G.R. No.

148825 December 27, 2002

PEOPLE OF THE PHILIPPINES, appellee,

vs.
SUSAN CANTON, appellant.

DECISION

DAVIDE, JR., C.J.:

Appellant Susan Canton (hereafter SUSAN) was charged before the Regional Trial Court of
Pasay City with the violation of Section 16 of Article III of the Dangerous Drugs Act of 1972
(Republic Act No. 6425), as amended, under an Information1 whose accusatory portion reads as
follows:

That on February 12, 1998 at the Ninoy Aquino International Airport, and within the jurisdiction
of this Honorable Court, the above named accused did then and there willfully, unlawfully and
feloniously has in her possession NINE HUNDRED NINETY EIGHT POINT TWO EIGHT HUNDRED
ZERO NINE (998.2809) GRAMS of methamphetamine hydrochloride, a regulated drug, without
the corresponding prescription or license.

CONTRARY TO LAW.

The case was docketed as Criminal Case No. 98-0189 and raffled to Branch 110 of said court.

SUSAN entered a plea of not guilty upon her arraignment.

At the trial, the prosecution presented as witnesses Forensic Chemist Julieta Flores, lady frisker
Mylene Cabunoc, and SPO4 Victorio de los Reyes.

For its part, the defense presented SPO2 Jerome Cause as its witness and had prosecution
witness Mylene Cabunoc recalled to be presented as hostile witness. It opted not to let SUSAN
take the witness stand.

The evidence for the prosecution established that on 12 February 1998, at about 1:30 p.m.,
SUSAN was at the Ninoy Aquino International Airport (NAIA), being a departing passenger
bound for Saigon, Vietnam.2 When she passed through the metal detector booth, a beeping
sound was emitted. Consequently, Mylene Cabunoc, a civilian employee of the National Action
Committee on Hijacking and Terrorism (NACHT) and the frisker on duty at that time, called her
attention, saying "Excuse me ma’am, can I search you?"3 Upon frisking SUSAN, Mylene felt
something bulging at her abdominal area. Mylene inserted her hand under the skirt of SUSAN,
pinched the package several times and noticed that the package contained what felt like rice
granules.4 When Mylene passed her hand, she felt similar packages in front of SUSAN’s genital
area and thighs. She asked SUSAN to bring out the packages, but the latter refused and said:
"Money, money only." Mylene forthwith reported the matter to SPO4 Victorio de los Reyes, her
supervisor on duty.5
SPO4 De los Reyes instructed Mylene to call Customs Examiner Lorna Jalac and bring SUSAN to
a comfort room for a thorough physical examination. Upon further frisking in the ladies’ room,
Mylene touched something in front of SUSAN’s sex organ. She directed SUSAN to remove her
skirt, girdles and panty. SUSAN obliged. Mylene and Lorna discovered three packages
individually wrapped and sealed in gray colored packing tape, which SUSAN voluntarily handed
to them.6 The first was taken from SUSAN’s abdominal area; the second, from in front of her
genital area; and the third, from her right thigh.7 Mylene turned over the packages to SPO4 De
los Reyes.8 The latter forthwith informed his superior officer Police Superintendent Daniel
Santos about the incident. Together with SUSAN, they brought the gray plastic packs to the
customs examination table, opened the same and found that they contained white crystalline
substances9 which, when submitted for laboratory examination, yielded positive results for
methamphetamine hydrochloride or shabu, a regulated drug.10

For the defense, SPO2 Jerome Cause, an investigator of the First Regional Aviation Office,
testified that no investigation was ever conducted on SUSAN.11 However, SUSAN signed a
receipt of the following articles seized from her: (1) three bags of methamphetamine
hydrochloride or shabu approximately 1,100 grams; (2) one American passport bearing Number
700389994; (3) one Continental Micronesia plane ticket with stock control number 0414381077;
and (4) two panty girdles.12 He said that he informed SUSAN of her constitutional rights but
admitted that she did not have a counsel when she signed the receipt.13 Yet he told her that
she had the option to sign or not to sign the receipt.14

When recalled as witness for the defense, Mylene merely reiterated the circumstances
surrounding the arrest and search of SUSAN and the seizure of the prohibited items found on
her person.15

After consideration of the evidence presented, the trial court rendered a decision16 finding
SUSAN guilty beyond reasonable doubt of the offense of violation of Section 16 of Article III of
Republic Act No. 6425, as amended, and sentencing her to suffer the penalty of reclusion
perpetua and to pay a fine of P1 million.

SUSAN filed a Motion for Reconsideration and/or New Trial,17 alleging therein that the trial
judge erred in (1) giving weight to the medical certificate executed by a certain Dr. Ma.
Bernadette Arcena because it was not presented in court nor marked or admitted, and is
therefore hearsay evidence; (2) upholding the presumption of regularity in the performance of
duty of police officers, since lady frisker Mylene Cabunoc is not even a police officer; (3) making
statements which gave the impression that the burden of proof was shifted to the accused; and
(4) deliberately ignoring the decisive issue of how the evidence was secured. SUSAN also
assailed the propriety of the search and seizure without warrant on the ground that the seized
items were not in plain view. Furthermore, alleging bias and prejudice on the part of the trial
judge, SUSAN filed a motion to inhibit Judge Porfirio G. Macaraeg from resolving the Motion for
Reconsideration and/or New Trial.18

After conducting a hearing on 24 November 2000 to resolve appellant’s Motion for

Reconsideration and/or New Trial, as well as the Motion to Inhibit the Judge, the trial court
issued an order19 on 26 November 2001 denying the motions. According to the trial judge (1)
he explained to SUSAN’s counsel the effects of the filing of a motion for reconsideration, but the
latter chose to magnify the judge’s statement which was uttered in jest; (2) SUSAN’s conviction
was not based on the medical report which was not presented in court; (3) there was no
violation of SUSAN’s constitutional rights because she was never interrogated during her
detention without counsel; and (4) the specimens seized from her were found after a routine
frisk at the airport and were therefore acquired legitimately pursuant to airport security
procedures.

Unsatisfied with the decision of the trial court, SUSAN seasonably appealed to us, imputing to
the trial court the following errors: (1) in justifying the warrantless search against her based on
the alleged existence of probable cause; (2) in holding that she was caught flagrante delicto
and that the warrantless search was incidental to a lawful arrest; (3) in not ruling that the
frisker went beyond the limits of the "Terry search" doctrine; (4) in not ruling that SUSAN was
under custodial investigation without counsel; (5) in admitting to the records of the case the
report of Dr. Ma. Bernadette Arcena, which was not testified on or offered in evidence, and
using the same in determining her guilt; (6) in justifying under the rule on judicial notice its
cognizance of the medical report that has not been offered in evidence; and (7) in applying the
ruling in People v. Johnson.20

For assigned errors nos. 1 and 2, SUSAN asserts that the strip search conducted on her
in the ladies’ room was constitutionally infirmed because it was not "incidental to an
arrest." The arrest could not be said to have been made before the search because at
the time of the strip search, the arresting officers could not have known what was inside
the plastic containers hidden on her body, which were wrapped and sealed with gray
tape. At that point then, they could not have determined whether SUSAN was actually
committing a crime. The strip search was therefore nothing but a fishing expedition.
Verily, it is erroneous to say that she was caught flagrante delicto and that the
warrantless search was incidental to a lawful arrest.

For assigned error no. 3, SUSAN maintains that, following the doctrine enunciated in
Terry v. Ohio,21 such stop and frisk search should have been limited to the patting of her
outer garments in order to determine whether she was armed or dangerous and
therefore a threat to the security of the aircraft.

For assigned error no. 4, SUSAN alleges that from the moment frisker Mylene felt a
package at her abdominal area, started inquiring about the contents thereof, detained
her, and decided to submit her to a strip search in the ladies’ room, she was under
custodial investigation without counsel, which was violative of Section 12, Article III of
the Constitution.

For assigned errors nos. 5 and 6, SUSAN assails the propriety of the admission of the
medical report executed by Dr. Ma. Bernadette Arcena on the ground that it was neither
testified on nor offered in evidence.

Lastly, SUSAN questions the application of People v. Johnson22 because of its sweeping
statement allowing searches and seizures of departing passengers in airports in view of
the gravity of the safety interests involved. She stresses that the pertinent case should
have been Katz v. United States,23 which upholds the Fourth Amendment of the United
States of America that "protects people and not places."
In its Appellant’s Brief, the Office of the Solicitor General (OSG) declares that SUSAN was found
flagrante delicto in possession of a regulated drug without being authorized by law. Thus, the
case falls squarely within the exception, being a warrantless search incidental to a lawful arrest.
Moreover, SUSAN voluntarily submitted herself to the search and seizure when she allowed
herself to be frisked and brought to the comfort room for further inspection by airport security
personnel. It likewise maintains that the methamphetamine hydrochloride seized from SUSAN
during the routine frisk at the airport was acquired legitimately pursuant to airport security
procedures.

Anent the admission of the medical certificate issued by Dr. Ma. Bernadette Arcena, the OSG
argues that SUSAN’s conviction was not solely based on the questioned document but also on
the fact that she was caught flagrante delicto in possession of a regulated drug without being
authorized by law. Consequently, it supports SUSAN’s conviction but recommends the reduction
of the fine from P1 million to P100,000.

We affirm SUSAN’s conviction.

We do not agree that the warrantless search and subsequent seizure of the regulated drugs, as
well as the arrest of SUSAN, were violative of her constitutional rights.

Sections 2 and 3(2) of Article III of the 1987 Constitution provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

Sec. 3….

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding.

What constitutes a reasonable or unreasonable search in any particular case is a judicial

question, determinable from a consideration of the circumstances involved. The rule is that the
Constitution bars State intrusions to a person's body, personal effects or residence except if
conducted by virtue of a valid search warrant issued in compliance with the procedure outlined
in the Constitution and reiterated in the Rules of Court. 24

The interdiction against warrantless searches and seizures is not absolute. The recognized
exceptions established by jurisprudence are (1) search of moving vehicles; (2) seizure in plain
view; (3) customs searches; (4) waiver or consented searches; (5) stop and frisk situations
(Terry search); and (6) search incidental to a lawful arrest.25

I. The search conducted on SUSAN was not incidental to a lawful arrest.

 We do not agree with the trial court and the OSG that the search and seizure conducted
in this case were incidental to a lawful arrest. SUSAN’s arrest did not precede the
search. When the metal detector alarmed while SUSAN was passing through it, the lady
frisker on duty forthwith made a pat down search on the former. In the process, the
latter felt a bulge on SUSAN’s abdomen. The strip search that followed was for the
purpose of ascertaining what were the packages concealed on SUSAN’s body. If ever at
the time SUSAN was deprived of her will and liberty, such restraint did not amount to an
arrest. Under Section 1 of Rule 113 of the Revised Rules of Criminal Procedure, as
amended, arrest is the "taking of a person into custody in order that he may be bound
to answer for the commission of an offense."lawphi1.ñet

As pointed out by the appellant, prior to the strip search in the ladies’ room, the airport
security personnel had no knowledge yet of what were hidden on SUSAN’s body; hence,
they did not know yet whether a crime was being committed. It was only after the strip
search upon the discovery by the police officers of the white crystalline substances
inside the packages, which they believed to be shabu, that SUSAN was arrested. The
search cannot, therefore, be said to have been done incidental to a lawful arrest. In a
search incidental to a lawful arrest, the law requires that there be first a lawful arrest
before a search can be made; the process cannot be reversed.26

II. The scope of a search pursuant to airport security procedure is not confined only to search
for weapons under the "Terry search" doctrine.

The Terry search or the "stop and frisk" situation refers to a case where a police officer
approaches a person who is acting suspiciously, for purposes of investigating possibly
criminal behavior in line with the general interest of effective crime prevention and
detection. To assure himself that the person with whom he is dealing is not armed with
a weapon that could unexpectedly and fatally be used against him, he could validly
conduct a carefully limited search of the outer clothing of such person to discover
weapons which might be used to assault him.27

In the present case, the search was made pursuant to routine airport security
procedure, which is allowed under Section 9 of Republic Act No. 6235 reading as
follows:

SEC. 9. Every ticket issued to a passenger by the airline or air carrier concerned shall
contain among others the following condition printed thereon: "Holder hereof and his
hand-carried luggage(s) are subject to search for , and seizure of, prohibited materials
or substances. Holder refusing to be searched shall not be allowed to board the
aircraft," which shall constitute a part of the contract between the passenger and the air
carrier.

This constitutes another exception to the proscription against warrantless searches and
seizures. As admitted by SUSAN and shown in Annex "D" of her Brief, the afore-quoted
provision is stated in the "Notice to All Passengers" located at the final security
checkpoint at the departure lounge. From the said provision, it is clear that the search,
unlike in the Terry search, is not limited to weapons. Passengers are also subject to
search for prohibited materials or substances.
 In this case, after the metal detector alarmed SUSAN consented to be frisked, which
resulted in the discovery of packages on her body. It was too late in the day for her to
refuse to be further searched because the discovery of the packages whose contents felt
like rice granules, coupled by her apprehensiveness and her obviously false statement
that the packages contained only money, aroused the suspicion of the frisker that
SUSAN was hiding something illegal. It must be repeated that R.A. No. 6235 authorizes
search for prohibited materials or substances. To limit the action of the airport security
personnel to simply refusing her entry into the aircraft and sending her home (as
suggested by appellant), and thereby depriving them of "the ability and facility to act
accordingly, including to further search without warrant, in light of such circumstances,
would be to sanction impotence and ineffectivity in law enforcement, to the detriment of
society."28 Thus, the strip search in the ladies’ room was justified under the
circumstances.

