People v. Hyde

Opinion

Defendant Frederick' Weston Hyde III appeals from a judgment of conviction entered upon a plea of guilty to the charge of possessing restricted dangerous drugs (Health & Saf. Code, § 11910) discovered in the course of an “airport search” of defendant’s hand luggage. Defendant principally contends the evidence against him was the product of an unreasonable search in violation of the Fourth Amendment to the United States Constitution. We conclude the search in question was lawful according to the Fourth Amendment standards set forth below and therefore affirm the judgment.

The facts revealed here are a typical consequence of the airplane boarding procedures employed in recent years in California and throughout the United States.^[8] On December 24, 1971, United States Deputy Marshal Budd Johnson stopped defendant as he attempted to board a Western Airlines flight from San Diego International Airport to Phoenix because defendant allegedly satisfied the Federal Aviation Administration’s behavioral profile of a potential hijacker and activated a magnetometer indicating

At the outset we note there is no issue of consent, actual or implied. The trial court determined defendant had not consented to the search and the People on appeal do not challenge the factual finding.^[9]

However, the People have contended on trial and appeal that Johnson’s search of defendant’s hand luggage was reasonable in view of the Fourth Amendment principles established by the United States Supreme Court in Terry v. Ohio (1968) 392 U.S. 1 [ 20 L.Ed.2d 889 , 88 S.Ct. 1868 ]. Terry considered the extent of the rights under the Fourth Amendment accorded to an individual confronted on the street by a police officer investigating possible criminal activity. The court held that when a police officer is otherwise entitled to detain an individual to inquire into suspicious circumstances, he may conduct a limited pat-down search for weapons to protect himself if he has an articulable reason to believe the individual is armed and dangerous.

It is tempting to draw, in the manner of numerous jurisdictions, an analogy between Terry and the typical facts herein.^[10] In Terry, the court upheld a search undertaken without either a warrant or probable cause on the ground that the governmental interest in the protection of law en

In any event, even were we to conclude the profile and the magnetometer are sufficient together to sustain a Terry search, the People offer no justification for subjecting passengers to a magnetometer screening in the first place. The magnetometer, though minimally intrusive, unquestionably operates to search individuals within the meaning of the Fourth Amendment; the machine reveals the presence of metal objects in areas under personal control as to which the individual maintains a reasonable expectation of privacy and freedom from governmental inspection. (Katz v. United States (1967) 389 U.S. 347 [ 19 L.Ed.2d 576 , 88 S.Ct. 507 ].)^[11] As a result, our justification of the ultimate search under Terry on the basis of a magnetometer reading would constitute bootstrapping to an impermissible degree. If the magnetometer is to be relied upon as a ground for a search, it must itself first be legitimated under the Fourth Amendment.

The Terry rationale presents another problem when applied to airport searches. The case emphasizes that at the heart of the decision to allow a pat-down search of individuals whom an officer has detained and believes to be dangerous is the recognition of society’s paramount interest in

In upholding airport screening procedures because of their regulatory nature, we recognize that “[t]he scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” (Terry v. Ohio (1968) supra, 392 U.S. 1 , 19 [ 20 L.Ed.2d 889 , 904], citing Warden v. Hayden (1967) 387 U.S. 294 , 310 [ 18 L.Ed.2d 782 , 793-794, 87 S.Ct. 1642 ] (Fortas, J., concurring); Preston v. United States (1964) 376 U.S. 364 , 367-368 [ 11 L.Ed.2d 111 , 780-781, 84 S.Ct. 881 ]; Agnello v. United States (1925) 269 U.S. 20 , 30-31 [ 70 L.Ed. 145 , 148, 46 S.Ct. 4 , 51 A.L.R. 409 ].) Pre-boarding inspections must be confined to minimally intrusive techniques designed solely to disclose the presence of weapons or explosives.

