The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, District Judge:
Defendant is charged with concealing and facilitating the transportation of heroin and of conspiring to commit that crime. 21 U.S.C. §§ 173, 174. He has moved to suppress heroin taken from his person.
Presented is the question of whether the anti-hijacking system used at our airports is constitutional. For the reasons indicated below, we hold the system valid. Nevertheless, because in this particular case the elegant and objective method devised by the government to deter and apprehend hijackers was distorted in an irrational and prejudicial way by airlines personnel, defendant's motion must be granted.
With his companion, Ernesto Perez Gonzalez, defendant, Frank Lorenzi Lopez, was apprehended on November 14, 1970 at John F. Kennedy International Airport as he was about to board a Pan American flight bound for Puerto Rico. Two Deputy United States Marshals had been called from a trailer adjacent to the Pan American premises where they were stationed in connection with the government's anti-hijacking program. An employee of Pan American had pointed out the two passengers as "selectees" -- persons whose "profile" suggested a substantial likelihood that they were potential hijackers; who had activated a magnetometer, a metal detection device; and who, upon request, had failed to produce identification.
The Marshals approached the two and asked if they would walk through the magnetometer installation again, first with, and then without, a small blue bag that Gonzalez was carrying. Each of them did so, activating the device on both trips. The Marshals again requested identification but none was produced. At this time Gonzalez identified himself by his proper name, indicating that the name Julio Lopez, which appeared on his ticket, was erroneous.
The two travelers were then asked to accompany the Marshals to a private area adjacent to the passenger boarding ramp where their outer clothing was patted down ("frisked") for weapons. A Marshal felt a hard object about 4 inches wide, 6 inches long, and three-quarters of an inch deep under Lopez's clothing. Upon request he removed a tinfoil-covered plastic envelope tightly packed with white powder. A field test of the powder proved positive for heroin. Gonzalez and Lopez were then arrested.
Both were charged with concealment and facilitating the transportation of the packet of narcotics found on Lopez and with conspiring to commit this crime. The government's evidence at the suppression hearing made it apparent that there was no case against Gonzalez, even if the heroin was admitted. Accordingly, a judgment of acquittal was granted after the government and Gonzalez waived a jury and agreed that the hearing testimony would be deemed received at the trial.
FEDERAL AERONAUTICS ADMINISTRATION SYSTEM FOR DISCOURAGING AND APPREHENDING POTENTIAL HIJACKERS
In October 1968 a Task Force was appointed to consider methods of combating the increasing number of hijackings. A number of interested agencies including the Federal Aeronautics Administration, the Department of Justice and the Department of Commerce were represented. This Task Force included individuals trained in several disciplines including psychology, law, engineering and administration. A leading role in developing and testing the Task Force ideas was taken by Dr. John T. Dailey, a well-trained psychologist with a broad practical background in education and government personnel. At the hearing he testified at length and impressed the Court with his skill and honesty.
One of the serious problems faced by the Task Force was that many millions of passengers use air transportation. Any practical procedure would have to permit maximum access to aircraft with minimal inconvenience and embarrassment to passengers and almost no delay in the operations of the airlines.
Among the investigations undertaken by this group were a detailed study of the characteristics of all the then known hijackers and of the air traveling public. Background investigations of hijackers as well as visual and photographic studies of boarding air passengers were relied upon. Among the findings were (1) hijackers were generally not highly motivated and resourceful and (2) they shared certain characteristics markedly distinguishing them from the general traveling public. In addition, engineering studies were undertaken of available weapon detection devices.
After thorough field testing of equipment and various screening techniques, the present anti-hijacking system was instituted. Although we are concerned primarily with the preflight apprehension aspect of the system its principal focus is on deterrence. Involved are the following elements:
A severe statute with possible death penalties for hijacking was adopted. There already were in force various regulations and statutes prohibiting the carrying on board of firearms and other weapons.
Signs in English and Spanish are posted at the boarding gates where passengers' tickets are checked reading as follows:
AIRCRAFT HIJACKING IS A FEDERAL CRIME PUNISHABLE BY DEATH
CARRYING CONCEALED WEAPONS ABOARD AIRCRAFT IS PUNISHABLE BY PRISON SENTENCES & FINES
PASSENGERS AND BAGGAGE SUBJECT TO SEARCH
These signs are eleven by fourteen inches with half-inch high letters. Warnings of the same or larger dimensions are conspicuously posted at other parts of the air terminal.
While probably not required to give notice of the applicable law and penalties, these signs fill that function. Cf. Lambert v. California, 355 U.S. 225, 228-30, 78 S. Ct. 240, 242-43, 2 L. Ed. 2d 228 (1957) (felon registration ordinance); United States v. Mancuso, 420 F.2d 556 (2d Cir. 1970) (failure to register as a narcotics law violator before leaving the country). They serve to deter and to reduce the possibility of embarrassment should a passenger's boarding progress be interrupted.