III. The ruling in People v. Johnson is applicable to the instant case.

The case of People v. Johnson, which involves similar facts and issues, finds application
to the present case. That case involves accused-appellant Leila Johnson, who was also a
departing passenger bound for the United States via Continental Airlines CS-912. Olivia
Ramirez was then the frisker on duty, whose task was to frisk departing passengers,
employees and crew to check for weapons, bombs, prohibited drugs, contraband goods
and explosives. When Olivia frisked Leila, the former felt something hard on the latter’s
abdominal area. Upon inquiry, Leila explained that she needed to wear two panty
girdles, as she had just undergone an operation as a result of an ectopic pregnancy. Not
satisfied with the explanation, Olivia reported the matter to her superior, who then
directed her to take Leila to the nearest women’s room for inspection. In the comfort
room, Leila was asked "to bring out the thing under her girdle." She acceded and
brought out three plastic packs which contained a total of 580.2 grams of
methamphetamine hydrochloride or shabu. This Court ruled that the packs of
"methamphetamine hydrochloride" seized during the routine frisk at the airport was
acquired legitimately pursuant to airport security procedures and are therefore
admissible in evidence against Leila. Corollarily, her subsequent arrest, although likewise
without warrant, was justified, since it was effected upon the discovery and recovery of
shabu in her person flagrante delicto. The Court held in this wise:

Persons may lose the protection of the search and seizure clause by exposure of their
persons or property to the public in a manner reflecting a lack of subjective expectation
of privacy, which expectation society is prepared to recognize as reasonable. Such
recognition is implicit in airport security procedures. With increased concern over
airplane hijacking and terrorism has come increased security at the nation’s airports.
Passengers attempting to board an aircraft routinely pass through metal detectors; their
carry-on baggage as well as checked luggage are routinely subjected to x-ray scans.
Should these procedures suggest the presence of suspicious objects, physical searches
are conducted to determine what the objects are. There is little question that such
searches are reasonable, given their minimal intrusiveness, the gravity of the safety
interests involved, and the reduced privacy expectations associated with airline travel.
Indeed, travelers are often notified through airport public address systems, signs, and
notices in their airline tickets that they are subject to search and, if any prohibited
 materials or substances are found, such would be subject to seizure. These
announcements place passengers on notice that ordinary constitutional protections
against warrantless searches and seizures do not apply to routine airport procedures.

SUSAN’s reliance on Katz v. U.S.29 is misplaced. The facts and circumstances of that
case are entirely different from the case at bar. In that case, the accused was convicted
in the United States District Court for the Southern District of California of transmitting
wagering information by telephone. During the trial, the government was permitted,
over the accused’s objection, to introduce evidence of accused’s end of telephone
conversations, which was overheard by FBI agents who had attached an electronic
listening and recording device to the outside of the public telephone booth from which
he placed his calls. The Court of Appeals for the Ninth Circuit affirmed the conviction. On
certiorari, however, the Supreme Court of the United States of America reversed the
decision, ruling that antecedent judicial authorization, which was not given in the instant
case, was a constitutional precondition of the kind of electronic surveillance involved. It
ruled that what a person knowingly exposes to the public, even in his own house or
office, is not a subject the Fourth Amendment protection, but what he seeks to preserve
as private, even in an area accessible to the public, may be constitutionally protected.

The maxim – stare decisis et non quieta movere – invokes adherence to precedents and
mandates not to unsettle things which are established. When the court has once laid
down a principle of law as applicable to a certain state of facts, it must adhere to that
principle and apply it to all future cases where the facts are substantially the
same.30 There being a disparity in the factual milieu of Katz v. U.S. and the instant case,
we cannot apply to this case the ruling in Katz.

IV. The appellant, having been caught flagrante delicto, was lawfully arrested without a
warrant.

Section 5, Rule 113 of the Rules of Court, as amended, provides:

SEC. 5. Arrest without warrant; when lawful. -- A peace officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another.
 In cases falling under paragraphs (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112.

The present case falls under paragraph (a) of the afore-quoted Section. The search
conducted on SUSAN resulted in the discovery and recovery of three packages
containing white crystalline substances, which upon examination yielded positive results
for methamphetamine hydrochloride or shabu. As discussed earlier, such warrantless
search and seizure were legal. Armed with the knowledge that SUSAN was committing a
crime, the airport security personnel and police authorities were duty-bound to arrest
her. As held in People v. Johnson, her subsequent arrest without a warrant was justified,
since it was effected upon the discovery and recovery of shabu in her person flagrante
delicto.

V. The constitutional right to counsel afforded an accused under custodial investigation was not
violated.

Entrenched is the rule that the rights provided in Section 12, Article III of the
Constitution may be invoked only when a person is under "custodial investigation" or is
"in custody interrogation."31 Custodial investigation refers to the "questioning initiated by
law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way."32 This presupposes that he is
suspected of having committed a crime and that the investigator is trying to elicit
information or a confession from him.33 And the right to counsel attaches upon the start
of such investigation.34 The objective is to prohibit "incommunicado" interrogation of
individuals in a police-dominated atmosphere, resulting in self-incriminating statements
without full warnings of constitutional rights.35

In this case, as testified to by the lone witness for the defense, SPO2 Jerome Cause, no
custodial investigation was conducted after SUSAN’s arrest. She affixed her signature to
the receipt of the articles seized from her, but before she did so, she was told that she
had the option to sign or not to sign it. In any event, her signature to the packages was
not relied upon by the prosecution to prove its case. Moreover, no statement was taken
from her during her detention and used in evidence against her.36 Hence, her claim of
violation of her right to counsel has no leg to stand on.

VI. The admission of the medical report was erroneous.

SUSAN assails, on the ground of violation of the hearsay rule, the admission of the medical
report on the physical and medical examination conducted upon appellant’s request, which
contained the following:

On subsequent examinations, she was seen behaved and cooperative. She related that she was
an illegitimate daughter, married, but divorced in 1995. She verbalized, "I gamble like an
addict. I gambled since I was young and I lost control of myself when I played cards. When I
lost control, I want my money back. I owe other people lots of money. I lost all the cash of my
husband. This is the first time I carried shabu. I need the money." She denied having any
morbid thoughts and perceptual disturbances. (Emphasis supplied).
This argument is meritorious. The admission of the questioned document was erroneous
because it was not properly identified. Nevertheless, even without the medical report,
appellant’s conviction will stand, as the court’s finding of guilt was not based on that document.

VII. SUSAN’s conviction and the penalty imposed on her are correct.

Having found the warrantless search and seizure conducted in this case to be valid, we
do not hesitate to rule that that the three packages of shabu recovered from SUSAN are
admissible in evidence against her. Supported by this evidence and the testimonies of
the prosecution witnesses, her conviction must inevitably be sustained.

Sections 16 and 20 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No.
6425), as amended, provides:

SEC. 16. Possession or Use of Regulated Drugs.--The penalty of reclusion perpetua to

death and a fine ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who shall possess or use any regulated drug without the
corresponding license or prescription, subject to the provisions of Section 20 hereof.

SEC. 20. Application of Penalties, confiscation and Forfeiture of the Proceeds or

Instruments of the Crime.--The penalties for offenses under Section 3,4,7, 8, and 9 of
Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the
dangerous drugs involved [are] in any of the following quantities:

3. 200 grams or more of shabu or methylamphetamine hydrochloride….

There being no aggravating nor mitigating circumstance, the proper penalty is reclusion
perpetua pursuant to Article 63(2) of the Revised Penal Code.

As regards the fine, courts may fix any amount within the limits established by law. For
possession of regulated drugs, the law fixes the range of the fine from P500,000 to P10
million. In view of the net weight of methamphetamine hydrochloride found in the
possession of SUSAN, the trial court’s imposition of fine in the amount of P1 million is
well within the range prescribed by law.

VIII. The other items seized from the appellant should be returned to her.

Section 3 of Rule 126 of the Revised Rules of Criminal Procedure authorizes the
confiscation of the following:

SEC. 3. Personal property to be seized. – A search warrant may be issued for the search
and seizure of personal property:

(a) Subject of the offense;

 (b) Stolen or embezzled and other proceeds, or fruits of the offense; or

(c) Used or intended to be used as the means of committing an offense.

Clearly, the seizure of SUSAN’s passport, plane tickets, and girdles exceeded the limits of
the afore-quoted provision. They, therefore, have to be returned to her.37

IN VIEW OF ALL THE FOREGOING, the judgment of the Regional Trial Court of Pasay City,
Branch 110, in Criminal Case No. 98-0189 finding appellant SUSAN CANTON guilty beyond
reasonable doubt of the violation of Section 16, Article III of the Dangerous Act of 1972
(Republic Act No. 6425), as amended, and sentencing her to suffer the penalty of reclusion
perpetua and to pay a fine of One Million Pesos (P1,000,000) and the costs is hereby
AFFIRMED. The appellant’s passport, plane tickets, and girdles are hereby ordered to be
returned to her.

Costs de oficio.

SO ORDERED.

Vitug, Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

Footnotes

1
Original Record (OR), 1.

2
OR, 16.

3
TSN, 16 October 1998, 6-8.

4
Id., 24-30.

5
Id., 29, 32-34.

6
TSN, 16 October 1998, 39-41.

7
Id., 9-12.

8
Id., 43-44; 10 March 1999, 7-8, 22.
9
Id., 8.

10
TSN, 29 July 1998, 23-53.

11
TSN, 22 February 2000, 7.

12
Id., 12; OR, 20.

13
Id., 15-16; 19-20.

14
Id., 21.

15
TSN, 26 April 2000, 4-18, 21.

16
Per Judge Porfirio C. Macaraeg. OR, 406-417; Rollo, 18-29.

17
OR, 422-439.

18
Id., 441-444.

19
Id., 466-471.

20
348 SCRA 526 [2000].

21
392 U.S. 1, 20 L. Ed. 2nd 889 [1968].

22
Supra note 20.

23
389 U.S. 347, 19 L. Ed. 2d 576 [1967].

24
People v. Chua Ho San, 308 SCRA 432, 443-444 [1999].

25
Supra, People v. Figueroa, 335 SCRA 249, 263 [2000]; People v. Fernandez, G.R. Nos.
143850-53, 18 December 2001.

26
People v. Chua Ho San, supra note 24, citing Malacat v. Court of Appeals, 283 SCRA
159, 175 [1997].

27
Terry v. Ohio, supra note 21.

28
People v. Malmstedt, 198 SCRA 401, 410 [1991].

29
Supra note 23.

30
People v. Aquino, G.R. No. 145371, 28 September 2001.
 31
Sebastian v. Garchitorena, 343 SCRA 463, 470 [2000]; People v. De la Cruz, 279 SCRA
245 [1997].

