decided: May 29, 1974; As Amended June 18, 1974.
Appeal from a judgment of conviction by the United States District Court for the Eastern District of New York, Joseph C. Zavatt, Judge, for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a) (1), entered after denial of a motion to suppress the heroin which was found as a result of an airport search, 359 F. Supp. 764 (E.D.N.Y. 1973).
Friendly, Hays and Oakes, Circuit Judges. Oakes, Circuit Judge (concurring in the result).
This appeal from a conviction following a non-jury trial for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a) (1) is another in the growing list of cases relating to the validity of airport searches.*fn1 Problems have multiplied as practical considerations have required that the "profile" method, on the basis of which this court first upheld the validity of an airport search, United States v. Bell, 464 F.2d 667 (2 Cir.), cert. denied, 409 U.S. 991, 34 L. Ed. 2d 258, 93 S. Ct. 335 (1972), should be relegated to a supplementary role*fn2 and that primary reliance should be placed on passage through a magnetometer*fn3 and the search of carry-on luggage.*fn4 Although no one could reconcile all the views expressed in the opinions of the various circuits or, indeed, of this circuit alone, a consensus does seem to be emerging that an airport search is not to be condemned as violating the Fourth Amendment simply because it does not precisely fit into one of the previously recognized categories for dispensing with a search warrant,*fn5 but only if the search is "unreasonable" on the fact. This is altogether in line with the command of the first clause of the Amendment, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." Surprise has been expressed that "the Amendment nowhere connects the two clauses; it nowhere says in terms that one might expect it to say: that all searches without a warrant issued in compliance with the condition specified in the second clause are eo ipso unreasonable under the first." Trial Manual for the Defense of Criminal Cases (Preliminary Draft No. 1, Sept. 29, 1966), Joint Committee on Legal Education of the A.L.I. and A.B.A., 28. But, as Professor Telford Taylor demonstrated in a brilliant lecture, Search, Seizure and Surveillance, this was not a lapse by the draftsmen. Rather "our constitutional fathers were not concerned about warrantless searches, but about overreaching warrants."*fn6 While the heavy judicial gloss that a warrantless search is invalid unless within an appropriate "exception" is surely here to stay, recognition of the historical background of the Amendment, with its stress on the seizure of books and papers on political affairs and the search of homes for illegally imported goods, helps to determine when an exception is justified. Nothing in the history of the Amendment remotely suggests that the framers would have wished to prohibit reasonable measures to prevent the boarding of vessels by passengers intent on piracy.
The facts are stated in Judge Zavatt's opinion, 359 F. Supp. 764 (E.D.N.Y. 1973), and we shall limit ourselves to the essentials. Defendant Cynthia Edwards arrived at La Guardia Airport in New York City on the evening of August 23, 1972, to take an Eastern Air Lines "shuttle" flight to Boston. The relevant regulations of the Federal Aviation Administration then in effect with respect to non-reservation flights such as the shuttle required that:
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 certificate holder or a law enforcement officer and,
B. The certificate holder shall require each passenger to clear through a metal detector without indication of unaccounted for metal on his person prior to boarding.*fn7
Near the entrance to the boarding gate were two large printed signs, plainly warning, among other things,
PASSENGERS AND BAGGAGE SUBJECT TO SEARCH.
When an Eastern employee announced over a loudspeaker that the flight could be boarded, he also announced that all carry-on luggage would be searched.
At this time Miss Edwards was in the line of boarding passengers, carrying a pocketbook and what she described as a "beach bag." She activated the magnetometer -- for what reason the record does not disclose.*fn8 The Deputy United States Marshal who examined the beach bag found that it contained, among other things, a pair of slacks wrapped around a package. In answer to the Marshal, Miss Edwards said the package was a box of Tampax. Removing the slacks, the Marshal found that in fact the package contained a large number of glassine envelopes, each containing a white powder. He later found other such envelopes in three pockets in the beach bag, bringing the total to 1,664. Miss Edwards testified she knew that there were about 1,600 envelopes in the bag and that the white powder was heroin. The alleged illegality of the search is thus the sole ground of the appeal.
Because of the simplicity of the facts, the appeal presents, in clear and uncomplicated form, the basic question whether the FAA regulations with respect to the search of carry-on baggage in force in August, 1972, violated the Fourth Amendment. There were here no makeweights, such as suspicious behavior, false identification, meeting of the "profile," and the like,*fn9 that have assisted the Government in cases such as United States v. Bell, supra, 464 F.2d 667; United States v. Riggs, 474 F.2d 699 (2 Cir.), cert. denied, 414 U.S. 820, 38 L. Ed. 2d 53, 94 S. Ct. 115 (1973); United States v. Moreno, supra, 475 F.2d 44; and United States v. Skipwith, supra, 482 F.2d 1272. On the other hand, the search was strictly in accordance with the regulations; there was no removal of Miss Edwards to another area as in United States v. Ruiz-Estrella, 481 F.2d 723, 724 (2 Cir. 1973); and the case presents no such questions concerning a search ...