# United States v. Cynthia Edwards

> Court of Appeals for the Second Circuit · May 29, 1974 · 498 F.2d 496

URL: https://www.frixlaw.com/law-library/cases/9460706

## Case

- **Full name:** UNITED STATES of America, Appellee, v. Cynthia EDWARDS, Appellant
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** May 29, 1974
- **Citations:** 498 F.2d 496; 1974 U.S. App. LEXIS 8411
- **Precedential status:** Published
- **Opinion:** Concurrence by Oakes
- **Judges:** Friendly, Hays, Oakes
- **Cited by:** 92 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9460706

## How later opinions describe it (automated extraction)

- holding that the search of carry-on luggage at airports meets the test of reasonableness because of the "enormous dangers to life and property from terrorists, ordinary criminals, or the demented”
- finding notice central to upholding the constitutionality of airport searches where large signs had been posted near the boarding gates warning: "PASSENGERS AND BAGGAGE SUBJECT TO SEARCH"

## Opinion text

OAKES, Circuit Judge
(concurring in the result):
I concur in affirmance but on grounds different from Judge Friendly. Judge Friendly’s concurrence in United States v. Bell, 464 F.2d 667, 674 (2d Cir.), cert. denied, 409 U.S. 991 , 93 S.Ct. 335 , 34 L.Ed.2d 258 (1972), and his decision here rest upon the proposition that “the danger alone” of possible hijackings makes airport searches reasonable so long as they are made in g<pd faith, with reasonable scope, and the passenger has prior notice of the search so as to be able to avoid air travel. 1 This proposition, however, while perhaps not explic *502 itly rejected, certainly has not been adopted by this circuit. Rather, as suggested by Judge Mansfield in his concurrence in Bell, 464 F.2d at 675-676 , the proposition seems inconsistent with the Supreme Court decisions on search and seizure and basic fourth amendment principles. See McGinley & Downs, Airport Searches and Seizures — A Reasonable Approach, 41 Fordham L.Rev. 293, 315-16 (1972). Cf. Note, Airport Security Searches and the Fourth Amendment, 71 Colum.L.Rev. 1039, 1049-50 (1971).
Today airports, tomorrow some other forms of search, which may be “applied to everyone” in the words of Judge Friendly’s majority opinion. It is all too easy to permit encroachments upon personal liberty whenever there surfaces “a barbarism hidden behind the superficial amenities of life.” See R. Heilbroner, An Inquiry into the Human Prospect 15 (1974). Airplane hijacking is not the only “barbarism” which may result in calls for new means of investigation and detection “applied to everyone.” Whether it be a wave of political kidnappings, as are so common in South America but not yet common in this country; racial murders of random victims, which in San Francisco resulted in the stop and search of persons solely on the basis of race, see Bazile v. Alioto, C 74 0867 ACW (N.D.Cal. Apr. 25, 1974) (preliminarily enjoining such searches); organized civil disobedience on a grand scale, such as occurred in Washington, D. C., in 1971 resulting in the unlawful arrests of literally thousands of persons, see Sullivan v. Murphy, 478 F.2d 938 (D.C. Cir.) (on rehearing), cert. denied, 414 U.S. 880 , 94 S.Ct. 162 , 38 L.Ed.2d 125 (1973); or the publication of classified defense information which was thought by some governmental officials to justify warrantless wiretaps or even the hiring of an extra-legal staff to burglarize a doctor’s office,
[hjistory 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.
United States v. Bell, 464 F.2d at 676 (Mansfield, J., concurring). See also Fifth Avenue Peace Parade Committee v. Gray, 480 F.2d 326, 333-335 (2d Cir. 1973) (Oakes, J., dissenting; cert. denied, 415 U.S. 948 , 94 S.Ct. 1469 , 39 L.Ed.2d 563 (1974).
In acknowledging that the general airport search does not seem to fall within the recognized exceptions to the warrant requirement, the majority opinion seems to me all too unconcerned with the Supreme Court command that “ ‘except in certain carefully defined classes of cases, a search . . . without proper consent is “unreasonable” unless it has been authorized by a valid search warrant.’ ” Cady v. Dombrowski, 413 U.S. 433, 439 , 93 S.Ct. 2523, 2527 , 37 L.Ed.2d 706 (1973), quoting Camara v. Municipal Court, 387 U.S. 523, 528-529 , 87 S.Ct. 1727 , 18 L.Ed.2d 930 (1967). Whether this statement be “judicial gloss” (the Supreme Court referred to it as “one governing principle, justified by history and current experience,” Camara v. Municipal Court, 387 U.S. at 528 ) 2 or *503 the Framers’ intention based on common law experience, it recognizes the proper reluctance of courts to authorize searches without probable cause found by an independent magistrate.