32
People v. Salonga, 359 SCRA 310, 320-321 [2001].

33
People v. Ayson, 175 SCRA 216, 230 [1989].

34
Manuel v. P.C. Construction Supply, 282 SCRA 326, 334-335 [1997].

35
People v. Ayson, supra note 33, at 229.

36
See People v. Johnson, supra note 20.

37
People v. Johnson, supra note 20.

People vs. Johnson, G.R. No. 138881, 348 SCRA 526 , December 18, 2000
[G.R. No. 138881. December 18, 2000]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.LEILA JOHNSON Y
REYES, accused-appellant.
DECISION
MENDOZA, J.:
This is an appeal from the decision,[i][1] dated May 14, 1999, of the Regional Trial Court, Branch
110, Pasay City, finding accused-appellant Leila Johnson y Reyes guilty of violation of §16 of
R.A. No. 6425 (Dangerous Drugs Act), as amended by R.A. No. 7659, and sentencing her to
suffer the penalty of reclusion perpetua and to pay a fine of P500,000.00 and the costs of the
suit.
The information against accused-appellant alleged:
That on June 26, 1998 inside the Ninoy Aquino International Airport, and within the jurisdiction
of this Honorable Court, the above-named Accused did then and there willfully, unlawfully and
feloniously possess three plastic bags of methamphetamine hydrochloride, a regulated drug,
each bag weighing:
#1 ONE HUNDRED EIGHTY SEVEN POINT FIVE (187.5) grams;
#2 ONE HUNDRED NINETY EIGHT POINT ZERO (198.0) grams; and
#3 ONE HUNDRED NINETY FOUR POINT SEVEN (194.7) grams, respectively,
or a total of FIVE HUNDRED EIGHTY POINT TWO (580.2) grams of methamphetamine
hydrochloride.
That the above-named accused does not have the corresponding
license or prescription to possess or use said regulated drug.
CONTRARY TO LAW.[ii][2]
Upon being arraigned, accused-appellant pleaded not guilty,[iii][3] whereupon trial was held.
The prosecution presented four witnesses, namely, NBI Forensic Chemist George de Lara, SPO4
Reynaldo Embile, duty frisker Olivia Ramirez, and SPO1 Rizalina Bernal. The defense presented
accused-appellant who testified in her own behalf.
The facts are as follows:
Accused-appellant Leila Reyes Johnson was, at the time of the incident, 58 years old, a widow,
and a resident of Ocean Side, California, U.S.A. She is a former Filipino citizen who was
naturalized as an American on June 16, 1968 and had since been working as a registered nurse,
taking care of geriatric patients and those with Alzheimer’s disease, in convalescent homes in
the United States.[iv][4]
On June 16, 1998, she arrived in the Philippines to visit her son’s family in Calamba, Laguna.
She was due to fly back to the United States on July 26. On July 25, she checked in at the
Philippine Village Hotel to avoid the traffic on the way to the Ninoy Aquino International Airport
(NAIA) and checked out at 5:30 p.m. the next day, June 26, 1998.[v][5]
At around 7:30 p.m. of that day, Olivia Ramirez was on duty as a lady frisker at Gate 16 of the
NAIA departure area. Her duty was to frisk departing passengers, employees, and crew and
check for weapons, bombs, prohibited drugs, contraband goods, and explosives.[vi][6]
When she frisked accused-appellant Leila Johnson, a departing passenger bound for the United
States via Continental Airlines CS-912, she felt something hard on the latter’s abdominal area.
Upon inquiry, Mrs. Johnson explained she needed to wear two panty girdles as she had just
undergone an operation as a result of an ectopic pregnancy.[vii][7]
Not satisfied with the explanation, Ramirez reported the matter to her superior, SPO4 Reynaldo
Embile, saying “Sir, hindi po ako naniniwalang panty lang po iyon.” (“Sir, I do not believe that it
is just a panty.”) She was directed to take accused-appellant to the nearest women’s room for
inspection. Ramirez took accused-appellant to the rest room, accompanied by SPO1 Rizalina
Bernal. Embile stayed outside.[viii][8]
Inside the women’s room, accused-appellant was asked again by Ramirez what the hard object
on her stomach was and accused-appellant gave the same answer she had previously given.
Ramirez then asked her “to bring out the thing under her girdle.” Accused-appellant brought
out three plastic packs, which Ramirez then turned over to Embile, outside the women’s
room.[ix][9]
The confiscated packs, marked as Exhibits C-1, C-2 and C-3, contained a total of 580.2 grams
of a substance which was found by NBI Chemist George de Lara to be methamphetamine
hydrochloride or “shabu.”[x][10]
Embile took accused-appellant and the plastic packs to the 1st Regional Aviation and Security
Office (1st RASO) at the arrival area of the NAIA, where accused-appellant’s passport and ticket
were taken and her luggage opened. Pictures were taken and her personal belongings were
itemized.[xi][11]
In her defense, accused-appellant alleged that she was standing in line at the last boarding
gate when she was approached by Embile and two female officers. She claimed she was
handcuffed and taken to the women’s room. There, she was asked to undress and was then
subjected to a body search. She insisted that nothing was found on her person. She was later
taken to a room filled with boxes, garbage, and a chair. Her passport and her purse containing
$850.00 and some change were taken from her, for which no receipt was issued to her. After
two hours, she said, she was transferred to the office of a certain Col. Castillo.[xii][12]
After another two hours, Col. Castillo and about eight security guards came in and threw two
white packages on the table. They told her to admit that the packages were hers. But she
denied knowledge and ownership of the packages. She was detained at the 1st RASO office
until noon of June 28, 1999 when she was taken before a fiscal for inquest.[xiii][13] She claimed
that throughout the period of her detention, from the night of June 26 until June 28, she was
never allowed to talk to counsel nor was she allowed to call the U.S. Embassy or any of her
relatives in the Philippines.[xiv][14]
On May 14, 1999, the trial court rendered a decision, the dispositive portion of which
reads:[xv][15]
WHEREFORE, judgment is hereby rendered finding the accused LEILA JOHNSON Y REYES,
GUILTY beyond reasonable doubt of the offense of Violation of Section 16 of Republic Act 6425
as amended and hereby imposes on her the penalty of RECLUSION PERPETUA and condemns
said accused to pay a fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00) without
subsidiary imprisonment in case of insolvency and to pay the costs of suit.
The Methamphetamine Hydrochloride (shabu) having a total net weight of 580.2 grams
(Exhibits “G”, “C-2” and “C-3”) are hereby confiscated in favor of the government and the
Branch Clerk of Court is hereby ordered to cause the transportation thereof to the Dangerous
Drugs Board for disposition in accordance with law.
The accused shall be credited in full for the period of her detention at the City Jail of Pasay City
during the pendency of this case provided that she agreed in writing to abide by and comply
strictly with the rules and regulations of the City Jail.
SO ORDERED.
Accused-appellant contends that the trial court convicted her: (1) “despite failure of the
prosecution in proving the negative allegation in the information;” (2) “despite failure of the
prosecution in proving the quantity of methamphetamine hydrochloride;” (3) “despite violation
of her constitutional rights;” and (4) “when guilt was not proven beyond reasonable
doubt.”[xvi][16]
First. Accused-appellant claims that she was arrested and detained in gross violation of her
constitutional rights. She argues that the “shabu” confiscated from her is inadmissible against
her because she was forced to affix her signature on the plastic bags while she was detained at
the 1st RASO office, without the assistance of counsel and without having been informed of her
constitutional rights. Hence, she argues, the methamphetamine hydrochloride, or “shabu,”
should have been excluded from the evidence.[xvii][17]
The contention has no merit. No statement, if any, was taken from accused-appellant during
her detention and used in evidence against her. There is, therefore, no basis for accused-
appellant’s invocation of Art. III, §12(1) and (3). On the other hand, what is involved in this
case is an arrest in flagrante delicto pursuant to a valid search made on her person.
The trial court held:
The constitutional right of the accused was not violated as she was never placed under
custodial investigation but was validly arrested without warrant pursuant to the provisions of
Section 5, Rule 113 of the 1985 Rules of Criminal Procedure which provides:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without
a warrant, arrest a person:
(a) when in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) when an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(Underscoring supplied)
xxxx
A custodial investigation has been defined in People. v. Ayson 175 SCRA 230 as “the
questioning initiated by law enforcement officers after a person has been taken [in] custody or
otherwise deprived of his freedom in any significant way. This presupposes that he is
suspected of having committed an offense and that the investigator is trying to elicit
information or [a] confession from him."
The circumstances surrounding the arrest of the accused above falls in either paragraph (a) or
(b) of the Rule above cited, hence the allegation that she has been subjected to custodial
investigation is far from being accurate.[xviii][18]
The methamphetamine hydrochloride seized from her during the routine frisk at the airport
was acquired legitimately pursuant to airport security procedures.
Persons may lose the protection of the search and seizure clause by exposure of their persons
or property to the public in a manner reflecting a lack of subjective expectation of privacy,
which expectation society is prepared to recognize as reasonable.[xix][19] Such recognition is
implicit in airport security procedures. With increased concern over airplane hijacking and
terrorism has come increased security at the nation’s airports. Passengers attempting to board
an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked
luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence
of suspicious objects, physical searches are conducted to determine what the objects are.
There is little question that such searches are reasonable, given their minimal intrusiveness, the
gravity of the safety interests involved, and the reduced privacy expectations associated with
airline travel.[xx][20] Indeed, travelers are often notified through airport public address systems,
signs, and notices in their airline tickets that they are subject to search and, if any prohibited
materials or substances are found, such would be subject to seizure. These announcements
place passengers on notice that ordinary constitutional protections against warrantless searches
and seizures do not apply to routine airport procedures.
The packs of methamphetamine hydrochloride having thus been obtained through a valid
warrantless search, they are admissible in evidence against the accused-appellant herein.
Corollarily, her subsequent arrest, although likewise without warrant, was justified since it was
effected upon the discovery and recovery of “shabu” in her person in flagrante delicto.
Anent her allegation that her signature on the said packs (Exhibits C-1, C-2 and C-3 herein) had
been obtained while she was in the custody of the airport authorities without the assistance of
counsel, the Solicitor General correctly points out that nowhere in the records is it indicated that
accused-appellant was required to affix her signature to the packs. In fact, only the signatures
of Embile and Ramirez thereon, along with their testimony to that effect, were presented by the
prosecution in proving its case.
There is, however, no justification for the confiscation of accused-appellant’s passport, airline
ticket, luggage, and other personal effects. The pictures taken during that time are also
inadmissible, as are the girdle taken from her, and her signature thereon. Rule 126, §2 of the
Revised Rules of Criminal Procedure authorizes the search and seizure only of the following:
Personal property to be seized. ¾ A search warrant may be issued for the search and seizure
of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds or fruits of the offense; and
(c) Used or intended to be used as the means of committing an offense.
Accordingly, the above items seized from accused-appellant should be returned to her.
Second. Accused-appellant argues that the prosecution failed to fully ascertain the quantity of
methamphetamine hydrochloride to justify the imposition of the penalty of reclusion perpetua.
Section 20 of R.A. No. 6425, as amended by R.A. No. 7659, states:
Section 20 - Application Of Penalties, Confiscation And Forfeiture Of The Proceeds or
Instrument Of The Crime – The penalties for offenses under Section 3, 4, 7, 8 and 9 of Article II
and Sections 14, 14-A, 15 and 16 of Article III of this Act, shall be applied if the dangerous
drugs involved is in any of the following quantities:
1. 40 grams or more of opium;
2. 40 grams or more of morphine;
3. 200 grams or more of shabu, or methylamphetamine hydrochloride;
4. 40 grams or more of heroin;
5. 750 grams or more of indian hemp of marijuana;
6. 50 grams of marijuana resin or marijuana resin oil;
7. 40 grams or more of cocaine or cocaine hydrochloride; or
8. In case of other dangerous drugs, the quantity of which is far beyond therapeutic
requirements as determined and promulgated by the Dangerous Drugs Board, after public
consultation/hearings conducted for the purpose.
Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range
from prision correccional to reclusion perpetua depending upon the quantity.
Under this provision, accused-appellant therefore stands to suffer the penalty of reclusion
perpetua to death for her possession of 580.2 grams of shabu.
Accused-appellant attempts to distinguish between a quantitative and a qualitative examination
of the substance contained in Exhibits C-1, C-2 and C-3. She argues that the examination
conducted by the NBI forensic chemist was a qualitative one which merely yielded positive
findings for shabu, but failed to establish its purity; hence, its exact quantity remains
indeterminate and unproved.
This contention is likewise without merit.
The expert witness, George De Lara, stated that the tests conducted would have indicated the
presence of impurities if there were any. He testified:
PROS. VELASCO By mixing it twice, Mr. Witness, if there are any adulterants or
impurities, it will be discovered by just mixing it?
WITNESS If some drugs or additives were present, it will appear in a thin layer
chromatographic examination.
PROS. VELASCO Did other drugs or other additives appear Mr. Witness?
WITNESS In my thin layer chromatographic plate, it only appears one spot which
resembles or the same as the Methamphetamine Hydrochloride sample
....
PROS. VELASCO So, Mr. Witness, if there are any adulterants present in the chemicals
you have examined, in chemical examination, what color it will register, if any?
WITNESS In sample, it contained a potassium aluminum sulfate, it will not react with the
reagent, therefore it will not dissolve. In my examination, all the specimens reacted on the re-
agents, sir.
PROS. VELASCO And what is potassium aluminum sulfate in layman’s term?
WITNESS It is only a tawas.
....
COURT In this particular case, did you find any aluminum sulfate or tawas in the
specimen?
WITNESS None, your Honor.
....
ATTY. AGOOT I will cite an example, supposing ten grams of Methamphetamine Hydrochloride
is mixed with 200 grams of tawas, you will submit that to qualitative examination, what will be
your findings, negative or positive, Mr. Witness?
WITNESS It will give a positive result for Methamphetamine Hydrochloride.
ATTY. AGOOT That is qualitative examination.
WITNESS And also positive for aluminum sulfate.[xxi][21]
A qualitative determination relates to the identity of the material, whereas a quantitative
analysis requires the determination of the percentage combination of the components of a
mixture. Hence, a qualitative identification of a powder may reveal the presence of heroin and
quinine, for instance, whereas a quantitative analysis may conclude the presence of 10 percent
heroin and 90 percent quinine.[xxii][22]
De Lara testified that he used a chromatography test to determine the contents of Exhibits C-1,
C-2 and C-3. Chromatography is a means of separating and tentatively identifying the
components of a mixture. It is particularly useful for analyzing the multicomponent specimens
that are frequently received in a crime lab. For example, illicit drugs sold on the street may be
diluted with practically any material that is at the disposal of the drug dealer to increase the
quantity of the product that is made available to prospective customers. Hence, the task of
identifying an illicit drug preparation would be an arduous one without the aid of
chromatographic methods to first separate the mixture into its components.[xxiii][23]
The testimony of De Lara established not only that the tests were thorough, but also that the
scientifically correct method of obtaining an accurate representative sample had been
obtained.[xxiv][24] At any rate, as the Solicitor-General has pointed out, if accused-appellant was
not satisfied with the results, it would have been a simple matter for her to ask for an
independent examination of the substance by another chemist. This she did not do.
Third. Accused-appellant argues that the prosecution failed to prove the negative allegation in
the information that she did not have a license to possess or use methamphetamine
hydrochloride or “shabu.”
Art. III of Republic Act No. 6425, as amended by Republic Act No. 7659 provides:
SEC. 16. Possession or Use of Regulated Drugs. - The penalty of reclusion perpetua to death
and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed
upon any person who shall possess or use any regulated drug without the corresponding license
or prescription, subject to the provisions of Section 20 hereof.
Accused-appellant claims that possession or use of methamphetamine hydrochloride or
“shabu,”a regulated drug, is not unlawful unless the possessor or user does not have the
required license or prescription. She points out that since the prosecution failed to present any
certification that she is not authorized to possess or use regulated drugs, it therefore falls short
of the quantum of proof needed to sustain a conviction.
The contention has no merit.
The question raised in this case is similar to that raised in United States v. Chan
Toco.[xxv][25] The accused in that case was charged with smoking opium without being duly
registered. He demurred to the information on the ground that it failed to allege that the use of
opium had not been prescribed as a medicine by a duly licensed and practicing physician.
This Court denied the motion and said:
The evident interest and purpose of the statute is to prohibit and to penalize generally the
smoking of opium in these Islands. But the legislator desired to withdraw from the operation of
the statute a limited class of smokers who smoked under the advice and by prescription of a
licensed and practicing physician . . . . Hence where one is charged with a violation of the
general provisions of the Opium Law, it is more logical as well as more practical and
convenient, if he did in fact smoke opium under the advice of a physician, that he should set up
this fact by way of defense, than that the prosecution should be called upon to prove that every
smoker, charged with a violation of the law, does so without such advice or prescription.
Indeed, when it is considered that under the law any person may, in case of need and at any
time, procure the advice of a physician to use opium or some of its derivatives, and that in the
nature of things no public record of prescriptions of this kind is or can be required to be kept, it
is manifest that it would be wholly impracticable and absurd to impose on the prosecution the
burden of alleging and proving the fact that one using opium does so without the advice of a
physician. To prove beyond a reasonable doubt, in a particular case, that one using opium
does so without the advice or prescription of a physician would be in most cases a practical
impossibility without the aid of the defendant himself, while a defendant charged with the illegal
use of opium should find little difficulty in establishing the fact that he used it under the advice
and on the prescription of a physician, if in fact he did so.[xxvi][26]
An accused person sometimes owes a duty to himself if not to the State. If he does not
perform that duty he may not always expect the State to perform it for him. If he fails to meet
the obligation which he owes to himself, when to meet it is an easy thing for him to do, he has
no one but himself to blame.
Moreover, as correctly pointed out by the Solicitor General, there is nothing in R.A. No. 6425 or
the Dangerous Drugs Act, as amended, which requires the prosecution to present a certification
that accused-appellant has no license or permit to possess shabu. Mere possession of the
prohibited substance is a crime per se and the burden of proof is upon accused-appellant to
show that she has a license or permit under the law to possess the prohibited drug.
Fourth. Lastly, accused-appellant contends that the evidence presented by the prosecution is
not sufficient to support a finding that she is guilty of the crime charged.
This contention must likewise be rejected.
Credence was properly accorded to the testimonies of the prosecution witnesses, who are law
enforcers. When police officers have no motive to testify falsely against the accused, courts are
inclined to uphold this presumption. In this case, no evidence has been presented to suggest
any improper motive on the part of the police enforcers in arresting accused-appellant. This
Court accords great respect to the findings of the trial court on the matter of credibility of the
witnesses in the absence of any palpable error or arbitrariness in its findings.[xxvii][27]
It is noteworthy that, aside from the denial of accused-appellant, no other witness was
presented in her behalf. Her denial cannot prevail over the positive testimonies of the
prosecution witnesses.[xxviii][28] As has been held, denial as a rule is a weak form of defense,
particularly when it is not substantiated by clear and convincing evidence. The defense of
denial or frame-up, like alibi, has been invariably viewed by the courts with disfavor for it can
just as easily be concocted and is a common and standard defense ploy in most prosecutions
for violation of the Dangerous Drugs Act.[xxix][29]
The Court is convinced that the requirements of the law in order that a person may be validly
charged with and convicted of illegal possession of a dangerous drug in violation of R.A. No.
6425, as amended, have been complied with by the prosecution in this case. The decision of
the trial court must accordingly be upheld.
As regards the fine imposed by the trial court, it has been held that courts may fix any amount
within the limits established by law.[xxx][30] Considering that five hundred eighty point two
(580.2) grams of shabu were confiscated from accused-appellant, the fine imposed by the trial
court may properly be reduced to P50,000.00.
WHEREFORE, the decision of the Regional Trial Court of Pasay City, Branch 110, finding
accused-appellant guilty of violation of §16 of R.A. No. 6425, as amended, and imposing upon
her the penalty of reclusion perpetua is hereby AFFIRMED with the MODIFICATION that the
fine imposed on accused-appellant is reduced to P50,000.00. Costs against appellant.
The passport, airline ticket, luggage, girdle and other personal effects not yet returned to the
accused-appellant are hereby ordered returned to her.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

[i][1] Per Judge Porfirio G. Macaraeg.

