, the passenger may not later revoke that consent. This annotation collects and discusses the cases that have considered the validity of airport security measures.

TABLE OF CONTENTS Article Outline Index Table of Cases, Laws, and Rules Research References

ARTICLE OUTLINE

I PRELIMINARY MATTERS § 1[a] Introduction—Scope § 1[b] Introduction—Related annotations § 2[a] Summary and comment—Generally § 2[b] Summary and comment—Practice pointers II ISSUES ARISING UNDER FOURTH AMENDMENT A Validity of Searches § 3 Preboarding request for identification § 4[a] Search of passenger's baggage—After suspicious magnetometer or X–ray—Held valid § 4[b] Search of passenger's baggage—After suspicious magnetometer or X–ray—Held invalid § 5[a] After magnetometer or X–ray is unable to adequately identify contents—Held valid § 5[b] After magnetometer or X–ray is unable to adequately identify contents—Held invalid § 6[a] Search of passenger's baggage pursuant to hijacker profile—Held valid § 6[b] Search of passenger's baggage pursuant to hijacker profile—Held invalid § 7 Search of passenger's baggage following suspicious demeanor or conduct § 8[a] Search of checked–in baggage—Held valid § 8[b] Search of checked–in baggage—Held invalid § 9[a] Search of persons—Held valid § 9[b] Search of persons—Held invalid § 10[a] Pursuant to hijacker profile—Held valid

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

§ 10[b] Pursuant to hijacker profile—Held invalid § 11[a] Scope of search as extending to discovery of illicit drugs—Held valid § 11[b] Scope of search as extending to discovery of illicit drugs—Held invalid § 11.5 Scope of search as extending to discovery of other contraband § 12[a] Consent to search—Established § 12[b] Consent to search—Not established § 13[a] Withdrawal of consent—No right to withdraw consent § 13[b] Withdrawal of consent—Right to withdraw consent recognized B Validity of Seizures § 14[a] Seizure of persons—Held valid § 14[b] Seizure of persons—Held invalid § 15[a] Seizure of baggage or its contents—Held valid § 15[b] Seizure of baggage or its contents—Held invalid III OTHER CONSITUTIONAL ISSUES § 16 Freedom of speech § 16.5 Free association § 17 Fifth Amendment privilege against self–incrimination § 18 Miranda warnings § 19 Nondisclosure of hijacker profile as violating Confrontation Clause § 19.5 Due process § 20 Right to leave § 21 Right to interstate travel Research References

INDEX

Baggage, search of, §§ 4- 8 Baggage or contents, seizure of, § 15 Checked-in baggage, search of, § 8 Comment and summary, § 2 Conduct or demeanor, suspicious, search of passenger's baggage following, § 7 Confrontation Clause, non-disclosure of hijacker profile as violating, § 19 Consent to search, §§ 12, 13 Demeanor or conduct, suspicious, search of passenger's baggage following, § 7 Drugs, illicit, scope of search as extending to discovery of, § 11 Fifth Amendment privilege against self-incrimination, § 17 Fourth Amendment, §§ 3- 15 Freedom of speech, § 16 Hijacker profile, non-disclosure as violating Confrontation Clause, § 19 Hijacker profile, search of baggage pursuant to, § 6 Hijacker profile, search of persons pursuant to, § 10 Identification, pre-boarding request for, § 3 Illicit drugs, scope of search as extending to discovery of, § 11 Introduction to annotation, § 1 Magnetometer or x-ray, suspicious, § 4 Magnetometer or x-ray unable to adequately identify contents, § 5 Miranda warnings, § 18 Non-disclosure of hijacker profile as violating Confrontation Clause, § 19

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

Person, seizure of, § 14 Persons, search of, §§ 9, 10 Practice pointers, § 2[b] Pre-boarding request for identification, § 3 Preliminary matters, §§ 1, 2 Privilege against self-incrimination, § 17 Profile, hijacker, non-disclosure as violating Confrontation Clause, § 19 Profile, hijacker, search of baggage pursuant to, § 6 Profile, hijacker, search of persons pursuant to, § 10 Related annotations, § 1[b] Scope of annotation, § 1[a] Scope of search as extending to discovery of illicit drugs, § 11 Searches, validity under Fourth Amendment, §§ 3- 13 Search of passenger's baggage, §§ 4, 5 Seizures, validity under Fourth Amendment, §§ 14, 15 Self-incrimination, privilege against, § 17 Summary and comment, § 2 Suspicious demeanor or conduct, search of passenger's baggage following, § 7 Withdrawal of consent to search, § 13 X-ray or magnetometer, suspicious, § 4 X-ray or magnetometer unable to adequately identify contents, § 5

Table of Cases, Laws, and Rules

United States 18 U.S.C.A. § 922(f). See 6[a] 28 U.S.C.A. § 2255. See 11[a] 49 U.S.C.A. § 114(h)(2). See 3 49 U.S.C.A. §§ 1356, 1511. See 12[a] 49 U.S.C.A. § 1356(a). See 9[a] 49 U.S.C.A. § 1472. See 14[a]

Supreme Court Gilmore v. Gonzales, 549 U.S. 1110, 127 S. Ct. 929, 166 L. Ed. 2d 701 (2007) — 3, 9[a], 16.5, 19.5, 21 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) — 2[a], 9[a], 9[b], 10[a], 11[a] U.S. v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974) — 12[a] U.S. v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) — 14[a]

First Circuit U.S. v. Doe, 61 F.3d 107 (1st Cir. 1995) — 11[b] U.S. v. Figueroa Cruz, 822 F. Supp. 853 (D.P.R. 1993) — 4[a] U.S. v. Roman-Marcon, 832 F. Supp. 24 (D.P.R. 1993) — 9[a]

Second Circuit U.S. v. Albarado, 495 F.2d 799 (2d Cir. 1974) — 9[b] U.S. v. Bell, 464 F.2d 667 (2d Cir. 1972) — 19 U.S. v. Clark, 498 F.2d 535 (2d Cir. 1974) — 10[a], 19 U.S. v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66 (2d Cir. 2002) — 15[a] U.S. v. Lopez, 328 F. Supp. 1077, 14 A.L.R. Fed. 252 (E.D. N.Y. 1971) — 10[b] U.S. v. Mitchell, 352 F. Supp. 38 (E.D. N.Y. 1972) — 6[a]

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

U.S. v. Politano, 491 F. Supp. 456 (W.D. N.Y. 1980) — 11[b] U.S. v. Ruiz-Estrella, 481 F.2d 723 (2d Cir. 1973) — 15[b] U.S. v. Smith, 643 F.2d 942 (2d Cir. 1981) — 11[a] U.S. v. Williams, 516 F.2d 11 (2d Cir. 1975) — 11[a] VanBrocklen v. U.S., 410 Fed. Appx. 378 (2d Cir. 2011) — 9[a]

Third Circuit Pellegrino v. U.S. Transp. Sec. Admin., 855 F. Supp. 2d 343 (E.D. Pa. 2012) — 3 U.S. v. Hartwell, 436 F.3d 174 (3d Cir. 2006) — 4[a], 9[a], 13[a], 18, 20 U.S. v. Hartwell, 296 F. Supp. 2d 596, 125 A.L.R.5th 701 (E.D. Pa. 2003) — 13[a], 18 U.S. v. Lindsey, 451 F.2d 701 (3d Cir. 1971) — 10[a] U.S. v. Slocum, 464 F.2d 1180 (3d Cir. 1972) — 6[a], 19

Fourth Circuit U.S. v. DeAngelo, 584 F.2d 46 (4th Cir. 1978) — 5[a] U.S. v. Epperson, 454 F.2d 769 (4th Cir. 1972) — 9[a]

Fifth Circuit U.S. v. Clay, 638 F.2d 889 (5th Cir. 1981) — 6[a] U.S. v. Cyzewski, 484 F.2d 509 (5th Cir. 1973) — 8[a] U.S. v. Gorman, 637 F.2d 352 (5th Cir. 1981) — 4[a] U.S. v. Legato, 480 F.2d 408 (5th Cir. 1973) — 7 U.S. v. Miller, 480 F.2d 1008 (5th Cir. 1973) — 6[a], 19 U.S. v. Moreno, 475 F.2d 44 (5th Cir. 1973) — 10[a] U.S. v. Palazzo, 488 F.2d 942 (5th Cir. 1974) — 2[b], 8[b] U.S. v. Skipwith, 482 F.2d 1272 (5th Cir. 1973) — 13[a] U.S. v. Winstanley, 359 F. Supp. 146 (E.D. La. 1973) — 6[a]

Sixth Circuit U.S. v. Avery, 137 F.3d 343, 1998 FED App. 0059A (6th Cir. 1997) — 15[a] U.S. v. Dalpiaz, 494 F.2d 374 (6th Cir. 1974) — 9[a] U.S. v. Fofana, 620 F. Supp. 2d 857 (S.D. Ohio 2009) — 11.5 U.S. v. Freeland, 562 F.2d 383 (6th Cir. 1977) — 12[a] U.S. v. Krug, 34 F. Supp. 2d 1064 (M.D. Tenn. 1999) — 4[a] U.S. v. Scott, 406 F. Supp. 443 (E.D. Mich. 1976) — 14[a]

Seventh Circuit International Soc. for Krishna Consciousness v. Rochford, 585 F.2d 263 (7th Cir. 1978) — 16 U.S. v. Black, 675 F.2d 129 (7th Cir. 1982) — 3 U.S. v. Fern, 484 F.2d 666 (7th Cir. 1973) — 6[a]

Eighth Circuit U.S. v. Burton, 341 F. Supp. 302 (W.D. Mo. 1972) — 6[a] U.S. v. Kroll, 481 F.2d 884 (8th Cir. 1973) — 2[b], 12[b]

Ninth Circuit Gilmore v. Ashcroft, 2004 WL 603530 (N.D. Cal. 2004) — 3 Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) — 3, 9[a], 16.5, 19.5, 21 United States v. Camacho, 728 Fed. Appx. 698 (9th Cir. 2018) — 4[a] U.S. v. Acosta, 202 F.3d 279 (9th Cir. 1999) — 11[a] U.S. v. Allen, 349 F. Supp. 749 (N.D. Cal. 1972) — 2[b], 12[b] U.S. v. Aukai, 497 F.3d 955 (9th Cir. 2007) — 14[a]

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

U.S. v. Aukai, 440 F.3d 1168 (9th Cir. 2006) — 9[a] U.S. v. Bui, 15 F.3d 1090 (9th Cir. 1994) — 9[a] U.S. v. Canada, 527 F.2d 1374 (9th Cir. 1975) — 12[a] U.S. v. Crain, 485 F.2d 297 (9th Cir. 1973) — 12[a] U.S. v. Davis, 482 F.2d 893 (9th Cir. 1973) — 9[b] U.S. v. Doran, 482 F.2d 929 (9th Cir. 1973) — 6[a] U.S. v. Henry, 615 F.2d 1223 (9th Cir. 1980) — 7 U.S. v. Homburg, 546 F.2d 1350 (9th Cir. 1976) — 7 U.S. v. Marquez, 410 F.3d 612 (9th Cir. 2005) — 9[a] U.S. v. McCarty, 672 F. Supp. 2d 1085 (D. Haw. 2009) — 4[a], 11.5 U.S. v. Meulener, 351 F. Supp. 1284 (C.D. Cal. 1972) — 2[b], 4[b], 12[b] U.S. v. Miner, 484 F.2d 1075 (9th Cir. 1973) — 13[b] U.S. v. Moore, 483 F.2d 1361 (9th Cir. 1973) — 14[b] U.S. v. Ogden, 485 F.2d 536 (9th Cir. 1973) — 6[a] U.S. v. $191,910.00 in U.S. Currency, 16 F.3d 1051 (9th Cir. 1994) — 15[b] U.S. v. $124,570 U.S. Currency, 873 F.2d 1240, 108 A.L.R. Fed. 643 (9th Cir. 1989) — 4[b] U.S. v. Ross, 32 F.3d 1411 (9th Cir. 1994) — 8[b] U.S. v. Rothman, 492 F.2d 1260 (9th Cir. 1973) — 2[b], 8[b]

Tenth Circuit Hernandez v. United States, 34 F. Supp. 3d 1168 (D. Colo. 2014) — 9[a], 14[a], 20 U.S. v. Harnage, 662 F. Supp. 766 (D. Colo. 1987) — 12[a]

Eleventh Circuit Corbett v. Transportation Sec. Admin., 767 F.3d 1171 (11th Cir. 2014) — 9[a] Corbett v. Transportation Sec. Admin., 568 Fed. Appx. 690 (11th Cir. 2014) — 7, 9[a] U.S. v. Gorman, 484 F. Supp. 529 (S.D. Fla. 1980) — 11[a] U.S. v. Herzbrun, 723 F.2d 773 (11th Cir. 1984) — 14[a] U.S. v. Lopez-Pages, 767 F.2d 776 (11th Cir. 1985) — 6[a] U.S. v. Vigil-Montanel, 753 F.2d 996 (11th Cir. 1985) — 17 U.S. v. Williams, 267 F. Supp. 2d 1130 (M.D. Ala. 2003) — 14[b]

District of Columbia Circuit Electronic Privacy Information Center v. U.S. Dept. of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011) — 9[a]

Alaska State v. Salit, 613 P.2d 245 (Alaska 1980) — 5[b]

Arizona State v. Damon, 18 Ariz. App. 421, 502 P.2d 1360 (Div. 2 1972) — 11[a] State v. Peters, 189 Ariz. 216, 941 P.2d 228 (1997) — 15[a] State v. White, 26 Ariz. App. 505, 549 P.2d 600 (Div. 1 1976) — 2[b], 4[a], 12[a]

California Morad v. Superior Court, 44 Cal. App. 3d 436, 118 Cal. Rptr. 519 (1st Dist. 1975) — 13[a] People v. Bleile, 44 Cal. App. 3d 280, 118 Cal. Rptr. 556 (2d Dist. 1975) — 4[a], 13[a] People v. Botos, 27 Cal. App. 3d 774, 104 Cal. Rptr. 193 (4th Dist. 1972) — 19 People v. De Strulle, 28 Cal. App. 3d 477, 104 Cal. Rptr. 639 (2d Dist. 1972) — 12[a] People v. Dooley, 64 Cal. App. 3d 502, 134 Cal. Rptr. 573 (1st Dist. 1976) — 8[a] People v. Farlow, 52 Cal. App. 3d 414, 125 Cal. Rptr. 118 (4th Dist. 1975) — 11[a] People v. Flier, 2002 WL 31648800 (Cal. App. 2d Dist. 2002) — 6[a] People v. Hefty, 130 Cal. App. 3d 350, 181 Cal. Rptr. 679 (3d Dist. 1982) — 12[a]

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

People v. Hyde, 12 Cal. 3d 158, 115 Cal. Rptr. 358, 524 P.2d 830 (1974) — 6[a] People v. Kluga, 32 Cal. App. 3d 409, 108 Cal. Rptr. 160 (2d Dist. 1973) — 4[a] People v. Owens, 134 Cal. App. 3d 144, 184 Cal. Rptr. 509 (2d Dist. 1982) — 8[a] People v. Stasi, 45 Cal. App. 3d 373, 119 Cal. Rptr. 447 (1st Dist. 1975) — 11[a] People v. Tiffany, 44 Cal. App. 3d 179, 118 Cal. Rptr. 462 (2d Dist. 1974) — 10[a]

Colorado People v. Heimel, 812 P.2d 1177 (Colo. 1991) — 13[a]

Florida Higerd v. State, 54 So. 3d 513 (Fla. 1st DCA 2010) — 8[a] Oishi v. State, 400 So. 2d 480 (Fla. 5th DCA 1981) — 4[a] Pyszka v. State, 400 So. 2d 486 (Fla. 5th DCA 1981) — 5[a] Shapiro v. State, 390 So. 2d 344 (Fla. 1980) — 11[a], 12[a] State v. Baez, 530 So. 2d 405 (Fla. 3d DCA 1988) — 11[a] State v. Campanponi, 424 So. 2d 163 (Fla. 3d DCA 1983) — 9[a], 10[a] State v. McMillan, 553 So. 2d 385 (Fla. 4th DCA 1989) — 11[a] State v. Merritt, 519 So. 2d 36 (Fla. 3d DCA 1987) — 9[a] State v. Nadeau, 395 So. 2d 182 (Fla. 3d DCA 1980) — 4[a]

Georgia McSweeney v. State, 183 Ga. App. 1, 358 S.E.2d 465 (1987) — 13[a] State v. Crisanti, 220 Ga. App. 705, 470 S.E.2d 314 (1996) — 14[a] State v. David, 130 Ga. App. 872, 204 S.E.2d 773 (1974) — 9[a] State v. Rosof, 180 Ga. App. 637, 350 S.E.2d 36 (1986) — 4[a]

Hawaii State v. Hanson, 97 Haw. 71, 34 P.3d 1 (2001) — 12[a] State v. Wiley, 69 Haw. 589, 752 P.2d 102 (1988) — 2[b], 12[b]

Maryland Santiago v. State, 50 Md. App. 20, 435 A.2d 499 (1981) — 4[a]

Michigan People v. Grainger, 117 Mich. App. 740, 324 N.W.2d 762 (1982) — 12[a]

Minnesota State v. Weniger, 1989 WL 120275 (Minn. Ct. App. 1989) — 15[a]

Missouri State v. Johnson, 529 S.W.2d 658 (Mo. Ct. App. 1975) — 6[a]

New Jersey State v. Adams, 125 N.J. Super. 587, 312 A.2d 642 (App. Div. 1973) — 10[a] State v. Mahoney, 226 N.J. Super. 617, 545 A.2d 235 (App. Div. 1988) — 17

New York People v. Boyles, 73 Misc. 2d 576, 341 N.Y.S.2d 967 (Sup 1973) — 10[a] People v. Brown, 113 A.D.2d 893, 493 N.Y.S.2d 810 (2d Dep't 1985) — 12[a] People v. Erdman, 69 Misc. 2d 103, 329 N.Y.S.2d 654 (Sup 1972) — 9[b] People v. Kuhn, 33 N.Y.2d 203, 351 N.Y.S.2d 649, 306 N.E.2d 777 (1973) — 9[a] People v. Lopez, 73 Misc. 2d 537, 342 N.Y.S.2d 420 (Sup 1973) — 12[a] People v. Rivera, 141 A.D.2d 572, 529 N.Y.S.2d 180 (2d Dep't 1988) — 7

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

People v. Sortino, 68 Misc. 2d 151, 325 N.Y.S.2d 472 (Sup 1971) — 6[b] People v. Waring, 174 A.D.2d 16, 579 N.Y.S.2d 425 (2d Dep't 1992) — 4[a]

Oregon State v. Kelsey, 67 Or. App. 554, 679 P.2d 335 (1984) — 15[a]

Pennsylvania Com. v. Vecchione, 327 Pa. Super. 548, 476 A.2d 403 (1984) — 12[a]

Texas Kjolhede v. State, 333 S.W.3d 631 (Tex. App. Dallas 2009) — 8[a]

I. PRELIMINARY MATTERS

§ 1[a] Introduction—Scope

This annotation 1 discusses all of the federal and state cases that have considered the validity, under the federal or state constitutions, of security measures, adopted by airports or by other authorities for implementation at airports, to protect the safety of the air transportation industry and its passengers, including but not limited to searches of persons or things at airport checkpoints or other standardized locations on airport premises, and "profiling" or interviewing prospective passengers at airports. Accordingly, cases grounded solely in Customs, immigration, or drug enforcement are excluded.

Some opinions discussed in this annotation may be restricted by court rule as to publication and citation in briefs; readers are cautioned to check each case for restrictions. A number of jurisdictions may have rules, regulations, constitutional provisions, or legislative enactments directly bearing upon this subject. These provisions are discussed herein only to the extent and in the form that they are reflected in the court opinions that fall within the scope of this annotation. The reader is consequently advised to consult the appropriate statutory or regulatory compilations to ascertain the current status of all statutes discussed herein.

§ 1[b] Introduction—Related annotations

Related Annotations are located under the Research References heading of this Annotation.

§ 2[a] Summary and comment—Generally

After airplane hijacking became a serious issue in the late 1960s, the federal government responded with procedures to identify a narrow group of air passengers who should be subjected to close preboarding screening. If a potential passenger was deemed by security personnel to satisfy a hijacker profile (based on behavioral criteria), the "selectee" would be identified in the boarding area and required to pass through a magnetometer to detect metal, as used to construct handguns. A person who fit the profile and also triggered the magnetometer would be interviewed, and if satisfactory identification was not provided, the selectee would be frisked and his carry–on luggage searched. However, such intrusive operations were applied to only a tiny fraction of passengers. These searches were typically conducted on less–than–probable cause, and thus courts would apply the United States Supreme Court's "stop and frisk" analysis of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), to assess the propriety of these security measures

under the Fourth Amendment. 2

Beginning in 1973, a new program was introduced that subjected all passengers to preboarding screening, under which every passenger was required to pass through the magnetometer, and all carry–on luggage was inspected either by hand or with an X–ray apparatus. If the magnetometer was triggered, the passenger was required to remove items from his

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

person until the triggering no longer occurred. If the X–ray detected a suspicious object, the passenger was barred from

proceeding further unless an examination of the luggage contents was consented to. 3 This method of screening was generally upheld when restricted to the purpose of the search, since the passenger was always free to decline boarding. The rationale supporting this universal screening was that it amounted to a legitimate regulatory search, regardless of

the absence of reasonable suspicion. 4

In response to the devastating incident on September 11, 2001, Congress created the Aviation and Transportation Security Act of 2001, Pub. L. No. 1076 71, 115 Stat. 597 (2001), putting airport screening under the authority of a new agency, the Transportation Security Administration. The law's new mandatory screening procedures, introducing a layer of additional security that included the examination of checked baggage for explosives, is much more forceful than earlier

F.A.A. regulations, but involves, as a matter of practical necessity, a degree of selectivity. 5

Constitutional challenges to airport security measures typically involve claims, often raised by a motion to suppress evidence in a criminal trial, alleging that a search or seizure violates the Fourth Amendment. Thus, courts have determined whether a routine preboarding request for identification papers implicates an airline passenger's Fourth Amendment rights (§ 3), whether the search of a passenger's baggage following a suspicious magnetometer or X–ray was (§ 4[a]), or was not (§ 4[b]), permissible, and whether such a search of a passenger's baggage was (§ 5[a]), or was not (§ 5[b]), permissible under the Fourth Amendment because a magnetometer or X–ray was unable to adequately identify its contents. Courts have upheld the searching of baggage of a passenger who has aroused suspicion under a hijacker profile (§ 6[a]), although contrary authority exists (§ 6[b]). Courts have decided whether the Fourth Amendment allows a preboarding search of a passenger on the basis of suspicious demeanor or conduct (§ 7), and have held that the Fourth Amendment allowed (§ 8[a]), or disallowed (§ 8[b]), the search of an airline passenger's checked luggage.