As to the Framers’ intention, Professor Taylor's enlightening lecture, Search, Seizure and Surveillance, may stand for the majority’s proposition that our constitutional fathers were more concerned about “overreaching warrants” than “warrantless searches.” If so, however, this is because there is no indication that warrantless searches were, or could be, conducted of any person other than a suspected felon and then only incident to an arrest. T. Taylor, Two Studies in Constitutional Interpretation 28, 39 (1969). As Taylor says, “The only victims of such searches were those who, as probable felons, were the objects of hue and cry, hot pursuit, or an arrest warrant.” Id. at 39. Indeed, Professor Taylor refers to Pollock and Maitland, who in turn speak of the fact that historically “in general the only persons whom it is safe to arrest are felons, and that a man leaves himself open to an action, or even an appeal, of false imprisonment if he takes as a felon one who has done no felony.” F. Pollock & F. Maitland, The History of English Law 582-83 (2d ed. 1909) (emphasis added). In other words, under the common law ordinary persons were protected from warrantless searches by an action for false arrest. It was such effective protection that overreaching constables resorted to general warrants rather than risk search without any warrant at all, hence in part the Framers’ concern with “overreaching warrants” rather than “warrantless searches.” Today, and for some time, however, a suit for false árrest has provided no practical protection against a warrantless search, and the fourth amendment has required probable cause for a warrant. In the absence of the common law protection against warrantless searches and the difficulty in avoiding the probable cause requirement in obtaining warrants, the number of warrantless searches and their threat to individual liberties have increased greatly. The response of the Supreme Court has been to equate the reasonableness of a search with the presence of a warrant and to limit strictly exceptions from this rule.
Professor Taylor’s contribution to the treatment of warrantless searches has been directed at recognizing the broad scope of a search, incident to arrest, see United States v. Edwards, 415 U.S. 800 , 804 n. 6, 94 S.Ct. 1234 , 39 L.Ed.2d 771 (1974); United States v. Robinson, 414 U.S. 218 , 233 n. 3, 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973); that is, as I have said, the focus of his attention in the applicable portions of his lecture. Nor is his conclusion inconsistent with a strict interpretation of other exceptions from the warrant requirement:
searches incident to arrest are permissible, and in exceptional cases, if authorized by warrant [or allowable because they fall within the recognized exceptions to the warrant requirement, e.g., “stop-and-frisk”] searches independent of arrest may be carried out.
T. Taylor, supra, at 49 (emphasis original) (footnote omitted).
In United States v. Albarado, 495 F.2d 799 (2d Cir. 1974), this court engaged in a very careful weighing of the privacy invaded and the danger involved in allowing that a particular, strictly *504 limited and supervised airport search would be “reasonable” as a new “carefully defined” and jealously guarded exception to the warrant requirement. In so doing, this court attempted to give guidance and direction to law enforcement officials as to the permissible limits of the airport search and to make clear that cries of “danger” from those whose primary concern is “security” would be strictly scrutinized and critically examined when made to justify hitherto unknown searches. This, I feel, is the critical omission from Judge Friendly’s opinion, which through its broad phraseology does not provide guidance to officials, but instead implies that those cries of “danger” will be accepted at face value and that determinations of reasonableness by those entrusted with providing security will be accorded some sort of weight. Such an approach tends to abandon the responsibility of courts to make those very determinations entrusted to them and to relegate our individual liberties to the discretion of security officials. 3
But this does not mean that there may not be an affirmative answer in this case to the question, one left unanswered in our recent decision in United States v. Albarado, supra: whether a search of all carry-on luggage of air travelers absent any suspicious or other special circumstances violates the fourth amendment.
In Albarado the panel noted that forcing one to waive a constitutional right by submitting to a search in order to utilize air travel is a form of coercion, and therefore that any waiver so obtained would not be free and voluntary. Id. at 807 & n. 14. See also United States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973); Note, supra, 71 Colum.L. Rev. at 1049-50. Here, however, there was no such coercion. All baggage is not generally subject to search according to the FAA’s directives; rather, only carry-on baggage is generally subject to search. 4 Thus, one is not forced to choose between flying to one’s destination and having one’s baggage searched. Rather one may merely consign any baggage he does not want searched to the baggage compartment. The only imposition upon the passenger then is not having the bag during the flight and, perhaps, a little wait at the destination for his luggage. Clearly this is not the same case involved when the only way to avoid search is to forego flying. The conclusion, therefore, must be that a carry-on luggage search, unlike the personal search, may be justified on a consent basis.