It has been urged that airline officials should obtain a search warrant before inspecting individual passengers. Although Camara required a warrant in the context of its particular holding, the court emphasized that its decision was not “intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations. See North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (seizure of unwholesome food); Jacobson v. Massachusetts, 197 U.S. 11 (compulsory smallpox vaccination); Compagnie Francaise v. Board of Health, 186 U.S. 380 (health quarantine); Kroplin v. Truax, 119 Ohio St. 610 , 165 N.E. 498 (summary destruction of tubercular cattle).” (387 U.S. at p. 539 [18 L.Ed.2d at p. 941].) The proper inquiry, according to Camara, is “whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.” (Id. at p. 533 [18 L.Ed.2d at p. 938]; also see United States v. Schafer (9th Cir. 1972) supra, 461 F.2d at p. 858.)

Airport searches are singularly unsuited to the warrant procedure. Every day through airport terminals nationwide pass thousands of airline travellers, each of whom must be screened for weapons or explosives. The result is a form of ongoing emergency rendering it impracticable, if not

Given the foregoing articulated standards by which to judge the validity of airport screening programs, it becomes clear that the search at issue in the instant case was reasonable under the Fourth Amendment. Deputy Marshal Johnson and the Western Airlines officials had the right and the administrative duty to screen all boarding passengers for weapons or explosives. In order to expedite the screening procedure Johnson properly relied upon the profile and the magnetometer, which had been indiscriminately invoked, to select defendant as a candidate for further inspection. There is no evidence that Johnson abused his authority by conducting an exploratory investigation into defendant’s bag or that the scope of the search exceeded its justification. Indeed, all indications point to the conclusion that Johnson took only the minimally necessary precautions to insure that defendant was not carrying materials inimical to a safe air journey. The marshal, therefore, acted lawfully in proceeding to search defendant’s bag.^[14]

The judgment is affirmed.

McComb, J., Burke, J., and Clark, J., concurred.

I agree with the majority view that the FAA anti-hijack screening procedures currently in effect suffer from no constitutional infirmity. In my view, however, the rationale adopted by the majority fails to provide an adequate basis for today’s holding. I find it necessary, therefore, to express my opinion as to the proper resolution of the unique problem confronting us.^[8]

The majority approaches the question of the constitutionality of airport searches by labeling them as “administrative searches” and then justifies their lawfulness under the “administrative search doctrine” established in Camara v. Municipal Court (1967) 387 U.S. 523 [ 18 L.Ed.2d 930 , 87 S.Ct. 1727 ] and its companion case, See v. City of Seattle (1967) 387 U.S. 541 [ 18 L.Ed.2d 943 , 87 S.Ct. 1737 ], In doing so, however, the majority in my opinion fails to give proper weight to several unique features of airport searches which distinguish them from the health and fire inspections involved in Camara and See and, for that matter, from many other types of governmental intrusions frequently characterized as administrative searches.

For example, the health or fire inspector seeks to enter and inspect a person’s dwelling or place of business; absent a valid consent the entry and inspection may not be conducted without a prior showing of some functional equivalent to probable cause; there is no advance notice that the inspection will be conducted; and the owner or occupant may not lawfully refuse permission to enter and search once the inspector has secured proper judicial authorization. In contrast, the airport searches whose constitutionality we uphold today involve only a cursory inspection of the individual and his carry-on possessions conducted as a condition placed upon use of a public conveyance; there is no requirement of any level or quantum of probable cause; there is advance notice of the airport screening procedure; and the individual may avoid being searched by electing not to travel by airplane to his intended destination.^[9] These particular features of the airport search, moreover, are characteristic of other “public facility screening searches” such as those one may be subjected to upon entering a courthouse or other public building or facility.