The courts have ruled that the Fourth Amendment allowed (§ 9[a]), or disallowed (§ 9[b]), the search of a passenger's person following a preboarding screening, and, more specifically, have allowed (§ 10[a]), or disallowed (§ 10[b]), such searches following a preboarding suspicion grounded in a hijacker profile. Courts have almost uniformly approved the scope of a preboarding search as properly extending to the discovery of illicit drugs (§ 11[a]), though contrary case law exists (§ 11[b]). Courts have held that express or implied consent was established (§ 12[a]), or not established (§ 12[b]), to support the validity under the Fourth Amendment of an airport security search. The courts have been nearly unanimous in declining to recognize a right to withdraw consent to an ongoing airport security screening (§ 13[a]), although there is contrary authority (§ 13[b]).

The seizure of persons or their belongings during airport security operations has been subject to judicial scrutiny. Thus, courts have held that the seizure of a person in the circumstances of an airport security screening did not (§ 14[a]), or did (§ 14[b]), violate the Fourth Amendment, and that the seizure of baggage or its contents in such circumstances did not (§ 15[a]), or did (§ 15[b]), violate the Fourth Amendment.

Addressing claims arising under other constitutional provisions, courts have ruled on whether an airport security measure violated the defendant's First Amendment right to freedom of speech (§ 16), or the Fifth Amendment privilege against self–incrimination (§ 17), and whether Miranda warnings were required in the context of an airport security investigation (§ 18). Finally, courts have considered whether the nondisclosure of a hijacker profile violates the Confrontation Clause of the Sixth Amendment (§ 19).

§ 2[b] Summary and comment—Practice pointers

Factors that may help demonstrate a lack of consent to an airport security search include, for example, repeated attempts

by gate agents to obtain consent; 6 the fact that the searched article was inside a larger bag and not freely disclosed to

the agent; 7 that the defendant had already been arrested and his belongings safely immobilized under the control of the

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

police; 8 or that the defendant was not advised that he could decline to board rather than being searched. 9 Litigants have had some degree of success in challenging the propriety of searches of checked–in baggage, typically citing the absence of any continuing or immediate security threat, as evidenced by the fact that the baggage was no longer in the

boarding vicinity 10 or that the defendant had already been arrested and thus could not use the suspect baggage in a

threatening manner. 11

II. ISSUES ARISING UNDER FOURTH AMENDMENT

A. Validity of Searches

§ 3. Preboarding request for identification

[Cumulative Supplement]

The courts have ruled on whether a routine preboarding request for identification papers implicates an airline passenger's Fourth Amendment rights.

In U.S. v. Black, 675 F.2d 129 (7th Cir. 1982), the court held that the request that a person in an airport produce his driver's license and airline ticket was not a seizure, and that a seizure occurred only after the officers took and kept the airline ticket and driver's license. The court reasoned that the mere request for and voluntary production of the documents does not constitute a seizure, but instead constitutes merely a noncoercive police–citizen encounter.

Dismissing a complaint against the United States and an airline for refusing to allow the plaintiff to board an airplane without either displaying a government–issued identification or consenting to a search, in Gilmore v. Ashcroft, 2004 WL 603530 (N.D. Cal. 2004), the court rejected the contention that these security requirements violated the plaintiff's rights under the First and Fourth Amendments, explaining that identification requests unaccompanied by detention, arrest, or any other penalty, other than the significant inconvenience of being unable to fly, do not amount to a seizure within the meaning of the Fourth Amendment. The court noted that the plaintiff had not suggested that he felt that he was not free to leave when he was asked to produce identification, and that none of the facts submitted by the plaintiff suggested that the request for identification implicated the plaintiff's Fourth Amendment rights. Therefore, the court concluded that the plaintiff's claim that the identification requirement was unreasonable did not raise a legal dispute that the court had to decide. The defendants, while contending that the request for identification was neither a search nor a seizure, nevertheless argued that the request for identification was a reasonable means of effectuating the purpose of airline safety and met the requirements of 49 U.S.C.A. § 114(h)(2) to (3), which requires the Transportation Safety Administration to establish procedures for informing airlines of the identity of "individuals known to pose, or suspected of posing, a risk of air piracy or terrorism or a threat to airline of passenger safety" and to establish policies that enable air carriers to identify people "on passenger lists who may be a threat" and prevent them from boarding an aircraft. However, since the court had ruled that no search or seizure occurred, it expressly declined to reach the question of whether the identification requirement was reasonable under the Constitution. The court did observe, however, that the requirement to provide identification was a minimal intrusion on personal privacy and is a reasonable, if modest, step toward ensuring airline safety. The court noted that even if the plaintiff were correct in his contention that easy access to false identification documents would reduce the effectiveness of the effort, the effort itself seemed a reasonable one.

CUMULATIVE SUPPLEMENT

Cases:

Routine airport pre-boarding security screenings are "searches" that must comply with the Fourth Amendment. U.S.C.A. Const.Amend. 4. Pellegrino v. U.S. Transp. Sec. Admin., 855 F. Supp. 2d 343 (E.D. Pa. 2012).

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

An airline personnel's request for airline passenger's identification was not a "seizure" within the meaning of the Fourth Amendment; passenger was able to leave the airport when he refused to comply with request. U.S.C.A. Const.Amend. 4. Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), cert. denied, 127 S. Ct. 929, 166 L. Ed. 2d 701 (U.S. 2007).

Comment

The United States Supreme Court in Gilmore v. Gonzales, 127 S. Ct. 929, 166 L. Ed. 2d 701 (U.S. 2007), denied certiorari from Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), cert. denied, 127 S. Ct. 929, 166 L. Ed. 2d 701 (U.S. 2007), in which an airline passenger challenged the constitutionality of a Transportation Security Administration (TSA) security directive that requires airline passengers to present identification before boarding a flight. In his petition for certiorari, the passenger noted that the government acknowledges not only the directive's existence, but also its purported contents, but nonetheless refuses to actually disclose the directive. Rather than again challenging the directive under the Fourth Amendment, due process, and other constitutional provisions, the passenger limited his petition for certiorari to asking whether the government might keep secret a directive that is generally applicable to millions of passengers every day notwithstanding that it has acknowledged both the directive's existence and its contents, and has identified no special circumstance that justifies secrecy.

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§ 4[a] Search of passenger's baggage—After suspicious magnetometer or X–ray—Held valid

[Cumulative Supplement]

In the following cases, the courts held that the search of a passenger's baggage following a suspicious magnetometer or X–ray was permissible under the Fourth Amendment.

In U.S. v. Figueroa Cruz, 822 F. Supp. 853 (D.P.R. 1993), the court ruled that an administrative search of the defendant's luggage to prevent the carrying of weapons or explosives aboard an aircraft did not violate the Fourth Amendment, as the search followed an X–ray screening of luggage that disclosed "blocks" inside a package within a suitcase. The court explained its decision by noting that the governmental interest in detecting the weapons employed in airline terrorism is great, and that aircraft skyjacking and bombings at airports have proliferated. The court further noted that firearms and explosives may be small and easily concealed, and that their detection becomes difficult if limited to an inconclusive X–ray scan. A scan and later search intrudes only slightly on privacy if the scope of the search is limited to detecting weapons, explosives, or any other dangerous devices, and if the search is conducted in a way that produces a "negligible social stigma." In light of these circumstances, the court reasoned, a visual inspection and limited hand search of luggage that is intended to detect weapons or explosives, rather than to uncover other types of contraband, is a privacy intrusion that the court believed a free society is willing to tolerate.

In U.S. v. Gorman, 637 F.2d 352 (5th Cir. 1981), the court held that a warrantless search of the defendant's carry–on bag at an airport preboarding security checkpoint was reasonable, since the security officer operating an X–ray machine observed suspicious images on the viewing screen that he thought might be knives or letter openers bunched together and the search was not shown to be pretextual but was based solely on a reasonable belief that the bag might contain dangerous objects that passengers are not permitted to carry onboard, and the failure to discover any weapons or objects upon which the suspicion was based did not render the search unreasonable. The court applied the principle that the legality of a search is not grounded in what is actually found, but is "good or bad when it starts" and does not change

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

in character from the success of the search. The court noted that, where a detective with a drug intercept unit was legitimately in the airport preboarding screening area and was assisting the private security guard in removing a pair of pants from the defendant's carry–on bag after the guard observed the suspicious images on the X–ray, and as the guard lifted the pants out two plastic bags containing cocaine fell from the legs into the bottom of the bag, the detective's seizure of the bags was lawful.

In U.S. v. Krug, 34 F. Supp. 2d 1064 (M.D. Tenn. 1999), the court held that airport personnel's warrantless search of an airline passenger's suitcase was justified under the Fourth Amendment to ensure safety of other airline passengers and people in the airport, since the search followed an X–ray scan of the suitcase suggesting the presence of a weapon and the passenger's statement that "the bomb was in the bag yesterday," suggesting the presence of a weapon. Furthermore, the ensuing further warrantless search of the briefcase in the property room of the airport police department following the discovery of the weapon in the suitcase was a legitimate inventory search and, therefore, did not violate the Fourth Amendment, as the search was conducted under a preexisting policy that used standardized criteria and established a routine for inventory searches.

Noting that preboarding airport searches are justified by the compelling interest in protecting the safety of prospective passengers and millions of dollars worth of private property, in State v. White, 26 Ariz. App. 505, 549 P.2d 600 (Div. 1 1976), the court ruled that where a preboarding X–ray screening of the defendant's luggage revealed an indeterminate image, security personnel were justified in making a further intrusion by opening the luggage in order to determine that the shape shown by the X–ray was not a package containing explosives, and that when the suitcase, when opened, revealed seven large packages wrapped in green polyethylene plastic and taped shut, security personnel were justified in opening one of the packages, especially since the defendant consented and stated that he did not know what the packages contained.

See People v. Kluga, 32 Cal. App. 3d 409, 108 Cal. Rptr. 160 (2d Dist. 1973), in which, while not addressing the constitutionality of a search, the court ruled that a search made by a United States marshal while on an antihijack detail at an airport was authorized by a constitutionally valid F.A.A. regulation, 14 C.F.R. § 103.7, which provides in part that no person may carry any dangerous article in a passenger–carrying aircraft. Addressing the specific search at issue, the court also held the that the marshal was acting within the scope of the regulation in a manner reasonably necessary to effectuate F.A.A. regulatory policy, where the defendant failed a magnetometer test but showed the marshal only coins and keys; the defendant had a package of cigarettes in his jacket pocket, where the marshal found that one of the bulges in the defendant's boots was what appeared to be another package of cigarettes; and the marshal was justified, in the light of the composition and reduced sizes of modern, exotic explosive and incendiary devices, in asking the defendant to remove from his boots the bulging objects, which eventually were found to contain marijuana. The court noted that it was upholding the search as being within the permissible ambit of the federal regulation, and was not addressing whether the search complied with Terry standards. However, the court noted that precedent suggested that the Terry standard is less strict when applied to airline screening. The court reasoned that the regulation clearly spelled out the need for the type of search conducted here, and the Terry principle that approves reasonable searches for protective purposes was incorporated into the regulation.

In People v. Bleile, 44 Cal. App. 3d 280, 118 Cal. Rptr. 556 (2d Dist. 1975), the court ruled that where an airplane passenger's flight bag caused an airline checkpoint magnetometer to give a high reading, and upon inspection of the contents of the bag a marshal observed a laundry bag that could have contained weapons, explosives, or metallic items setting off the magnetometer, the officer was justified in searching the laundry bag, despite the contentions that the marshal was limited to a pat–down or frisk of the laundry bag; that the marshal was required to defer his search of the bag until looking for other metallic implements in the luggage; and that the marshal was required to put the bag itself through a magnetometer before opening it. The court explained that a pat–down or frisk of the bag would not have been sufficient to disclose the presence of possible weapons wrapped in soiled laundry, and further noted that if security officials had to test every package in the flight bag separately, it would create intolerable and unreasonable delays in

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the boarding and inspection processes. The court applied the principle that, although the marshal did not have a duty to search for narcotics, he was not required to blind himself to a felony being committed in his presence, and he was authorized to arrest the defendant.

In State v. Nadeau, 395 So. 2d 182 (Fla. Dist. Ct. App. 3d Dist. 1980), the court, ruling on a petition for rehearing, decided that it was constitutionally permissible to manually inspect a package that the defendant sought to bring aboard a domestic airline flight, after an inconclusive X–ray inspection revealed bulky and opaque contents. Therefore, the court concluded that cocaine obtained through the search and a later seizure was admissible into evidence.

In Oishi v. State, 400 So. 2d 480 (Fla. Dist. Ct. App. 5th Dist. 1981), in which, during a routine airport boarding gate security search, a security guard thought she detected a letter opener in the defendant's briefcase when it was passed through an X–ray machine, the court ruled that probable cause was not required to justify a search for weapons as part of a routine screening of all passengers boarding a commercial airliner, and thus the search at issue here, which ultimately revealed cocaine, could continue until the security officer was satisfied that no harm would come from the passenger's boarding the plane. The court noted that after a second run through the machine did not satisfy the guard, and after the defendant denied having a letter opener, the guard asked the defendant if she could look inside the briefcase and received an affirmative reply. After opening the case, she found a large manila envelope, and opening it revealed another manila envelope with the top folded down. Although the defendant had requested the guard not to open the second envelope, she did so because she was not satisfied that a weapon was not present, and when she opened the second envelope, a clear plastic envelope with a white powder was discovered inside. The court noted that there was no allegation that the search was pretextual; it was simply a search for weapons as a part of a routine screening of commercial airline passengers. Consequently, the Fourth Amendment was not implicated here and thus probable cause was not required to justify the search.

Comment

The Chief Judge dissented, reasoning that there was no reason at all for the search of the envelope except the unjustifiable curiosity of the security guard. Furthermore, the judge pointed out that even the majority opinion conceded that the only reason the guard felt a need to search further was because she felt the defendant might be attempting to board the aircraft with a dangerous letter opener. In the course of the search when she finally reached the allegedly suspicious envelope, she could have satisfied any reasonable suspicion that the envelope contained the letter opener by simply bending it, the dissenting judge explained. Any suggestion that the guard was justified in believing the envelope or its contents posed a potential threat was unreasonable, and in fact was not supported by any testimony that the guard or anyone felt there was a threat.

Upholding the validity under the Fourth Amendment of a seizure of marijuana at an airport checkpoint by a private security firm's employee who conducted a hand search of a handbag that contained a dark object not identifiable under an X–ray machine in State v. Rosof, 180 Ga. App. 637, 350 S.E.2d 36 (1986), the court explained that the search was valid even though the employee felt no hard object in a tobacco pouch before he opened it and discovered the marijuana, as he was justified in opening it to check for any item that might have posed a threat to aircraft or airport security. Furthermore, the court ruled that because the defendant voluntarily presented herself at the checkpoint and placed her handbag on the counter to be scanned by X–ray, the later seizure of the marijuana was valid as consensual.

In Santiago v. State, 50 Md. App. 20, 435 A.2d 499 (1981), the court held that the lingering suspicion of an airport security officer about the appearance of a dark object in a carry–on bag after a routine checkpoint X–ray justified the additional investigation of the bag by a state trooper, even though the security officer said that she did not see anything in a box found in the bag except money. Explaining that the initial intrusion was reasonable, the court noted that the security officer did not say or imply that the box was otherwise empty, and the security officer handed it to the trooper for further inspection. The court noted that because the detection of deadly, but easily concealable, substances makes reasonable

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under the Fourth Amendment even the initial intrusion, it necessarily follows that the search may properly continue into packages and containers, such as the box in question, that cannot otherwise be clearly identified as harmless. The court noted, for example, that modern technology had made it possible to conceal in a toothpaste tube enough plastic explosives to blow up an airplane.

In People v. Waring, 174 A.D.2d 16, 579 N.Y.S.2d 425 (2d Dep't 1992), the court affirmed a conviction for criminal possession of a controlled substance, in spite of the defendant's argument that a warrantless search of a package seized from her after she had attempted to smuggle it through an airport security checkpoint was unconstitutional, where the package was known by officers to contain some metallic object and was reasonably suspected of including a weapon or explosives, and the defendant had obviously attempted to conceal the package while passing through a magnetometer. The search had been lawfully conducted under any one of at least three approaches, the court explained. Specifically, the search could be upheld as simply reasonable under the circumstances. Alternatively, the search was proper on the ground that a passenger entering the "sterile" areas within an airport implicitly consents to a full search of his or her person and effects. Finally, the action could be validated under the principle that no one entering this controlled area has a reasonable expectation of privacy in package brought there. Regardless of the theory under which the action is assessed, the court explained, the airport checkpoint security searches may be conducted without a warrant if they are only as intrusive as is reasonable under the circumstances, in light of the overriding state interest in preventing aircraft hijacking.

CUMULATIVE SUPPLEMENT

Cases:

Search of defendant at airport checkpoint, during which defendant passed through magnetometer and had bag x-rayed followed by individual inspection by handheld wand-like magnetometer after setting off metal detector, was justified by administrative search doctrine, which considers gravity of public concern, degree seizure advances public interest, and severity of interference with individual liberty; preventing terrorist attacks on airplanes was of paramount importance, airport checkpoints advanced public interest and have been effective, procedures involved in search were minimally intrusive, and all passengers were subjected to search at known, designated airport search point. U.S.C.A. Const.Amend. 4. U.S. v. Hartwell, 436 F.3d 174 (3d Cir. 2006).

Transportation Security Administration (TSA) officer did not exceed scope of valid airport screening search by looking inside unsealed envelope in defendant's bag and reading names on ID cards inside envelope after x-ray machine alerted officer that defendant had an oversized liquid, gel, or aerosol container in bag, in prosecution for identity theft-related crimes; officer felt hard mass inside envelope and concluded that it could contain something hazardous, hazardous materials such as blades or "sheet explosives" could have been hidden between ID cards, and officer, who noticed that ID cards had different names when thumbing through them, consistently maintained she was searching for safety hazards. U.S. Const. Amend. 4. United States v. Camacho, 728 Fed. Appx. 698 (9th Cir. 2018).

Transportation Security Administration (TSA) employees could search airline passenger's suitcase for explosives and weapons after x-ray machine alarmed on passenger's laptop and dense item. U.S.C.A. Const.Amend. 4; 49 U.S.C.A. § 44901. U.S. v. McCarty, 672 F. Supp. 2d 1085 (D. Haw. 2009).

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§ 4[b] Search of passenger's baggage—After suspicious magnetometer or X–ray—Held invalid

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

In the following cases, the courts held that the search of a passenger's baggage following a suspicious magnetometer or X–ray was impermissible under the Fourth Amendment.

On appeal of a civil forfeiture order, in U.S. v. $124,570 U.S. Currency, 873 F.2d 1240, 108 A.L.R. Fed. 643 (9th Cir. 1989), the court ruled that a search of luggage by Customs agents who were alerted by airport security agents, after a suspicious X–ray screening, that the claimant was carrying a large amount of money could not be upheld as an administrative security search. The court noted that, although a passenger boarding an airplane may fairly be said to have consented to a search for weapons and explosives, the passenger in this case did not thereby consent to search of his luggage for currency, contraband, or other items. The court explained that warrantless airport security checks are valid as administrative searches because the governmental interest in assuring air traffic safety is compelling while the intrusion into passengers' privacy is limited to satisfaction of that compelling interest. Although noting that so long as the attention of airport security agents is focused on the limited objective of uncovering deadly devices, any search that they conduct remains a valid airport security search even though a more thorough search for weapons also has the effect of revealing more contraband, the court nonetheless found that, to the extent that the defendant was identified by airport security agents and reported to Customs agents pursuant to an established policy of encouraging such reporting, a later search by Customs agents could not be justified as an administrative search grounded in airport security. The claimant had placed his locked briefcase on a conveyor belt leading through an X–ray scanner operated by an airline at an airport. Picking up a dark mass on the X–ray screen, the Flight Terminal Security officer operating the scanner asked the claimant to open the briefcase. First expressing reluctance, the court pointed out, he eventually agreed to do so privately, behind a screen. Another officer searched the case and found a very large quantity of currency. The claimant was questioned about his destination but was eventually released. The officer returned the briefcase to the claimant, who proceeded to board his flight to Los Angeles. Security officers at the Seattle airport have a policy of reporting any sum of United States currency over $10,000 to the United States Customs Service and Airport Police, the court noted, and employees who report the discovery of such sums are paid $250 as a reward. Consistent with this policy, the officer who had searched the briefcase telephoned Customs immediately after she released the claimant and conveyed a description of the claimant, his briefcase and its contents, and his destination, which was in turn relayed to a Customs agent at Los Angeles International Airport who in turn informed a Drug Enforcement Administration agent. Concluding that the airport search of a briefcase at issue here could not be justified by consent or under the exceptions to the warrant requirement established for exigent circumstances, inventory searches, or border searches, the court vacated the order of civil forfeiture and remanding the case, holding that a motion to suppress evidence uncovered from the search of the briefcase should have been granted by the trial court.

In U.S. v. Meulener, 351 F. Supp. 1284 (C.D. Cal. 1972), discussed in § 13[b], the court explained that, even if the defendant had been given an opportunity to decline to submit to a search if he declined to board the plane, the search of his suitcase violated his Fourth Amendment rights because an initial pat–down, as contemplated by the Terry doctrine, was not made of the defendant's outer clothing for the metal object responsible for a positive magnetometer reading. The court explained that no evidence was adduced to show that the marshal had tried to make a limited exploration for weapons. The evidence showed only that after the positive magnetometer reading the marshal demanded that the defendant open his suitcase for a search. The marshal did not initially pat down the defendant's outer clothing, or even ask him to produce identification, which is a required step under the F.A.A. approved screening procedures for airport searches, the court explained. The court noted that a limited pat–down search that reveals a metal object responsible for a positive magnetometer reading obviates the need to search the suitcase. Further, under the Fourth Amendment, a marshal does not have the discretion to search anything in the suspect's possession, and thus could not search the suitcase here without an initial pat–down search for weapons that complied with the Terry doctrine.