If, however, appellant did not know she could avoid the search by checking her bag, she would not know she could withhold her consent to a baggage search and still fly. Her consent, therefore, would not be knowing. In Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973), the Court was concerned with a somewhat analogous situation where the court of appeals had reversed a district court conviction because there was no evidence that the defendant had known he could withhold consent. In reversing the court of appeals in turn, the Court stated that voluntariness of consent “is a question of fact to be determined from the totality of all the circumstances.” Id. at 227 . It added that “knowledge of the right to refuse consent is one factor to be taken into account,” but it is not “the sine qua non of an effective consent.” Id. Thus, in Schneckloth the Court found that upon all the facts there had been an adequate showing of voluntariness, even absent a showing of actual knowledge of the right to refuse consent. The Supreme Court’s opinion seemed to turn on whether there was *505 any evidence of coercion either applied by the authorities or felt by the defendant. As discussed above, the FAA system, as presently practiced, does not coerce passengers into having their luggage searched. There is no evidence, moreover, that appellant here felt any coercion. Indeed, there was evidence to the contrary: the marshal asked if he could search her bag, and, according to the marshal, appellant responded affirmatively.
Beyond this, in the suppression hearing appellant, who took the stand, made no claim and gave no indication that she felt coerced either directly or indirectly. In this situation, there was no custody and no inherently coercive situation. Here appellant gave all the outward indications of consenting voluntarily. Thus I have no hesitation in concluding that appellant consented to the search of her bag. That conclusion, suggested by the district court, is that appellant gave her consent, knowing there was heroin in her bag, in the belief that it would not in any case be found.
Finding implied consent as I do, and as the district court did, it is reasonable to suppose that appellant’s implied consent was limited to that search of her luggage necessary to insure that she was not carrying weapons or explosives. Were this not so, there might be some question whether the marshal here went beyond the bounds of that consent. In Terry v. Ohio, 392 U.S. 1, 19 , 88 S.Ct. 1868, 1878 , 20 L.Ed.2d 889 (1968), the Court said, “The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Thus, in the search of carry-on luggage, the right to search, even when based on consent, is not general, but one limited to the search for weapons or explosives. The marshal is not given a license to search for drugs among all airline passengers. Nevertheless, his search must be thorough, for “if we are authorizing anything, we are authorizing what is necessary to get the job done.” United States v. Albarado, supra, at 807 . The limit of the marshal’s search of carry-on luggage or of containers therein ought to be what was indicated in United States v. Kroll, 481 F.2d at 886 , and quoted approvingly by this court in Albarado at 809 . A search would be permissible “ ‘of that which may reasonably be deemed to conceal a weapon or explosives. Reasonableness, in this context, is a matter of probabilities.’ ”
In the case before us the marshal upon opening appellant’s beach bag found two pairs of slacks, one of which was wrapped around a package. The marshal asked what it was, and appellant replied it was a box of Tampax. This answer was apparently inconsistent with the feel of the package. Moreover, the package was apparently wrapped in the slacks so as to conceal it. The size of the package, in any case, which contained 1,664 glassine envelopes of heroin, was sufficient at least to conceal explosives, if not a small pistol. In these circumstances it was reasonable for the marshal to remove the slacks and look within the exposed brown paper bag, thereby discovering the heroin.
I concur in the judgment affirming the conviction:
. Judge Friendly says that prior notice of “fair warning” goes to “reasonableness.” He does not claim that consent is implied by proceeding through the airport search when warned of its existence. In United States v. Albarado, 495 F.2d 799, 806-807 (2d Cir. 1974), this court held that if air travel were conditioned on submission to a search, the potential air traveler’s submission would be the product of coercion and hence would not constitute implied consent. It was noted, however, that the warning of the search made the search less intrusive thereby, as compared, for instance, with a Terry search with its element of surprise and actual physical coercion. Id. at 807. Judge Friendly *502 does not “necessarily agree with everything said on [consent] in Albarado,” hut that portion of the Albarado decision dealing with consent was not dictum, since to find the evidence unlawfully seized it was necessary to refute the claim that appellant had impliedly consented to the search.
. The meaning of the Constitution must be considered to change or adapt to meet changing times, with the course of history. The entire content of the concept of a Right to Privacy, while it has many fourth amendment antecedents, is basically a product of the 20th Century. One supposes that our fourth amendment protections may have themselves expanded to meet the threat of governmental encroachment on civil liberties exemplified by the totalitarian countries in the 1930’s. See Jackson, J., dissenting in *503 Brinegar v. United States, 338 U.S. 160, 180-181 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949) :
Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.
. The comments in Judge Friendly’s footnote 5 of the instant opinion I do not answer here as lie recognizes that note as purely dictum.
. See United States v. Palazzo, 488 F.2d 942 (5th Cir. 1974); United States v. Ogden, 485 F.2d 536, 538 (9th Cir. 1973). Compare United States v. Cyzewski, 484 F.2d 509 (5th Cir. 1973).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9460706. Public record. Not legal advice.