[ii][2] Rollo, p.1.
[iii][3] Records, p. 42.
[iv][4] TSN, p. 4, Feb. 23, 1999.
[v][5] Id., pp. 4-6.
[vi][6] TSN, pp. 3-4, Sept. 23, 1998.
[vii][7] Id., pp. 6, 20.
[viii][8] Id., p. 23.
[ix][9] Id., p. 7.
[x][10] TSN, pp. 16-13, Sept. 15, 1998.
[xi][11] Id., pp. 39-43.
[xii][12] TSN, pp.8-13, Feb. 23, 1999.
[xiii][13] Id., p. 45.
[xiv][14] Id., pp. 58-61.
[xv][15] Records, p. 133.
[xvi][16] Brief for the Appellant, p.1; Rollo, p. 38.
[xvii][17] Id., p. 15; Id., p. 51.
[xviii][18] Records, p. 131.
[xix][19] Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576 (1967).
[xx][20] John M. Scheb and John M. Scheb II, Criminal Law and Procedure 376 (1999).
[xxi][21] TSN, pp. 21-25, Sept. 15, 1998.
[xxii][22] Richard Saferstein, Criminalistics: An Introduction to Forensic Science, 125-126
(2000).
[xxiii][23] Id.
[xxiv][24] TSN, pp. 19-22, Sept. 15, 1998.
[xxv][25] 12 Phil 262 (1908).
[xxvi][26] Id., pp. 269-270.
[xxvii][27] People v. Khor, 307 SCRA 295 (1999).
[xxviii][28] People v. Tangliben, 184 SCRA 220 (1990).
[xxix][29] People Sy Bing Yok, 309 SCRA 28 (1999).
[xxx][30] People v. Khor, supra, p. 329.