§ 5[a] After magnetometer or X–ray is unable to adequately identify contents—Held valid

In the following cases, the courts held that the search of a passenger's baggage was permissible under the Fourth Amendment because a magnetometer or X–ray was unable to adequately identify its contents.

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

Ruling that where the defendant attempted to board an aircraft carrying a briefcase that could not be inspected adequately by X–ray and, when told that a physical inspection would be necessary, protested, saying that he preferred not to take the flight rather than submit to inspection, the circumstances were sufficiently suspicious to cause a reasonably prudent person to conclude that the defendant might endanger other passengers and security officers, in U.S. v. DeAngelo, 584 F.2d 46 (4th Cir. 1978), the court consequently held that the Fourth Amendment allowed the officers to open the briefcase to determine whether it contained a gun or an explosive device, which might pose an immediate danger to persons in the vicinity. The court noted that because the defendant voluntarily entered the airport screening process, he acquiesced in its full potential scope—as represented to him in signs in the airport terminal—including physical inspection, if requested. The court explained that once the defendant consented to the search, he could not withhold permission after the first step of the process had disclosed that he was trying to carry aboard the aircraft items that were concealed from the X–ray.

In Pyszka v. State, 400 So. 2d 486 (Fla. Dist. Ct. App. 5th Dist. 1981), the court ruled that no improper search rook place within the meaning of the Fourth Amendment when a security guard opened a carry–on bag to check its contents, since the bag was opaque and could not be visualized through an X–ray machine at the airport boarding gate.

§ 5[b] After magnetometer or X–ray is unable to adequately identify contents—Held invalid

The following authority held that the search of a passenger's baggage was permissible under the Fourth Amendment because a magnetometer or X–ray was unable to adequately identify its contents.

In State v. Salit, 613 P.2d 245 (Alaska 1980), the court ruled that the Air Transportation Security Act of 1974 did not authorize a hand search of a garment bag that had already been subjected to an X–ray search, where no evidence of weapons or explosives had been discovered. The purported justification that explosives or weapons undetectable by X– ray might have existed was not sufficient without further circumstances, such as the receipt of a bomb threat, and the court explained that the search was made for narcotics, not for hijacking tools.

§ 6[a] Search of passenger's baggage pursuant to hijacker profile—Held valid

In the following cases, the courts held that searching the baggage of a passenger who has aroused suspicion under a hijacker profile was valid under the Fourth Amendment.

In U.S. v. Mitchell, 352 F. Supp. 38 (E.D. N.Y. 1972), aff'd without opinion, 486 F.2d 1397 (2d Cir. 1973), the court held that, although the defendant was erroneously identified as a "selectee" by a hijack surveillance team and although the search of a flight bag revealed a jackknife, which could have activated a magnetometer, before a further search revealed heroin, the further search was lawful and the heroin would not be suppressed from evidence, where, apart from the mistaken classification, there were positive circumstances inducing the search, including the activation of a magnetometer, the observed conduct of the defendant, and a statement by the defendant that he was traveling on a ticket not in his own name. The court explained that the marshals were not required to stop short of a thorough search once the grounds for the search were satisfied. The court explained that a profile, used to identify hijack "selectees," and magnetometer checks at the airport are not circumstances substituting for probable cause authorizing a Fourth Amendment search for evidence of criminality or for contraband, but rather are merely coarse screening devices adopted as a convenient substitute for total search of all passengers, flight personnel, and baggage that would otherwise be necessary under the absolute and unqualified interest in preventing hijacking or the destruction of aircraft in flight.

Ruling in U.S. v. Slocum, 464 F.2d 1180 (3d Cir. 1972), that a warrantless search of the defendant's hand luggage was justified because he could not produce identification and failed to satisfactorily explain what in his possession might have caused the positive reading on an airport security magnetometer, the court ruled that the use of the F.A.A.'s hijack profile

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

in a preliminarily screening of airline passengers, in order to limit the magnetometer monitoring process to passengers meeting the profile, did not implicate the constitutional prohibition against unreasonable searches and seizures under the Fourth Amendment. The failure of a United States marshal to comply with the preboarding screening program and request the defendant, without his luggage, to pass through the magnetometer a second time when a positive reading was recorded after the defendant passed through the magnetometer with his luggage did not bar admission into evidence of contraband seized after a search of his luggage, since the omitted step would have performed the same function served by a frisk, to which the defendant had consented. The court explained that either approach would have produced a neutral finding on the defendant himself and focused the inquiry instead on the contents of his luggage. The court noted that within the context of a potential hijacking the necessarily limited search of airline passengers through the use of a magnetometer is justified per se by a reasonable governmental interest in protecting national air commerce, and therefore the use under such circumstances of the magnetometer does not violate the Fourth Amendment prohibition on unreasonable searches and seizures.

In U.S. v. Miller, 480 F.2d 1008 (5th Cir. 1973), the court held that a preflight security search of an individual meeting the F.A.A. "profile" as a potential skyjacker is not required to be limited to a search for weapons, citing an earlier case that upheld the constitutional propriety of an airport search and seizure, the fruits of which resulted in an arrest and conviction for the unlawful possession of heroin with intent to distribute.

In U.S. v. Clay, 638 F.2d 889 (5th Cir. 1981), the court ruled that when a airline passenger presented herself at a security checkpoint for boarding on air carrier, where she knew or should have known that her carry–on articles were subject to search, the fact that an X–ray scan machine indicated that her shoulder bag contained an unidentifiable dark object created a sufficient suspicion to justify a complete physical search of the luggage until the object was positively identified as harmless, and since the security officer's search of the shoulder bag and an enclosed manila envelope were justified on a "mere or unsupported suspicion," the passenger need not fit a hijacker profile. The court applied the principle that a search may continue until the law enforcement official is satisfied that no harm would come from the passenger's boarding the plane.

In U.S. v. Winstanley, 359 F. Supp. 146 (E.D. La. 1973), the court ruled that because a search of the defendant's luggage by airline agents after he allegedly fit a hijacker profile did not pass beyond the limits of a reasonably thorough search for weapons, and a clear plastic pouch containing a substance resembling marijuana was in plain view, the search did not violate the Fourth Amendment under the theory that it was intolerable in scope and intensity. Further, as the defendant knew that his luggage would have to be searched by agents of airline if he wanted to board the aircraft, and that he was free to avoid search if he were willing to forgo boarding, and the defendant correctly believed that he could leave the airport without being stopped or searched, he could not maintain after voluntarily consenting to the search that it violated the Fourth Amendment.

In U.S. v. Fern, 484 F.2d 666 (7th Cir. 1973), the court ruled that a deputy marshal who was observing passengers waiting to board an airline flight was justified in stopping the accused and in searching his flight bag, even though a magnetometer had not been used, since he had noticed several suspicious circumstances: that the accused appeared to pretend to read newspaper and thereby conceal the fact that he was glancing at people around him; while changing his seat several times, he would leave a "carryall" suit bag behind him but would at all times clutch the flight bag; and the marshal had determined that the accused met the basic characteristics of an air piracy personality profile. The court found unpersuasive the defendant's criticism that the characteristics of the air piracy profile were too limited in number and too broad in scope. The court specifically relied on the trial testimony of a psychologist for the F.A.A. who had cited a study of 60 prior airplane skyjackings that revealed that all 60 of the skyjackers fit the characteristics of the profile, but that only 1% of all airplane passengers fit the profile. Rejecting as well the defendant's argument that the use of a magnetometer should be an important, if not essential, prerequisite to a preboarding search, the court relied on the testimony of the psychologist that the magnetometer is not indispensable to the successful operation of the antiskyjacking

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

system. The court also cited precedent for the proposition that the use of a magnetometer is not an absolute prerequisite to a preboarding search.

In U.S. v. Burton, 341 F. Supp. 302 (W.D. Mo. 1972), in which an airline ticket supervisor opened a suitcase checked in by a passenger, revealing that it contained a loaded handgun, after the supervisor became suspicious concerning the contents of the suitcase because of the uneven distribution of the weight in the suitcase and, to some extent, because the supervisor believed that the passenger approximated a hijacker behavioral profile, the court found that a search of a passenger's suitcase conducted by an employee of an airline was an independent investigation by the carrier and as such was not subject to the restrictions of the Fourth Amendment, which does not apply to evidence secured by private persons without governmental participation. Following the discovery of the weapon, a United States marshal was contacted and the passenger was arrested prior to his boarding the aircraft. The marshal thereafter searched the passenger's person, and the search disclosed a baggage claim check having a number that matched the number of the tag attached to the suitcase and a key that fit the lock on the suitcase. The ticket supervisor had testified that he first suspected the passenger and conducted the search without the aid of any government officer or agent, that the supervisor had not been requested to open the passenger's luggage by any officer, that no law enforcement officers were present when the luggage was searched, and that government agents had been called in. The court explained that if the supervisor had discovered that the passenger had delivered a loaded firearm to the airline for transportation, it was reasonable to conclude, in view of the recent wave of airline hijackings and bombings, that the ticket supervisor was serving the purposes of his employer in investigating a suitcase that he, relying on his 25 years of experience and recently developed behavioral pattern profiles, believed to contain unusual and perhaps dangerous articles. The court also rejected the passenger's contention that the airline employees were acting in the capacity of government agents because of coercion imposed by 18 U.S.C.A. § 922(f), which makes it unlawful for a carrier to transport any firearm or ammunition with knowledge or reasonable cause to believe that doing so would violate certain federal statutes, and by directives of the F.A.A.. The statute could not be read to impose a requirement on airline employees to conduct baggage searches, thereby converting them into agents of the federal government; nor were there any F.A.A. regulations that directed airlines to search or screen passengers or their baggage. With regard to the arrest of the passenger and the subsequent search of his person, the court stated that after the government agent had received information from the airline that the passenger had delivered a firearm to the airline, and after he had substantiated this information by himself observing the revolver, the government agent had probable cause to arrest the passenger without first obtaining a warrant, and that the evidence obtained by the search of the passenger's person was obtained incident to a valid arrest.

In U.S. v. Doran, 482 F.2d 929 (9th Cir. 1973), the court ruled that the defendant, whose airline ticket was marked by an airline representative as a skyjacker profile selectee and whose carry–on bag was searched and found to contain narcotics, was not entitled to an in camera showing of the skyjacker profile, as the defendant would have been subject to search even if he had not been identified as suspicious under the profile. Thus, since the profile was not necessary to support the search, the court found that the refusal to disclose it was not error. The court noted that airport security searches are reasonable if limited in scope to the object of the antihijacking program.

In U.S. v. Ogden, 485 F.2d 536 (9th Cir. 1973), in which the court ruled that a federal agent had probable cause to search a carry–on bag for drugs, the court explained that, although tags on the airline passenger's bag had been encircled to indicate that the owner had been designated as meeting an F.A.A. hijack profile, an airline employee had not engaged in government action by opening the bag solely as a result of his own curiosity. After closing the bag, which was found to contain marijuana, the employee notified his supervisor, who in turn notified the federal agent. The agent, who was informed by the employee of the discovery and who drew to within six inches of the suspect bag and smelled a strong odor of marijuana, had probable cause for search of bag. The employee had opened the bag solely as a result of his own curiosity and not pursuant to federal regulations or any associated airline policy, and there was no government encouragement to open the bag or any assistance in doing so.

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

In U.S. v. Lopez-Pages, 767 F.2d 776 (11th Cir. 1985), holding that facts establishing a hijacker profile were sufficient to provide the requisite "mere suspicion" necessary to conduct the searches in this case, the court also rejected the contention that the search was unconstitutionally extensive on the purported theory that once the defendant and his luggage passed through the magnetometer and X–ray machine, respectively, security officers were not authorized to conduct a further pat–down or luggage search in a separate security office. Airport authorities, however, are justified in undertaking a search with sufficient scope to reveal any object or instrumentality that the passenger could reasonably have used to carry out an act of air piracy, the court noted, and any further searches outside the perimeter of the security area are permissible if, in the exercise of their professional judgment, the authorities' reasonable suspicions have not been allayed by the routine security check. Testimony at trial demonstrated that certain practices of hijackers, such as taping gasoline to their ankles, cannot be detected by the magnetometer, the court pointed out, and under the circumstance of this case, the fact that the plaintiff was moved from the general security area to a private office before the pat–down search was conducted minimized, rather than enhanced, the intrusiveness of the search. The court concluded, therefore, that the searches of the defendant and his luggage at the airport security area and security office comported with constitutional standards. Furthermore, the court noted that the district court's determination that the defendant voluntarily presented himself at airport security checkpoint, thereby consenting to the search, was not clearly erroneous, considering that the defendant's decision to go to security area was not made in a particularly coercive atmosphere, since he was accompanied through a public concourse to the security checkpoint by one unarmed ticket agent who did not use force or summon or threaten to call public law enforcement authorities. Furthermore, the agent did not state that the defendant would be detained for refusing to accompany him, and the defendant told the agent that the request to accompany the agent to the security area was "perfectly okay." The court noted that, although even verbal agreements to accompany an officer should be scrutinized exceptionally closely to ensure a complete absence of coercive influence, they are, nonetheless, probative evidence of consent. The present case did not involve a passenger who was interrupted during a stopover and thereby stranded, nor one in which the defendant was pressed for time in which to make his flight, situations that may encourage speedy consent, the court pointed out. Instead, the record showed that the defendant had between one hour and one hour and 45 minutes from the time he bought the ticket until his plane was scheduled to leave.

In People v. Hyde, 12 Cal. 3d 158, 115 Cal. Rptr. 358, 524 P.2d 830 (1974), the court ruled that a deputy marshal properly relied upon a hijacker profile and a magnetometer reading, which had been invoked during a screening, in selecting the defendant as a candidate for a further inspection, and the marshal acted lawfully in searching the defendant's luggage, in which illegal drugs were discovered. The court noted that searches conducted as part of a general regulatory scheme to further an administrative purpose, rather than as part of a criminal investigation to secure evidence of a crime, may be permissible under the Fourth Amendment even if not supported by a showing of probable cause directed to a particular place or person to be searched. The court reasoned that because air piracy offers a unique opportunity for a political terrorist, extortionist, or mentally disturbed person to command attention by jeopardizing the lives of passengers and crew and private property worth millions of dollars, and hijacking constituted a significant threat to the orderly operation of air commerce and to the stability of international relations, predeparture screening of all passengers and carry–on baggage sufficient in scope to detect the presence of lethal weapons or explosives was not unreasonable.

In People v. Flier, 2002 WL 31648800 (Cal. App. 2d Dist. 2002), unpublished/noncitable, the court ruled that a warrantless administrative predeparture screening search of the defendant's luggage by airline customer service personnel, pursuant to an F.A.A. comprehensive antihijacking regulation, was reasonable, thus rendering 40,278 grams of marijuana discovered in the defendants' luggage admissible at trial. The court applied a balancing test, reasoning that the substantial governmental interest in preventing hijackings outweighed any negative consequence of intruding into the prospective airline passengers' privacy. Although agreeing with the defendant's contention that any search of an airline passenger's baggage conducted pursuant to regulations promulgated by the F.A.A. constitutes a government search subject to the Fourth Amendment, whether conducted by private airline personnel or a government agent, the court pointed out that searches conducted as part of a general regulatory scheme to further an administrative purpose—rather than as part of a criminal investigation to secure evidence of crime—may be permissible under the Fourth Amendment even when not supported by a showing of probable cause directed to a particular place or person to be searched. The

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court cited the principle that airport screening searches, in particular, are singularly unsuited to the warrant procedure, and noted that thousands of airline travelers each day, throughout the United States, must be screened for weapons and explosives, creating a form of continuing emergency that renders it impracticable, if not impossible, for airline officials to seek a search warrant for individual passengers.

See State v. Johnson, 529 S.W.2d 658 (Mo. Ct. App. 1975), a case involving a defendant who had been targeted by authorities on the basis of suspicious characteristics, in which a bomb threat had been received at an airport, the defendant purchased for cash a one–way ticket using a common name, but, when confronted, indicated that he had purchased the ticket on his brother–in–law's credit card and his identification was in a name different from that used in purchasing the ticket, and the court held that the police had adequate grounds for an investigatory search of the defendant's briefcase and, upon finding narcotics, properly arrested him for possession of narcotics. The court noted that airport security measures constitutionally justify a limited and relatively insignificant intrusion of privacy balanced against the need to protect the aircraft, airport, and passengers. Thus, a search may continue until the law enforcement officer is satisfied that no harm would come from the suspicious person, and in order to be effective, security efforts may focus not only on the aircraft or tangible items but on the person's demeanor while present in the airport.

§ 6[b] Search of passenger's baggage pursuant to hijacker profile—Held invalid

Authority has held that searching the baggage of a passenger who aroused suspicion under a hijacker profile was invalid under the Fourth Amendment.

In People v. Sortino, 68 Misc. 2d 151, 325 N.Y.S.2d 472 (Sup 1971), a motion to suppress marijuana found in the course of a search of the defendant's hand luggage prior to his boarding an airplane was granted, where the facts failed to show probable cause for the search, and it was not shown that the search was conducted under any federal statute that might waive that requirement. While awaiting a flight to Puerto Rico the defendant was noticed by an airline employee who became suspicious of the defendant and confided his suspicions to a Customs agent who was stationed nearby for the purpose of searching passengers for concealed weapons on outgoing flights, a security measure instituted by the airlines in the wake of plane hijacking. The agent then approached the defendant, spoke to him about weapons, searched him, and, finding nothing, examined the defendant's hand luggage, where marijuana was discovered. The agent testified that he had not received any information about guns or contraband from the airline's employee, or any other facts that might have aroused his suspicions, and that he himself had not observed anything unusual about the defendant, but that the search was merely a precautionary measure as part of his duty under the "air marshal" program. It was also revealed that the agent tried to search as many passengers as possible for concealed weapons on this particular flight, as a security precaution. The prosecution conceded that the search of the defendant was not based on probable cause, but urged that the search did not violate the Fourth Amendment because federal statutes relating to border or Customs searches or "air marshal" federal statutes permitted the search under less–than–probable cause. Although agreeing that probable cause was not required for Customs searches, the court pointed out that the duties of Customs officials were restricted to merchandise or people entering the country, and that they did not have the general right to search a person as he is about to leave on a domestic flight. This, continued the court, was not altered by the fact that marijuana was found, since, although the Bureau of Customs by statute was given additional authority in narcotics matters, this authority was limited to those circumstances where the officer had reasonable grounds to believe that the person to be arrested had committed or was committing a violation. The court likewise rejected the contention that the agent did not require probable cause to search because he was acting in the capacity of "air marshal." The court stated that the air marshal program was created by executive power for the purpose of establishing a new security agency to deal with armed hijacking of civilian aircraft, and that the executive order merely created the agency under existing presidential authority but did not define its powers. The court reasoned that if the air marshal had broader authority than the Customs agent, such power must spring either from the specific crimes that gave rise to the agency's creation or from the general duties of the office of air marshal itself. Noting that the two crimes that the agency sought to prevent were the crime of "aircraft piracy," and kidnapping by transportation in interstate or foreign commerce, the court found that the aircraft piracy statute showed no provision

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dealing with searches and that no broad emergency power was authorized, and that the same was true with respect to the kidnapping statute. In regard to the duties of a marshal, said the court, two federal regulations were appropriate. The first, said the court, authorized marshals to make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested had committed or was committing such felony, and the second statute granted them the right to exercise the same powers that a sheriff of the state may exercise. Pointing out that neither of these statutes provided authority for the provision that an air marshal could search without probable cause, the court concluded that the search of the defendant was unlawful and in violation of the Fourteenth Amendment.

§ 7. Search of passenger's baggage following suspicious demeanor or conduct

[Cumulative Supplement]

The courts have considered whether the Fourth Amendment allows a preboarding search of a passenger on the basis of suspicious demeanor or conduct.

In U.S. v. Legato, 480 F.2d 408 (5th Cir. 1973), the court held that where the defendants were validly apprehended at an airport in connection with a bomb threat, and each denied knowing the other despite being told that they had been seen sitting together in the boarding area only minutes earlier, and it was disclosed that one defendant was flying under another name, the search of a package for explosives, which resulted in the discovery of heroin, did not violate the defendant's Fourth Amendment rights.

In U.S. v. Homburg, 546 F.2d 1350 (9th Cir. 1976), the court ruled that a warrantless search of an airline passenger's suitcase was reasonable where it appeared that just before the passenger's arrival at an inspection point, security officers there were notified that an anonymous bomb threat had been received at the airport; that as the passenger passed through the inspection point, security officers observed a rectangular bulge in front of the passenger's trousers, which he awkwardly attempted to conceal with his suitcase; that the passenger went to the restroom where he spent 15 minutes inside a stall, during which time "cracking" noises were heard; that when the passenger emerged from the stall a bulge in his trousers was gone and he was carrying his suitcase normally; and that the passenger's suitcase was then subjected to the warrantless search at issue here.

In U.S. v. Henry, 615 F.2d 1223 (9th Cir. 1980), the court ruled that, where the defendant was not ordered or compelled to produce his briefcase for an X–ray scan in an airport, but, instead, because he was wearing an ill–fitting wig and a couple of sets of clothing and appeared to be nervous, he was told that the ticket counter was not receiving any more baggage for his flight and that if he wanted to check the briefcase he would have to take it to the gate, an initial X–ray scan of the defendant's briefcase did not violate his rights under the Fourth Amendment. The court upheld the trial court's finding that the defendant freely and voluntarily consented to the search of his briefcase, as he could have freely withdrawn his briefcase and avoided the search of the briefcase by airport and law enforcement personnel, and the defendant, after being told that the briefcase would have to be searched if the defendant wanted to take it aboard the airplane, stated that it was "okay" to search it. The X–ray scan as used here was a reasonable procedure, the court explained, as it was a nondiscriminatory search, used on every object carried by every person who wished to approach the boarding gates. Further, the scan was used only to detect guns or explosives, not as a device to detect all types of contraband. In most cases, no physical search is required, and a physical search is requested only if the scan detects the possible presence of a gun or an explosive. The X–ray scan, the court noted, reflected a recent improvement in technology that helps insure that the screening process is no more extensive or intensive than necessary to promote security.