If a passenger meets a prescribed "profile" he is focused on by airline employees. The details of the profile and its use are set out below.
A magnetometer is installed in the passageway leading to the plane so that all passengers must pass through it. It is set to flash a warning light when metal equal to or greater than an average 25 caliber gun in magnetic force deflecting power is carried by. This device is described in more detail below.
5. Interview by Airlines Personnel
A person who triggers the magnetometer and meets the profile requirements is "interviewed" by airlines personnel. If he provides satisfactory identification, he is permitted to proceed unimpeded. Otherwise he is designated a "selectee" and is denied boarding until a Deputy United States Marshal is summoned.
The Marshal again requests identification of those designated as "selectees." If satisfactory identification is not furnished it is suggested that the person go through the magnetometer once more. Before walking through, he is asked if he has any metal on his person or in any baggage he is carrying. If he replies in the negative and still sets off the magnetometer, a request is made that he submit to a "voluntary" search. It is explained that this search is part of an attempt by the government to prevent hijacking.
The Marshal pats-down the external clothing of the subject in order to discover if he is carrying any weapons. Depending upon what is found as a result of the frisk, boarding is permitted or the person is detained.
The program is designed to speed passengers who are unlikely to present danger and to isolate, with the least possible discomforture or delay, those presenting a substantial probability of danger. At each successive screening stage an attempt is made to permit as many as possible to complete boarding.
While no single screening technique can by itself completely protect the flying public -- without creating an objectionable level of disturbance and inconvenience -- probabilities are increased by combining several approaches, thus sufficiently reducing the size of the population which must ultimately be physically interfered with to a practicable and socially acceptable level. Cf. Rosado v. Wyman, 322 F. Supp. 1173, 1180-1181 (E.D.N.Y.), aff'd, 437 F.2d 619 (1970) (collecting authorities on use of mathematics in the law); Finkelstein and Fairley, A Bayesian Approach to Identification Evidence, 83 Harv. L. Rev. 489 (1970).
The system seems to serve this purpose well. Whether because of it or for other reasons hijacking decreased in 1970 to approximately 50% of what it was in 1969. No flight fully protected by the program has been hijacked.
One sample consisting of 500,000 screened passengers showed that only 1,406 satisfied the profile --.28%. Approximately one-half of those were nevertheless permitted to board immediately after failing to activate the magnetometer, leaving 712, or.14% to be interviewed. Of those interviewed, 283, approximately one-third were actually searched. Therefore, only.05% of the sample were ultimately subjected to a preventive weapons frisk. Twenty persons were denied boarding -- approximately 1/15 of those searched and of these, 16 were arrested. In sum, almost everyone (99.86%) of the one-half million persons passed swiftly through the boarding process without even being asked a question and 99.95% boarded without being searched.
In another sample of 226,000 screened passengers.57% were selected as meeting the profile;.28% were interviewed; and.13% were searched. It was reported that none were searched "involuntarily" and only 24 were denied boarding.
Statistics for a number of covered airlines at the John F. Kennedy International Airport in December 1970 were produced. While the number of passengers using these airlines during this month is not shown, they carried a total of 2,645,000 passengers during the last six months of 1970 -- or on the average 441,000 each month. Three hundred and three reportedly met the profile and nine arrests were made. There were confiscations of 10 illegal knives, one tear gas pen, four hand guns, one gas gun and one pack of marijuana. For the reasons described in part VIII, infra, of this opinion, the Kennedy statistics, insofar as they are affected by Pan American Airways figures, cannot now be relied upon.
That the risk of hijacking is greatly increased when a passenger possesses weapons can hardly be doubted. In the 80 hijacking incidents involving planes of United States registry up to June of 1970, there were 55 firearms, 20 knives, 14 alleged bombs, 3 razors or razor blades, 1 BB gun, 1 tear gas pen, and 1 broken bottle.
In camera testimony was persuasive that the characteristics of the potential hijackers chosen for the profile were well calculated to eliminate safe persons while isolating those likely to be dangerous. No one can be certain, of course, that anyone failing all the tests of the system will be a hijacker. In fact, approximately 14 out of every 15 people who were searched proved to have no weapons and were then permitted to proceed. Moreover, as the facts detailed below indicate, there is always the risk that a soundly designed process will be abused by ignorant, careless or malevolent personnel. As one commentator pointed out
"permitting any use of certain mathematical methods entails a sufficiently high risk of misuse, or a risk of misuse sufficiently costly to avoid, that it would be irrational not to take such misuse into account when deciding whether to permit the methods to be employed at all." Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1331 (1971).