UNITED STATES of America, Plaintiff-Appellee,

v.
Charles DAVIS aka Marcus Anderson, Defendant-Appellant

482 F.2d 893

UNITED STATES of America, Plaintiff-Appellee,
v.
Charles DAVIS aka Marcus Anderson, Defendant-Appellant.
No. 71-2993.
United States Court of Appeals,
Ninth Circuit.
June 29, 1973.
John Keker, Asst. Federal Public Defender (argued), James F. Hewitt, Federal Public Defender,
Earle Partington, Asst. Federal Public Defender, San Francisco, Cal., for defendant-appellant.
James L. Hazard, Asst. U. S. Atty. (argued), James L. Browning, U. S. Atty., F. Steele Langford,
Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
Before KOELSCH, BROWNING, and GOODWIN, Circuit Judges.
OPINION
BROWNING, Circuit Judge:
1
Appellant was convicted of attempting to board an aircraft while carrying a concealed weapon
(49 U.S.C. Sec. 1472(l)). The conviction was based upon the discovery of a loaded revolver in
appellant's briefcase by a Trans World Airlines employee during a search of the carry-on
luggage of boarding passengers. Appellant's motion to suppress was denied on the grounds
that he "impliedly consented" to the search and that, in any event, "there was no governmental
involvement."
2
We hold that the United States was sufficiently implicated in this airport screening search to
require that it be conducted in compliance with the Fourth Amendment. We hold further that
while airport screening searches per se do not violate a traveler's rights under the Fourth
Amendment, or under his constitutionally protected right to travel, such searches must satisfy
certain conditions, among which is the necessity of first obtaining the consent of the person to
be searched. A remand is necessary in this case to determine whether appellant gave such
consent.
3
On March 16, 1971, appellant and a friend checked in a few minutes before TWA Flight 743's
scheduled 6:50 p. m. departure from San Francisco International Airport for Bangkok, Thailand,
with an intermediate stop in Los Angeles. Appellant was ticketed for Los Angeles.
4
As appellant approached the loading gate, Malcolm Read, a TWA employee, told him that a
routine security check was necessary, reached for his briefcase, opened it, and found a
gun.1 Mr. Read handed the gun to Donald Graub, a United States Customs Service security
agent who had been standing some six feet away. Mr. Graub found the gun to be loaded. Mr.
Read, Mr. Graub, and United States Deputy Marshal Douglas Aaron, who had been standing
with other deputy marshals about 15 feet away, thereupon escorted appellant to a nearby room
where the officials conducted a search of appellant's person. Following the search, Deputy
Marshal Aaron formally took both appellant and the gun into custody.
5
Appellant was charged with a minor offense under 49 U.S.C. Sec. 1472(l). He pleaded not guilty
and filed a motion to suppress. An evidentiary hearing was held before a United States
magistrate on both the motion to suppress and the general issue of guilt or innocence. The
motion to suppress was denied on a finding of implied consent. Appellant was found guilty and
sentenced to pay a fine of $250.2
6
Appellant appealed to the district court (18 U.S.C. Sec. 3402; Rule 8(d), Rules of Procedure for
the Trial of Minor Offenses before United States Magistrates), urging error in the denial of the
motion to suppress. The district court affirmed, concurring in the magistrate's finding of
consent, and adding, as an alternate ground, that there was no governmental involvement in
the search.
7
* We consider first whether the United States was sufficiently involved to subject the search to
the limitations of the Fourth Amendment.
8
"[S]earch is a functional, not merely a physical, process." Lustig v. United States, 338 U.S. 74,
78, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949). A search begins with the planning of the
invasion and continues "until effective appropriation" of the fruits of the search "for subsequent
proof of an offense." Id. The Fourth Amendment applies to a search whenever the government
participates in any significant way in this total course of conduct. "The decisive factor . . . is the
actuality of a share by a federal official in the total enterprise of securing and selecting evidence
by other than sanctioned means." Id. at 79, 69 S.Ct. at 1374.3
9
The search of appellant's briefcase was not an isolated event. It was part of a nationwide anti-
hijacking program conceived, directed, and implemented by federal officials in cooperation with
air carriers.
10
The major governmental effort to meet the threat of hijacking began in late 1968, when
hijacking of commercial aircraft reached serious proportions, and intensified steadily thereafter.
11
Various techniques for the surveillance and search of potential air passengers have been a part
of that effort. At no time since late 1968 could activities of this kind at the nation's airports have
been described accurately as "an independent investigation by the carrier for its own purposes,"
Gold v. United States, 378 F.2d 588, 591 (9th Cir. 1967), and thus beyond the reach of the
Fourth Amendment. The United States has "significantly involved itself" in airport searches from
the beginning. Reitman v. Mulkey, 387 U.S. 369, 380, 87 S. Ct. 1627, 18 L.Ed.2d 830 (1967).
12
The first hijacking of an American commercial aircraft occurred in 1961.4 Congress responded
by passing a statute making aircraft hijacking and certain related activities federal crimes.5 The
statute also authorizes certain relevant conduct by the individual carriers: "Subject to
reasonable rules and regulations prescribed by the [Federal Aviation] Administrator, any air
carrier is authorized to refuse transportation to a passenger or to refuse to transport property
when, in the opinion of the air carrier, such transportation would or might be inimical to safety
of flight."6 This statute, and related rules issued under the regulatory authority of the
Administrator,7 provide the basis for the antihijacking program.
13
In 1963 the United States joined in the Tokyo Convention, an international agreement
addressed to some of the jurisdictional problems involved in international hijackings.8 Little
more occurred, however, until 1968.
14
Between 1961 and 1968, hijackings of United States aircraft averaged about one per year. In
1968, however, the number rose to 18. In 1969 there were 40 attempted hijackings of United
States aircraft, 33 successful.9
15
Spurred by these events, the United States entered into additional international conventions
aimed at solving complications left unresolved by the earlier Tokyo Convention.10 It also
undertook domestic action to avert further hijacking episodes.
16
Beginning in October 1968, a Federal Aviation Administration task force, including
representatives of the Department of Justice and the Department of Commerce, compiled a
"profile" of objective characteristics to identify potential hijackers.11 In December 1968, the
Federal Aviation Administration held an intensive high-level symposium on the development of
devices for the screening of individuals for possession of concealed weapons.12 The FAA Task
Force, working in cooperation with the carriers, then developed the initial anti-hijacking
"system."
17
Although the specific elements varied over a period of time, the system generally included, first,
the use of the "profile," next, the use of a magnetometer to detect the presence of metal on
any prospective passenger who met the "profile," and finally, a weapons search of the carry-on
luggage and/or person of anyone who activated the magnetometer.13
18
The FAA and the airlines worked together to put the system into operation at the nation's
airports.14 As a part of this cooperative effort, United States deputy marshals and Customs
Service agents were made available to carry out searches and make arrests.15 By September
1970, approximately 400 United States deputy marshals were assigned to surveillance and
search activities at airport boarding gates.16
19
On September 11, 1970, the President of the United States announced "A Program to Deal with
Airplane Hijacking." Pertinent excerpts appear in the margin.17 The President "directed" the
Department of Transportation to have airlines extend the use of surveillance equipment and
techniques to all appropriate airports in the United States. The President further stated that "the
federal government will provide enforcement officers to work this equipment, to conduct
searches when appropriate, and to make necessary arrests."18
20
*****
21
***
22
*****
23
***
24
Although "prepared to require it absolutely by rule," the Department of Transportation
continued for a time to employ informal means to obtain the cooperation of air carriers.19 By
September 1971, however, the FAA had concluded that voluntary cooperation "had not
satisfactorily provided . . . [the] needed protection in many instances," and proposed a new rule
requiring all air carriers to submit a screening program to the FAA for approval.20 On February
1, 1972, the FAA issued a rule requiring air carriers to adopt and put into use within 72 hours a
screening system "acceptable" to the FAA "to prevent or deter the carriage aboard its aircraft of
sabotage devices or weapons in carry-on baggage or on or about the persons of
passengers."21 This system was to require the screening of all airline passengers "by one or
more of the following systems: behavioral profile, magnetometer, identification check, physical
search."22
25
In July 1972, the President "ordered" the screening of all passengers and inspection of all carry-
on baggage on all "shuttle-type" flights.23 On August 1, 1972, the FAA issued a directive that
no airline "shall permit any person" meeting the profile to board a plane unless his carry-on
baggage had been searched and he had been cleared through a metal detector or had
submitted to a "consent search" prior to boarding.24 On December 5, 1972, the FAA ordered
that searches of all carry-on items and magnetometer screening of all passengers be instituted
by January 5, 1973.25 Routine screening and searching under this procedure was to be
conducted by airline personnel, but in the presence of armed law enforcement officers "(1)
Authorized to carry and use firearms," and "(2) Vested with a police power of arrest under
Federal, State, or other political subdivision authority."26
26
*****
27
***
28
The search in the instant case occurred on March 16, 1971-after the President's directive of
September 1970, but before the issuance of formal regulations mandating pre-boarding
searches.27 7] It is entirely clear from the materials summarized above, however, that
throughout the period since late 1968 the government's participation in the development and
implementation of the airport search program has been of such significance as to bring any
search conducted pursuant to that program within the reach of the Fourth Amendment.28
29
The government's role in the airport search program is and has been a dominant one. But even
if governmental involvement at some point in the period could be characterized accurately as
mere "encouragement," or as "peripheral, or . . . one of several cooperative forces leading to
the [alleged] constitutional violation," see United States v. Guest, 383 U.S. 745, 755-756, 86
S.Ct. 1170, 1177, 16 L.Ed.2d 239 (1966), that involvement would nevertheless be "significant"
for purposes of the Fourth Amendment. Constitutional limitations on governmental action would
be severely undercut if the government were allowed to actively encourage conduct by
"private" persons or entities that is prohibited to the government itself.29
30
It makes no difference that the act of opening appellant's briefcase was accomplished by a
"private" airline employee rather than a "public" official. The search was part of the overall,
nationwide anti-hijacking effort, and constituted "state action" for purposes of the Fourth
Amendment.
II
31
The government argues that the search of appellant's briefcase was consistent with the Fourth
Amendment (1) because appellant did not have a reasonable expectation of privacy with
respect to his carry-on luggage, citing Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507,
516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), and (2) because "a police officer is not
required to have probable cause for arrest before he can seize a person and subject him to a
limited search for weapons," citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968).
32
The search cannot be justified on either ground.
33
Katz states a threshold test. Its purpose is to determine whether a given intrusion is subject to
the Fourth Amendment. If the complaining individual did not have a reasonable expectation of
privacy with regard to the intrusion, the Fourth Amendment is inapplicable; if he did have a
reasonable expectation of privacy, however, the government must demonstrate that the
intrusion was justified under Fourth Amendment standards.
34
As interpreted by Justice Harlan (an interpretation the government urges but that we do not
necessarily accept30), Katz imposes "a twofold requirement [for Fourth Amendment protection],
first that a person have exhibited an actual (subjective) expectation of privacy and, second, that
the expectation be one that society is prepared to recognize as 'reasonable."' 389 U.S. at 361,
88 S.Ct. at 516 (Harlan, J., concurring).
35
Clearly the first requirement was satisfied in this case: appellant relied on the privacy of his
briefcase to conceal his gun.
36
The second requirement was also satisfied. This requirement does not mean that any kind of
governmental intrusion is permissible if it has occurred often enough. The government could
not avoid the restrictions of the Fourth Amendment by notifying the public that all telephone
lines would be tapped, or that all homes would be searched. "Airport searches" are not outside
the Amendment simply because they are being conducted at all airports. In none of the
Supreme Court decisions excluding searches or seizures from the Fourth Amendment on the
authority of Katz was the result based on such a rationale. Rather, in each case the individual's
alleged reasonable expectation of privacy was negated on some ground independent of the
frequency of the challenged intrusion itself.31 There is no such independent ground in this
case.
37
Terry along with its companion case Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d
917 (1968), and the more recent Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d
612 (1972), is also inapposite to the validity of pre-boarding screening searches of passengers
and luggage.32 Those cases deal with a wholly different problem; and, in doing so, (1) they
impose a requirement for justification of individual searches that pre-boarding screening
searches cannot meet, and (2) they permit searches which are in some respects more extreme,
and in other respects less so, than required to meet the need relied upon to justify pre-boarding
screening searches.33
38
Terry dealt with a street confrontation between a citizen and a policeman. The Court held that
when a policeman is entitled to forcibly "stop" a person to inquire about possible criminal
activity,34 and has reason to believe that the person is armed and dangerous, he may conduct
a limited pat-down search for weapons to protect himself while conducting the inquiry. In Terry,
in Sibron, and later in Adams, the Court went to great pains to make clear that the officer's
right to conduct such a search of an individual depends upon the officer's possession of specific,
articulable facts sufficient to satisfy a reasonably prudent person that the particular individual is
in fact armed and dangerous. To justify a stop-and-frisk, the government must focus on each
person and demonstrate that as to that individual there is specific cause to fear the justifying
harm.35
39
The Court also emphasized that the justification for a Terry "frisk" was primarily the officer's
self-protection,36 and that all searches must be "reasonably related in scope to the justification
for their initiation," Terry, 392 U.S. at 29, 88 S.Ct. at 1884. Consequently, the Court held, the
permissible scope of a Terry "frisk" is limited to a patting down of the "stopped" person's outer
clothing, for no more is required to detect the presence of weapons that might be available for
immediate use against the officer.37
40
The search of appellant, however, occurred as part of a screening process directed not against
appellant or any other person as such, but rather against the general introduction of weapons
or explosives into a restricted area. The search was indiscriminate, and, in view of its object,
necessarily so, absent a foolproof means of isolating in advance those few individuals who were
genuine hijack risks. Moreover, it required an intrusion sufficient in scope to detect not only
weapons that were immediately accessible to appellant when he was stopped prior to boarding,
but also any weapons that would be accessible to him after boarding.
41
Terry, Sibron, and Adams are inapposite because Mr. Read had no particular interest in
appellant as an individual. He had no individualized basis for the search at all, much less specific
and articulable facts that would justify a reasonably prudent man in believing that appellant was
about to commit a crime or that he was carrying a weapon.
42
Moreover, the search exceeded the scope necessary to assure Mr. Read that appellant did not
have a weapon immediately available for use against him. Some rationale other than that of
Terry is required to justify extension of the "frisk" to appellant's briefcase.38
43
Extension of the Terry stopand-frisk rationale to authorize airport screening searches would
result in intrusions upon privacy unwarranted by the need. As the Court made explicit in Adams,
Terry applies when "the officer is entitled to make a forcible stop." 407 U.S. at 146, 92 S.Ct. at
1923. In this situation, Terry permits a forcible search: the officer could hardly be required to
secure a legitimately detained person's permission to conduct a reasonable, selfprotective
search. As will be discussed below, however, neither forcible detention nor forcible search is
justified by the legitimate governmental interest served by airport screening searches.
44
If Terry's authorization of a stopand-frisk is separated from the requirement that there be
specific articulable facts establishing reasonable cause to believe that the individual stopped and
searched is committing or about to commit an offense and is armed and dangerous, there is no
readily apparent limitation on the policeman's power short of a concession that governmental
agents may detain and search anyone, anywhere, whenever there is a serious threat of crime.
There is no reason to believe that the incidence of concealed weapons is greater among airline
passengers than among members of the public generally,39 and Terry does not justify the
wholesale "frisking" of the general public in order to locate weapons and prevent future crimes.
III
45
The appropriate standards for evaluating the airport search program under the Fourth
Amendment are found in a series of Supreme Court cases relating to "administrative" searches
and in two Court of Appeals decisions applying these precedents.40
46
The essence of these decisions is that searches conducted as part of a general regulatory
scheme in furtherance of an administrative purpose, rather than as part of a criminal
investigation to secure evidence of crime, may be permissible under the Fourth Amendment
though not supported by a showing of probable cause directed to a particular place or person to
be searched.
47
As we have seen, screening searches of airline passengers 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. The essential