Lord Mansfield wisely observed long ago that “the law does not consist in particular cases; but in general principles, which run through the cases, and govern the decision of them.” (Rust v. Cooper (1777) 2 Cowp. 629, 632; 98 E.R. 1277, 1279.) Rather than attempt to compress airport searches within the confines of Camara — and rely on fictions such as the concept of an “on-going emergency” to do so — we should resolve the constitutional issues on the basis of the principles underlying the delicate balancing process which lies at the heart of a small but significant segment of our Fourth Amendment jurisprudence.^[10] This balancing process focuses on the Fourth Amendment’s standard of reasonableness and requires an examination of all the salient features of the particular type of search and seizure under scrutiny. (Wyman v. James (1971) 400 U.S. 309 , 318-324 [ 27 L.Ed.2d 408 , 414-418, 91 S.Ct. 381 ]; Terry v. Ohio (1968) 392 U.S. 1 , 19 [ 20 L.Ed.2d 889 , 904, 88 S.Ct. 1868 ]; Camara v. Municipal Court, supra, 387 U.S. 523 , 537-538 [ 18 L.Ed.2d 930 , 940-941]; see Blair v. Pitchess (1971) 5 Cal.3d 258 , 272-273 [ 96 Cal.Rptr. 42 , 486 P.2d 1242 , 45 A.L.R.3d 1206 ].)

There is general agreement that the Fourth Amendment’s mandate of reasonableness derives its substantive content from, and is shaped by, the command that “no warrants shall issue but upon probable cause.” (Cady v. Dombrowski (1973) 413 U.S. 433 , 439 [ 37 L.Ed.2d 706 , 713, 93 S.Ct. 2523 ], see also p. 451 [37 L.Ed.2d p. 720] (Brennan, J., dissenting); Almeida-Sanchez v. United States (1973) 413 U.S. 266 , 277 [ 37 L.Ed.2d 596 , 605, 93 S.Ct. 2535 ] (Powell, L, concurring); United States v. United States District Court (1972) 407 U.S. 297 , 315 [ 32 L.Ed.2d 752 , 765, 92 S.Ct. 2125 ]; Coolidge v. New Hampshire (1971) 403 U.S. 443 , 473-484 [ 29 L.Ed.2d 564 , 587-594, 91 S.Ct. 2022 ]; Katz v. United States (1967) 389 U.S. 347 , 357 [ 19 L.Ed.2d 576 , 585, 88 S.Ct. 507 ]; Camara v. Municipal Court, supra, 387 U.S. 523 , 528-529 [ 18 L.Ed.2d 930 , 935-936].) Thus, “searches conducted . . . without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States, supra, 389 U.S. 347 , 357 [ 19 L.Ed.2d 576 ,

The probable cause requirement is the appropriate starting point for an inquiry into the constitutionality of current FAA airport pre-boarding screening searches.^[12] The traditional concept .of “probable cause,” with its rigorous demands for reliability and specificity in the information upon which government action is predicated,^[13] is the “time-honored” standard

It is now settled, however, that there is no fixed standard of reasonableness that applies to all types of governmental action which is subject to the mandates of the Fourth Amendment. Where, as here, we deal with a type of official conduct that (1) has objectives qualitatively different from those of the conventional search and seizure in the criminal context^[14] and (2) cannot feasibly be subjected to regulation through the traditional probable cause standard of justification,^[15] we may assess the reasonableness of the particular type of search and seizure by examining and balancing the governmental interest justifying the search and the invasion which the search entails. (See United States v. Biswell, supra, 406 U.S. 311 ; Terry v. Ohio, supra, 392 U.S. 1 , 20-27 [ 20 L.Ed.2d 889 , 905-909]; Camara v. Municipal Court, supra, 387 U.S. 523 , 534-538 [ 18 L.Ed.2d 930 , 938-941]; Blair v. Pitchess, supra, 5 Cal.3d 258 , 270-273; Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn.L.Rev. 349 , 422; La Fave, Administrative Searches and the Fourth Amendment: The Camara and See Cases 1967 Sup. Ct. Rev. 1 , 15-16.). Nevertheless, the notions which underlie the probable cause requirement remain “fully relevant.” {Terry v. Ohio, supra, 392 U.S. 1 , 20.) Accordingly, in focusing upon the governmental interest which allegedly justifies the official invasion of privacy, it is necessary to consider not only the nature and magnitude of the inter

