noting that unlike airline passengers and their carryon luggage, the FAA’s regulations do not subject airfreight shipments to a mandatory security screening process
How later courts described this case
- noting that unlike airline passengers and their carryon luggage, the FAA’s regulations do not subject airfreight shipments to a mandatory security screening process
- Fourth Amendment constraints on pre-boarding screening security searches of passengers and carry-on baggage at airports
- “Gambino [v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293 (1927) ] did not involve a unilateral private purpose to assist the government. Rather, state and federal officials had developed a course of cooperation in enforcing the liquor laws that ensuing federal prosecution was in effect a ‘ratification’ of the prior state search and seizure.”
- airport shipment which was not subject to governmental mandatory security screening procedures is a private one conducted without government intervention, and is therefore not subject to the Fourth Amendment
Written by the judges who cited it.
The opinion
ELY, Circuit Judge
(dissenting):
I respectfully dissent. Federal regulations require airlines to prepare a security program that includes airfreight within its scope. 14 C.F.R. § 121.538 (c)(3); see also §§ 121.538(e) and (g) (pertaining to FAA Administrator approval, modification, and amendment of airline security programs). If the challenged inspection in this case were conducted pursuant to such a security program, then I believe that the inspection *801 fell within “the government’s administrative scheme to strengthen the security of air transportation.” United States v. Fannon, 556 F.2d 961, 965 (9th Cir. 1977). As such, it would be subject to the Fourth Amendment. United States v. Davis, 482 F.2d 893, 904 (9th Cir. 1973). On the other hand, if the inspection were not conducted as a part of, or pursuant to, an approved security program, then I do not believe that it would have been within the ambit of a governmental scheme. In such event, the inspection would not, I think, be subject to Fourth Amendment restrictions. See United States v. Sherwin, 539 F.2d 1, 5-6 (9th Cir. 1976) (en banc).
The factual record before us does not indicate whether United Airlines operated under an approved security program, or if it did so operate, whether the inspection here involved was conducted pursuant to that program. Without this critical information, I cannot determine which rule of law should properly be applied. In short, I submit that the majority is issuing a significant opinion without the benefit of factual determinations that it should have required. Accordingly, I would remand the cause so as to allow the District Court to make the critical factual decisions that I find lacking in the present record.