purpose of the scheme is not to detect weapons or explosives or to apprehend those who carry
them, but to deter persons carrying such material from seeking to board at all.41
48
Of course, routine airport screening searches will lead to discovery of contraband and
apprehension of law violators. This practical consequence does not alter the essentially
administrative nature of the screening process, however, or render the searches
unconstitutional. One purpose of the searches authorized in United States v. Biswell, 406 U.S.
311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct.
1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18
L.Ed.2d 943 (1967), was to discover continuing violations of regulatory codes.42
49
There is an obvious danger, nonetheless, that the screening of passengers and their carry-on
luggage for weapons and explosives will be subverted into a general search for evidence of
crime.43 If this occurs, the courts will exclude the evidence obtained.44 Appellant does not
argue that airport searches are currently being used as a subterfuge for the prohibited "general
search."To pass constitutional muster, an administrative search must meet the Fourth
Amendment's standard of reasonableness. "Unfortunately, there can be no ready test for
determining reasonableness other than by balancing the need to search against the invasion
which the search entails." Camara v. Municipal Court, supra, 387 U.S. at 536-537, 87 S.Ct. at
1735.
50
The need to prevent airline hijacking is unquestionably grave and urgent.45 The potential
damage to person and property from such acts is enormous. The disruption of air traffic is
severe. There is serious risk of complications in our foreign relations.46
51
A pre-boarding 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. Little can be done
to balk the malefactor after such material is successfully smuggled aboard, and as yet there is
no foolproof method of confining the search to the few who are potential hijackers.
52
It is not fatal that the search of appellant's briefcase was conducted without a warrant. Under
the indiscriminate screening procedures required by current regulations and applied in this case,
the decision to search the carry-on luggage of a particular passenger is not "subject to the
discretion of the official in the field," Camara, supra, 387 U.S. at 532, 87 S.Ct. at 1733; and the
practical effect of a warrant requirement would be to "frustrate the governmental purpose
behind the search." Id. at 533, 87 S.Ct. at 1733.47
53
In this and other relevant respects,48 the airport search program is indistinguishable, for Fourth
Amendment purposes, from the warrantless screening inspection of air passengers and their
luggage for plant pests and disease approved in United States v. Schafter, 461 F.2d 856 (9th
Cir. 1972).
54
One important caveat should be stressed, however. To meet the test of reasonableness, an
administrative screening search must be as limited in its intrusiveness as is consistent with
satisfaction of the administrative need that justifies it.49 It follows that airport screening
searches are valid only if they recognize the right of a person to avoid search by electing not to
board the aircraft.50
55
It is difficult to see how the need to prevent weapons and explosives from being carried aboard
the plane could justify the search of a person who had elected not to board. Perhaps it could be
argued that a compelled search might lead to the apprehension of a potential hijacker,
eliminating or at least reducing the chance that he would try again. Compared to the degree of
additional intrusiveness that compulsory searches involve, however, this possibility seems so
slight as to be inconsequential. The risk of successful hijacking is not enhanced by allowing a
potential passenger to avoid a search on a particular occasion by electing not to fly. Airport
screening searches, as carried out in this case and as currently employed nationwide, are not
selective. A prospective passenger who elects not to fly on an earlier flight is, like all other
passengers, certain to be subjected to a search before he can board a later flight.
56
It is significant that the regulations establishing the airport search program do not authorize or
require compelled searches.51
57
Since a compelled search of persons who elect not to board would not contribute to barring
weapons and explosives from the plane, it could serve only the purpose of apprehending
violators of either the criminal prohibition against attempting to board an aircraft while carrying
a concealed weapon, 49 U.S.C. Sec. 1472(l), or some other criminal statute. Such searches
would be criminal investigations subject to the warrant and probable cause requirements of the
Fourth Amendment.52
58
In sum, airport screening searches of the persons and immediate possessions of potential
passengers for weapons and explosives are reasonable under the Fourth Amendment provided
each prospective boarder retains the right to leave rather than submit to the search.
IV
59
This conclusion is consistent with a full recognition of appellant's constitutional right to travel.53
60
Although the right to travel is not absolute,54 and its scope and limitations remain
uncertain,55 it is firmly settled that freedom to travel at home and abroad without unreasonable
governmental restriction is a fundamental constitutional right of every American citizen. "This
Court long ago recognized that the nature of our Federal Union and our constitutional concepts
of personal liberty unite to require that all citizens be free to travel throughout the length and
breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or
restrict this movement." Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 1329, 22
L.Ed.2d 600 (1969).56
61
At the minimum, governmental restrictions upon freedom to travel are to be weighed against
the necessity advanced to justify them, and a restriction that burdens the right to travel "too
broadly and indiscriminately" cannot be sustained. Aptheker v. Secretary of State, 378 U.S. 500,
505, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). "'[E]ven though the governmental purpose be
legitimate and substantial, that purpose cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly achieved."' Shelton v.
Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1961), quoted in Aptheker v.
Secretary of State, supra, 378 U.S. at 508, 84 S.Ct. 1659.57 Moreover, exercise of the
constitutional right to travel may not be conditioned upon the relinquishment of another
constitutional right (here, the Fourth Amendment right to be free of unreasonable search),
absent a compelling state interest.58
62
These doctrines dictate a critical examination of each element of the airport security program to
make certain that neither the passenger's right to travel nor his right to personal privacy is
burdened beyond the clear necessities of current circumstances.
63
As we have seen, however, the need for some limitations upon these rights is clear. In light of
that need, a screening of passengers and of the articles that will be accessible to them in flight
does not exceed constitutional limitations provided that the screening process is no more
extensive nor intensive than necessary, in the light of current technology, to detect the
presence of weapons or explosives, that it is confined in good faith to that purpose, and that
potential passengers may avoid the search by electing not to fly.59
V
64
The magistrate and the district court, as we have said, found that appellant "consented" to the
inspection of his briefcase, and that the search was therefore lawful.
65
We agree that in this case the issue may be dealt with as one of "consent."
66
We have held that, as a matter of constitutional law, a prospective passenger has a choice: he
may submit to a search of his person and immediate possessions as a condition to boarding; or
he may turn around and leave. If he chooses to proceed, that choice, whether viewed as a
relinquishment of an option to leave or an election to submit to the search, is essentially a
"consent," granting the government a license to do what it would otherwise be barred from
doing by the Fourth Amendment.
67
The Supreme Court recently re-examined the nature of "consent" in the Fourth Amendment
context in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The
Court was concerned with whether a consent, concededly given, was given "voluntarily." As
stated by the Court, "The precise question in this case . . . is what must the state prove to
demonstrate that a consent was 'voluntarily' given." 412 U.S. at 223, 93 S.Ct. at 2045. The
Court concluded that "the question whether a consent to a search was in fact 'voluntary' or was
the product of duress or coercion, express or implied, is a question of fact to be determined
from the totality of all the circumstances. While knowledge of the right to refuse consent is one
factor to be taken into account, the government need not establish such knowledge as the sine
qua non of effective consent." Id. at 227, 93 S.Ct. at 2047-2048. The Bustamonte test would be
applicable in determining whether consent to a preboarding search was "voluntarily" given. See
United States v. Ruiz-Estrella, 481 F.2d 723, 730 (2d Cir. 1973).
68
There is, however, a threshold question, not presented in Bustamonte. That question is whether
in fact consent has been given. Only after some form of consent-in-fact is shown can "the
precise question" of the "voluntariness" of that consent arise.
69
It may well be that under the present airport screening program, operating pursuant to current
regulations, the alternatives presented to a potential passenger approaching the screening area
are so self-evident that his election to attempt to board necessarily manifests acquiescence in
the initiation of the screening process.
70
It is not so clear, however, that this was true when appellant sought to board TWA's Flight 743
on March 16, 1971. The nature and scope of airport searches were not then widely known. The
regulations mandating pre-boarding searches of passengers on all flights had not yet been
issued. See text at note 27. The flights affected and the procedures employed varied with
different carriers; the record discloses that passengers seeking to board TWA Flight 743 were
searched only because this was a "Red Alert" flight-one having no more than a single domestic
stop before departing for a foreign destination.
71
It may be that signs, pre-boarding announcements, screening operations underway at nearby
boarding gates, or other circumstances justified an inference that appellant was alerted to the
procedures being employed and, by his attempt to board, manifested his willingness to submit
to the search of his briefcase. No such evidence was offered, however. The hearing focused
instead upon the instant Mr. Read reached for appellant's briefcase and appellant relinquished
it; and the posture of the evidence was simply that appellant's briefcase "was taken from his
hand, opened before he had a chance to really do or think anything." See note 1.
72
This record would not support an inference that appellant had decided to accede to the search-
any more than if it appeared that appellant had set his briefcase down and turned away for a
moment, and Mr. Read had opened it without his knowledge.
73
The magistrate apparently recognized the absence of either direct or circumstantial proof of
consent-in-fact. He held, however, that because appellant arrived late, the burden of proof was
not on the government to show "consent," but on appellant to show the lack of it: "I think there
are certain hazards that go along with arriving late, and I must find in such a situation an
implied consent . . . ." The district court presumably agreed.
74
This was error. It is settled, of course, that the government bears the burden of proving
"consent." See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797
(1968); Montana v. Tomich, 332 F.2d 987, 989 (9th Cir. 1964); see also Johnson v. United
States, 333 U.S. 10, 68 S. Ct. 367, 92 L.Ed. 436 (1948); Amos v. United States, 255 U.S. 313,
41 S.Ct. 266, 65 L.Ed. 654 (1921). The government and TWA could insist upon a preboarding
search; they could deny appellant the right to fly if he refused to consent, or if his late arrival
deprived them of sufficient time to obtain his consent or to conduct the search. But the
government may not justify a search on the basis of "consent" unless it first establishes that
such consent was given, expressly or by implication.
75
It may well be, as we have said, that proof is available that would justify an inference that
appellant's attempt to board manifested a consent to the search. This evidence may not have
been offered because of the magistrate's misconception as to who, in the circumstances, bore
the burden of proof. A remand for further consideration of the consent issue is therefore
appropriate.
76
Reversed and remanded.
1
Mr. Read testified that he told appellant a search would have to be made, and that he
simultaneously reached for the briefcase. Appellant "didn't fight to keep the . . . case. . . . I
think [the transfer of the briefcase] . . . was mutual." "I took it from [his] . . . hand because he
didn't put up any . . . didn't disagree at all. It's a mutual thing where the grab starts and where
the giving of the thing up ends, I guess."
Although Mr. Read testified at one point that "at the same time" he asked for Davis's briefcase,
Davis "handed" it to him, he clarified this under cross-examination by admitting that Davis
"really didn't do much of anything." Mr. Read "just took the bag from his hand as he was
standing there," as "probably a hundred people before . . . [Davis] had done on that same
night."
At the suppression hearing, appellant's counsel offered to place appellant on the stand to testify
that the briefcase "was taken from his hand, opened before he had a chance to really do or
think anything." The court responded: "That seems to be the present posture of the evidence."
Based upon the court's evaluation of the state of the record, appellant did not testify.
2
The record disclosed that appellant was engaged in drug rehabilitation work and had acquired
the weapon discovered in his briefcase for self-protection, after being exposed to sniper fire on
two occasions as a result of his work
3
See Corngold v. United States, 367 F.2d 1, 5-6 (9th Cir. 1966); see also Byars v. United
States, 273 U.S. 28, 32-34, 47 S.Ct. 248, 71 L.Ed. 520 (1927)
The government has suggested no reason why the rules applied in distinguishing private action
from action by a state under the Fourteenth Amendment should not also be applicable in
distinguishing private action from action by the United States under the Fourth Amendment.
See, e. g., Note, Private Assumption of the Police Function under the Fourth Amendment, 51
B.U.L.Rev. 464, 474-75 (1971); Note, Airport Security Searches and the Fourth Amendment, 71
Colum.L.Rev. 1039, 1044-47 (1971). But see id. at 1046 & n. 40.
Speaking in the Fourteenth Amendment context, the Supreme Court recently said: "[T]he
question of whether particular . . . conduct is private, on the one hand, or amounts to 'State
action,' on the other hand, frequently admits of no easy answer. 'Only by sifting facts and
weighing circumstances can the nonobvious involvement of the State in private conduct be
attributed its true significance."' Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct.
1965, 1971, 32 L.Ed.2d 627 (1972), quoting Burton v. Wilmington Parking Authority, 365 U.S.
715, 722, 81 S.Ct. 856, 6 L.Ed. 2d 45 (1961). However, "there is 'state action' whenever the
'State has so far insinuated itself into a position of interdependence [with the otherwise
"private" person whose conduct is said to violate the Fourteenth Amendment] . . . that it must
be recognized as a joint participant in the challenged activity, which, on that account, cannot be
considered to have been so "purely private" as to fall without the scope of the Fourteenth
Amendment."' United States v. Price, 383 U.S. 787, 794-795 n. 7, 86 S.Ct. 1152, 1157, 16
L.Ed.2d 267 (1966), quoting Burton v. Wilmington Parking Authority, supra, 365 U.S. at 725, 81
S.Ct. 856.
4
See J. Arey, The Sky Pirates 49-55 (1972). For a comprehensive table of all hijacking attempts
from 1930 to mid-1971, see id. at 315-54. Hijackings from May 1961 to March 1972 are
tabulated in S. Rep. No. 93-13, 93d Cong., 1st Sess., at 45-50 (1973). For a general summary
of this history as it affected the United States, see McGinley & Downs, Airport Searches and
Seizures-A Reasonable Approach, 41 Ford.L.Rev. 293, 294-297 (1972)
5
Pub.L. 87-197, sec. 1; 49 U.S.C. Sec. 1472 (i)-(m), as amended
6
Pub.L. 87-197, sec. 4; 49 U.S.C. Sec. 1511
7
Statutes conferring authority upon the Administrator to issue appropriate regulations include the
following:
49 U.S.C. Sec. 1354(a) authorizes the Administrator to issue such orders and make such rules,
regulations, and procedures "as he shall deem necessary to carry out the provisions of" the
Federal Aviation Act.
49 U.S.C. Sec. 1421(a)(6) authorizes the Administrator to prescribe "such reasonable rules and
regulations, or minimum standards, governing other practices, methods, and procedures, as the
Administrator may find necessary to provide adequately for national security and safety in air
commerce."
49 U.S.C. Sec. 1424 empowers the Administrator to issue air carrier operating certificates "and
to establish minimum safety standards for the operation of the air carrier to whom any such
certificate is issued."
8
Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963
[1969] 3 U.S.T. 2941, T.I.A.S. No. 6768
9
See McGinley & Downs, supra note 4, at 294-295
10
The Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970, providing for
mandatory punishment or extradition of hijackers, was ratified by the Senate on Sept. 8, 1971.
117 Cong.Rec. 13,894-13,895 (daily ed. Sept. 8, 1971). The Montreal Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation was ratified on Oct. 3, 1972.
118 Cong.Rec. 16,651-16,653 (daily ed. Oct. 3, 1972)
11
See, e. g., McGinley & Downs, supra note 4, at 302
12
See FAA Report on Detection Devices, in Hearings on Aviation Safety and Aircraft Piracy Before
the H. Comm. on Interstate and Foreign Commerce, 91st Cong., 2d Sess., at 98-102 (Feb. 5,
1969)
13
See, e. g., United States v. Lopez, 328 F.Supp. 1077, 1082-1084 (E.D.N.Y. 1971); McGinley &
Downs, supra note 4, at 301-06; J. Arey, The Sky Pirates 234-46 (1972); Hearings on Aircraft
Hijacking Before the H. Comm. on Foreign Affairs, 91st Cong., 2d Sess., at 80 (Sept. 23, 1970)
(statement of Hon. James M. Beggs, Under Secretary of Transportation) [hereinafter referred to
as Aircraft Hijacking Hearings]
14
General Clifton F. Von Kann, Vice President of Operations & Engineering for the Air Transport
Association of America testified before the House Committee on Foreign Relations in September
1970: "The airlines worked with the government in an intensified effort to develop detection
capabilities by which would-be hijackers could be spotted and prevented from boarding the
plane. This resulted in the development of techniques using a descriptive profile to spot would-
be hijackers and the magnetometer to help spot unusual concentrations of metal on people
boarding airliners." Aircraft Hijacking Hearings at 44
General Von Kann further testified that as political hijackings increased, "the airlines working
together with FAA intensified the detection program, arranged with airport operators to procure
detection equipment as rapidly as it could effectively be operated, and participated in a
demonstration at New Orleans in which the entire airport was organized for full screening of all