FA A anti-hijack screening requirements were implemented to assure the uninterrupted and safe operation of our commercial air passenger transportation system. As the majority points out, the government has the most compelling reasons — the preservation of hundreds of lives and millions of dollars worth of private property — for subjecting airline passengers to a search for weapons and explosives which could be used to hijack an airplane.^[16] Furthermore, the nature of the hijacking problem is such that there seems to be no practical means of limiting screening searches only to those passengers who are reasonably likely to hijack an airplane. (United States v. Davis (9th Cir. 1973) 482 F.2d 893 , 907.) There is no solid basis for assuming that the “profile” screening procedure can successfully detect potential hijackers. (McGinley & Downs, Airport Searches and Seizures — A Reasonable Approach (1972) 41 Fordham L.Rev. 293 , 305-306; but see Note, Constitutionality of the 1973 Airport Searches: A Factual Analysis (1973) 8 U.S.F. L.Rev. 172 .) Since weapons or explosives can be taken aboard an airplane in anyone’s clothing or “carry-on” baggage, the only screening procedure with an acceptable level of effectiveness is to subject each passenger to a magnetometer .test and a carry-on baggage inspection. (See United States v. Schafer, supra, 461 F.2d 856 , 858-859.)^[17] Thus not only does the government have a compelling interest in screening passengers for weapons and explosives, but

On the opposite side of the balance, we must examine “the nature and quality of the intrusion on individual rights” incidental to the governmental action under scrutiny. (Terry v. Ohio, supra, 392 U.S. 1 , 24 [ 20 L.Ed.2d 889 , 908].) We are not confronted here with an intrusion by governmental agents into the sanctity of the home as in Camara or the privacy of private commercial premises as in See, Colonnade Corp. and Biswell. Nor do we have even the “limited” indignity suffered by the individual who is stopped on the street by a police officer and frisked for weapons. (See Terry v. Ohio, supra, 392 US. 1 , 24-27 [ 20 L.Ed.2d 889 , 907-909].) Rather, we are presented here with a situation in which individuals go to a quasi-public facility the use of which is conditioned upon walking through a magnetic field and opening for inspection any packages or containers capable of holding weapons or explosives. Although there is an invasion of constitutionally protected privacy' interests, the intensity and scope of the intrusion is clearly minimal. The magnetometer reveals to governmental scrutiny nothing other than the presence of metallic objects, and the carry-on baggage inspection is strictly limited in scope to that which is reasonably necessary to detect weapons or explosives. There are, moreover, additional considerations which operate to ameliorate the privacy intrusion incident to this very limited screening search.

Of signal importance is the fact that airline passengers have advance notice that they will be subjected to a pre-entry screening for weapons and explosives.^[18] Although advance notice in itself cannot operate to deprive an individual of his Fourth Amendment rights, it nevertheless has been recognized by the courts^[19] and commentators^[20] as a factor of major sig

Another significant feature of public facility screenihg searches in general and airport searches in particular is the fact that the individual may elect not to be searched. The psychological impact upon the individual is considerably less where he has an option to avoid an intrusion upon his privacy than where, as in the conventional search, there is no choice but to submit to the invasion.^[21] The potential airline passenger may avoid all intrusion into his privacy by foregoing traveling or by using a means of transportation other than the airplane and, as previously noted, even those who are compelled to fly by personal or commercial necessity may avoid the most intrusive facet of the screening procedure — the carry-on baggage inspection — -by checking all such baggage.with the remainder of their luggage.

Such an election not to be searched is admittedly at the cost of some inconvenience, particularly where alternate means of transportation are significantly more expensive or less efficient. Nevertheless, the fact that the individual may unilaterally opt to avoid all or a major portion of the screening search is a factor which renders the governmental action under scrutiny more “reasonable” within the meaning of the Fourth Amendment. (Wyman v. James, supra, 400 U.S. 309 , 321, 324 [ 27 L.Ed.2d 408 , 416, 417]; United States v. Albarado, supra, 495 F.2d 799 , 807-808.)^[22]