In People v. Rivera, 141 A.D.2d 572, 529 N.Y.S.2d 180 (2d Dep't 1988), concerning a conviction for possession of a controlled substance, the court ruled that a warrantless search of the defendant's briefcase that revealed drugs was reasonable, where the defendant had just bolted past a security checkpoint at an airport and passed a device to detect

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concealed weapons and explosives, and where the defendant's bizarre behavior and incoherent responses to a security guard's questions could reasonably lead to the conclusion that the defendant might be armed and present a imminent threat to the officer's life.

CUMULATIVE SUPPLEMENT

Cases:

Search of airline passenger's bags and contents by Transportation Security Administration (TSA) screeners did not violate the Fourth Amendment; TSA screeners were authorized, and indeed required, to inspect passenger's carry-on bags and items contained therein, and by the time TSA employees inspected passenger's bags he had refused to allow TSA employees to fully screen his person, either through use of a full-body scanner or standard pat-down procedure, and reasonable TSA employee at that point could have suspected that passenger's refusals resulted from his desire to conceal unlawful activity, so thorough screening of passenger's bags was reasonable, even beyond point of determining whether those belongings contained weapons. U.S.C.A. Const.Amend. 4; 49 U.S.C.A. § 44901. Corbett v. Transportation Sec. Admin., 568 Fed. Appx. 690 (11th Cir. 2014).

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§ 8[a] Search of checked–in baggage—Held valid

[Cumulative Supplement]

In the following cases, the courts ruled that the Fourth Amendment did not bar the search of an airline passenger's checked luggage.

Ruling that airport security measures are reasonable to the extent that they permit government agents to determine whether a suspect presents an immediate danger to air commerce, and a search may continue until a law enforcement official is satisfied that no harm would come from the passenger boarding the plane, in U.S. v. Cyzewski, 484 F.2d 509 (5th Cir. 1973), the court ruled that where the defendants had characteristics of hijackers, initially offered no identification and later revealed they had lied about their identities and their nonpossession of identification, where attention was focused on their luggage by that reversal and their initial refusal to permit inspection, and where one defendant, following a positive magnetometer reading, stated that the only metal objects in the bag were shoe buckles and, without receiving a reply from federal marshals, placed his hand inside the bag out of view, the retrieval of the defendants' checked baggage to check their identity and a warrantless search of the baggage found to contain marijuana were reasonable, and the marijuana would not be suppressed.

In People v. Dooley, 64 Cal. App. 3d 502, 134 Cal. Rptr. 573 (1st Dist. 1976), the court found constitutionally valid an F.A.A. regulation authorizing the nonconsensual search of a commercial airline traveler's previously checked–in luggage, following an anonymous telephone warning of a bomb on the airplane in which the luggage had been stowed; the passenger had no right to elect to forgo the flight and depart with unexamined luggage. The court further stated that opening a box within the defendant's first piece of luggage, after the anonymous warning, was not unduly intrusive, as the weight and appearance of the box were consistent with the possibility that it contained explosives; and the continuing bomb threat, and the probable cause furnished by the discovery of controlled substances in the box, clearly then authorized the search of the defendant's other bag.

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In People v. Owens, 134 Cal. App. 3d 144, 184 Cal. Rptr. 509 (2d Dist. 1982), a prosecution for possession of controlled substance for sale, the court ruled that the trial court properly denied the defendant's motion to suppress evidence discovered when airline employees opened the defendant's checked luggage and found several bottles of pills, which were accidentally discovered after the employee became suspicious that the defendant might be a hijacker and a subsequent X– ray of his luggage had disclosed suspicious objects. The court reasoned that the X–ray search was a valid administrative search mandated by a federal regulation that was designed to prevent the sabotage of airplanes, and that it imposed a minimal invasion of privacy when compared with the risk of loss of both property and life from the checking of luggage containing explosives or other dangerous material. The court explained that not every governmental search implicates the warrant requirement of the Fourth Amendment, and in particular administrative searches, not directed at securing evidence of a criminal violation by a particular individual, may be proper if designed to insure general public security. The validity of the searches depend on a balancing of the personal interest in privacy (expressly protected in California by Cal Const. art. 1, § 1) against the gravity of the public danger sought to be prevented, the court noted.

CUMULATIVE SUPPLEMENT

Cases:

Physical administrative search of passenger's checked suitcase at Transportation Security Administration (TSA) airport checkpoint that revealed evidence of child pornography in accordion folder contained in suitcase was confined in good faith to purpose of searching for explosives or weapons, and thus did not violate Fourth Amendment, where TSA officer was required to physically open a certain number of bags, defendant's suitcase was selected at random for physical search, TSA officer was required by TSA protocol to thumb through papers in accordion folder in defendant's suitcase as part of search, and TSA officer discovered evidence while thumbing through accordion folder. U.S.C.A. Const.Amend. 4. Higerd v. State, 54 So. 3d 513 (Fla. Dist. Ct. App. 1st Dist. 2010).

Defendant did not have an objectively reasonable expectation of privacy in his suitcase, which was subjected to a random search by the Transportation Security Administration (TSA) after he presented it for curbside check-in at an airport; defendant had surrendered the bag to the TSA for screening, the airport had multiple signs warning passengers that they needed to be able to unlock their baggage if they wanted to travel with locked bags, and any subjective belief that defendant might have had that his suitcase might not have been searched made little sense in a post-9/11 world. U.S.C.A. Const.Amend. 4. Kjolhede v. State, 333 S.W.3d 631 (Tex. App. Dallas 2009), petition for discretionary review refused, (Nov. 18, 2009).

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§ 8[b] Search of checked–in baggage—Held invalid

In the following cases, the courts ruled that the Fourth Amendment did not allow the search of an airline passenger's checked luggage.

In U.S. v. Palazzo, 488 F.2d 942 (5th Cir. 1974), although the court ruled that in light of the suspicious actions at an airport of defendants who, inter alia, were observed acting nervous and fidgety and exchanging money and a bundle, followed by a hasty departure of one of them, and who gave an appearance of reluctance in approaching the security screening area, and in light of the fact that one of them activated the magnetometer, a marshal on antiskyjacking duty was justified in detaining them at the boarding gate and in conducting personal searches to which they both consented, the court held that a search of their luggage that had been checked at a remote point and was no longer under their

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control could not be justified under airport search standards, since the defendants were never subjects of any preflight tip, did not conform to a skyjacker profile, furnished satisfactory and correct identification, were subjected to a thorough personal search, and failed to activate the magnetometer immediately before boarding the aircraft. The court reasoned that because no antiskyjacking justification existed for searching the defendants' luggage, which was no longer under their control, there were no exigent circumstances justifying the warrantless search since, if the marshal thought he could demonstrate probable cause to search the luggage, he should have impounded it and presented those supporting facts to a magistrate.

Reversing a conviction for possession of marijuana with intent to distribute, on the ground that a warrantless search of the defendant's luggage that had been checked with an airline could not be justified as an administrative search pursuant to regulations issued under the federal Aviation Act, since the search was unrelated to the airport screening program, which was designed to catch potential hijackers by searching carry–on luggage, in U.S. v. Rothman, 492 F.2d 1260 (9th Cir. 1973), the court observed that when the search occurred, the defendant was already under arrest and there was no possibility that he might take a flight that day. The court applied the principle that an administrative screening is not reasonable under the Fourth Amendment unless it is only as intrusive as consistent with the administrative need that justifies it. The court emphasized that there is an obvious danger that screening passengers and their carry–on luggage for weapons and explosives will be subverted into a general search for evidence of crime, and that if this occurs, the courts will exclude the evidence obtained. The court added that the defendant did not voluntarily consent to the search after he was arrested, since he was systematically psychologically coerced by being handcuffed, isolated in a strange place, given a formal Miranda warning and then interrogated by three officers over a period of approximately two hours.

In U.S. v. Ross, 32 F.3d 1411 (9th Cir. 1994), as amended, (Nov. 22, 1994), the court ruled that opening a package within an airline passenger's luggage after a suspicious X–ray was a clear violation of the Terry doctrine, since the passenger's luggage had been X–rayed and opened, the package had been removed, and the passenger was aware that the luggage would not be on her scheduled flight and had signed a waiver to that effect. The court approved the district court's finding that once the bags were X–rayed, opened, and the "Rolex" box package removed, the immediacy of any threat had clearly dissipated. The court emphasized also that the government had ample time to secure a warrant before opening the package. The court noted that the government did not argue that the defendant consented to the search in any way, and, thus, the court had no occasion to decide whether notifying her that her baggage would be searched, and providing an opportunity to retrieve it without a search, would have obviated the constitutional violation that the district court correctly identified.

§ 9[a] Search of persons—Held valid

[Cumulative Supplement]

In the following cases, the courts ruled that the Fourth Amendment allowed the search of a passenger's person following a preboarding screening.

In U.S. v. Roman-Marcon, 832 F. Supp. 24 (D.P.R. 1993), the court ruled that the defendant's Fourth Amendment rights were not violated when, after an alarm by a walk–through magnetometer at an airport and a second alert by a hand–held magnetometer, a security officer touched the defendant's clothing at the place where the instrument was set off and removed an item that was causing a bulge in the defendant's clothing. The court note that § 202 of the Air Transportation Security Act of 1974, 49 U.S.C.A. § 1356(a), requires a preboarding search of all passengers and their carry–on baggage for weapons and explosives, pursuant to regulations established by the Administrator of the F.A.A. However, the search for weapons and explosives must conform to constitutional requirements, and the use of a magnetometer on a person during an airport security search is indeed considered a search within the meaning of the Fourth Amendment. However, because the invasion of the privacy in measuring the distortion of magnetic waves around the body is so minimal, courts have found that an administrative search with a magnetometer does not constitute a

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constitutional violation. The court explained that after a magnetometer has alerted the attending security personnel

to the presence of metal, the constitutionality of the search is subject to the test announced in Terry, 12 in which the Supreme Court found that a warrantless search was allowable if a reasonably prudent person in the circumstances would be warranted in the belief that his safety or that of others was in danger. Noting that under the Terry principle, a search must be reasonably related in scope to the circumstances that justified the initial interference, the court noted that in this case, the magnetometer went off as the defendant passed through it, and that although he then had a second opportunity to pass through after removing any metal content from his body, he nonetheless initially failed to follow the instructions of the security supervisor when he instead walked rapidly toward the boarding gate. The court pointed out that after the hand–held magnetometer had triggered a second time, the security personnel were free to subject him to a more physical search, unless he indicated that he no longer wished to board the flight. In approving the search, the court noted that the security officer's use of the hand–held magnetometer was less intrusive than a pat–down or frisk. Furthermore, the court noted that hijackers, as well as airport officers, know of the existence of plastic explosives or even ordinary dynamite or contraband, and these items do not necessarily react to a magnetometer alarm in the same way, and that even if they do, it is perfectly legitimate and within the limits of the authority of the security officer to request to see the item or, under the particular circumstances of this case, touch the clothing to get an idea of whether the officer has detected an innocent item, such as a bulky belt or a package.

Stating that the use of a magnetometer was justified at its inception, because a subsequent physical frisk was justified by the information developed by the magnetometer, and the fact that the search was limited in scope to the circumstances that justified the interference in the first place, the court in U.S. v. Epperson, 454 F.2d 769 (4th Cir. 1972), held that there had been no unreasonable search and seizure under the Fourth Amendment where the defendant, who was subsequently convicted of attempting to board an aircraft while carrying a concealed dangerous weapon, had been frisked after his exposure to a magnetometer had indicated that he was carrying a large amount of metal, and was found to have been carrying a pistol. As the defendant proceeded toward the airplane he passed by the magnetometer, and the United States marshal, observing the high reading on the instrument, asked the defendant if he was carrying a large amount of metal. Although the defendant produced several metal objects, the device still gave a positive reading, so that the marshal searched the defendant's jacket and found the weapon. The court stated that the use of the magnetometer under the circumstances was a "search" within the meaning of the Fourth Amendment, and that the search by the magnetometer did 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), where the limited scope and purpose of the search, plus the element of danger and the necessity for swift action, made a warrant unnecessary. Commenting that to require a search warrant as a prerequisite to the use of a magnetometer would exalt form over substance, for it was implausible that any judicial officer would refuse such a warrant with or without a supporting affidavit, the court stated that the danger was so well known, the governmental interests so overwhelming, and the invasion of privacy so minimal that the warrant requirement was excused by "exigent national circumstances." Noting that the Constitution forbids only unreasonable searches and seizures, the court said that the reasonableness of any search had to be determined by balancing the governmental interests in searching against the invasion of privacy that the search entails, and that these interests had to be balanced at two stages. The search, said the court, must be "justified at its inception," and it must be "reasonably related in scope to the circumstances which justified the interference in the first place." The court stated that the search for the sole purpose of discovering weapons and preventing air piracy fully justified the minimal invasion of personal privacy by the magnetometer. The use of the device, continued the court, unlike frisking, could not possibly be annoying, frightening, and perhaps humiliating, because the person was not even aware of the examination, so that it was reasonably related in scope to the circumstances that justified the interference in the first place. Noting that the rationale of Terry was not limited to protection of the investigating officer but extended to others in danger, and that all passengers were endangered by the presence of weapons on aircraft, the court concluded that a search by the use of a magnetometer was not only reasonable but a compelling necessity to protect essential air commerce and the lives of passengers. Moreover, said the court, when the high metal indication of the magnetometer was not satisfactorily explained, the subsequent frisk of the defendant's jacket was entirely justifiable and reasonable. At that stage of the encounter, continued the court, the marshal's reasonable fear for the safety of airline passengers increased, and he was

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entitled, for the protection of passengers, to conduct a carefully limited search of the clothing of the defendant in an attempt to discover weapons that might be used for air piracy.

In U.S. v. Dalpiaz, 494 F.2d 374 (6th Cir. 1974), in which the defendant was convicted of attempting to board an aircraft with concealed deadly and dangerous weapons on his person, the court ruled that an airport security officer was justified in conducting a limited search by asking the defendant to empty his pockets, in light of the fact that although he had not been arrested prior to the search, the defendant—a holder of a one–way ticket with no checked luggage—had been found in possession of a pistol and knife with a large blade and had activated the metal detector three times, and where the defendant was within the boarding area where many passengers were congregated.

In U.S. v. Bui, 15 F.3d 1090 (9th Cir. 1994), in which the defendant contended that the district court erred in denying a motion to suppress evidence seized during a "hand wand" airport security search, on the purported ground that the heroin packages found on the defendant's body were the fruits of an unlawful search and seizure in violation of the Fourth Amendment, the court rejected the argument, ruling that the purpose of the hand wand check was to locate the source of the metal that had set off a magnetometer during the routine screening at the airport security checkpoint. The defendant urged that because the hand wand found no metal, no other nonmetallic objects could be searched. The court, however, explained that when the security employee first asked the defendant if she could check the object, she had no way of knowing that it did not contain metal. The fact that the hand wand had detected it indicated just the opposite. Furthermore, the hard object located suspiciously in the back of the defendant's waistband could just as easily have been plastic explosives, which would be a legitimate threat to airport security. Thus, the security employees had a reasonable basis for determining what was in the packages, the court concluded. The defendant also contended that, although it was permissible to use a hand wand to find the source of the metal, it was improper to poke and prod the defendant with the magnetometer. This contention misstated the facts, according to the court, as there was no evidence that the defendant was indeed poked or prodded incident to the search. The court noted that the hand wand must be held close to a person's body to ascertain the source of the hidden metal, and the wand will ordinarily brush up against a person's body occasionally during normal use. It was during a properly conducted sweep of the wand that the wand struck the object under the defendant's shirt, and there was no evidence that the employee misused the hand wand, or that he acted with the intent to find anything other than the source of the metal. Thus, the court found the search well within the permissible scope of an airport administrative search. Finally, the defendant argued that once the powder began to seep from the package it was obvious that he was not carrying guns or explosives, and therefore the intrusion into his affairs should have ceased. The court pointed out, however, that the airport security did indeed cease its investigation at that point and turned the defendant over to the police. Although the court recognized the concern that administrative searches not become a tool for law enforcement, here the security employees who found the contraband and reported to law enforcement authorities, the private security personnel, on contract with an airline, were not working hand–in–glove with the police to uncover a trail leading to evidence of a crime. Instead, they saw in the defendant's possession what they suspected was contraband. More importantly, they were witnessing what they legitimately believed to be (and what in fact was) a crime in progress, the court stated, and the mere fact that this occurred in the scope of and as a result of their permissible administrative search did not mean that they were prohibited from contacting law enforcement officers. Finally, the district court's third and alternative basis for denying the motion to suppress was also correct, specifically that the defendant voluntarily consented to the search by the security firm's employees of the package's contents. The court cited the established principles that the state bears the burden of demonstrating that the consent was voluntarily given, and not the result of duress or coercion, express or implied, and that voluntariness is a question of fact to be determined from all the circumstances. Furthermore, although the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate that knowledge as a prerequisite to establishing a voluntary consent.

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did not constitute an invasion of the defendant's reasonable expectation of privacy under the Fourth Amendment. Moreover, the court explained, even if the action was deemed a "search," it nonetheless satisfied the Fourth Amendment's reasonableness standard.

In State v. Merritt, 519 So. 2d 36 (Fla. Dist. Ct. App. 3d Dist. 1987), the court ruled that a pat–down search of the defendant, who was observed with a large bulge in his crotch after clearing the security checkpoint area at an airport, was reasonable under an exception to the search warrant requirement for such checkpoints, and thus cocaine seized by the police from the defendant's person at an international airport was admissible in evidence. A narcotics detective who conducted a pat–down search of the defendant's bulge was pursuing two purposes: airline security—notably to discover weapons—and narcotics interdiction.

In State v. David, 130 Ga. App. 872, 204 S.E.2d 773 (1974), the court found no unreasonable search or seizure occurred, where the defendant, though he did not have an airline ticket himself, was accompanying a ticketed passenger and walked through a publicly available entranceway, causing a reaction from a metal detecting device, which alerted airport security officers who stopped the defendant and asked him to remove his hand from his jacket, and the defendant then informed the officers that he had a weapon, which the officers seized. The court noted that a magnetometer is a lawfully employed device, and that an airline passenger may be frisked for weapons without further investigation if a suspicious magnetometer reading is triggered that the passenger is unable or unwilling to satisfactorily explain.

In People v. Kuhn, 33 N.Y.2d 203, 351 N.Y.S.2d 649, 306 N.E.2d 777 (1973), the court ruled that the voluntariness of the defendants' consents to airport searches was established by the absence of any inherently coercive tactics by the security officers in screening the defendants, the absence of any official compulsion in the manner of requesting permission to search, and the fact that the security officers did not arbitrarily select the defendants, one of whom while waiting in line had observed the frisking of some 50 preceding passengers, for screening prior to departure but followed the same procedure as to all prospective passengers. The court explained that the mere fact that uniformed security officers asked questions did not make the interrogation suspect or coercive. The court noted that as the passengers filed past the security officers, all males were stopped and frisked. Eventually, the defendant was asked by one of the security officers "if he would mind being searched," and he replied "no." As the security officer patted down the defendant, the officer felt a large bulge in his right rear pocket. After the officer asked the defendant to "remove the bulge," the defendant handed over a clear plastic package containing a substance that was later identified to be marijuana, and was then placed under arrest.

CUMULATIVE SUPPLEMENT

Cases:

Warrantless secondary screening of airline passenger, who allegedly had rare medical condition that caused him to experience pain in his left testicle when he experienced stress, did not represent unreasonable intrusion on passenger's Fourth Amendment privacy interests. U.S.C.A. Const.Amend. 4. VanBrocklen v. U.S., 410 Fed. Appx. 378 (2d Cir. 2011).

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Defendant, a prospective commercial airline passenger, impliedly consented to a secondary search of his person by walking through magnetometer at airport security checkpoint, and could not subsequently revoke his consent to secondary screening, which was triggered by defendant's failure to present identification at check-in; the initial screening by the walkthrough magnetometer did not rule out every possibility of dangerous contents and was therefore inconclusive, the methods used by the security agents were minimally intrusive to defendant's privacy in light of his repeated non-cooperation, and, allowing a passenger in defendant's position to revoke his consent prior to the secondary screening by electing not to fly would encourage airline terrorism by providing a secure exit where detection was threatened, and thus undermine the essential deterrent purpose of such airport screenings. U.S. v. Aukai, 440 F.3d 1168 (9th Cir. 2006).

Airport screening search upon airline passenger's refusal to present identification was reasonable, for Fourth Amendment purposes, where passenger had option to refuse the search, and leave the airport. U.S.C.A. Const.Amend. 4. Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), cert. denied, 127 S. Ct. 929, 166 L. Ed. 2d 701 (U.S. 2007).

Comment

Fourth Amendment rights of airline passenger were not violated when he was randomly selected to be subjected to handheld magnetometer wand scan, in addition to standard walkthrough magnetometer and x-ray luggage scan, in attempt to discover weapons or explosives while going through security check point at airport; procedure was geared towards detection and deterrence of airborne terrorism, handheld scan was no more extensive or intensive than necessary to detect weapons and explosives, and handheld scan utilized same technology and reported presence or absence of metal. U.S.C.A. Const.Amend. 4. U.S. v. Marquez, 410 F.3d 612 (9th Cir. 2005), opinion amended, 2005 WL 1661572 (9th Cir. 2005).

Airport screening searches are constitutionally reasonable administrative searches because they are conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings. U.S. Const. Amend. 4. Hernandez v. United States, 34 F. Supp. 3d 1168 (D. Colo. 2014).

Transportation Security Administration's (TSA) pat-down procedure, as a secondary screening technique where an air passenger refuses screening, is a reasonable administrative search under the Fourth Amendment; governmental interest in airport security and preventing terrorism outweighs the degree of intrusion on passengers' privacy. U.S.C.A. Const.Amend. 4. Corbett v. Transportation Sec. Admin., 767 F.3d 1171 (11th Cir. 2014).

Transportation Security Administration's (TSA's) detention of airline passenger was reasonable under all the circumstances; passenger consented to screening of his person by presenting himself at security checkpoint and was primarily to blame for entire screening process lasting approximately one hour, as if he had permitted TSA screeners

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to conduct full pat-down screening, he would have swiftly proceeded to his gate. U.S.C.A. Const.Amend. 4. Corbett v. Transportation Sec. Admin., 568 Fed. Appx. 690 (11th Cir. 2014).

Transportation Security Administration's (TSA) screening of airline passengers by use of advanced imaging technology (AIT) instead of magnetometers constituted an administrative search that did not violate Fourth Amendment; need to search airline passengers to ensure public safety was particularly acute, an AIT scanner, unlike a magnetometer, was capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form, and any passenger could opt-out of AIT screening in favor of a patdown, which allowed him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive was least invasive. U.S.C.A. Const.Amend. 4. Electronic Privacy Information Center v. U.S. Dept. of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011).