passengers." Id. at 45.
See also id. at 71 (testimony of Walter Jensen, Ass't V. P. of Operations & Engineering, Air
Transport Association of America).
See note 26, infra.
15
See, e. g., Aircraft Hijacking Hearings at 80, 92 (statement and testimony of Hon. James M.
Beggs, Under Secretary of Transportation)
16
See Hearings on Revenue Aspects of the Administration Antihijacking Proposal Before the H.
Comm. on Ways and Means, 91st Cong., 2d Sess., at 45 (Sept. 21, 1970) (statement of Hon.
Claude Pepper)
17
1970 Public Papers of Presidents of the United States: Richard Nixon 742-43 (G.P.O.1971):
"The menace of air piracy must be met-immediately and effectively. I am therefore announcing
the following actions to deal with this problem:
2
I have directed the Department of Transportation to have American flag carriers extend the use
of electronic surveillance equipment and other surveillance techniques to all gateway airports
and other appropriate airports in the United States and-wherever possible-in other countries.
The Federal Government will provide enforcement officers to work with this equipment, to
conduct searches when appropriate, and to make necessary arrests. Such equipment and
techniques have already helped to reduce the problem of air piracy in many areas
3
I have directed the Departments of Transportation, Treasury, and Defense, the Central
Intelligence Agency, the Federal Bureau of Investigation, the Office of Science and Technology,
and other agencies to accelerate their present efforts to develop security measures, including
new methods for detecting weapons and explosive devices. At the same time, the Departments
of Defense and Transportation will work with all U. S. airlines in determining whether certain
metal detectors and x-ray devices now available to the military could provide immediate
improvement in airport surveillance efforts. To facilitate passenger surveillance, appropriate
agencies of the Federal Government will intensify their efforts to assemble and evaluate all
useful intelligence concerning this matter and to disseminate such information to airlines and
law enforcement personnel
. . . . The Secretary of Transportation will direct this program and take responsibility for
preparing further proposals. In this capacity he will work closely with the Secretary of State, the
Secretary of the Treasury, the Attorney General, and the Secretary of Defense."
18
The search of appellant's briefcase occurred six months later. Government agents were then
sharing the task of conducting the pre-boarding searches with TWA personnel. As Mr. Read
testified: "Originally, we handled it completely, and then we got the customs and the Marshal's
service out there and they handle it in conjunction with us and we both now handle them.
When they have enough people they handle it completely. When they don't I supply the people
or I do it myself." On this particular flight, "several" federal officers had participated in the
searching of carry-on luggage. It was basically appellant's late arrival that determined the
nature of his particular "searcher"; no more passengers had been expected, and the federal
officers had moved a short distance away. Mr. Read testified that if appellant had arrived ten
minutes earlier, the deputy marshals would have been in the gateway and probably would have
conducted the search, though "had I been standing there and they had two other or three other
people in front of them I would have searched them."
19
See Aircraft Hijacking Hearings at 101 (testimony of Under Secretary of Transportation James
A. Beggs): "We are prepared to require it absolutely, by rule. But we would like to try the
system as we have been working it." But see id. at 85 (statement of John R. Stevenson, legal
advisor to the State Dep't): "U. S.flag carriers have been directed" to comply with the
President's 7-point program (emphasis added). Also, Under Secretary of Transportation Beggs
referred to the President's "request" for additional guards and the expansion of aircraft
surveillance as a "requirement." See id. at 89
20
See 36 Fed.Reg. 19173-74 (Sept. 30, 1971) (proposing new rule 14 C.F.R. Sec. 121.538). See
also id. at 19172-73 (proposing new rule 14 C.F.R. Sec. 107, directed to airport operators)
Neither of these new regulations, either as proposed or as eventually adopted, set out the
specific anti-hijacking procedures to be followed. The FAA used two other methods to control
these procedures. First, the new regulations required each carrier and airport operator to file its
own "security program" with the FAA, containing provisions "acceptable" to the Administrator.
The air carriers were apparently informed through unpublished directives what provisions would
be "acceptable." And second, sub section (g) (1) of the new 14 C.F.R. Sec. 121.538 authorized
the Administrator to make direct amendments to the various filed security programs. Beginning
on July 18, 1972, a number of such amendments were made by telegram from the
Administrator to the airlines and various FAA regional directors. The public was advised of these
directives and amendments through Department of Transportation and FAA press releases.
Because much of this material is unavailable in law libraries, substantial portions are set out in
footnotes to this opinion.
21
See 37 Fed.Reg. 2500-01 (Feb. 2, 1972) (adopting proposed rule 14 C.F.R. Sec. 121.538 in
part)
22
See FAA Press Release No. 72-26 (Feb. 6, 1972):
"Secretary of Transportation John A. Volpe announced today that 200 FAA security officers have
been ordered into the field to assist with implementation of a new regulation requiring
mandatory screening of all airline passengers before flight.
The new FAA regulation-which went into effect at 12 midnight Saturday-applies to all scheduled
flag, domestic and intrastate air carriers. They are required to screen all passengers on all
flights using one or more of the following systems: behavorial profile, magnetometer,
identification check, physical search.
Secretary Volpe said the FAA security officers will visit 123 airports this week to assist airline
station managers in establishing an effective screening system. He noted that these 123
airports account for 95 percent of all passenger enplanements in the United States, thus
assuring blanket coverage.
'FAA has ordered the airlines to screen all passengers on all flights because we believe-and
always have-that the best place to stop a hijacking is at the aircraft boarding gate,' the
Secretary said."
23
See Statement of Secretary of Transportation John A. Volpe before the Subcommittee on
Aviation of the Senate Committee on Commerce (Jan. 10, 1973). The directive read in part:
"FOR 100% PASSENGER SCREENING OF NON-RESERVATION (SHUTTLE) TYPE FLIGHTS, THE
FOLLOWING ARE MINIMUM ACCEPTABLE PROCEDURES, EFFECTIVE IMMEDIATELY.
1
WHERE METAL DETECTORS ARE AVAILABLE
A. EACH CERTIFICATE HOLDER SHALL PREVENT THE CARRIAGE ABOARD ITS AIRCRAFT OF
BAGGAGE ON OR ABOUT THE PERSON OF PASSENGERS UNLESS THAT BAGGAGE HAS BEEN
EXAMINED BY A RESPONSIBLE REPRESENTATIVE OF THE CERTIFICATE HOLDER OR A LAW
ENFORCEMENT OFFICER AND,
B. THE CERTIFICATE HOLDER SHALL REQUIRE EACH PASSENGER TO CLEAR THROUGH A
METAL DETECTOR WITHOUT INDICATION OF UNACCOUNTED FOR METAL ON HIS PERSON
PRIOR TO BOARDING.
2
WHERE METAL DETECTORS ARE NOT AVAILABLE
A. EACH CERTIFICATE HOLDER SHALL PREVENT THE CARRIAGE ABOARD ITS AIRCRAFT OF
BAGGAGE ON OR ABOUT THE PERSON OF PASSENGERS UNLESS THAT BAGGAGE HAS BEEN
EXAMINED BY A RESPONSIBLE REPRESENTATIVE OF THE CERTIFICATE HOLDER OR A LAW
ENFORCEMENT OFFICER AND,
B. THE CERTIFICATE HOLDER SHALL REQUIRE EACH PASSENGER TO PRESENT TWO
ACCEPTABLE FORMS OF IDENTIFICATION.
C. IN THE CASE OF A PASSENGER WHO DOES NOT PROVIDE ADEQUATE IDENTIFICATION,
THE CERTIFICATE HOLDER MAY REQUEST THAT PASSENGER TO SUBMIT TO A CONSENT
SEARCH OF HIS PERSON AND,
D. THE CERTIFICATE HOLDER SHALL DENY BOARDING TO EACH PASSENGER WHO FAILS TO
COOPERATE.
THE ABOVE PROCEDURES MUST BE INCLUDED IN THE SECURITY PROGRAMS OF THE
AFFECTED AIR CARRIERS. PRINCIPAL SECURITY AGENTS SHOULD IMMEDIATELY NOTIFY THE
CARRIERS OF THE PROCEDURAL CHANGES INDICATED ABOVE."
FAA Telegram of July 18, 1972.
24
See DOT [Dep't of Transportation] Press Release No. 72-72, Aug. 1, 1972
The directive read in part:
"BECAUSE OF THE CONTINUING MENACE OF AIR PIRACY AND OTHER CRIMES ABOARD
AIRCRAFT AND BECAUSE OF THE SERIOUS NATURE OF THIS THREAT TO THE SAFETY OF
PERSONS AND PROPERTY, I FIND THAT AN EMERGENCY EXISTS REQUIRING IMMEDIATE
ACTION WITH RESPECT TO SAFETY IN AIR COMMERCE. THEREFORE, SECURITY PROGRAMS
ACCEPTABLE TO THE ADMINISTRATOR UNDER SECTION 121.538(b) OF THE FEDERAL
AVIATION REGULATIONS (FAR'S) AND SECURITY PROGRAMS APPROVED UNDER SECTION
121.538(c) OF THE FAR'S ARE AMENDED TO INCLUDE THE FOLLOWING MINIMUM
ACCEPTABLE PROCEDURES, EFFECTIVE IMMEDIATELY.
1
NO CERTIFICATE HOLDER SHALL PERMIT ANY PERSON WHO HAS BEEN IDENTIFIED AS A
SELECTEE UNDER ITS SECURITY PROGRAM INCLUDING ADULT, CHILDREN AND INFANT
PASSENGERS TRAVELING IN HIS COMPANY TO BOARD ITS AIRCRAFT, UNLESS-
A. THE CARRY-ON BAGGAGE AND OTHER ARTICLES ON OR ABOUT THE PERSON OF EACH
PASSENGER HAS BEEN SEARCHED AND,
B. THE CERTIFICATE HOLDER HAS REQUIRED EACH PASSENGER TO CLEAR THROUGH A
METAL DETECTOR WITHOUT INDICATION OF UNACCOUNTED FOR METAL ON HIS PERSON OR
C. IN THE ABSENCE OF A METAL DETECTOR, EACH PASSENGER HAS SUBMITTED TO A
CONSENT SEARCH PRIOR TO BOARDING.
2
ALL PREVIOUSLY ISSUED GUIDELINES OR INSTRUCTIONS CONCERNING THE SCREENING OF
SELECTEES WHICH ARE IN CONFLICT WITH THE FOREGOING ARE CANCELLED EFFECTIVE
IMMEDIATELY
3
PREVIOUSLY ISSUED GUIDELINES AND INSTRUCTIONS CONCERNING THE SCREENING OF
OTHER THAN SELECTEES ARE NOT EFFECTED."
FAA Telegram of Aug. 1, 1972.
On Sept. 17, 1972, the FAA awarded contracts for 1,090 walk-through and 1,200 hand-held
passenger screening devices for use at the nation's airports. See FAA Press Release No. 72-181,
Sept. 17, 1972.
25
See DOT Press Release No. 103-72, Dec. 5, 1972. The directive read in part:
"BECAUSE OF THE CONTINUING MENACE OF AIR PIRACY AND OTHER CRIMES ABOARD
AIRCRAFT AND BECAUSE OF THE SERIOUS NATURE OF THIS THREAT TO THE SAFETY OF
PERSONS AND PROPERTY, I FIND THAT AN EMERGENCY EXISTS REQUIRING IMMEDIATE
ACTION WITH RESPECT TO SAFETY IN AIR TRANSPORTATION AND AIR COMMERCE.
THEREFORE, IN ACCORDANCE WITH SECTION 121.538, THE SECURITY PROGRAM APPROVED
UNDER 121.538 OF THE FEDERAL AVIATION REGULATIONS, IS HEREBY AMENDED EFFECTIVE
1/5/73 WITHOUT STAY, TO INCLUDE THE FOLLOWING MINIMUM ACCEPTABLE PROCEDURES.
1
THE CERTIFICATE HOLDER SHALL NOT PERMIT ANY PASSENGER TO BOARD ITS AIRCRAFT
UNLESS:
A. THE CARRY-ON BAGGAGE ITEMS ARE INSPECTED TO DETECT WEAPONS, EXPLOSIVES, OR
OTHER DANGEROUS OBJECTS, AND
B. EACH PASSENGER IS CLEARED BY A DETECTION DEVICE WITHOUT INDICATION OF
UNACCOUNTED FOR METAL ON HIS/HER PERSON (HAND-HELD DETECTION UNITS MAY BE
USED UNTIL WALK-THROUGH UNITS ARE AVAILABLE), OR
C. IN THE ABSENCE OF A DETECTOR, EACH PASSENGER HAS SUBMITTED TO A CONSENT
SEARCH PRIOR TO BOARDING.
2
AMENDED SECURITY PROGRAMS MUST BE SUBMITTED TO THE PRINCIPAL SECURITY AGENT
ASSIGNED TO THE CERTIFICATE HOLDER NO LATER THAN 1/5/73
3
ANY PROVISIONS OF THE SECURITY PROGRAM IN CONFLICT WITH THE FOREGOING ARE
CANCELED EFFECTIVE 1/5/73."
FAA Telegram of Dec. 5, 1972.
26
See 37 Fed.Reg. 25934-35 (Dec. 6, 1972). The validity of this regulation is currently the subject
of litigation. See Airport Operators Council Int'l v. Shaffer, 354 F.Supp. 79 (D.D.C.1973)
(denying preliminary injunction), aff'd and remanded in unpublished memorandum, Feb. 15,
1973 (D.C.Cir.)
In announcing the changes, Secretary of Transportation John A. Volpe shed additional light on
the overall program:
"I have been directed by the President to institute immediately new security procedures at the
Nation's airports to further protect American air travelers against threats and acts of violence by
air hijackers.
Accordingly I have instructed the Federal Aviation Administrator to issue immediately an
emergency order and to amend procedures under existing regulations to carry out the intent of
the President's directive. The action will have the effect of tightening security at all the Nation's
531 airports which serve scheduled air carriers. It will also increase the security on all scheduled
U. S. carrier flights originating abroad.
Under the emergency order airport operators will be required to station armed local law
enforcement officers at passenger checkpoints during periods when passengers are boarding or
reboarding. Through amendment of procedures already in force under existing regulations, all
passengers must be screened electronically as a condition for boarding or reboarding. These
revised procedures also will require all carryon luggage and other items accessible to
passengers during flight be inspected prior to boarding.
The new security measures regarding the electronic screening of all passengers and the
inspection of their luggage require implementation not later than January 5, and the
responsibility for carrying them out will be that of the air carriers. The emergency rule requiring
the stationing of armed guards at passenger checkpoints by airport operators requires the
operators to submit their plans within 30 days and to be in full compliance no later than 60
days.
Through Presidential directives and resulting actions by the Department and the air transport
industry, much has been done since the onset of the current wave of air piracy to curb these
criminal acts. A cooperative Government-industry program for screening passengers and
protecting aircraft from extortionists has been established.
Electronic screening devices of some type are now available at all airports affected by the new
orders. The Department of Transportation has purchased 1,100 walk-through metal detectors
and 1,185 hand-held units, and is prepared to buy enough additional walkthrough screening
devices to equip all airports. The program established by the President in September 1970 has
provided 1,500 Federal officers to enforce security at 40 of the country's larger airports, and
local law officers have provided similar protection at more than 80 other airports."
See DOT Press Release 103-72, Dec. 5, 1972.
In a statement before the Subcommittee on Transportation and Aeronautics of the House
Committee on Interstate and Foreign Commerce, on Tuesday, Feb. 27, 1973, Under Secretary
of Transportation Egil Krogh, Jr., summarized the development of the anti-hijacking program in
the following language:
"During this period of hijacking attempts, the Federal Government has developed varied
responses to meet this danger. Initially, in response to the attempts of politically motivated
hijackers, the FAA developed a 'profile' by which airline personnel could identify potential
hijackers. In September 1970, after Palestinian guerrillas seized and destroyed several American
and foreign aircraft, the President directed Federal law enforcement personnel to ride on
American air carrier flights over international routes. In February 1972 the airlines were ordered
by the FAA to use a profile to screen all passengers. In July of last year the President ordered
the screening of all passengers and inspection of carry-on baggage on all 'shuttle-type' flights.
And, in August the FAA required the air carriers to search all profile selectees and all persons in
their party and to inspect their carry-on baggage before permitting them to board an aircraft.
However, the Houston and Birmingham incidents called for the further tightening of security.
The threat of future incidents of a similar high violence character warrants continuing these
measures. Where a simple screening of a selected few passengers might have deterred
hijackers in earlier years, we now must be ready to forcefully stop them at the boarding gate
and deny them access to the ramp area. Our program has three basic objectives: first, to keep
unauthorized persons from boarding an aircraft in possession of a deadly weapon; second, to
prevent sabotage devices from being carried or placed aboard these aircraft; and finally, to
insure that the airport operators serving these aircraft have maintained a proper level of
security in operating areas. To achieve these goals, we have required the action I described a
few minutes ago: electronic screening of all passengers, a physical inspection of all carry-on
articles, and the presence of armed law enforcement officers at the boarding gates.
As I stated earlier, under our program airport operators were required to submit by January 6
their plans for providing the requisite law enforcement personnel and by February 6 to have
these officers in place at their airports."
For intermediate steps in the development of the FAA rules, see 37 Fed.Reg. 4904-05 (Mar. 7,
1972) (amending 14 C.F.R. Sec. 121.538 to complete the proposed rulemaking on that section);
37 Fed. Reg. 5254 (Mar. 11, 1972) (making 14 C.F.R. Sec. 121.538 effective immediately); 37
Fed.Reg. 5689-91 (Mar. 18, 1972) (making proposed Rule 14 C.F.R. Sec. 107 effective
immediately); 37 Fed.Reg. 7150 (Apr. 11, 1972) (supplying certain language "inadvertently
omitted" from 14 C.F.R. Sec. 121.538).
27
Referring to this period in a statement issued Mar. 9, 1972, the President said, "Eighteen
months ago, I ordered comprehensive, forceful action to halt the wave of criminal incidents on
U. S. flag aircraft. The sky marshal and passenger screening programs conducted jointly with
Government and the airlines since that time have progressively reduced the hijacker's chances
of success." See 1972 Weekly Comp. of Pres. Docs. at 553
28
See McClintock, Skyjacking: Its Domestic and Criminal Ramifications, 39 J. Air L. & Comm. 29,
67 (1973); note 3, supra, and related text
29
Cf. Note, Private Assumption of the Police Function under the Fourth Amendment, 51 B.U.L.Rev.
464, 473 (1971), discussing Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293
(1927); see also Corngold v. United States, 367 F.2d 1, 5-6 (9th Cir. 1966)
30
Justice Harlan's first condition would not appear to be universally applicable. The traditional
protection afforded to the home under the Fourth Amendment could not be denied to a
particular homeowner because he mistakenly supposed that government agents might enter
whenever they pleased
31
See, e. g., Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973) (taxpayer
has no reasonable expectation of privacy as to tax records delivered to an independent
accountant since the accountant necessarily had discretion as to what information to disclose);
United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1972) (witness legitimately
called before a grand jury cannot object on Fourth Amendment grounds to demand for voice
recording, since such a witness has no reasonable expectation of privacy regarding his voice, a
publicly-exposed physical characteristic); United States v. Mara, 410 U.S. 9, 93 S.Ct. 774, 35
L.Ed.2d 99 (1972) (same re: handwriting exemplars); cf. United States v. Biswell, 406 U.S. 311,
92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (inspections of business premises of federally licensed
firearms dealer "pose only limited threats to the dealer's justifiable expectations of privacy," id.
at 316, 92 S.Ct. at 1596, since firearms business is justifiably highly regulated, dealer must
have been aware of inspections when he entered the business, and government kept him up to
date on authority for and nature of the inspections)
32
Airport searches have been the subject of numerous decisions. See, e. g., United States v. Ruiz-
Estrella, 481 F.2d 723 (2d Cir. 1973); United States v. Clark, 475 F.2d 240 (2d Cir. 1973);
United States v. Slocum, 464 F.2d 1180 (3d Cir. 1972); United States v. Bell, 464 F.2d 667 (2d
Cir. 1972); United States v. Epperson, 454 F.2d 769 (4th Cir. 1972); United States v. Kroll, 351