Measured against the air traveling population as a whole, the method is highly effective in narrowing the group which needs particular attention. Where the risks of hijacking to passengers and crew and to the viability of the entire industry are so great we cannot say on balance that use of the system is imprudent. Whether it meets the reasonableness test of the Constitution is an issue dealt with below.
Before turning to that problem there are two procedural difficulties that need to be resolved. One of them, the issue of in camera hearing, raises very serious questions. The other, acceptance of proof that the magnetometer did what it was purported to have done, is relatively simple. We turn to the simple issue first.
The electronic weapons detector -- appropriately named "Friskem" -- utilized in this case depends upon magnetic field detectors called "flux-gate magnetometers." The unit was developed after conferences with representatives of the Task Force.
Its operation is based upon the physical fact that the earth is surrounded by a relatively constant magnetic field composed of lines of flux. Steel and other ferromagnetic metals are much better conductors than the air. As a result, when any such metal moves through an area, nearby magnetic lines of flux are distorted to some degree as they tend to converge and pass through the metal while seeking the path of least resistance. Such distortions occurring near a "flux-gate magnetometer" create a signal which can be amplified and calibrated to detect magnetic disturbances. See, e.g., Chapman, The Earth's Magnetism, 10-12, 17-19, 27, 28 (2d ed. 1951); J. Jaquet, No-Touch Frisk Electronic Weapons Detection paper presented at Conference on Electronic Crime Countermeasures, U. of Ky., April 22, 1971; Marshall, An Analytic Model for the Fluxgate Magnetometer, IEEE Transactions on Magnetics, Vol. MAG-3, No. 3 (Sept. 1967); Geyger, Flux-Gate Magnetometer Uses Toroidal Core, Electronics (June 1, 1962); Geyger, The Ring-Core Magnetometer -- A New Type of Second-Harmonic Flux-Gate Magnetometer, Communication and Electronics (Mar. 1962).
Though these scientific principals are not matters of common knowledge they may be readily and accurately determined, are verifiable to almost a certainty and are not disputed. The literature was placed in the Court file, notice was given to the parties that the Court intended to rely upon it, and there was no objection by either party.
Under these circumstances the Court takes judicial notice of the scientific principles utilized in the design of the Friskem unit. It finds that such a machine, if properly constructed and operated, can perform in the manner described to the Court by testimony and manuals. See, e.g., Rev. Prop. Rules of Evidence for the United States District Courts and Magistrates, Rule 201(b)(2) (March 1971); Korn, Law, Fact, and Science in the Courts, 66 Colum. L. Rev. 1080, 1089, 1107-1115 (1966); Davis, Judicial Notice, 55 Colum. L. Rev. 945, 948-952 (1955). Cf. Application of Hartop, 50 C.C.P.A. 780, 311 F.2d 249, 255-257 (Ct. C. & P. App. 1962) (safety of drugs); Golaris v. Jewel Tea Co., 22 F.R.D. 16, 20 (N.D. Ill. 1958) (trichinosis dangers); United States v. Dreos, 156 F. Supp. 200, 208 (D. Md. 1957) (radar); The S.C.L. No. 9, 37 F. Supp. 386, 391 (E.D. Pa. 1939), aff'd, 114 F.2d 964 (3d Cir. 1940) (bouyancy); State v. Tomanelli, 153 Conn. 365, 216 A.2d 625 (Conn. 1966) (radar); McKay v. State, 155 Tex. Crim. 416, 235 S.W. 2d 173 (Texas 1950) (drunkometer); State v. Damm, 64 S.D. 309, 266 N.W. 667 (S.D. 1936) (blood type).
Since no opinion was brought to the Court's attention taking judicial notice of magnetometer capabilities, the Court also relied upon expert testimony adduced at the hearing. Such reliance is often the first step in a process that passes through judicial notice to acceptance on a theory of stare decisis. See, e.g., Maguire, et al., Cases and Materials on Evidence, 22-29, 65 (5th ed. 1965). This has been the experience in connection with such scientific techniques as use of fingerprints, ballistic comparison and radar. Testimony and exhibits adduced at the hearing and trial indicated that the Friskem device was designed, in accordance with scientific principles already described, specifically to meet the requirements of the Task Force and that it was properly manufactured.
The model used in the instant case consists of a series of magnetometers in two vertical poles located 36 inches apart and amplification equipment and indicators contained in a console unit. As demonstrated in the Court, and as revealed in the various manuals, the operation of the equipment requires no understanding of its theory. Its calibration is easy and its adjustment can be assured by simple visual observations.
While the person who actually adjusted the machine at the airport was not available, it was proper to accept testimony with respect to the custom and practice of the enterprise. See Rev. Prop. Rules of Evidence for the United States District Courts and Magistrates, Rule 406 (March 1971). That practice demonstrated that the physical equipment was adjusted so that ...