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[END OF SUPPLEMENT]

§ 9[b] Search of persons—Held invalid

In the following cases, the courts ruled that the Fourth Amendment did not allow the search of a passenger's person following a preboarding screening.

While recognizing that the use of a magnetometer to detect the presence of metal on aircraft passengers prior to permitting them to board an aircraft constitutes a reasonable search despite the small number of weapons actually detected and large number of such searches, in view of the absolutely minimal invasion of passengers' privacy and the great threat to hundreds of persons if a hijacker is permitted to proceed to the aircraft undetected, in U.S. v. Albarado, 495 F.2d 799 (2d Cir. 1974), the court ruled that frisking the defendant immediately after he activated a magnetometer before boarding an aircraft, rather than requesting him to remove the metal objects from his person and walk through the magnetometer a second time, was unlawful under the Fourth Amendment because the search was not minimally intrusive. The court explained that, although differences in equipment and facilities may change the actual procedure, the governing rule is that security agents must first exhaust the other efficient and available means, if any, to discover the location and identity of the metal activating the magnetometer before undertaking a frisk. Although finding the search here invalid, the court emphasized that the search of a person would not be barred if the requirements of Terry that specific, articulable facts supported a reasonably prudent man's belief that his or others' safety might be in danger were satisfied. The court further stated that it did not intend by its ruling to preclude in any way any questioning or searching that may be proper where other information on the part of the authorities would make the action reasonable. The court noted that because the rule of law enunciated here has not been sufficiently clear to the airport authorities in the past, the court made its decision prospective only in effect, applying it to the search in the case at bar and searches occurring after the effective date of this opinion.

In U.S. v. Davis, 482 F.2d 893 (9th Cir. 1973), the court ruled that the search of a particular individual at an airport could not be justified on a stop and frisk theory where the search occurred as part of a screening process directed not against such individual or any other person as such, but rather against the general introduction of weapons or explosives into a restricted area, particularly where the search extended to the person's briefcase and thus exceeded the scope necessary to assure that he did not have a weapon immediately available for use against the airline official who searched him. The court explained that to pass constitutional muster, an administrative search must meet the Fourth Amendment's standard of reasonableness, and a preboarding screening of all passengers and carry–on articles sufficient in scope to detect the presence of weapons or explosives is reasonably necessary to meet the need to prevent airline hijacking. Addressing the issue of consent to the search, the court noted that evidence disclosing only that the airline employee reached for the prospective passenger's briefcase and that the briefcase was relinquished and opened before the passenger "had a chance to really do or think anything," and that failed to disclose any announcement or other circumstance alerting prospective

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passengers to the screening procedures did not suffice to support a finding that the search was consensual. The court noted that the government and the airline may deny a prospective passenger the right to fly if the passenger refused to consent to a search or if the passenger's late arrival deprived them of sufficient time to obtain consent or to conduct the search. However, if the search was indeed conducted, the fact that the prospective passenger arrived late does not relieve the government of the burden to show consent to the search, the court explained.

In People v. Erdman, 69 Misc. 2d 103, 329 N.Y.S.2d 654 (Sup 1972), concluding that there were no reasonable grounds to sustain a belief that a passenger who was about to board an aircraft was armed or constituted a danger to the safety of others, or even created a substantial possibility of danger, the court found that a search of the passenger was in violation of his Fourth Amendment rights, and that the resulting seizure of marijuana had to be suppressed as being the fruit of an illegal search. As part of an inspection for concealed weapons prior to the departure of a flight, Customs officials would in some cases frisk passengers; when a Customs officer noticed a large bulge in the passenger's overcoat pocket, the officer inquired as to what the passenger had in his pocket, and the passenger replied that he had a pair of gloves. According to the court, the officer then patted down the coat with his hands and asked for the gloves, and after the passenger handed him the gloves, the official unrolled them and found a plastic bag containing marijuana. After rejecting the government's contention that the passenger had consented to the search, the court turned to the argument that security agents could frisk for weapons if they had reasonable grounds to believe that arms were being concealed. The court stated that the government's basic contention was reasonable because in the light of plane hijackings, kidnappings, and other crimes caused by concealed arms, it was undoubtedly true that adequate security measures were necessary at airports; that further there was no doubt that on occasions air safety would be best served by frisking conducted by knowledgeable agents; and that indeed in some cases such a frisking might be an absolute necessity. However, continued the court, the basic problem was what constituted reasonable grounds for this limited search, and the test under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), could be summarized as requiring the identification of officials (that is, an official must disclose his identity as such) following an observation on their part of unusual conduct, and a subsequent interrogation, which, in turn, might furnish reasonable grounds for a belief that a particular suspect was armed or might endanger the safety of others. The court explained that the frisk here was grounded only on conjecture or a hunch, with no facts other than a bulging coat pocket that might indicate the presence of arms or potential danger. There was no reliance, said the court, on the profile or magnetometer, and no unusual nervousness or suspicious mannerisms that might alarm a prudent official, nor any other grounds to justify reasonable suspicion.

§ 10[a] Pursuant to hijacker profile—Held valid

In the following cases, the courts ruled that the Fourth Amendment allowed the search of a passenger's person following preboarding suspicion grounded in a hijacker profile.

In U.S. v. Clark, 498 F.2d 535 (2d Cir. 1974), the court held that where the defendant, who attempted to board a domestic airline flight, met a hijacker profile, activated a checkpoint magnetometer, could produce no identification, and acted strangely, appearing in a stupor or "not himself," the marshal was well justified under the Fourth Amendment in searching both the defendant's person and the bag he carried. Upholding the legality of the search, the court affirmed the judgment, concluding that there were specific, articulable facts to support a reasonably prudent man's belief that his or others' safety might be in danger. The marshal had frisked the defendant and found nothing, but then directed him to open his bag, in which he saw a bulky object wrapped in a towel, which after unwrapping disclosed a box that the marshal opened in the belief that it might contain explosives. Inside were glassine and other envelopes containing what later was determined to be narcotics, the court noted.

In U.S. v. Lindsey, 451 F.2d 701 (3d Cir. 1971), the court held that heroin, used as evidence in the defendant's conviction on a narcotics charge, and obtained by a marshal working on an antihijacking task force as the defendant was about to board an aircraft, was not obtained by an unlawful search under the Fourth Amendment. The court explained that when the defendant rushed into the boarding lounge shortly before the scheduled departure of the aircraft, the ticket

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agent gestured to the marshal, indicating that the defendant should be watched, and the marshal observed that the defendant appeared nervous, was "looking about," and was perspiring. The marshal approached the defendant and asked for identification, whereupon the defendant gave the marshal a Selective Service card bearing a different name than the name that appeared on his airline ticket. Thereafter, the defendant produced a Social Security card bearing a third name, which proved to be the defendant's true name. During this time the marshal noticed that the defendant was becoming extremely anxious, and the marshal also noted two large bulges in the defendant's coat pocket. According to the marshal, he feared that the bulges might be weapons so he took the defendant to an area outside the boarding lounge where he patted down the defendant to effect a weapons search. Feeling the bulges in the defendant's coat pocket, which he described as "very solid," the marshal took from the pocket two aluminum–wrapped packages, which were found

to contain heroin. Applying the standards of Terry, 13 the court determined that the marshal's reactions to the unusual behavior of the defendant were justified. Observing that in the context of a possible airplane hijacking and in view of the limited time in which the marshal had to act, the level of suspicion required for an investigative stop and protective search should be lowered, the court stated that despite the fact that it could be said that the level of suspicion present in the instant case was lower than in Terry, it was sufficiently high to justify the marshal's action. The court continued that the marshal, believing that the defendant might be a hijacker, was justified in thinking that he was armed and dangerous, so that it was reasonable for him to extract the bulging objects from the defendant's pockets, such objects being sufficiently large to reasonably suggest that they might be weapons. Concluding that under all the circumstances the marshal had satisfied the commands of the Fourth Amendment as interpreted in Terry, the court said that the defendant's use of different names, his extremely anxious behavior, and a very hard bulge in his coats pocket, provided a sufficient basis, in the context of an airline boarding, to stop the defendant and conduct a limited pat–down. The court also noted that there was testimony that the marshal and possibly the ticket agent used a so–called Behavior Pattern Profile to determine whether the defendant fitted the mold of prior hijackers. Commenting that substantial issues concerning such usage were posed, the court, however, said that it did not need to reach the issues, because the justifiable bases for the search were largely independent of the Profile.

Affirming a conviction for the possession and attempted distribution of heroin, in U.S. v. Moreno, 475 F.2d 44 (5th Cir. 1973), the court ruled that the detention and warrantless airport search of the defendant did not offend the Fourth Amendment, in light of the defendant's unusual nervousness, a condition that appeared to increase after he realized that he was being watched by an officer who was a member of an airport antihijacking detail; in view of a prominent bulge on the left side of the defendant's coat, which he seemed unusually apprehensive about; in view of the fact that the defendant had just purchased an airline ticket and was moving toward an airline gate; and in light of the fact that the defendant appeared evasive and hesitant, and lied about his previous destination, once he was confronted by the police. The court noted that, in light of the midafternoon congestion in the airport, the antihijacking officers did not act unreasonably under the Constitution by taking the defendant from a restroom to the airport security office to conduct the search. The brief isolation of the defendant in order to conduct the search furthered the interest of neutralizing any threat that he might pose to others if he, in fact, turned out to be armed and dangerous, the court explained. The court emphasized that most hijackers are seriously disturbed, desperate people who may not be deterred by the risk of death. In addition, the court believed that in virtually all cases the person searched would prefer the privacy of the security office to the public place even though it means temporarily surrendering personal liberty. The court reasoned that the constitutionally acceptable indignity occasioned by an airport search conducted in that manner is diminished rather than heightened by such a procedure.

In People v. Tiffany, 44 Cal. App. 3d 179, 118 Cal. Rptr. 462 (2d Dist. 1974), the court held that where the defendant, in the process of boarding an airplane, alerted a magnetometer through which he was required to pass, a deputy marshal's search of the defendant was fully justified under the expanded Terry doctrine as applied to prospective airline passengers, and its validity under the administrative search doctrine could not be questioned. Furthermore, the search was justified even though the marshal failed to follow F.A.A. guidelines on airline searches, which specified the use of an F.A.A. hijacker profile. According to the court, when the marshal invited the defendant to step over to the table, the use of an F.A.A. profile "played no part in his mental processes." The court cited with approval the principle that the essential

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purpose of the antihijacking system established by the F.A.A. is not to detect contraband or to preserve for trial evidence of criminal activity, but instead predeparture screening procedures are a central phase of a comprehensive regulatory program to insure that dangerous weapons will not be brought onto airplanes and that potential hijackers will be deterred from attempting to board. The court further explained that administrative searches will inevitably result in the exposure of criminal activity unrelated to the search, and adopted the view that, as with all searches subject to the Fourth Amendment, an administrative screening must be measured against the constitutional mandate of reasonableness. Administrative searches, however, may not be readily assessed for reasonableness other than by balancing the need to search against the invasion that the search entails, the court explained.

In State v. Campanponi, 424 So. 2d 163 (Fla. Dist. Ct. App. 3d Dist. 1983), the court ruled that the defendant's motion to suppress cocaine evidence obtained after a seizure at an airport was properly denied, as the search of the defendant was plainly made to detect weapons among air travelers about to board a commercial airliner, and thus the search did not constitute an invasion of the defendant's reasonable expectation of privacy under the Fourth Amendment. Moreover, the court explained, even if the action was deemed a "search," it nonetheless satisfied the Fourth Amendment's reasonableness standard.

In State v. Adams, 125 N.J. Super. 587, 312 A.2d 642 (App. Div. 1973), in which the defendant moved to suppress evidence found on his person when he was frisked by a marshal who was posted at an airport boarding area and who received information that the defendant matched a profile of potential hijackers, who observed the response of a magnetometer, and who observed that the defendant had a drugged appearance and was unable to produce identification, the court held that the marshal acted reasonably in conducting a pat–down; in conducting a further search when the pat– down disclosed a small, hard bulge in a jacket pocket; and in arresting the defendant when this investigation revealed narcotics and paraphernalia. The court noted that the defendant, who was otherwise subject to pat–down and subsequent search when he entered the airport boarding area, did not have a right to avoid the search by requesting an opportunity to return the ticket and leave without boarding.

In People v. Boyles, 73 Misc. 2d 576, 341 N.Y.S.2d 967 (Sup 1973), in which the defendant, who was waiting to board as a standby passenger for a commercial flight, was chosen for a weapons search by security personnel because they believed that he fit a behavioral profile identifying "suspicious persons, if any, who, being of a dangerous caliber, might be planning to board an airplane and likely to cause trouble," the court ruled that a later pat–down of the defendant's garment by a Customs agent was reasonable, and thus narcotics accidentally found during the search were lawfully seized and admissible in his narcotics prosecution.

§ 10[b] Pursuant to hijacker profile—Held invalid

The following authority ruled that the Fourth Amendment did not allow the search of a passenger's person following preboarding suspicion grounded in a hijacker profile.

Although noting that a proper application of an officially approved federal antihijacking system, involving the use of a "profile" consisting of a group of objective characteristics found to distinguish potential hijackers without discriminating on the basis of origin or race, will warrant a weapons search of a person identified by the system, in U.S. v. Lopez, 328 F. Supp. 1077, 14 A.L.R. Fed. 252 (E.D. N.Y. 1971), the court ruled that, where an airline official undertook to "update" the profile, by eliminating one of the fundamental characteristics and introducing an ethnic element for which there was no experimental basis and a second criterion that called for an individual judgment by the airline employees—and this altered system may have been used by airline personnel in selecting the defendant as a potential hijacker—the weapons search, which revealed a package of heroin, was unconstitutional, requiring suppression of the evidence. Commenting that these changes destroyed the essential neutrality and objectivity of the approved profile, the court pointed out that the procedure instituted to detect hijackers became unacceptable when abused in the manner described in the instant case. The approved system, continued the court, survived constitutional scrutiny only by its careful adherence to absolute

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objectivity and neutrality, and when elements of discretion and prejudice were interjected it became constitutionally infirm.

§ 11[a] Scope of search as extending to discovery of illicit drugs—Held valid

In the following cases, the courts held that the scope of a preboarding search properly extended to the discovery of illicit drugs.

In U.S. v. Williams, 516 F.2d 11 (2d Cir. 1975), the court ruled that where an airport search of the defendant's carry– on luggage uncovered two plastic bags at the same time that a one–pound canister with a metal top and bottom was found, airport authorities could reasonably have thought that the canister was an explosive device, with the two plastic bags containing a necessary ingredient for the suspected device, and thus the search was not excessive in scope on the theory that it should have been limited to a search for weapons and should have excluded the plastic bags, which in fact contained heroin.

Recognizing that an initial X–ray screening of an airline passenger's shoulder bag was reasonable when balanced against the danger of hijacking, and that a further search of the bag by an airline employee was justified by the presence on a television monitor of an unidentified mass at the bottom of the bag, in U.S. v. Smith, 643 F.2d 942 (2d Cir. 1981), the court explained that a hand search in which an employee neither removed currency nor noted its serial numbers was a properly minimal invasion of privacy that was consistent with the need to investigate whether the unidentified mass was dangerous. The court noted that, in addressing the contention that the government security agent had tried to use the airline security system to further a narcotics investigation, the court must assess the constitutionality of the security search by examining all the circumstances to determine whether there was an independent and adequate objective basis for the security search in its own right; the subjective motives of the airline security personnel were not germane to the inquiry.

In U.S. v. Gorman, 484 F. Supp. 529 (S.D. Fla. 1980), the court held that a search of the defendant's shoulder bag, which produced a quantity of cocaine, did not violate the Fourth Amendment despite the private security officer's inability to find any items in the bag that could have accounted for images resembling knives allegedly seen on an X–ray during a preflight airline security screening, as the central inquiry is whether the officer's suspicions were based on a reasonable belief that the defendant's bag contained dangerous items or weapons, not whether actual items were discovered during the search. The court applied the principle that although the discovery of cocaine in a search for weapons may be unexpected by the government, there is nothing in the Constitution that gives an apprehended felon the right to complain because the product of the protective action was not anticipated.

In U.S. v. Acosta, 202 F.3d 279 (9th Cir. 1999), affirming the denial of collateral relief sought by a federal prisoner challenging his drug conviction and sentence under 28 U.S.C.A. § 2255, the court ruled that prisoner's counsel had not provided ineffective assistance of counsel by failing to bring a motion to suppress evidence, since even if the plaintiff's disputed version of the facts were true, the warrantless airport security check at issue was a reasonable administrative search under the Fourth Amendment, as airport security discovered the disputed crystal methamphetamine in the course of a limited search for weapons or explosives. The court cited the principle that although routine airport screening searches will lead to the discovery of contraband, this practical consequence does not render the searches

unconstitutional. The court also rejected the contention that the search was an impermissible "Terry" stop, 14 since airport screening searches that are conducted as part of a general regulatory scheme are permissible under the Fourth Amendment and do not require a showing of probable cause or a warrant.

Ruling that where an airport checkpoint magnetometer indicated the presence of a metal object that could have been a weapon in hand luggage carried by the defendant, a warrantless search of the luggage was reasonable for the protection of other passengers, in view of the frequency of air piracy, in State v. Damon, 18 Ariz. App. 421, 502 P.2d 1360 (Div. 2 1972), the court held that the seizure of narcotics discovered was permissible since an officer need not ignore evidence

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of other crimes that may uncovered during a lawfully initiated search. Setting forth the operative principles, the court stated that the frequency of air piracy and the danger and fright that it presents to airline passengers fully justifies a warrantless search under the Terry doctrine and is reasonable if it is limited to a search for weapons. A reading on the magnetometer indicating the presence of a metallic object that could be a weapon is sufficient to justify a further intrusion, and the pat–down standards of Terry apply only to hand–carried baggage or packages capable of being so searched, the court explained. Objects that are not capable of being readily searched, such as briefcases, may be opened if they are capable of containing weapons. Further, the court rejected the defendant's contention the magnetometer must be used in conjunction with an existing antihijacking profile for there to be a valid search. The court explained that to adopt that requirement would entail that persons detected by the magnetometer to be carrying an unusually high content of ferrous metal could not be searched, absent their valid consent, unless they also met the profile. Thus, the court reasoned, if the prospective hijackers could dress and appear as ordinary citizens, they would be immune from search. Although the airline could prevent them from boarding the aircraft, it would not prevent the hijacking from commencing at the boarding area instead of in the aircraft, the court pointed out, and such a result would be "playing games" with the lives of innocent persons. The record disclosed that the search conducted here was properly limited to a search for weapons, the court determined.

Noting that the validity of a preboarding airport search made for the purpose of discovering weapons and explosives and deterring hijackers, and the validity of an incidental discovery of contraband during the search, did not depend on the presence of a suspicious magnetometer reading or in the passenger satisfying a hijacker profile, in People v. Stasi, 45 Cal. App. 3d 373, 119 Cal. Rptr. 447 (1st Dist. 1975), the court ruled that a Fourth Amendment challenge was not viable where the security procedures in force at an airport consisted of a magnetometer check of each passenger individually and a personal search of each piece of hand luggage, and all passengers boarding at the airport were subjected to the same process, a search in which a security guard inspected the passenger's sleeping bag and found a lump in the middle of it. The passenger stated that the lump was "nothing;" and the security guard then proceeded to unroll the sleeping bag, revealing marijuana. The court explained that the search here complied with the rule that airport screening procedures must be as only as intrusive as is necessary to thwart hijackers and saboteurs by disclosing the presence of weapons or explosives.

Noting that if an initial intrusion is justifiable as part of a regulatory effort to prevent the hijacking of airplanes, the incidental discovery of contraband does not contravene the Fourth Amendment, in People v. Farlow, 52 Cal. App. 3d 414, 125 Cal. Rptr. 118 (4th Dist. 1975), the court held that an airport checkpoint security guard, while inspecting persons with carry–on luggage for weapons and bombs, acted reasonably under the Fourth Amendment in conducting an administrative search when, after opening a cigarette package because of an unusual bulge and finding inside an opaque plastic balloon containing a powered substance, she gave the balloon to another member of the team, who identified its contents as heroin or heroin derivatives. The court noted that although the guard did not have the knowledge or experience to recognize the balloon's contraband nature, the fact that she sought to identify its contents by referring it to other members of her inspection team, standing nearby, and rule out its being a bomb, did not constitute an unreasonable extension of the concededly valid initial screening. Plastic containers, such as the one here, might hold explosives, the court noted. The court cited with approval the principle that merely because airport searches, by virtue of sheer numbers, will inevitably lead to the detection of some individuals involved in criminal conduct unrelated to the commandeering or destruction of aircraft does not alter the fundamentally administrative character of the screening procedure.

In Shapiro v. State, 390 So. 2d 344 (Fla. 1980), discussed in § 12[a], ruling that under the totality of the circumstances, the defendant voluntarily consented to a preboarding airline search, as he was fully aware that on entering the security boarding area of the airport, he was subject to a security search for weapons or other devices that could be employed to hijack an airliner, the court held that merely because drugs instead of weapons were found did not mandate suppression of the evidence, as the search was proper.

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In a prosecution for possession of cocaine, a search of the defendant in a ladies restroom did not violate her Fourth Amendment rights, even though a security guard took the defendant to the restroom solely to search for drugs after the defendant had activated a mental detector with contraband wrapped in foil paper while attempting to board an airplane, the court ruled in State v. Baez, 530 So. 2d 405 (Fla. Dist. Ct. App. 3d Dist. 1988), explaining that the metallic object could have been a weapon and the right to search was not changed by the security officer's premature and unjustified belief that the metallic object was a container for drugs and not a weapon.

In State v. McMillan, 553 So. 2d 385 (Fla. Dist. Ct. App. 4th Dist. 1989), the court ruled that even though a deputy sheriff did not consider a threat to security objects that were found in the defendant's suitcase after it was seized when the defendant was found to be in possession of a handgun in an airport security area, there was probable cause to seize and examine the objects because their packaging and odd shape led him to conclude, based on his training and experience, that they contained contraband. The court explained that even after the seizure of the handgun, the right to search the suitcase did not terminate, but continued so that any ammunition or other object that might present an airline security risk could be found and confiscated.

