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UNITED STATES v. EDWARDS

June 13, 1973

UNITED STATES of America, Plaintiff,
v.
Cynthia EDWARDS, Defendant


Zavatt, Senior District Judge.


The opinion of the court was delivered by: ZAVATT

ZAVATT, Senior District Judge.

The defendant, indicted and charged with the crime of possessing with intent to distribute 1,600 bags of heroin in violation of 21 U.S.C. § 841(a)(1), moves to suppress "all of the evidence seized" by a United States Marshal at LaGuardia Airport on the evening of August 23, 1972. A hearing on said motion was held before me on April 23, 1973, at which the defendant, Deputy United States Marshal Alan J. Loeffler (Loeffler) and Walter O'Connor (O'Connor), Chief of the F.A.A. Air Transportation Office at LaGuardia Airport, testified.

 The defendant arrived at LaGuardia Airport on August 23, 1972 at approximately 9 P.M. for the purpose of boarding an Eastern Airlines shuttle flight to Boston, Massachusetts. Tickets for such flights are not sold at the airline counter. Rather, they are sold to passengers by an airline employee after the passengers have boarded the plane. The airplane for this particular flight was standing in close proximity to Boarding Gate 5.

 Passengers boarding a plane at Gate 5 walk along a hallway and line up at a point near the entrance to the boarding gate. At this point there are two printed signs, each 2 1/2 feet by 1 1/2 feet -- one on the wall of the hallway and the other on a stanchion facing the boarding passengers, each of which reads as follows:

 [Seal of the United States]

 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

 Federal Aviation Administration

 U.S. Department of Transportation

 Both signs are located at points before a passenger passes through the magnetometer field. A United States Marshal is stationed at a desk immediately forward of a magnetometer field, from which location he can observe a positive reading of the magnetometer as a passenger enters the field. In addition, when an Eastern Airlines employee (stationed at the boarding gate) announced over a loudspeaker system that passengers for the instant flight could board the plane, he also announced that all carry-on luggage would be searched. On the evening in question, a magnetometer was functioning as a screening system to prevent or deter the carriage on board the aircraft of any sabotage device or weapon in carry-on baggage or on or about the person of each boarding passenger.

 37 Fed. Reg. 2501, 14 C.F.R. § 121.538 (issued Jan. 31, 1972, effective Feb. 2, 1972) required all certified air carriers and commercial operators operating large aircraft to adopt and put into use, within 72 hours, such a screening system. 37 Fed. Reg. 4904-5, 14 C.F.R. § 121.538(g) (issued Feb. 9, 1972, effective March 6, 1972) authorizes the F.A.A. Administrator to amend any screening system or any security program approved by him "upon his own initiative if he determines that safety in air transportation and the public interest require the amendment. . . ." Following the statement of the President on July 7, 1972 about the security problem attendant upon air-shuttle flights, the Administrator issued an order on July 18, 1972, with reference to passenger screening of non-reservation type flights in which he prescribed 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 ...

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