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
MANSFIELD, Circuit Judge
(concurring) :
I join in Part I of Judge Mulligan’s excellent opinion and agree in addition that the seizure of the heroin from appellant’s raincoat was lawful. In view of the concurring opinion of my brother Chief Judge Friendly, however, I feel that additional comment is appropriate.
Airplane hijacking indeed poses a grave threat to the safety and convenience of the travelling public. However, I do not share the view that it justifies a broad and intensive search of all passengers, measured only by the good faith of those conducting the search, regardless of the absence of grounds for suspecting that the passengers searched are potential hijackers. To adopt such a vague principle would be to abandon standards that have been carefully constructed over the years as a means of protecting individual rights guaranteed by the Fourth Amendment. Cf. Carroll v. United States, 267 U.S. 132, 153-154 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925). If *676 the danger to the public posed by the current wave of hijackings were held to constitute adequate ground for such a broad expansion of police power, the sharp increase in the rate of serious crimes in our major cities could equally be used to justify similar searches of persons or homes in high crime areas based solely upon the “trained intuition” of the police. With the door thus opened, a serious abuse of individual rights would almost inevitably follow.
History reveals that the initial steps in the erosion of individual rights are usually excused on the basis of an “emergency” or threat to the public. But the ultimate strength of our constitutional guarantees lies in their unhesitating application in times of crisis and tranquility alike. “If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.” Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 483 , 54 S.Ct. 231, 256 , 78 L.Ed. 413 (1934) (Sutherland, J., dissenting).
No necessity exists for punching a hole in the Fourth Amendment in order to enable the FAA and airline authorities to deal effectively with the air piracy problem. As the Government’s brief informs us, no flight fully protected by the present anti-hijacking screening system has been hijacked. Furthermore, should there be any increase in the threat of hijackings, airline authorities, in addition to their use of existing methods described in the majority opinion (which are undoubtedly undergoing improvement and refinement on the basis of experience) may protect themselves and the public by refusing passage to a suspected hijacker rather than by subjecting all passengers to the wholesale indignities that would be permitted in the exercise of broad powers of the type urged.
In any event we are neither asked nor required to venture out upon such an uncharted constitutional sea in the present case, where Deputy Marshal Walsh, having sufficient grounds for suspecting Bell of hijacking, had the power to stop and frisk him. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L. Ed.2d 889 (1968). I would prefer not to “anticipate a question of constitutional law in advance of the necessity of deciding it”, Ashwander v. TVA, 297 U.S. 288, 346-347, 483 , 56 S.Ct. 466 , 80 L.Ed. 688 (1936) (Brandeis, J., concurring).