holding that, where defendant was taken away from a public area of airport behind a closed door where only he and sky marshal were present and where sky marshal searched defendant’s shopping bag and discovered a shotgun, "the government has shown no more than acquiescence to apparent lawful authority, and the theory of consent cannot be accepted”
How later courts described this case
- holding that, where defendant was taken away from a public area of airport behind a closed door where only he and sky marshal were present and where sky marshal searched defendant’s shopping bag and discovered a shotgun, "the government has shown no more than acquiescence to apparent lawful authority, and the theory of consent cannot be accepted”
- finding coercion when uniformed 9 officer took defendant to a secluded stairwell and told him “he would have to go through a baggage search” (internal quotation marks omitted)
- either “consent,” knowledge of a right to avoid the search by not boarding, or “compelling circumstances” is required
- federal government claim of secret airplane hijacker "profile"
Written by the judges who cited it.
The opinion
HAYS, Circuit Judge
(concurring and dissenting):
I agree with the majority that this judgment must be reversed. However, I concur in the opinion of the court only with respect to the exclusion of the defendant and the public from that portion of the suppression hearing during which ticket agent Falen testified to material unrelated to the FAA “profile” material.
I believe that the search which the appellant complains of in this case was lawful because the appellant consented to it. It is highly unrealistic to believe that this passenger was not aware that if he chose not to board the plane his baggage would not be searched. If it was ever true that passengers thought their baggage would be searched whether or not they boarded the plane, that day is long since past. In the absence of evidence to the contrary, I would hold that appellant consented to the search of his luggage.
The very recent case of Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973) lends support to this conclusion. There the Court said at p. 248, 93 S.Ct. at p. 2059 :
“Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.”