F.Supp. 148 (W.D. Mo.1972); United States v. Meulener, 351 F.Supp. 1284 (C.D.Cal.1972);
United States v. Allen, 349 F.Supp. 749 (N.D.Cal.1972); United States v. Lopez, 328 F.Supp.
1077 (E.D.N.Y.1971); cf. United States v. Moreno, 475 F.2d 44 (5th Cir. 1973); United States v.
Lindsey, 451 F.2d 701 (3d Cir. 1971). Most of these decisions have relied upon Terry's stop-
and-frisk rationale or general "reasonableness" to uphold searches (including magnetometer
scanning) of either the prospective passenger's person, e. g., Moreno, 475 F.2d at 49-52; Bell,
464 F.2d at 672-674 (Mulligan, J.); id. at 674-675 (Friendly, J., concurring); Epperson, 454 F.2d
at 770-772; Lindsey, 451 F.2d at 703-704; Lopez, 328 F.Supp. at 1093-1098; cf. Slocum, 464
F.2d at 1182-1183, or his carry-on luggage, e. g., Slocum, 464 F.2d at 1182-1183; Kroll, 351
F.Supp. at 154-155; but see Ruiz-Estrella, 481 F.2d at 727 (either "consent," knowledge of a
right to avoid the search by not boarding, or "compelling circumstances" is required); Clark, 475
F.2d at 247 (same); Allen, 349 F.Supp. at 752-753 (either "probable cause" or "consent"
required for luggage search)
Most of these decisions involved one or more aspects of the 1968 federal task force's anti-
hijacking "system." But see Moreno and Lindsey. As we have noted, this system did not demand
a physical search of all passengers or their carry-on luggage. Instead, prospective passengers
were subjected to a series of "screening" techniques, including the use of the behavioral
"profile" and the magnetometer. Only when a passenger was designated a "selectee" by these
consecutive "screening" techniques was he required to submit his carry-on luggage, or his
person, to a more intrusive search. In the present case, however, as under the currently
mandated procedure, every passenger (except appellant) was subjected to a magnetometer
scan and every carry-on item was subjected to an actual search.
33
See, e. g., McGinley & Downs, Airport Searches and Seizures-A Reasonable Approach, 41
Ford.L.Rev. 293, 313-316 (1972); Note, Skyjacking: Constitutional Problems Raised by Anti-
Hijacking Systems, 63 J.Cr.L., Criminology, & Police Science 356, 360-363 (1972); Note, Airport
Security Searches and the Fourth Amendment, 71 Colum.L.Rev. 1037, 1055-1056 (1971); but
see Abramovski, The Constitutionality of the Anti-Hijacking Security System, 22 Buff. L.Rev.
123, 134-140 (1972)
34
Terry did not address the issue of the policeman's right to "stop" a suspect in the first instance,
see 392 U.S. at 19 n. 16, 88 S.Ct. 1868; id. at 32-33, 88 S.Ct. 1868 (Harlan, J., concurring), but
the question was resolved in Adams v. Williams, 407 U.S. at 146, 92 S.Ct. 1921, 32 L.Ed.2d
612, quoted infra. See note, The Supreme Court, 1971 Term, 86 Harv. L.Rev. 1, 172, 173-176
(1972)
35
Thus, in Terry, the Court said: "[I]n justifying the particular intrusion the police officer must be
able to point to specific and articulable facts which, taken together with rational inferences from
those facts, reasonably warrant that intrusion." 392 U.S. at 20-21, 88 S.Ct. at 1879-1880
The Court was even more explicit in Sibron, 392 U.S. at 64, 88 S.Ct. at 1903:
"The police officer is not entitled to seize and search every person whom he sees on the street
or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of
anything, he must have constitutionally adequate reasonable grounds for doing so. In the case
of the self-protective search for weapons, he must be able to point to particular facts from
which he reasonably inferred that the individual was armed and dangerous."
36
"The sole justification of the search . . . [under Terry] is the protection of the police officer and
others nearby. . . ." 392 U.S. at 29, 88 S.Ct. at 1884. See also id. at 24, 26, 27, 30, 88 S.Ct. at
1868. The Terry search is a "selfprotective search for weapons." Sibron, 392 U.S. at 64, 88 S.Ct.
at 1903
37
"[The frisk] must be limited to that which is necessary for the discovery of weapons which
might be used to harm the officer or others nearby. . . ." Terry, 392 U.S. at 26, 88 S.Ct. at
1882. The officer is entitled only "to conduct a carefully limited search of the outer clothing of .
. . [legitimately "stopped" persons] in an attempt to discover weapons which might be used to
assault him." Id. at 30, 88 S.Ct. at 1885
In Sibron, the officer "thrust his hand into Sibron's pocket and took from him envelopes of
heroin." 392 U.S. at 65, 88 S.Ct. at 1904. This evidence was suppressed, for "[t]he search was
not reasonably limited in scope to the accomplishment of the only goal which might conceivably
have justified its inception-the protection of the officer by disarming a potentially dangerous
man." Id.
38
Cf. Terry, 392 U.S. at 32, 88 S.Ct. 1868, 20 L.Ed.2d 889 (Harlan, J., concurring)
39
In one sample of 500,000 passengers, only 20 were denied boarding for any reason. See Note,
Skyjacking: Constitutional Problems Raised by Anti-Hijacking Systems, 63 J.Cr.L., Criminology, &
Police Science 356, 356 n. 2 (1972)
40
United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Wyman v.
James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971); Camara v. Municipal Court, 387 U.S.
523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737,
18 L.Ed.2d 943 (1967); United States v. Schafter, 461 F.2d 856 (9th Cir. 1972); Downing v.
Kunzig, 454 F.2d 1230 (6th Cir. 1972); see Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3
L.Ed.2d 877 (1959); see also Biehunik v. Felicetta, 441 F.2d 228 (2d Cir. 1971)
Biswell upheld a search of a licensed firearms dealer's storeroom as part of inspection
procedures authorized by Sec. 923 (g) of the Gun Control Act of 1968.
Wyman upheld conditioning receipt of future welfare benefits on the recipient's consent to
periodic home visits by caseworkers as part of established routine in the administration of New
York welfare statutes and regulations.
Camara upheld entry into leased premises as part of a routine annual inspection by city housing
inspectors to determine compliance with San Francisco's housing code.
See upheld entry into a commercial warehouse as part of a routine periodic city-wide canvass to
obtain compliance with Seattle's fire code.
Schafer upheld the search of an air traveler's luggage as part of a screening inspection of all
baggage and personal effects of aircraft passengers leaving Hawaii to prevent exportation of
plant pests and diseases.
Downing upheld the search of a briefcase for weapons and explosives pursuant to a rule
conditioning entry into a federal building upon submission to such a search.
41
United States v. Lopez, 328 F.Supp. 1077, 1082-1083 (E.D.N.Y.1971); McGinley & Downs, supra
note 33, at 304
In reporting a proposed bill that essentially would have codified those aspects of the screening
program that are relevant here, the Senate Committee on Commerce said: "The only purpose
for which the general search or inspection of persons and their property shall be undertaken is
to insure that dangerous weapons will not be unlawfully carried in air transportation or in
intrastate air commerce." S.Rep. No. 93-13, 93d Cong., 1st Sess., at 10 (1973).
42
As Justice White pointed out in Camara, "inspections of the kind . . . [involved in Frank,
Camara, and See] do in fact jeopardize 'self-protection' interests of the property owner. Like
most regulatory laws, fire, health, and housing codes are enforced by criminal processes. In
some cities, discovery of a violation by the inspector leads to a criminal complaint. Even in cities
where discovery of a violation produces only an administrative compliance order, refusal to
comply is a criminal offense, and the fact of compliance is verified by a second inspection. . . .
Finally, as this case demonstrates, refusal to permit an inspection is itself a crime, punishable
by fine or even by jail sentence." 387 U.S. at 531, 87 S.Ct. at 1732 (citations omitted)
43
The record is not entirely comforting in this respect. Less than 20% of the arrests stemming
from the anti-hijacking system have been for offenses related to aircraft security. See N.Y.
Times, Nov. 26, 1972, at p. 1, col. 2. Over 33% of the arrests have been for possessory drug
offenses, and the remainder for such miscellaneous charges as parole violation and illegal entry
into the United States
A report of the Commerce Committee of the U.S. Senate states, "it has been reported that
certain classes of individuals, such as young people and oddly attired individuals have been
harassed and intimidated by general frisks or shakedowns without any prior indication or
probable cause that such persons were unlawfully carrying weapons. We find this a deplorable
practice, abhorrent to individual freedom and the Bill of Rights of the U.S. Constitution." See
S.Rep. No. 93-13, 93d Cong., 1st Sess., at 9 (1973).
General Benjamin O. Davis, Ass't Secretary of Transportation, has also expressed some
concern: "I think it's true that some people have been doing some searching for narcotics
violations. And I think there is a danger in this from a civil rights standpoint that has me
worried." N.Y. Times, Nov. 26, 1972, at p. 1, col. 1.
See also J. Arey, The Sky Pirates 242 (1972) (quoting Frank Cardman, Director of Security for
Pan American World Airways): "We've shaken down people-just by virtue of experience, say sky
marshal or customs experience-we've shaken down any number of people that we've found
thoroughly undesirable to have aboard an airplane, but are not basically hijackers. Narcotics!-
we're knocking off people day after day carrying the hard stuff."
And see the following testimony by FAA Administrator Schaffer:
"We have law enforcement information now available. In other words, we are going to scrub
down the manifest. People buy tickets on airlines and make reservations; once their name
appears, we then start the process. Is this man evading the law? Is he a known international
operator? Has he any record at all? And it is possible we will even find out about their medical
record, meaning, have they a record of being in mental institutions, and so on, because a great
many of our hijackings have involved mentally deranged people taking this as a way of getting
recognition or a way of calling attention to themselves, or for whatever other purposes.
So, if we have all of this information being brought to bear, gathered from all the sources
available to us, intelligence sources, law enforcement sources, airline security, local police, all of
this, there is a good chance that we will really have an antiseptic passenger list, in time."
Aircraft Hijacking Hearings at 102.
44
See, e. g., Abel v. United States, 362 U.S. 217, 229-230, 240, 80 S.Ct. 683, 4 L.Ed.2d 668
(1960); Montana v. Tomich, 332 F.2d 987, 989 (9th Cir. 1964); Taglavore v. United States, 291
F.2d 262, 265-266 (9th Cir. 1961)
It has been suggested that in order to avoid the danger of abuse, any evidence unrelated to the
legitimate purpose of the regulatory search should be excluded. See Note, Skyjacking:
Constitutional Problems Raised by Anti-Hijacking Systems, supra note 33, at 365; see also
McGinley & Downs, supra, note 33, at 323, n. 198; quoting Note, The Supreme Court, 1967
Term, 82 Harv.L.Rev. 63, 186 (1968). Although we impliedly rejected this suggestion as applied
to the facts of United States v. Schafer, 461 F.2d 856 (9th Cir. 1972), the Supreme Court
expressly reserved the question in Wyman v. James, 400 U.S. 309, 323, 91 S.Ct. 381, 27
L.Ed.2d 408 (1971). However, the evidence uncovered in the search of appellant's briefcase
could hardly be called unrelated to the justification for the search.
45
See United States v. Slocum, 464 F.2d 1180, 1182 (3d Cir. 1972); United States v. Bell, 464
F.2d 667, 669 (2d Cir. 1972); United States v. Epperson, 454 F.2d 769, 771 (4th Cir. 1972)
46
See, e. g., Note, Skyjacking: Constitutional Problems Raised by Anti-Hijacking Systems, supra
note 33, at 359
47
See United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); United
States v. Schafer, 461 F.2d 856, 858 (9th Cir. 1972); Downing v. Kunzig, 454 F.2d 1230, 1232-
1233 (6th Cir. 1972)
48
As we have seen, the program rests upon an adequate statutory and regulatory base. See
notes 7, 20-25, and related text; but see note 26
49
"The scope of the search must be 'strictly tied to and justified by' the circumstances which
rendered its initiation permissible." Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20
L.Ed.2d 889 (1968). See, e. g., Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed. 2d
917 (1968); Chimel v. California, 395 U.S. 752, 762-764, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
This is especially true where, as in this instance, the search, impinges not only upon Fourth
Amendment rights but upon other constitutional rights as well. See Part IV of this opinion
50
See United States v. Meulener, 351 F. Supp. 1284, 1288-1291 (C.D.Cal.1972); United States v.
Allen, 349 F.Supp. 749, 752 (N.D.Cal.1972); cf. United States v. Bell, 464 F.2d 667, 674
(Friendly, J., concurring) (imposing requirement that passengers have "advance notice" of
liability to search)
Assistant Attorney General Will R. Wilson testified before the House Committee on Interstate
and Foreign Commerce as follows: "My feeling is that a general surveillance of the public in the
way of a search or otherwise, in getting on a plane, must be done administratively some way
and probably the nearest way that that can be made constitutional is through a consent
procedure in the buying of a ticket or something like that." Hearings on Aviation Safety and
Aircraft Piracy Before the H. Comm. on Interstate and Foreign Commerce, 91st Cong., 1st
Sess., at 82 (Feb. 5, 1970).
51
The FAA directive is explicit: the right to board is conditioned upon submission to a "consent"
search. See note 24, supra, and related text
No more is permitted by statute. 49 U.S.C. Sec. 1511 authorized air carriers "to refuse
transportation to a passenger or to refuse to transport property" if the transportation would be
"inimical to safety of flight" (emphasis added). And see Hearings on Aviation Safety and Aircraft
Piracy Before the H. Comm. on Interstate and Foreign Commerce, 91st Cong. 1st Sess., at 106
(1970) (testimony of Acting FAA Administrator David D. Thomas).
The proposed Air Transportation Security Act of 1973, basically a codification of the relevant
aspects of the present airport screening search program, also stresses that such searches are
"consent" searches. See S.Rep. No. 93-13, 93d Cong., 1st Sess., at 9 (1973) (discussing Sec.
316(a)(1) of the proposed Act): even after a passenger activates the magnetometer, he is
subject to a search or frisk "only if he first voluntarily consents. If such consent is denied then
the individual shall forfeit his opportunity on that occasion to be transported and the air carrier
shall deny his passage."
In a statement before the Subcommittee on Aviation of the Senate Commerce Committee on
January 10, 1973, Secretary Volpe "identif[ied] the features which our program has in common
with S. 39," the above proposed Act, as follows:
"Specifically, the regulations recently issued by FAA follow S. 39 by requiring the screening of
passengers by weapondetectors. Additionally, the FAA regulations direct the air carriers to deny
boarding to any person who is not cleared by a detection device, or if such equipment is not
available, does not consent to the search of his person for a weapon and to refuse to permit
any person to carry aboard any property which he does not consent to have inspected"
(emphasis added).
See also testimony of Will R. Wilson, supra note 50.
52
In sustaining warrantless "home visitations" in Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27
L.Ed.2d 408 (1971), Justice Blackmun stressed the fact that the "visitations" were not
compelled. See 400 U.S. at 325, 91 S.Ct. 381. Instead, the welfare recipients retained the
option of avoiding the home "visit" by giving up welfare payments. See id. at 317-318, 324,
325, 91 S.Ct. 381. Similarly, prospective passengers must retain the option of avoiding the
warrantless preboarding searches by giving up their right to board the aircraft
United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), allowing
compulsory warrantless regulatory searches, is distinguishable. Unlike Wyman and the instant
case, the element of compulsion was essential to the fulfillment of the justifying governmental
purpose. Moreover Biswell involved the conditioning of the issuance of a business license on the
government's right to inspect the business premises, an area in which the government has
traditionally had great powers. See Note, The Law of Administrative Inspection: Are Camara
and See Still Alive and Well?, 1972 Wash.U.L.Q. 313, 327-330.
53
For general discussions of airport searches in relation to the passengers' constitutionally
protected right to travel, see Note, Skyjacking: Constitutional Problems Raised by Anti-Hijacking
Systems, supra note 33, at 363-364; Abramovsky, supra note 33, at 127-130
54
See, e. g., Zemel v. Rusk, 381 U.S. 1, 14, 15-16, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965);
Edwards v. California, 314 U.S. 160, 184, 62 S.Ct. 164, 86 L.Ed. 119 (1941) (Jackson, J.,
concurring); B. Schwartz, Rights of the Person 769-70, 774 (1968)
55
This is due in part, perhaps, to the fact that the constitutional source of the right is not yet
settled. See B. Schwartz, supra, note 55, at 766-769; Kurland, The Privileges & Immunities
Clause: "Its Hour Come Round at Last"?, 1972 Wash.U.L.Q. 405, 415-418; Abramovsky, supra,
note 33, at 127-128; Note, The Right to Travel-Its Protection and Application under the
Constitution, 40 U. Mo.K.C.L.Rev. 66, 67-77 (1971)
56
See, e. g., San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36
L.Ed.2d 16 (1973); Dunn v. Blumstein, 405 U.S. 330, 338, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972);
Oregon v. Mitchell, 400 U.S. 112, 237, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (Brennan, White, &
Marshall, JJ., concurring in part and dissenting in part); United States v. Guest, 383 U.S. 745,
757-758, 86 S.Ct. 1170, 16 L.Ed. 2d 239 (1966); Zemel v. Rusk, 381 U.S. 1, 14, 15, 85 S.Ct.
1271, 14 L.Ed.2d 179 (1964); Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d 1204
(1958)
57
It has been argued that restrictions upon the right to travel between states, as distinguished
from the right to travel internationally, can be justified only by a clear showing that they are
necessary to promote a compelling governmental interest. Shapiro v. Thompson, 394 U.S. 618,
642-644, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (Stewart, J., concurring). See also Dunn v.
Blumstein, 405 U.S. 330, 335, 338-339, 342, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Oregon v.
Mitchell, 400 U.S. 112, 238, 91 S.Ct. 260, 27 L.Ed. 2d 272 (1970) (opinion of Brennan, White, &
Marshall, JJ.); Shapiro v. Thompson, supra, 394 U.S. at 634, 89 S.Ct. 1322
58
See Dunn v. Blumstein, 405 U.S. 330, 342, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Oregon v.
Mitchell, 400 U.S. 112, 238, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (opinion of Brennan, White, &
Marshall, JJ.); Note, Airport Security Searches and the Fourth Amendment, 71 Colum. L.Rev.
1039, 1049 (1971); See also Aptheker v. Secretary of State, 378 U.S. 500, 507-508, 84 S.Ct.
1659, 12 L.Ed.2d 992 (1964)
59
The airport search program is not an absolute bar to travel. Other means of transportation are
available. Moreover, for the vast majority such a search entails at most a slight delay; it does
not bar their intended flight. In a broad sense, the airport search program is a governmental
effort to protect freedom to travel from private interference, rather than to impede the
individual's right to travel