determining that a defendant’s right to be present was not violated where the trial court took evidence concerning confidential federal profiling for threat reduction in air transportation but where witness testimony “bore no relationship at all to the question of [the defendant]’s guilt or innocence of the crime charged”
How later courts described this case
- determining that a defendant’s right to be present was not violated where the trial court took evidence concerning confidential federal profiling for threat reduction in air transportation but where witness testimony “bore no relationship at all to the question of [the defendant]’s guilt or innocence of the crime charged”
- ruling that excluding defendant from testimony of adverse witness in a pre-trial suppression hearing did not violate the Confrontation Clause, where defendant's counsel was present and could cross-examine the witness and where the witness's testimony was unrelated to defendant’s guilt or innocence
- finding no Confrontation Clause violation where a defendant was excluded from part of his suppression hearing while a certain witness testified, a witness whose testimony the government wanted to keep secret
- upholding requirement that airline passengers submit to metal detector searches because such searches are reasonable under the Fourth Amendment
Written by the judges who cited it.
Distinguished
Distinguished by United States v. Vinicio E. Ruiz-Estrella, 481 F.2d 723 (1973)
Whatever the merits of Judge Friendly’s Bell concurrence, it is factually inapplicable here.
The opinion
FRIENDLY, Chief Judge
(concurring) :
Although my Brother Mulligan’s excellent opinion satisfactorily disposes of this case, I would not wish us to be understood as implying that searches of airplane passengers are lawful only in such circumstances as are here presented, where a person first meets a “profile,” whose details, however carefully guarded, are necessarily known to so many thousands of people that we may well be reading them someday in the press, and then activates a magnetometer. At least so long as the present wave of airplane hijacking continues, permissible subjection of airline passen *675 gers and their baggage to a search for objects that might be used for air piracy or to cause or constitute a threat of an explosion goes far beyond this.
The Founders banned only “unreasonable searches and seizures.” Determination of what is reasonable requires a weighing of the harm against the need. When the object of the search is simply the detection of past crime, probable cause to arrest is generally the appropriate test. On the other hand, when “a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous,” a lower standard prevails. Terry v. Ohio, 392 U.S. 1, 30 , 88 S.Ct. 1868, 1884 (1968). The threatened criminal activity in Terry was the burglary of a store. When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air. 1
Since all air passengers and their baggage can thus be constitutionally searched, there is no legal objection to searching only some, thereby lessening inconvenience and delay, provided there is no national or racial discrimination without a rational basis (such as the destination of a particular flight). I would thus have no difficulty in sustaining a search that was based on nothing more than the trained intuition of an airline ticket agent or a marshal of the Anti-Hijacking Task Force, as the Third Circuit did in United States v. Lindsey, 451 F.2d 701 (1971). Moreover, the existence of a program does not preclude the search of someone outside it, whether for some reason, as in Lindsey , or because of pardonable error.
In other words, while the Federal Aviation Administration is to be commended for its efforts to devise a program that limits intrusions on privacy and reduces flight delays, this should be recognized as a self-imposed expedient for minimizing inconvenience to those not believed to constitute a danger, not as an element necessary to validate a particular search. And the courts should say nothing that would create doubt concerning the legality of wider or less precise measures when and if these should prove to be needed.
. Although it may be that when the Government brief was filed “no flight fully protected by the present anti-hijacking screening has been hijacked,” the assumption that no person excluded from the profile is a potential hijacker lacks reality. And reliance on an airline’s hunch to refuse “passage to a suspected hijacker” is insufficient as the sole supplementary method of protection, apart from questions of contractual liability.