§ 11[b] Scope of search as extending to discovery of illicit drugs—Held invalid

The courts in the following cases held that the scope of a preboarding search could not extend to the discovery of illicit drugs.

Noting that other contraband inadvertently discovered during a routine airline checkpoint search for weapons and explosives may be seized and introduced in evidence at trial even though unrelated to airline security, but lawful airline security searches of carry–on luggage may not be enlarged or tailored systematically to detect contraband, in U.S. v. Doe, 61 F.3d 107 (1st Cir. 1995), the court ruled that the defendant's Fourth Amendment rights were violated by a warrantless search of blocks enclosed in opaque packaging and seized from his carry–on luggage at an airport security checkpoint, in light of the fact that any exigency ceased when the blocks were removed from the arrest scene and sent to a police station to test the contents for illicit drugs. The court explained that piercing of the blocks to search for drugs could not properly be viewed as a mere extension of the hand search for weapons or explosives initiated at the checkpoint. The court noted that, even assuming that an airport security checkpoint search throughout a carry–on bag and all closed containers within the bag would be justified on the ground that the passenger's implied consent is irrevocable, this implied consent would be limited to permitting searches to detect weapons and explosives. The court concluded that because the government failed to demonstrate either that its warrantless searches of the opaque packaged blocks were permissible under the Fourth Amendment, or that the admission of the tainted evidence was harmless beyond a reasonable doubt, the conviction would be reversed.

In U.S. v. Politano, 491 F. Supp. 456 (W.D. N.Y. 1980), the court ruled that the fact that there was a large, unidentifiable mass at the bottom of the defendant's shoulder bag, which appeared on an X–ray scanning device at airport security checkpoint, was not an adequate reason for airport security personnel to search, in light of the inevitable influence caused by the Drug Enforcement Administration (D.E.A.) agent's request that the personnel assist him by obtaining identification from the defendant and a codefendant and by obtaining serial numbers from money that he suspected was being carried by one of them. The court explained that an airport search, that follows a triggering of devices for screening passengers and baggage is ordinarily justified by the public's paramount concern for air safety and the great danger to life and property that hijacking poses to society, meets the test of reasonableness if the search is conducted in good faith to prevent hijacking, but the existence of an airport security checkpoint cannot be exploited by the government agents for purposes other than flight safety, since the warrantless intrusion into the privacy of airline passengers may be justified only by the limited purpose of air safety. Concluding here that there was an inexcusable exploitation of the airport security function, the court noted that although there is no per se rule invalidating all searches by airport security personnel conducted after warnings by officers investigating crimes collateral to airport security, the court must inquire into whether there was an independent and adequate basis for the airport security search in its own right. In this case the

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"independent basis" for the search proffered by the government was not sufficient, since the fact that there was a large, unidentifiable mass at the bottom of the defendant's bag was not an adequate reason to search in light of the inevitable influence caused by the D.E.A. agent's request for assistance. Therefore, the defendant's motion to suppress all evidence obtained in connection with the search at the security checkpoint was granted.

§ 11.5. Scope of search as extending to discovery of other contraband

[Cumulative Supplement]

The following authority considered whether the scope of a preboarding search properly extended to the discovery of contraband other than illicit drugs.

CUMULATIVE SUPPLEMENT

Cases:

Extent of warrantless airport checkpoint search went beyond permissible purpose of detecting weapons or explosives but was motivated by a desire to uncover contraband evidencing ordinary criminal wrongdoing, requiring suppression of cash and false passports found in the search; agent had already determined that defendant was not carrying weapons or explosives when she decided to open the envelopes containing the cash and passports, and decision to do so was not based on any concern that defendant was a security risk, but on suspicion that he possessed the cash for illegal or fraudulent purposes. U.S.C.A. Const.Amend. 4. U.S. v. Fofana, 620 F. Supp. 2d 857 (S.D. Ohio 2009).

Transportation Security Administration (TSA) employees' search of airline passenger's suitcase, after x-ray machine alarmed on passenger's laptop and dense item, which revealed photographs of nude children and other materials contained in envelope, was not for purpose of detecting weapons or explosives or confined in good faith to that purpose, and thus employees extended search beyond valid administrative search, in violation of passenger's Fourth Amendment rights; at some point during inspection, one employee began to review contents of envelope not to detect sheet explosives, but rather out of concern for children shown in photographs to determine if she had found sufficient evidence to call upon her supervisor. U.S.C.A. Const.Amend. 4; 49 U.S.C.A. § 44901. U.S. v. McCarty, 672 F. Supp. 2d 1085 (D. Haw. 2009).

[Top of Section]

[END OF SUPPLEMENT]

§ 12[a] Consent to search—Established

In the following cases, the courts held that express or implied consent was established to support the validity under the Fourth Amendment of an airport security search.

Determining that an airline passenger was found to have consented to a search of his luggage at an airport security checkpoint, in U.S. v. Freeland, 562 F.2d 383 (6th Cir. 1977), the court emphasized the absence of coercion under the circumstances, citing a sign at the ticket counter advising passengers that checked baggage could be examined, and that if the passenger asked for a return of the bag it would have been returned even though the luggage was not to accompany the passenger inside the passenger compartment. Further, the search took place in the public area of the airport, and the passenger was not restrained until after the bag had been opened and a police officer had been summoned after a weapon was discovered. Finally, the court noted that the airport officials had a compelling need to satisfy themselves that it was safe to accept the luggage for transportation.

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Ruling that an airport search of luggage, which was part of an antihijacking program, was reasonable and did not violate the Fourth Amendment, in U.S. v. Crain, 485 F.2d 297 (9th Cir. 1973), the court ruled that the defendant's acquiescence to the airport search was not rendered involuntary merely because the defendant was responding to a request by a federal officer or by an airline employee who was co–operating with federal officers. Furthermore, the court concluded that the defendant was not entitled to an in camera showing of the F.A.A.'s skyjacker profile, since the search would have been valid even without the profile.

In U.S. v. Canada, 527 F.2d 1374 (9th Cir. 1975), in which the suitcase in question was voluntarily placed on a conveyor belt that led directly to a checkpoint and through an X–ray machine, the court ruled that although the appellant and her companion may not have expected the contents of the suitcase to be subjected to a visual search, the facts were sufficient to support a finding of voluntary consent–in–fact to this further search. The airline agent here asked the appellant's companion for permission to open the suitcase and explained the need to do so before opening it. Neither he nor the appellant, who was present throughout the exchange, objected. The court reasoned that the airline agent was fully justified in assuming she had the consent of both. The appellant had further contended that she could not be bound by her companion's consent to the search, insisting that precedent upholding third–party consent all involved absentee defendants. The court explained, however, that this claim was refuted by the principle established by the leading case, U.S. v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974), in which the defendant was arrested in the yard of the house where he was staying. The officers did not ask his consent to search the house; instead, they went to the door and obtained permission to search from a woman who was living there with him. The Court had looked not to the defendant's presence or absence but to whether or not the third party possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. Here, the appellant granted her companion sufficient control over the suitcase to allow a reasonable inference that she assumed the risk that he might permit it to be searched at the airport checkpoint. Further, the preponderance of the evidence would warrant a finding that the appellant was acting as a courier and that her companion was in full charge of the boarding operation and gave effective consent on her behalf, the court concluded.

In U.S. v. Harnage, 662 F. Supp. 766 (D. Colo. 1987), the court held that the defendant's consent to a search of his bag at an airport was valid, as he placed it on an X–ray machine conveyor belt and expressly stated to a government agent that he didn't care if the agents searched the bag. The defendant never objected to the search and no threat, promise, or coercion was used to obtain his consent, the court explained. Based on the defendant's answers to the agent's questions concerning money that was found in the bag, and based on the agent's belief that the attendant circumstances indicated the money was contraband, the agent had cause to seize the money, absent some indication that it was lawfully possessed by the defendant. At that point, the defendant was specifically told that he was not under arrest and was free to leave, but he elected to follow the agent to his office where a more thorough search of the bag disclosed the marijuana at issue, thus establishing probable cause to arrest the defendant. Denying the defendant's pretrial motion to suppress evidence, the court noted that the search of the bag after an X–ray scanning detected suspicious shapes was permissible even without the defendant's consent. Furthermore, statements made by the defendant after the government indicated that it would need to hold and count the money found in his bag during the airport search were admissible, the court explained, rejecting the defendant's contention that he was being held "hostage" because the government retained his money. The defendant had challenged the admission of the evidence on several grounds, including that the statements were the result of an illegal arrest or unlawful search and seizure; were involuntary; were made prior to any waiver of his Fifth and Sixth Amendment rights; or were the result of entrapment or overreaching. Rejecting the defendant's claims, the court reasoned that the defendant's money, if it were indeed his money, was merely seized. In any event, the defendant himself was not seized or coerced into making admissions while in a custodial setting.

In State v. White, 26 Ariz. App. 505, 549 P.2d 600 (Div. 1 1976), discussed in § 4[a], the court held that although an airport preboarding luggage search is justified only so long as it recognizes the right to avoid the search by electing not to board, it is, however, not fatal to the validity of the search that the person inspecting the baggage does not personally advise the

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

passenger that he may decline to board the flight rather than submit to a search. The court explained that a passenger's consent to the search may be implied from the presence of boarding signs clearly stating that luggage is subject to search.

Affirming a conviction for the possession of cocaine, in People v. De Strulle, 28 Cal. App. 3d 477, 104 Cal. Rptr. 639 (2d Dist. 1972), the court ruled that consent to search the defendant's luggage before he boarded an aircraft could have been freely given even though the defendant did not know that a United States marshal, who was in plain clothes, was an officer. The court went on to conclude that voluntary consent was indeed present here, citing as evidence of express consent the fact that when the defendant approached the magnetometer he gave to the airline agent the luggage in which the drugs were later found. Furthermore, after the luggage registered a very high reading on the magnetometer, which indicated to the officer that a weapon might to inside the suitcase, she put it on a table and he replied in the affirmative to the agent's questions about whether the luggage belonged to him and whether she and the officer might search it. The court also found evidence of implied consent, noting that there were signs and announcements in the boarding area that passenger luggage would be searched, and that the defendant did not refuse to co–operate or engage in any action inconsistent with consent to the search. The court also pointed out that air piracy and the security efforts to prevent it were matters of common knowledge.

In People v. Hefty, 130 Cal. App. 3d 350, 181 Cal. Rptr. 679 (3d Dist. 1982), in which the defendant in an airport security area was advised that his hand luggage, too large for the X–ray machines, would have to be hand–searched, and he did not verbally respond but unlocked the suitcase for the guard, the court ruled that by voluntarily unlocking his suitcase to permit the airport security search, the defendant consented to the search. The consent was not coerced, as he was not suspected of any crime and was free to leave without restraint, the court explained. During the search, the guard removed a manila envelope from the pocket of a pair of pants. She asked the defendant what the envelope contained, to which the defendant responded, "letters." However, because the contents "definitely did not feel like letters," the guard opened the envelope to look for dangerous objects. Inside was another envelope containing two plastic baggies with white powder.

In Shapiro v. State, 390 So. 2d 344 (Fla. 1980), the court ruled that under the totality of the circumstances, the defendant voluntarily consented to a preboarding airline search, as he was fully aware that on entering the security boarding area of the airport, he was subject to a security search for weapons or other devices that could be employed to hijack an airliner. The defendant had testified that he knew he did not have to go through the checkpoint and did not have to board the plane, and that he did not have to carry this suitcase onto the plane. The defendant nonetheless willingly chose to do so and thereby consented to the limited search of his person and baggage. The court reasoned that preboarding searches do not violate the Fourth Amendment if aimed solely at discovering whether a prospective air passenger poses an immediate threat to air commerce; even if the initial purpose of a search is limited to detecting potential hijackers, the search may properly be extensive because an airplane hijacker's weaponry could be any of number of easily concealed things—including plastic explosives or gasoline. The court noted that probable cause is not required to justify this limited search in the security boarding area of an airport, since the defendant did not have a reasonable expectation of privacy to be free from the particular intrusion involved, and even if the defendant had a subjective expectation of privacy, society was not prepared to recognize that expectation as reasonable.

In State v. Hanson, 97 Haw. 71, 34 P.3d 1 (2001), as amended, (Nov. 7, 2001), ruling that the defendant, an airport patron, did not have a reasonable expectation of privacy in a tan plastic bag wrapped in duct tape, which was found inside a toolbox during an airport security check, and thus a warrantless search of the bag was reasonable, the court explained that the defendant consented to a search of the toolbox. Furthermore, warrantless searches at airport security checkpoints do not offend the state or federal constitutions; and persons boarding an aircraft have a diminished objective expectation of privacy in their belongings. The court reasoned that the defendant impliedly consented to the warrantless search of the bag, since he consented to a search of the toolbox; consent to an airport security search could be imputed from the posted notices and airport security measures; and as the purpose of a security inspection can only be effective if items subject to the search can be identified, searches of such belongings must reasonably extend to containers whose contents cannot be discerned, such as the bag at issue here.

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In People v. Grainger, 117 Mich. App. 740, 324 N.W.2d 762 (1982), the court ruled that an initial X–ray scan of the defendant's briefcase at an airport security checkpoint was done with his implied consent, as the defendant made no objection when an airline employee took the briefcase to be X–rayed, and the defendant accompanied the employee to the X–ray machine and offered to open the briefcase for the security agent. Further, the defendant had no legitimate expectation of privacy in the briefcase, and thus did not have standing to dispute its warrantless search and seizure, since after a police officer arrived when the X–ray machine disclosed the outline of a gun, the defendant disclaimed ownership of the briefcase and therefore abandoned it. Furthermore, the court ruled, even if the defendant was deemed to be in custody for Fourth Amendment purposes, a statement made without Miranda warnings was admissible because it was not the product of interrogation, since the defendant was asked to open his briefcase at the airport security checkpoint and stated that the briefcase did not belong to him.

In People v. Brown, 113 A.D.2d 893, 493 N.Y.S.2d 810 (2d Dep't 1985), finding that the defendant impliedly consented to an X–ray search of his bag, the court noted that the prosecution need not show that the defendant knew of his right to refuse the search as a prerequisite to establishing consent. The defendant, while carrying a garment bag and a small black briefcase, attempted to walk through a magnetometer at an airline security screening area. He was stopped by a supervisor of security and told that he would have to let his bags pass through an X–ray machine. The court noted that two signs located in the searching area, one posted on the X–ray device itself, warned passengers that their baggage was subject to search. The defendant turned over his luggage to the supervisor and as it passed through the X–ray machine, she observed the outline of a gun in the briefcase. The supervisor rescreened the bag and again observed the outline of what appeared to be a gun. She then summoned an airport police officer, who also saw the outline of a gun as the briefcase was placed through the machine for a third time. The briefcase was opened and a white towel was found inside. The officer unrolled the towel and found a revolver with four rounds of ammunition inside, and after finding out that defendant neither had a gun permit nor was a police officer, he was placed under arrest. The supervisor then noticed another white cloth in the open briefcase, which she unwrapped, discovering some needles, cellophane paper, and other paraphernalia.

Ruling that words conveying consent to a search, uttered by a defendant who triggered a magnetometer while passing through an airplane boarding gate and who fit a "highjacker" profile, could not be construed as an involuntary submission to authority that would be insufficient to waive his Fourth Amendment constitutional rights, on the theory that it was incredible that the defendant would have freely consented to the search when he knew that he possessed contraband narcotics, in People v. Lopez, 73 Misc. 2d 537, 342 N.Y.S.2d 420 (Sup 1973), the court emphasized that in an airplane antihijacking search, a possessor of narcotics may readily, voluntarily, and intelligently consent to the search on the presumption that the searcher is interested only in hijack weapons. The court also pointed out that to view the search as involuntary under these circumstances would mean that expressions of consent would make warrantless searches permissible only if the speaker was not aware that the search would disclose damaging evidence—a fact usually not within the officers' knowledge. This would destroy the principle permitting a search on consent, and would enable experienced criminals to deceive officers who would rely on the words of consent and consequently fail to secure a search warrant that would have been theirs for the asking, the court explained.

Ruling that an airport screening search required by regulations promulgated pursuant to the Air Transportation Security Act of 1974, 49 U.S.C.A. §§ 1356, 1511, comported with the Fourth Amendment requirement of reasonableness, as the search was carefully circumscribed in accordance with need and was conducted as part of a general regulatory scheme in furtherance of administrative purpose, in Com. v. Vecchione, 327 Pa. Super. 548, 476 A.2d 403 (1984), the court upheld that suppression court's determination that the defendant voluntarily submitted his bag to X–ray examination, since he was informed that the examination was required if he wished to continue on the flight to Philadelphia and at that point he could have walked out of the airport. Furthermore, prominently posted notice was given that he had a right to refuse the X–ray inspection, yet he placed the bag on the conveyer belt and it went through the machine, the court noted.

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§ 12[b] Consent to search—Not established

In the following cases, the courts held that express or implied consent was not established to support the validity under the Fourth Amendment of an airport security search.

In U.S. v. Kroll, 481 F.2d 884 (8th Cir. 1973), the court ruled that the defendant, in carrying an attache case while attempting to board an airplane although he assertedly knew that he would thereby be subject to search, did not consent to a search of the case, as the defendant's actions in holding the file section of the case closed and in shifting the case as a United States marshal approached rendered the marshal's warrantless search of the small envelope in the case unjustified. The court explained that the marshal's subjective belief, based on limited military experience, that nitroglycerin or other explosives could have been placed in the envelope was not sufficient under the circumstances to establish that it was reasonable to examine the envelope's contents. The court reasoned that the gestures were ambiguous at best, and could just as easily have been the instinctive response of an innocent person protecting his privacy as a "guilty" person protecting weapons or explosives from discovery.

In U.S. v. Meulener, 351 F. Supp. 1284 (C.D. Cal. 1972), where the defendant, who sought to board an aircraft while carrying a small suitcase, assertedly met a hijacker profile and caused a magnetometer to register positive as he passed by it, and had opened the suitcase only after he was ordered to do so by a marshal at a time when the defendant was not free to leave or avoid a search, the court ruled that the defendant did not consent to the search, even though signs in the boarding area indicated that passengers and baggage were subject to search. If the defendant in this case was not in fact going to board the plane—and he testified that he would not have attempted to board had he been given the opportunity to decline to undergo the search—he would pose no danger to the passengers and crew on the aircraft. Accordingly, the governmental interest that justifies a physical search of the person or hand luggage of a prospective passenger in the process of boarding an airliner is lacking in the case in which the prospective passenger declines to board the plane. To meet Fourth Amendment guarantees, the prospective passenger must be advised that he has to submit to a search if he wants to board the plane, but that he can decline to be searched if he chooses not to board the aircraft. The Fourth Amendment rights of a prospective passenger who chooses not to board an airliner should be coextensive with those of anyone else in the air terminal, the court explained. The mere fact of meeting the profile and activating the magnetometer does not establish grounds for an involuntary search. A person who declines to board the plane can, like anyone else in the air terminal, be monitored by marshals and airline personnel, and if he acts in a manner that would make him liable to search under the usual search standards, he can then be searched, the court reasoned. But to require submission to a forced search under the facts presented here would establish a unique Fourth Amendment standard for prospective passengers at airline boarding gates, the court concluded.

In U.S. v. Allen, 349 F. Supp. 749 (N.D. Cal. 1972), the court ruled that the defendant's consent to a search was not valid under the Fourth Amendment, where he had no reason to believe, after an initial inquiry and detention, that he was free to leave the airport, and his uttered words of assent to a request by Customs officers to open his bag came only after repeated requests accompanied by references to the inevitability of a search by local authorities. Determining that the defendant had not intentionally relinquished a known right to refuse a warrantless opening of the bag, the court relied on the principle that, although airlines have an absolute right to require a passenger to submit to a search of his person and baggage as a condition to boarding an aircraft, a valid waiver of Fourth Amendment rights requires that the passenger must be aware of his option to avoid the search by not boarding the aircraft. The defendant had checked his suitcase at the airline counter, picked up his ticket (made out in a different last name), and went to the gate. After presenting his ticket and entering the holding area, he was asked for identification by the airline ticket agent who noted that he fit a hijacker profile. After the defendant failed to produce any identification, the agent summoned the Customs security officers, who administered a magnetometer test upon the defendant, which registered a slightly positive reaction. After he denied that he was carrying large metallic objects, the defendant acquiesced to a "pat down" search. The agents found a wallet in his jacket bearing the identification of the defendant's brother, a fact that the defendant had some difficulty explaining. The agents then advised the defendant that he would be barred from boarding the plane and directed him to stand at

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

a designated area near the jetway while they supervised the inspection of the remainder of the passengers. Thereafter, they led him to the Customs Office, administering the Miranda warning on the way. The defendant's previously checked suitcase was brought to the office at which time the agents asked for his consent to open it. The defendant replied: "There are no weapons in there. I don't see why you need to look in the bag." The agents then called several law enforcement agencies in an attempt to discover the defendant's true identity and whether he had a criminal record. The defendant testified that at this point the agents told him that the local authorities would ultimately open the bag and that, "[i]f you open it up we'll be able to get this thing straightened out, and you can go." The defendant testified that he believed his options at that point were to either open the bag or be arrested. He then agreed to the search and the officers found the contraband. The defendant was again administered the Miranda warning and placed under arrest.

In State v. Wiley, 69 Haw. 589, 752 P.2d 102 (1988), holding that the search of a pillow in the defendant's luggage at an airport security checkpoint could not be justified by exigent circumstances, as the defendant had already been arrested and his belongings safely immobilized under the control of the police, the court also recognized that the defendant's action in placing his luggage on a conveyor belt at a security checkpoint did not impliedly and irrevocably manifest consent to a warrantless search of the items. Rejecting the state's contention that the defendant had consented to the search, the court noted that by submitting his luggage to an airport screening search, the defendant did not relinquish his constitutional right to be free from searches that fall outside the limited scope of that screening.

§ 13[a] Withdrawal of consent—No right to withdraw consent

In the following cases, the court ruled that there was no right to withdraw consent to an airport security screening.

