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UNITED STATES v. BELL

November 24, 1971

UNITED STATES of America,
v.
Henry BELL, Defendant


Costantino, District Judge.


The opinion of the court was delivered by: COSTANTINO

MEMORANDUM and ORDER

COSTANTINO, District Judge.

 While attempting to board an Eastern Airlines flight leaving LaGuardia Airport for Georgia on November 28, 1970, the defendant was placed under arrest by a Deputy United States Marshal after a frisk of the defendant revealed approximately 40 grams of heroin in his possession. By a single count indictment filed in this court on June 8, 1971, the defendant is charged with violating the federal narcotics law, 21 U.S.C. §§ 173, 174 (1970). The defendant has now moved to suppress the evidence. The essential task before the court is to determine the existence or nonexistence of sufficient cause to justify the frisk that resulted in the discovery of heroin and the subsequent arrest and prosecution of the defendant.

 At the root of the defendant's motion is the constitutional validity of the anti-hijacking system now employed at major airports within the Eastern District of New York. The constitutional questions raised by the use of this system, however, are not of first impression in our court. In a lengthy and erudite opinion, United States v. Lopez, 328 F. Supp. 1077 (E.D.N.Y. 1971), Judge Weinstein has upheld the constitutionality of the anti-hijacking system. Though Judge Weinstein's views are not binding upon this court, the court does find them persuasive. For this reason and for those stated below, this court holds the system to be constitutional. Consequently, since the evidence at a hearing before the court points to scrupulous application of the system which, in turn, led to the discovery of the heroin on the person of the defendant, the defendant's motion to suppress the evidence must be denied.

 The Anti-Hijacking System

 In an attempt to reduce incidents of air piracy, and after considerable study, a Task Force, appointed in 1968, devised a field screening system to detect potential air pirates. Since Judge Weinstein describes the system at length in Lopez, 328 F. Supp. at 1082-1085, no useful purpose would be served by attempting to duplicate his findings here. It suffices to say that the testimony before this court of airline employees and deputy marshals leads to the inescapable conclusion that the anti-hijacking system instituted by the Federal Aeronautics Administration, was followed without variation. Nevertheless, three aspects of the system specifically relating to pre-flight apprehension, merit further inquiry: (1) profile selection; (2) magnetometer detection and (3) the "stop and frisk."

 Profile Selection

 All passengers boarding aircraft at airports in which the FAA's anti-hijacking system is operational are subject to the system. The system utilizes several screening techniques that, cumulatively, reduce the number of passengers that may be subjected to a stop and frisk by a Deputy United States Marshal -- an eventuality to which all passengers are alerted by large signs, both in English and Spanish, prominently displayed in the boarding areas. See Government's Exhibit #6, in evidence. The initial screening technique is a determination by airline employees, without the intervention or assistance of Government employees, that a passenger's characteristics match a certain "profile." Once such a "selection" is made, airline employees are alerted that the "selectee" has failed to clear the initial screening procedure.

 The testimony at the hearing *fn1" on this motion revealed that the characteristics employed in creating the profile were gathered purely from criteria designed to single out potential air pirates rather than to discriminate against any class of persons on the basis of race, national origin or beliefs, whether religious or political. *fn2" Hence, coupled with the other screening techniques of the anti-hijacking system, profile selection can act as a neutral and objective informant, see Lopez, supra, 328 F. Supp. at 1090-1092, warning the deputy marshal of the presence of a potentially armed and dangerous air pirate, with all the attendant risk of serious physical harm to the officer himself as well as to members of the public nearby.

 The evidence educed at the hearing shows unquestionably that the defendant did meet the profile and that he was in fact designated a selectee. Unlike Lopez, id. at 1101-1102, however, the airline employees have scrupulously applied the profile without any additions or subtractions. The profile they applied was the profile in the exact form authorized by the FAA. Since there were no abuses in application of the profile, on this point, no valid constitutional objection can be raised by the defendant.

 Magnetometer Detection

 The magnetometer is an electronic weapons detector installed on the "jetway," i.e., boarding ramp near the boarding agent's station. When a passenger having metal on his person equal to or greater than the amount of metal in an average.25 caliber gun passes through the magnetometer's magnetic field, a warning light flashes and a reading is visible on a meter. A scientific foundation for the magnetometer's design and construction was established by expert testimony at the hearing conducted by Judge Weinstein in Lopez. Id. at 1085-1086. Judge Weinstein found further that magnetometer operation required no understanding of its underlying scientific theory and that calibration was a simple process, verifiable by visual observation. Id. at 1086. In order to save time and effort, at the suggestion of the Government, this court took judicial notice of the magnetometer's capabilities. *fn3"

 The testimony at the hearing before this court established that a magnetometer had been installed on the jetway leading to the flight the defendant had intended to take to Georgia. The testimony also revealed that the defendant was a selectee and that he did trigger the magnetometer. Since the defendant had failed to clear these initial screening procedures, he was stopped by the boarding agent and requested to furnish identification. When he could not do so, a Deputy United States Marshal was summoned.

 An Eastern Airlines employee charged with the responsibility of maintaining the magnetometer equipment testified at the hearing that, in the normal course, magnetometers were calibrated once or twice a week. Describing the method of calibration, the employee testified that an officer armed with a.38 caliber revolver would pass through the magnetic field to determine if the device was sufficiently sensitive. Then, if the officer did trigger the device, using the manufacturer's suggested guide to calibration as a reference, the sensitivity of the device was decreased. The employee was unable to recollect, however, when the magnetometer triggered by the defendant had been last calibrated before the defendant attempted to board the flight on November 28, 1970. On this point, though, Deputy Marshal John Walsh, the arresting officer, testified that he activated the ...


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