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November 30, 1972

David MITCHELL, Defendant

Dooling, District Judge.

The opinion of the court was delivered by: DOOLING


DOOLING, District Judge.

 Defendant on April 7, 1972, went to LaGuardia Airport to board the five-thirty Piedmont Airlines Flight 33 to Fayetteville, North Carolina. He was carrying the unused portion of a roundtrip ticket from the South to New York and return; the ticket was in the name of G. Hewitt and not in defendant's name; defendant also had the Eastern Youth Card of Greg Hewitt and the Social Security card of Gregory Hewitt. When defendant went to the airlines ticket counter at Gate 31 he was erroneously classified as a selectee and his ticket was code marked accordingly. When the plane was ready for boarding, the flight announcement over the public address system incorporated a message to the Marshals to attend at the gate, an Eastern Airlines gate, because the passengers for the flight included one or more selectees.

 The door to the very small Marshals' office opens directly into the waiting area at Gate 31. Marshals John Whitty and John J. Walsh, who had been in their office, went from the Marshal's office toward the magnetometer which was at the opposite end of the waiting area from the door to the Marshals' office. Both Marshals testified, and it is found, that they observed the defendant going through the magnetometer frame, and then passing his carry-on bag through the magnetometer frame and looking at the screen on which the "reading" of the magnetometer shows in spots of illumination. Neither Marshal knew then or until later on that defendant was a selectee or the sole selectee on the flight.

 Gate 31 was viewed in the presence of counsel for both sides, the defendant, his brother-in-law, and the Marshals. It is an oblong area, solid walled on its opposing, shorter sides, with its long exterior wall all glass above the lower few feet, the inner long-side, separating it from the wide corridor leading from the lobby, formed by a low masonry barrier, broken to form an entrance at which there is the usual small check-in and seat-assignment counter where flight coupons are picked up. At the extreme left end of the waiting area, as one enters it from the general corridor, there is, perpendicular to the general corridor, a passage way, separated from the waiting area by a low wall, which leads to the door giving entrance to the jetway. The only entrance from the waiting area to the passageway formed by the low wall at the end of the waiting area is through an opening at the end nearest the corridor from the lobby, and that opening is filled by the magnetometer frame. After going through the magnetometer frame passengers can turn either to the right and go along the passage to the jetway, or they can turn left and go out to the general corridor.

 There is a direct conflict of testimony about the boarding of the plane and the incidents relating to it, but in general, it is necessary to accept the Marshals' version in its principal respects. The defendant's version appears to be quite at variance with the physical facts.

 The Marshals say that when the defendant went through the magnetometer he activated it, indicating that he was carrying metal on his person or in his carry-on bag. As is apparently usual, he was asked to go through the magnetometer a second time, and he did so. Again he activated the magnetometer. Since the defendant was -- seemingly -- a selectee, Marshal Whitty, as spokesman for himself and Marshal Walsh, identified himself, told the defendant that he had activated the magnetometer and asked him whether he had identification with him. He immediately explained that he did, but that the G. Hewitt ticket he was carrying was not in his name, which, he said, was David Mitchell. He produced Mitchell identification and was, or had just been, holding the Hewitt ticket. (Later, after arrest he produced the Hewitt SSA and Youth cards.) Defendant was then patted down, and nothing that could have activated the magnetometer was found on his person. His carry-on bag was then felt and, on opening the bag, a clasp knife or jackknife was found which evidently could have activated the magnetometer. There was also in the bag a rather tightly wrapped bundle in an ordinary brownish kraft paper bag and below that a smaller foil-wrapped package. The Marshal lifted out the foil-wrapped package, opened it sufficiently to observe that it had a white powdery substance in it and asked the defendant what it was. The defendant said it was heroin. The Marshal then opened the brown paper bag and saw that it contained glassine envelopes like those usual in the drug trade. The defendant was immediately asked to go to the Marshal's office. There is no question whatever but that he was not free to go from the moment he said, "Heroin," on. In the Marshal's office a field test was performed, the substance in both packages was indicated to be heroin, and defendant was formally placed under arrest for the possession of narcotics. He was not arrested for attempting to board an aircraft carrying a dangerous weapon about his person (49 U.S.C. ยง 1472(l)), and Marshal Whitty is clear that there was no intention of arresting the defendant for possessing the knife or for attempting to board an aircraft while carrying a knife.

 The defendant's version is very different. He says that after the passengers went through the magnetometer frame instead of going to the right and through the passage leading to the jetway, they went left to the general corridor and along it to a staircase or escalator that led down to ground level, to board the plane there rather than through the jetway. He insists that the passengers, after they went through the magnetometer and turned left into the general corridor, went along to the staircase or escalator and were fed down the escalator or staircase under the guidance of a black airlines official in groups of two or three. He says that it was taking quite a while, so he went back into the boarding area (which would have required him again to pass through the magnetometer) and sat and waited; that then, when the line had dwindled substantially to nothing, he got up, went through the magnetometer again, and was passed by the airlines official down the staircase. He says the Marshal was at the foot of the staircase and that the Marshal asked him whether he had any metal on him, and he said that he did not. He says that then his bag was searched and the paper bag pulled out, and, asked what was in it, he said Deodorant and cologne. He says that the Marshal looked into it and saw the glassine bags and said, Come with me you're under arrest. He insists that he had no knife in his carry-on bag and that Marshal Walsh was not even present when this happened. He says that he was then taken to the Marshal's office and Mr. Walsh was there. Then he said the heroin was field tested, and when the field test was evidently positive, he says that he was asked whether he knew what the substance in the brown bag was, and that, at first, he said that he did not, and, when asked again, after the field test, that he then said it looked like heroin.

 The difficulty with accepting the defendant's version of the events is apparent. There is no likelihood that the Marshal or Marshals would have been at the foot of the staircase if the magnetometer was at the boarding gate many, many feet away, for the nearest staircase or escalator was a considerable distance, fifteen to thirty feet, away from the exit from Gate 31. There would be no practical way for the Marshal to know that a passenger had activated the magnetometer except by being at the magnetometer's side. Perhaps defendant's testimony is intended to suggest that the Marshal did not know of any activation of the magnetometer, but simply searched the defendant and his luggage gratuitously on the faith only of the fact that he seemed to be a selectee.

 While the testimony of the Marshals is not perfect, theirs appears to be the substantially correct version; it immediately raises the question whether the search was a lawful one in the circumstances, first, that the defendant was not in fact a selectee, and second, in the light of the absence of any necessity to conduct any further search of the defendant and his hand luggage after unearthing the knife, apparently the only article that could have activated the magnetometer, and the discovery of which would sufficiently explain its activation.

 An issue of consent is, of course, present.

 Just before boarding was initiated and as part of the public-address system announcement of the boarding readiness of Flight 33 the Eastern Airlines announcer stated that the FAA Security program was in effect for the flight, and that the passengers would have to go through a metal detection device; the passengers were asked to cooperate with the United States Marshals on duty. The familiar sign was posted on the heavy column in back and above the level of the ticket desk at the entry to Gate 31 and a smaller one was hung on one post of the magnetometer frame. The English text of the sign read:

Carry Concealed ...

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