In U.S. v. Hartwell, 296 F. Supp. 2d 596, 125 A.L.R.5th 701 (E.D. Pa. 2003), discussed in § 18, the court recognized that a prospective airline passenger impliedly consents to a search when placing hand–held luggage on an X–ray belt and walking through a magnetometer, and, once this procedure begins, the passenger cannot later revoke that consent. The court explained that the Fourth Amendment does not require Transportation Security Authority agents to give a prospective passenger who has triggered an alarm the option of avoiding a secondary search by choosing not to fly. The agents must ensure the safety of all passengers and maintain the integrity of the sterile security area, which can be accomplished only if all alarms triggered at the checkpoint are resolved before allowing a passenger to leave the secure area. Noting that by submitting to the screening process, the defendant impliedly consented to the search and was lawfully required to complete the search to determine the cause of the alarm, the court observed that the defendant was on notice that prior to boarding his flight he would have to pass through the magnetometer and submit his carry–on luggage to an X–ray examination. Explaining that defendant had flown before and had submitted to such searches in the past, the court pointed out that, indeed, after the events of September 11, 2001, the defendant could not plausibly claim that he did not know of the screening requirements.

Comment

The court in U.S. v. Hartwell, 436 F.3d 174 (3d Cir. 2006), § 9[a], in affirming U.S. v. Hartwell, 296 F. Supp. 2d 596, 125 A.L.R.5th 701 (E.D. Pa. 2003), aff'd, 436 F.3d 174 (3d Cir. 2006), held that the search of the defendant was justified by the administrative search doctrine.

Noting that standards for initiating a search of a person at an airline boarding gate should be no more stringent than those applied in border–crossing situations, and thus may be predicated on a mere or unsupported suspicion, and that in the critical preboarding area reasonableness does not require that officers search only those passengers who meet an F.A.A. hijacker profile or who otherwise appear suspicious, in U.S. v. Skipwith, 482 F.2d 1272 (5th Cir. 1973), the court rejected the defendant's contention that, once he had reached the point of embarkation where inquiry and possible search procedures were openly in operation, he could freely choose to withdraw. The court found unpersuasive the principle that, if he changed his mind and elected to leave, he would pose no danger to the passengers and crew on the aircraft, since

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this outcome would badly impair the prophylactic purpose of the search procedure, as it would solely benefit a person planning airplane misconduct by allowing him to, perhaps, return later and successfully breach security. Of greater importance, the court explained, was that the very fact that a safe exit is available if apprehension is threatened would, by diminishing the risk, encourage attempts. The court noted that search procedures may very well be more valuable as deterrents than by their role in disclosing threats.

In People v. Bleile, 44 Cal. App. 3d 280, 118 Cal. Rptr. 556 (2d Dist. 1975), discussed in § 4[a], the court held that although the ordinary airplane passenger has a right to avoid a search of luggage by withdrawing from the boarding area and declining to take the flight, the passenger may be detained for investigation if suspicious circumstances reasonably suggest that the passenger is a potential hijacker. The court explained that once the screening process of airplane passengers has begun, its validity is measured by its reasonableness and scope, not by a theory of consent. Thus, a search is not rendered invalid merely because the marshal does not advise the passenger that he may withdraw from the flight rather than submit to a search.

In Morad v. Superior Court, 44 Cal. App. 3d 436, 118 Cal. Rptr. 519 (1st Dist. 1975), the court ruled that, after a magnetometer activation despite the removal of much visible metal from the body of a person seeking to board an airplane, that person cannot avoid a pat–down search by then electing to leave the boarding area. The court reasoned that this rule conformed with the purpose of a regulatory search, as it avoided turning the person loose in an airport after being identified as possibly in possession of weapons or explosives.

In People v. Heimel, 812 P.2d 1177 (Colo. 1991), the court held that the search of the defendant and his bag at an airport was no more intrusive than necessary to satisfy the officer that the defendant was not carrying a weapon, an explosive device, or other destructive substance, and thus was reasonable under the Fourth Amendment, as the search was conducted at the police security office removed from public viewing, and the search of the bag occurred after the defendant refused permission and stated that he would withdraw from the security area. The court recognized that although a potential airplane passenger has the right to refuse an airport security search by leaving the checkpoint area at any time before the screening process begins, and that a refusal, without more, would not furnish any objective justification for a further detention or search, the court explained that once the potential passenger with fair notice of the screening process presents herself or her property at the checkpoint station for screening and the screening process is actually commenced, the person has consented to the screening procedures directed to the discovery of a weapon, explosive, or other destructive substance, and, once the screening process is actually commenced, it may run its full course, including the physical search of carry–on baggage or other items sought to be taken to the preboarding area.

Ruling that an airline passenger could not withdraw consent to a search of luggage after an X–ray machine indicated a potential danger to the security of flight, in McSweeney v. State, 183 Ga. App. 1, 358 S.E.2d 465 (1987), in which an airline passenger was convicted of trafficking in cocaine and possessing marijuana, the court explained that the passenger could not limit his consent to the point at which security personnel discovered the secreted material, and then withdraw the prior consent, repeating the procedure until he was successful in avoiding detection. If the X–ray reveals an unidentifiable object or an identifiable object that could pose a danger to security of the aircraft and passengers, or if the magnetometer detects metal on the person of the passenger, then the mere suspicion of possible illegal activity exists, which justifies further investigation by security personnel, the court explained. The court noted that airport screening procedures are more valuable as preventive measures than as modes for discovering prohibited material, and that there is no constitutional grounds for rewarding a "heads–I–win, tails–you–lose guarantee to criminals" who try to board aircraft with weapons.

§ 13[b] Withdrawal of consent—Right to withdraw consent recognized

The following authority recognized the right to withdraw consent to an airline security screening.

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

In U.S. v. Miner, 484 F.2d 1075 (9th Cir. 1973), the court ruled that where the defendant responded by saying "[n]o, it's personal" when airline employees attempted to extend a boarding area search to his suitcase, the airline employees would have been justified in refusing to permit him to board the airplane, but could not compel him to submit to a further search. The court explained that upon the defendant's apparent withdrawal of implied consent to the search, the airline employees' request for the defendant to open his suitcase could be justified only if he continued to display an intent to board the plane or if he otherwise consented to a search. The court concluded, however, that the record on appeal was inadequate to determine whether the search was lawful, since a disposition of the case required resolution of a conflict between the defendant's testimony and that of the airline employees. No findings of fact were made on this issue at the suppression hearing, and the court was unwilling to uphold the district court ruling by applying a principle that, in the absence of factual findings, any reasonable view of the evidence that would sustain the court's order will suffice. Therefore, the case was remanded for further evidentiary findings on the conflicting evidence over whether the search was consensual.

B. Validity of Seizures

§ 14[a] Seizure of persons—Held valid

[Cumulative Supplement]

In the following cases, the court ruled that the seizure of a person in the circumstances of an airport security screening did not violate the Fourth Amendment.

See U.S. v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980), in which the Court ruled that the conduct of federal airport security agents did not amount to intrusion upon any constitutionally protected interest and the agents' initial approach to the defendant was not a "seizure," even though the defendant was not expressly told by agents that she was free to decline to co–operate with their inquiry. The Court noted that the agents wore no uniforms and displayed no weapons, did not summon the defendant to their presence but instead approached her and identified themselves as federal agents and requested, but did not demand, to see the defendant's identification and airline ticket. Furthermore, the events took place in a public concourse at an airport, and nothing suggested that the defendant had any objective reason to believe that she was not free to end the conversation and proceed on her way.

In U.S. v. Scott, 406 F. Supp. 443 (E.D. Mich. 1976), the court ruled that after an airport security guard conducting a preflight screening observed a small transparent packet containing white powder and alerted a Drug Enforcement Administration agent of that fact, the information from the guard created probable cause to believe that the defendant was committing a felony in his presence, and, thus, the arrest of the defendant by the agent was proper. The court further noted that, since the guard had reason to suspect that a metal clasp on a clipboard in an attache case that appeared on an X–ray screen as a black oblong object might be a weapon or explosive device, the guard had a legal basis to conduct a hand search of the attache case of a defendant who was preparing to board a commercial aircraft, where the guard was looking for a possible "concealed deadly or dangerous weapon, which is, or would be, accessible to such person in flight" as contemplated under Federal Aviation Act of 1958, § 902(l)(1), as amended, 49 U.S.C.A. § 1472(l)(1). The court explained that the search was lawfully made and was not tainted in violation of the Fourth Amendment by the prior suggestion to the security guard by a Drug Enforcement Administration agent that the defendant had been seen with large sums of money and thus the security guard should be particularly observant if he were to find legal reason to hand–search the defendant's luggage.

Noting that once a passenger who presented himself at an airport security checkpoint had no constitutional right to revoke his consent to a search of his shoulder bag once it entered an X–ray machine and the passenger had walked through the magnetometer, in U.S. v. Herzbrun, 723 F.2d 773 (11th Cir. 1984), the court found that officers had probable cause for the defendant's arrest, where, at the time of the arrest, the officers knew that the defendant had presented himself at an airport security checkpoint; that airport security officers had discovered a dark solid mass in the defendant's shoulder bag

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that could have been gunpowder, plastic explosives, narcotics, or any number of substances; that the defendant attempted to withdraw his consent to a search of the bag when the mass was discovered and stated that he had decided not to board his flight; and that the defendant hastily departed after creating a disturbance including shutting the shoulder bag on a security officer's hand. The defendant was subject to a search based on mere suspicion, just as he would have been if he had attempted to cross another Fourth Amendment "critical zone"—an international border—the court explained. Furthermore, his conduct after the search began gave the police officers sufficient cause to detain him as he entered a taxi at an airport taxi stand after fleeing. The fact that the defendant was able to get to the taxi stand before the police moved in was of no constitutional import, the court noted, since the police were charged with the safety of the air traveling public and with determining that every person and parcel presented for boarding was harmless. The police thus had a legitimate interest in making a conclusive determination on the defendant's conduct and presence in the airport, otherwise they would have been impeded in their task of deterring, identifying, and investigating those planning misconduct aboard airplanes.

In State v. Crisanti, 220 Ga. App. 705, 470 S.E.2d 314 (1996), the court ruled that the investigative detention of an airline passenger who was carrying a briefcase that police suspected was dangerous was reasonable even though the police officers removed the passenger from the airport tarmac to an airport precinct, as the officers did not want to open the briefcase on the tarmac, fearing that it might contain explosives because the passenger, who told them that he was in the jewelry business, explained that the briefcase could emit an electric shock when activated by remote control. Furthermore, the court noted, removing the passenger to the precinct minimized the intrusiveness of the search and protected other passengers. The court applied the principle that a person entering an airport security area may be searched on mere suspicion of possible illegal activity, and the search may continue until officials are satisfied that no harm will come of allowing passenger to board the plane, and thus consent to a search may not be withdrawn after the detection devices indicate a threat to flight security.

CUMULATIVE SUPPLEMENT

Cases:

Although prospective airline passenger informed airport security personnel that he no longer wished to board airplane and wanted to leave airport, administrative search with magnetometer wand resulting in discovery of methamphetamine in his pants pockets was constitutionally reasonable without his consent, in support of denial of his motion to suppress evidence, since passenger had attempted entry into secured area of airport by placing items on conveyor belt of x-ray machine and initially walking through magnetometer, search was minimally intrusive, and 18-minute detention was not prolonged beyond time to reasonably rule out weapons or explosives, given passenger's denial that anything was in his pockets. U.S.C.A. Const.Amend. 4; 49 U.S.C.A. § 44901; 49 C.F.R. § 1540.107. U.S. v. Aukai, 497 F.3d 955 (9th Cir. 2007).

Transportation Security Administration (TSA) agents may briefly detain a traveler for purposes of completing a security search without violating the Fourth Amendment. U.S. Const. Amend. 4. Hernandez v. United States, 34 F. Supp. 3d 1168 (D. Colo. 2014).

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§ 14[b] Seizure of persons—Held invalid

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

In the following cases, the court ruled that the seizure of a person in the circumstances of an airport security screening violated the Fourth Amendment.

In U.S. v. Moore, 483 F.2d 1361 (9th Cir. 1973), the court ruled that government agents who were present at an airline boarding area did not have probable cause to arrest the defendant, who had failed to present a physical description to satisfactorily identify himself as the person to whom the airline ticket had been issued, and who exhibited symptoms of nervousness and appeared to be under the influence of alcohol or drugs when he was denied permission to board the aircraft. The defendant's conduct was, at most, merely suspicious, and did not give rise to probable cause for an arrest, the court explained, as his nervousness, confusion, and extreme forgetfulness were consistent not only with intoxication induced by alcohol or drugs, but also with the innocent circumstance of ill health, or extreme but innocent anxiety generated by a discomforting personal confrontation with the airline employees and government agents. Accordingly, the court determined that a search of the defendant's bag was not justifiable as a lawful search incident to a valid arrest.

Ruling that an officer had no reasonable, articulable suspicion that an airline passenger with large sums of money in her baggage was carrying contraband or had evidence of a crime, as required to support a warrantless seizure of the passenger and her luggage under the "Terry" stop principle, in U.S. v. Williams, 267 F. Supp. 2d 1130 (M.D. Ala. 2003), the court explained that the officer had no objective reason to doubt the veracity of the passenger's explanation for why she was carrying the money or to suspect her of any wrongdoing, and the only "evidence" he had of any crime was the fact that the passenger was carrying a large sum of money and a few inconsistencies in her and her suspected traveling companion's accounts of how they met, regarding a meeting that, in any case, had no connection to the money in the bags. The court noted that, even if the officer was deemed to have had a reasonable, articulable suspicion to support a limited seizure, the length of the passenger's detention here was excessive, as she was detained for four hours, she missed her original flight and all later flights that day, and there was evidence of a lack of police diligence, specifically that the police did not seek to have a drug–sniffing dog examine the passenger's bags until the following day. However, the court ruled that the government had statutory authority to retain the money seized from the defendant pending resolution of the case, even though the later detention of the defendant and her luggage constituted an unlawful seizure that rendered the evidence inadmissible as evidence in the defendant's criminal trial.

§ 15[a] Seizure of baggage or its contents—Held valid

In the following cases, the court ruled that the seizure of baggage or its contents in the circumstances of an airport security screening did not violate the Fourth Amendment.

In U.S. v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66 (2d Cir. 2002), in which a claimant appealed from a judgment of civil forfeiture in favor of the United States, alleging that his funds were seized unlawfully after a routine security search at an airport, the court ruled that, although the claimant had a reasonable expectation of privacy in his briefcase, and thus the search of his carry–on luggage was a search within the meaning of the Fourth Amendment, and the mere fact that airline passengers know that they must subject their personal effects to reasonable security searches does not mean that they are automatically consenting to unreasonable searches, the airport security personnel nonetheless were entitled to detain money orders found in the claimant's carry–on luggage during the search, pending arrival of a law enforcement agent. Thus, suppression of the funds as evidence in the civil forfeiture proceeding was not warranted. Applying the "plain view" doctrine, the court explained that it was readily apparent to airport security personnel performing the search for weapons that the claimant's bag was filled with stacks of unsigned, undesignated money orders in small denominations. According to the court, it is well settled that, under the plain view doctrine, law enforcement personnel may seize an item without a warrant if it is immediately apparent that the object is connected with criminal activity if the officers viewed the object from a lawful vantage point. The determination of what constitutes a lawful vantage point looks to the activity that brought the object into plain view, which in this case was a search of the briefcase by airport security personnel. As long as the scope of the initial search was no more intrusive than necessary to achieve its purpose of detecting weapons or explosives, then it was of no constitutional moment that the object found was

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not what was sought, the court explained. The court found unpersuasive the claimant's argument that the scope of the initial search of his bag for weapons, viewed ex ante, was impermissibly broad. The court found no argument or evidence, for example, that the security personnel looked into areas or opened packages that could not possibly contain weapons or explosives. The court viewed the claimant's argument as, in effect, contending that the discovery of items other than weapons or explosives itself retroactively invalidates the initial search, because it indicates that the search exceeded its permissible scope. This reasoning, however, was faulty, as it would eviscerate the plain view doctrine altogether, the court noted.

In U.S. v. Avery, 137 F.3d 343, 1998 FED App. 0059A (6th Cir. 1997), in which the defendant had entered a conditional guilty plea after denial of his motion to suppress evidence of cocaine that police officers retrieved from a bag he had carried onto an airplane, the court affirmed the conviction, ruling that airport police had a reasonable, articulable suspicion justifying the warrantless investigative detention of the defendant airline passenger's carry–on bag and to subject the bag to a canine sniff, as the defendant stated—only a brief moment after he boarded the plane—that he had thrown his ticket away, lied about the origin of his trip, misrepresented the nature of his stop–over, stated he could not remember the name of his hotel and had no receipts, consented to a search of his person but not his carry–on bag, and was traveling on a one–way ticket that was purchased with cash in another name only 35 minutes before departure. Further, the warrantless, investigative detention of the bag and the canine sniff occurring 25 minutes later, after the defendant's plane had departed, was not for a period so long or under circumstances so improper as to "ripen" the detention into a de facto seizure requiring probable cause. The court explained that the airport police gave the defendant the option of accompanying the bag or having it mailed to his address if no drugs were discovered, and the police were not required to allow the defendant to board the plane with the bag and subject it to a canine sniff only when the plane landed.

In State v. Peters, 189 Ariz. 216, 941 P.2d 228 (1997), the court ruled that an officer's brief warrantless detention of the defendant's luggage for examination was not a seizure under the Fourth Amendment, as the defendant had relinquished control of his luggage by checking it with airline personnel prior to detention, and airport baggage handlers had informed the officer that there was still time to place the luggage on the flight without its being delayed. The court applied the principle that, in determining whether there has been a seizure, the courts must balance the nature and quality of the intrusion of the person's Fourth Amendment interests against the importance of the governmental interest that purportedly justifies the intrusion, and that if the intrusion is very limited and the government's interest very compelling, the Fourth Amendment is not violated when personal property is briefly detained and examined. Here, the court found no seizure because neither the traveler nor his luggage was unreasonably delayed.

Reversing a pretrial order suppressing evidence seized by the state as being the product of an unreasonable, warrantless search, in State v. Weniger, 1989 WL 120275 (Minn. Ct. App. 1989), applying the principle that a warrantless search of luggage may be valid under the exigent circumstances exception, depending upon the probable contents of the luggage and the suspect's access to those contents, the court held that where an officer removed a loaded nine–millimeter pistol from the respondent's carry–on suitcase after it was discovered on an X–ray scanner at an airport, it was prudent of the officer to remove the pistol from the suitcase to prevent harm to himself or others at the airport, and thus the warrantless search was valid under the exigent circumstances exception to the warrant requirement.

In State v. Kelsey, 67 Or. App. 554, 679 P.2d 335 (1984), the court held that an airport security officer had probable cause to seize boxes containing vials even after the defendant revoked his earlier consent to a search of his garment bag, in view of the defendant's evasiveness in response to questioning on the nature of white powder in the vials and the officer's experience and training that reasonably led him to suspect that the defendant was transporting either explosives or a controlled substance. The defendant, who arrived at the security area of the airport preparing to board a flight, was carrying a garment bag, which was run through the security X–ray machine. A security agent, discerning a shape that appeared to resemble a large chain inside the bag, told the defendant that she could not identify its contents sufficiently to permit him to board the airplane and would have to open the bag. After two sealed cardboard boxes were discovered inside, the agent ran the boxes through the X–ray machine but was still unable to identify their contents. She told the

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defendant that she still could not identify the contents and obtained the defendant's permission to open the boxes. Inside the box, the agent found a number of transparent glass vials taped together and containing white powder. She asked the defendant what the vials contained and he mumbled, "litrogen powder." Out of concern that this material could be an explosive, the agent summoned a police officer and asked if he knew what litrogen powder was. The officer asked the defendant what he had in his possession, and he replied that he was a courier and was taking the vials to Los Angeles for chemical testing. The police officer told the defendant that he could not take the boxes on board the airplane unless their contents were positively identified as safe. The officer also testified that defendant was evasive and "talked in circles." The defendant told the officer that he would not board the airplane and then reached for the boxes and unsuccessfully tried to pull them away from the officer. The defendant said that he would leave without the boxes, then tried to flee the area but was apprehended and arrested by the officer. Later testing established that the vials contained cocaine.

§ 15[b] Seizure of baggage or its contents—Held invalid

In the following cases, the court ruled that the seizure of baggage or its contents in the circumstances of an airport security screening violated the Fourth Amendment.

In U.S. v. Ruiz-Estrella, 481 F.2d 723 (2d Cir. 1973), where the defendant neither passed through nor activated a magnetometer and did nothing during the disputed time period that could be construed as suspicious, and at worst the defendant met a hijacking profile and produced marginally confusing identification (though the marshal admitted that the identification was irrelevant to the intended search), the court ruled that a search of the defendant's bag and the seizure of a shotgun could not be justified on less–than–probable cause, where there was an absence of the compelling circumstances needed to justify the opening and examination of a passenger's bag.

In U.S. v. $191,910.00 in U.S. Currency, 16 F.3d 1051 (9th Cir. 1994), in which the federal government brought a civil forfeiture action in rem against currency seized from an airplane passenger's luggage, the court ruled that police officers failed to act with reasonable diligence to obtain a dog to perform a drug sniff on the luggage, so that the officers' two– hour detention of it without a warrant and without probable cause violated the passenger's Fourth Amendment rights, even assuming that the length of detention was not, in absolute terms, excessive. The court noted that the officers knew more than one hour before the arrival of the passenger's flight that he would be on the plane and that the passenger was suspected of narcotics activity, but nonetheless failed to make any arrangements for the dog to conduct the drug sniff test until after seizure of the luggage. Furthermore, the court held that the government did not have probable cause for the forfeiture of currency seized from the passenger, on the asserted theory that the currency was used or intended to be used in a narcotics transaction, even though the passenger admitted that he was carrying between $15,000 and $20,000 in cash; an X–ray performed on the luggage revealed a substantial sum of cash; and the passenger's explanations to law enforcement officers in different cities varied in certain respects. Although the government may have had suspicions of general criminal activity, it did not have probable cause to believe that the currency was connected specifically to drug activities, the court explained. Accordingly, the court affirmed the summary judgment for the defendant, on the ground that the government failed to establish probable cause for instituting the forfeiture proceedings.

III. OTHER CONSITUTIONAL ISSUES

§ 16. Freedom of speech

The following authority ruled on whether the defendant's First Amendment right to freedom of speech was violated in the context of an airport security measure.

In International Soc. for Krishna Consciousness v. Rochford, 585 F.2d 263 (7th Cir. 1978), in which a religious organization brought suit to challenge, as an unconstitutional abridgement of the free speech guarantee under the First Amendment, certain regulations adopted by a city commissioner of aviation that generally restricted the distribution

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of literature and solicitation of contributions at city airports, the court held that it was proper to exclude literature distribution and solicitation from locations in which airport officials were concerned about security measures; locations in which travelers became part of a captive audience; and those in which space was limited. Moreover, of particular note in the context of airport security, a section of the law providing for declarations of an emergency and requiring that distribution of literature cease for the duration of the emergency was a permissible limitation on First Amendment activities. However, the court struck several other provisions of the law, including a limitation on the registration of persons wishing to distribute literature or solicit contributions to a one–half hour period, as well as a subsection permitting airport managers to allot reservations for each day in the sequence in which each person registered. In addition, a provision that only a concessionaire or lessee could sell for commercial purposes was unconstitutional, and a prohibition on certain "disturbances" was deemed too imprecise to pass constitutional muster. Finally, the regulations were required to provide for procedural due process, including prompt notice and review proceedings, the court concluded.

§ 16.5. Free association

[Cumulative Supplement]

The following authority considered whether airport security measures violated the right to free association.

CUMULATIVE SUPPLEMENT

Cases:

Transportation Security Administration (TSA) security directive which required airline passenger to present identification before boarding flight did not violate passenger's First Amendment right to free association; the directive was not direct restriction on public association, and passenger could have abided by policy or taken another mode of transportation to his intended destination, so that identification policy did not prevent him from associating with anyone. U.S.C.A. Const.Amend. 1. Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), cert. denied, 127 S. Ct. 929, 166 L. Ed. 2d 701 (U.S. 2007).

Comment

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§ 17. Fifth Amendment privilege against self–incrimination

The courts in the following cases ruled on whether the defendant's Fifth Amendment privilege against self–incrimination was violated in the context of an airport security measure.

In U.S. v. Vigil-Montanel, 753 F.2d 996 (11th Cir. 1985), the court ruled that the defendant was not in custody so as to require that Miranda warnings be given before any questioning occurred when he was delayed in boarding a plane while a security guard did a routine pat–down search of his person. Recounting the facts of this case, the court noted that three Spanish–speaking, Latino males (including the two appellants in this case) had each purchased, with cash, a one–way plane ticket to Tampa at Miami International Airport. The ticket agent had become suspicious of the men, primarily because the flight to Tampa was not scheduled to depart until 7:30 p.m. and they were just waiting around the lobby but unwilling to take an earlier flight; she therefore earmarked the tickets and pointed out the three men to her supervisor. At about 7:00 p.m., two of the three men approached the main security checkpoint to enter the airport concourse, and at the checkpoint, a security guard did a routine pat–down search of one of the defendant at issue here, finding a plastic bottle filled with gasoline and a cigarette lighter in one of his socks. Referring to a bottle that was found in one of the defendant's socks, the defendant's response to the security guard's question, "[w]hat is this," that it was "medicino," or medicine, was admissible in the prosecution for attempted aircraft piracy. The court reasoned that when a prospective airline passenger is delayed in boarding a plane while going through a security search procedure, the delay does not amount to custody that would require that Miranda warnings before any questioning begins. Since no "custody" had occurred here, the court did not reach the question of whether or not the security guard's question would have been a constitutionally invalid interrogation.

In State v. Mahoney, 226 N.J. Super. 617, 545 A.2d 235 (App. Div. 1988), in which a state appealed from an order granting the defendant's motion to suppress evidence seized pursuant to a warrantless airport search, court ruled that the Port Authority did not violate the defendant's Fifth Amendment right against self–incrimination by posting a sign at the airport's weapons screening point directing a declaration of all weapons by airline travelers, even though the airline had told the defendant that it was permissible to have a weapon in his suitcase as long as it was unloaded. The court explained that the defendant, whose handgun did not have a required permit, could have chosen not to board his departing flight prior to incriminating himself. However, evidence at a suppression hearing was sufficient to support a finding that a search of the defendant's baggage after it was discovered that he did not have the required handgun permit was not a valid inventory search, since the police officers rummaged through the defendant's belongings and only scrutinized the suspicious items. The court determined that an investigatory, rather than an inventory, search was being undertaken, since, contrary to the purposes of an inventory search, the record showed that the defendant's belongings were rummaged through by the police officers, and only suspicious items were scrutinized. Further, none of the other contents of the defendant's suitcase or briefcase were removed or inventoried. A lawful inventory search may not be conducted as a subterfuge for a warrantless investigatory search, the court explained. The court added that the defendant did not consent to the purported inventory search, nor was he given the opportunity of making other arrangements for the safekeeping of his suitcase and briefcase. Describing the facts of the case, the court stated that the defendant, while preparing to board a plane bound for California, read a sign at the weapons screening point that stated: "All weapons must be declared by order of the Port Authority." In response to his question about the sign's meaning, a Port Authority Police Officer told the defendant that it required a weapon to be declared if it was on one's person or in his luggage. The court noted that the defendant then stated that he had a gun in his suitcase, and upon being asked to exhibit his state carrying permit, the defendant acknowledged that he did not have one. With the defendant's co–operation, the officer opened the defendant's suitcase and retrieved the handgun, as well as the clip and bullets. Advising the defendant that it was illegal to carry a gun in New Jersey without the proper documents, the officer placed defendant under arrest, after which the defendant was taken with his luggage to police headquarters. In accordance with the standard department procedure, an inventory search was conducted of the defendant's suitcase and briefcase, which disclosed a telephone scrambler, $10,000 in cash wrapped in yellow paper, numerous typewritten and handwritten papers and notes, cocaine, and marijuana. The majority of items contained in both pieces of luggage were not listed by the officers on the inventory

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sheet, the court noted. The court pointed out that, when making his flight reservation, the defendant had asked the airline clerk whether he could transport a gun in his luggage, and he was told that it was permitted if the gun was not loaded. The court noted that the Port Authority knew that this misinformation was being given by the airline, as evident from the number of people who responded to the sign at the screening post and were then arrested for unlawful possession of a gun. In fact, in response to this situation, the Authority had instituted a speedy bail procedure for travelers who were arrested as a result of this situation.

§ 18. Miranda warnings

The following authority ruled on whether Miranda warnings were required in the context of an airport security investigation.

In U.S. v. Hartwell, 296 F. Supp. 2d 596, 125 A.L.R.5th 701 (E.D. Pa. 2003), in which Transportation Security Administration (T.S.A.) agents' interrogation of the defendant was not routine, and they thus were required to give him a Miranda warning, where the defendant, in a screening room at an airport, refused to show items in his pockets, backed away from an agent, acted nervous, dropped his pants unbidden, and suspiciously tossed an unidentified object behind a table, the court ruled that statements made by the defendant to T.S.A. agents after he had requested an attorney were inadmissible in his prosecution for possessing cocaine with intent to distribute, where the interrogation did not cease, since the agents never left the interrogation room or placed the defendant back in his cell, and there was no evidence that the defendant knowingly and intelligently waived his Fifth Amendment right to counsel. The court explained that once a suspect asserts the right to counsel, not only must the current interrogation cease, but he may not be approached for further interrogation until counsel has been made available. The court applied the principle that once a defendant has invoked the right to have counsel present during custodial interrogation, questioning may not continue unless the defendant initiates the conversation and both knowingly and intelligently waives the right to have counsel present.

Comment

§ 19. Nondisclosure of hijacker profile as violating Confrontation Clause

In the following cases, the courts considered a challenge under the Confrontation Clause to the practice of not publicly disclosing in open court the details of a hijacker profile.

In U.S. v. Bell, 464 F.2d 667 (2d Cir. 1972), the court held that barring the public and press from a hearing on a motion to suppress evidence seized from the defendant, who was searched after an airport ticket agent determined that he was a "selectee" under an antihijacking profile, and after the defendant activated a magnetometer and identified himself as having recently been released on bail for attempted murder and narcotics charges, did not deprive the defendant of his right to confront witnesses against him. The court noted that the witness testimony bore no relationship at all to the question of the defendant's guilt or innocence of the crime charged. The witness could not identify the defendant and had no independent recollection of the transaction; he merely testified to the fact that he knew the criteria of the profile (which he delineated), that the ticket to the flight in question was sold by him, that his identifying number was on the ticket that was introduced into evidence, as well as the envelope distinctively marked to indicate to ramp personnel that the passenger was a selectee, that a passenger who purchased a ticket fit the profile, and that no personal exercise of judgment on his part in determining selectees was involved. Although the defendant's attorney was enjoined from disclosing the content of the profile, he was specifically advised of his right to consult his client at any stage of the proceeding he wished,

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the court pointed out. Furthermore, counsel did not take advantage of the opportunity and in view of the witness's testimony, it was difficult for the court to imagine what purpose would be served by consultation. The court noted that it had carefully examined the witness's testimony and it appeared that the defendant clearly fit the criteria and that if any doubt existed in the mind of counsel on this point it could have been easily resolved by consultation with the defendant without the necessity of revealing the purpose of the inquiry or identifying the criteria. The defendant's counsel was experienced and in fact had already appeared as counsel in a similar case and was presumably already familiar with the profile before the suppression hearing was held, the court noted.

In U.S. v. Clark, 498 F.2d 535 (2d Cir. 1974), discussed in § 10[a], the court ruled that the exclusion of the defendant from the courtroom during part of a suppression hearing did not violate the constitutional right to confrontation with witnesses for a defendant who had been searched after an airport ticket agent determined that he was a "selectee" under an antihijacking procedure and after the defendant had activated a magnetometer. The court explained that the exclusion was permissible even though the F.A.A. had on its own initiative withdrawn the profile system, reasoning that the necessity of preventing public disclosure of the profile criteria still remained because there was no evidence that the profile —as the weapon to combat air piracy—had been permanently abandoned. In any case, the defendant had not objected to the partial exclusion, and was therefore deemed to have waived his right. The court further concluded that an airport search is not to be condemned as violating the Fourth Amendment simply because it does not fit into one of the previously recognized categories under which a search warrant is dispensable, but only if the search is unreasonable on the facts.

In U.S. v. Slocum, 464 F.2d 1180 (3d Cir. 1972), discussed in § 6[a], the court ruled that excluding all persons from the courtroom, other than testifying witnesses and counsel, while taking evidence concerning the F.A.A.'s Anti–Air Hijack Profile was permissible, as the value of the Profile in identifying those passengers to be monitored by magnetometer might be destroyed if its contents were publicly revealed. Furthermore, in the instant case, the justification to search the defendant's luggage did not turn on the Profile. The court reasoned that, even if the contents and application of the Profile had been germane to the defendant's contention concerning the search and seizure, the proceeding in camera was nonetheless necessary to perpetuate the secrecy of the Profile. The value of the Profile in identifying those passengers to be monitored might be destroyed if its contents were publicly revealed. The court added that the public interest requires that the defendant be satisfied in the assurance that the court itself has reviewed the Profile and determined that the characteristics it specifies are "objectively cognizable" and do not discriminate against any group on the basis of religion, origin, political views, or race. The court concluded that the defendant's characteristics at the time of his attempted boarding conformed to those delineated by the Profile.

In U.S. v. Miller, 480 F.2d 1008 (5th Cir. 1973), discussed in § 6[a], the court ruled that allowing an airline employee to testify, out of the defendant's presence, that the defendant fit an F.A.A. profile as a potential skyjacker did not violate the defendant's constitutional right to confront witnesses. The court reasoned that although the defendant was excluded from the in camera proceeding, his counsel was present at the suppression hearing and had cross–examined the witness.

In People v. Botos, 27 Cal. App. 3d 774, 104 Cal. Rptr. 193 (4th Dist. 1972), the court ruled that where a defendant's companion met a hijacker profile, an airline ticket agent's stopping of the companion when he attempted to board a flight and calling a United States marshal when the companion did not satisfy a request for identification, and the marshal's questioning of the companion on his identification and requesting permission to search the companion's luggage, was not objectionable even though a secret aircraft hijacker profile was not revealed by the government during a grand jury proceeding. Because the companion met a hijacker profile, an airline ticket agent stopped him at the gate before boarding the flight. After the agent asked the companion for identification, and he did not satisfy the request, the agent called a U.S. marshal assigned to the antihijacking detail at the airport, who asked the companion to accompany him to an unoccupied gate. The defendant, who had gone with her companion to the boarding gate, went with the marshal and ticket agent to the new gate. After receiving unsatisfactory identification from the companion, the companion consented to the agent's request to look through his luggage for weapons, explosives, or identification. The bags were brought to a counter, and after the companion said he did not have the key to open them, and asked the defendant if she had it, the defendant

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

answered that the companion in fact had the keys. However, the agent observed a large bulge in the companion's pocket, which the companion identified as a roach holder and removed from his pocket. Three keys were attached to it, and after the agent asked if one of them would open the luggage, the companion replied that it would, and then become increasingly nervous, finally taking several tries to fit the key in the lock. After the companion unlocked and opened the suitcases at the agent's request, the agent saw the marijuana, and arrested both the companion and the defendant. Applying the governing law to these facts, the court noted that the agent did not search the companion for weapons, but merely questioned him concerning his identification, and the court observed that this limited police investigation is similar to requiring an individual to pass through a magnetometer. Although impermissible on the streets, this type of investigation is not objectionable at an aircraft boarding ramp, and contrary to the defendant's contention, the aircraft hijacker profile need not be disclosed to justify this limited investigation. No one may reasonably entertain an expectation of privacy under these circumstances, the court explained. Thus, the court affirmed the conviction, concluding that marijuana found in the companion's luggage after consent was given for the search was admissible into evidence.

§ 19.5. Due process

[Cumulative Supplement]

The following authority considered whether airport security measures violated the right to due process.

CUMULATIVE SUPPLEMENT

Cases:

Enforcement of Transportation Security Administration (TSA) security directive, requiring airline passengers to present identification before boarding and requiring airlines to implement the policy, did not violate due process rights of airline passenger, who refused to show identification and was not allowed to board his flight; directive was not void for vagueness, since it did not subject passenger to criminal sanctions or threats of prosecution, and passenger had actual notice of identification policy, since it was posted at airline ticketing counter. U.S.C.A. Const.Amend. 14. Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), cert. denied, 127 S. Ct. 929, 166 L. Ed. 2d 701 (U.S. 2007).

Comment

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Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

§ 20. Right to leave

[Cumulative Supplement]

The following authority considered whether there is a right to leave the airport once airport screening procedures begin.

CUMULATIVE SUPPLEMENT

Cases:

A right to leave once airport screening procedures begin would constitute a one-way street for the benefit of a party planning airport mischief and would encourage airline terrorism by providing a secure exit where detection was threatened. U.S.C.A. Const.Amend. 4. U.S. v. Hartwell, 436 F.3d 174 (3d Cir. 2006).

Once a traveler presents himself for screening at an airport security checkpoint, he may not avoid being searched by retreating and attempting to leave; such an option would constitute a one-way street for the benefit of a party planning airport mischief, since there is no guarantee that if he were allowed to leave he might not return and be more successful. U.S. Const. Amend. 4. Hernandez v. United States, 34 F. Supp. 3d 1168 (D. Colo. 2014).

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§ 21. Right to interstate travel

[Cumulative Supplement]

The following authority considered whether airport security measures violated the right to interstate travel.

CUMULATIVE SUPPLEMENT

Cases:

Airline passenger did not have constitutional right to interstate travel by air, and thus enforcement of Transportation Security Administration (TSA) security directive, requiring airline passengers to present identification or be subject to search, which barred passenger from boarding his flight when he refused to comply with directive, did not violate his right to interstate travel; passenger was still free to use other modes of transportation, and identification directive was not unreasonable. Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), cert. denied, 127 S. Ct. 929, 166 L. Ed. 2d 701 (U.S. 2007).

Comment

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

Amendment, due process, and other constitutional provisions, the passenger limited his petition for certiorari to asking whether the government might keep secret a directive that is generally applicable to millions of passengers every day notwithstanding that it has acknowledged both the directive's existence and its contents, and has identified no special circumstance that justifies secrecy.

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RESEARCH REFERENCES

West's Key Number Digest

• West's Key Number Digest, Searches and Seizures 72

• West's Key Number Digest, Searches and Seizures 185

Westlaw Databases

• Westlaw® Search Query: airport /5 (checkpoint frisk interview magnetometer "metal detector" profile search

security) /s (valid! constitut! unconstitut!)

A.L.R. Library

• A.L.R. Index, Airports

• A.L.R. Index, Hijacking

• A.L.R. Index, Search and Seizure

• A.L.R. Index, Stop and Frisk

• West's A.L.R. Digest, Searches and Seizures 72, 185

• What Constitutes "Custodial Interrogation" Within Rule of Miranda v. Arizona Requiring that Suspect Be

Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation—At Border or Functional

Equivalent of Border, 68 A.L.R.6th 607

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

• Fourth Amendment Protections, and Equivalent State Constitutional Protections, as Applied to the Use of GPS

Technology, Transponder, or the Like, to Monitor Location and Movement of Motor Vehicle, Aircraft, or

Watercraft, 5 A.L.R.6th 385

• Propriety of stop and search by law enforcement officers based solely on drug courier profile, 37 A.L.R.5th 1

• Searches and seizures: validity of searches conducted as condition of entering public premises—state cases, 28

A.L.R.4th 1250

• Criminal offense of bomb hoax or making false report as to planting of explosive, 93 A.L.R.2d 304

• Assumption of jurisdiction by court before completion of administrative procedure as ground of prohibition,

132 A.L.R. 738

• Right of search and seizure incident to lawful arrest without a search warrant, 82 A.L.R. 782

• Proscription of Interference with Flight Crew of Aircraft Under 49 U.S.C.A. § 46504 and Predecessor Statute

49 U.S.C.A. App. § 1472(j), 23 A.L.R. Fed. 3d Art. 2

• Constitutional Claims of Persons Placed on Federal Government's No-Fly List or Other Terrorist Watch Lists,

5 A.L.R. Fed. 3d Art. 5

• Validity, Construction, and Application of 18 U.S.C.A. § 32 Criminalizing Destruction of Aircraft and Aircraft

Facilities and Other Statutorily Proscribed Conduct, 93 A.L.R. Fed. 2d 175

• Construction and Application of UN Convention on Offenses and Certain Other Acts Committed on Board

Aircraft, Sept. 14, 1963, 704 U.N.T.S. 219, 65 A.L.R. Fed. 2d 1

• Constitutional Validity of Terrorism Prosecutions, Statutes, and Enemy Combatant Detention and Proceedings

—Supreme Court Cases, 49 A.L.R. Fed. 2d 1

• Border Search or Seizure of Traveler's Laptop Computer, or Other Personal Electronic or Digital Storage Device,

45 A.L.R. Fed. 2d 1

• What Constitutes Accident Under Warsaw Convention—Global Cases, 4 A.L.R. Fed. 2d 1

• Propriety of Air Carrier's Refusal for Safety Reasons to Transport Passenger or Property Under 49 U.S.C.A.

§ 44902(b), 192 A.L.R. Fed. 403

• Validity, Construction, and Application of Federal "Bomb Hoax Act" (18 U.S.C.A. § 35), 168 A.L.R. Fed. 551

• Validity, construction, and application of 18 U.S.C.A. § 844(e), prohibiting use of mail, telephone, telegraph, or

other instrument of commerce to convey bomb threat, 160 A.L.R. Fed. 625

• Use of Trained Dog To Detect Narcotics or Drugs as Unreasonable Search In Violation of Fourth Amendment,

150 A.L.R. Fed. 399

• Admissibility of evidence not related to air travel security, disclosed by airport security procedures, 108 A.L.R.

Fed. 658

• Validity of warrantless search under extended border doctrine, 102 A.L.R. Fed. 269

• What constitutes functional equivalent of border for purpose of border exception to requirements of Fourth

Amendment, 94 A.L.R. Fed. 372

• Propriety, under sec. 287(a)(1) of Immigration and Nationality Act (8 U.S.C.A. § 1357(a)(1)), of warrantless

interrogation of alien, or person believed to be alien, as to alien's right to be or to remain in United States, 63

A.L.R. Fed. 180

• Construction and application of "national security" exception to Fourth Amendment search warrant

requirement, 39 A.L.R. Fed. 646

• Customs inspection by opening international letter mail as within border search exception to Fourth Amendment

requirement for search warrant, 36 A.L.R. Fed. 864

• Validity of border searches and seizures by customs officers, 6 A.L.R. Fed. 317

Legal Encyclopedias

Validity of Airport Security Measures, 125 A.L.R.5th 281 (Originally published in 2005)

• Am. Jur. 2d, Aviation §§ 73, 74, 219

• Am. Jur. 2d, Searches and Seizures §§ 131, 266, 272

• C.J.S., Searches and Seizures § 91

Treatises and Practice Aids

• 1 Search & Seizure: A Treatise on the 4th Amendment § 1.8, The Exclusionary Rule and "Private" or Nonpolice

Searches (2002)

• 2 Criminal Procedure, LaFave, Israel & King, § 3.9[h] (2nd ed.)

Law Reviews and Other Periodicals

• Hessick, The Federalization of Airport Security: Privacy Implications, 24 Whittier L. Rev. 43 (2002)

Footnotes 1 This annotation supersedes 14 A.L.R. Fed. 286.

2 See Am. Jur. 2d, Aviation § 73; 2 Criminal Procedure, LaFave, Israel & King, § 3.9[h] (2nd ed.).

3 See 2 Criminal Procedure, LaFave, Israel & King, § 3.9[h] (2nd ed.).

4 See 2 Criminal Procedure, LaFave, Israel & King, § 3.9[h] (2nd ed.).

5 See 2 Criminal Procedure, LaFave, Israel & King, § 3.9[h] (2nd ed.).

6 See U.S. v. Allen, 349 F. Supp. 749 (N.D. Cal. 1972), discussed in § 12[b] of this annotation.

7 See U.S. v. Kroll, 481 F.2d 884 (8th Cir. 1973), discussed in § 12[b] of this annotation.

8 See State v. Wiley, 69 Haw. 589, 752 P.2d 102 (1988), discussed in § 12[b] of this annotation.

9 See U.S. v. Meulener, 351 F. Supp. 1284 (C.D. Cal. 1972), discussed in § 12[b] of this annotation. However, there is contrary authority; see, e.g., State v. White, 26 Ariz. App. 505, 549 P.2d 600 (Div. 1 1976), discussed in § 12[b] of this annotation.

10 See U.S. v. Palazzo, 488 F.2d 942 (5th Cir. 1974), discussed in § 8[b] of this annotation.

11 See U.S. v. Rothman, 492 F.2d 1260 (9th Cir. 1973), discussed in § 8[b] of this annotation.

12 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

13 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

14 See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).