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
HUFSTEDLER, Circuit Judge,
dissenting.
I agree with the majority’s conclusion that “Congress did not intend to require that aircraft shipments be subjected to the security screening process mandated by the Government for passengers and their carry-on possessions,” but the conclusion is not relevant in deciding the issue before us. The question is not whether Congress mandated a particular kind of security screening process for cargo, but whether Congress mandated the adoption of security screening procedures. If Congress directed airlines to undertake such measures, then searches conducted pursuant to that mandate are within “the government’s administrative scheme to strengthen the security of air transportation” (United States v. Fannon (9th Cir. 1977) 556 F.2d 961 , 965), and they are subject to the Fourth Amendment. (United States v. Davis, (9th Cir. 1973) 482 F.2d 893 .)
The federal regulations did mandate security procedures for cargo within 14 C.F.R. § 121.538 (c), which provides in pertinent part that “[e]ach certificate holder shall prepare in writing and submit for approval by the Administrator its security program including the screening system prescribed in paragraph (b) of this section, and showing the procedures, facilities, or a combination thereof, that it uses or intends to use to support that program and that are designed to-
“(3) Prevent cargo . . . from being loaded aboard its aircraft unless handled in accordance with the certificate holder’s security procedures . . ..”
The majority reasons that this mandate does not count because (1) the record does not reveal whether United Airlines complied with the mandate by adopting security measures with respect to cargo and, therefore, “we must assume that United Airlines has not adopted such a system,” and (2) the regulation does not specifically require inspection of cargo.
In the first place, I do not believe that we have any reason to assume that United Airlines disobeyed the law by failing to adopt procedures in compliance with 14 C.F.R. § 121.538 (c) to prevent dangerous cargo from being loaded aboard its aircraft. We should never lightly infer that even unsophisticated persons disobey the law. Furthermore, the self-interest of airlines in protecting their own aircraft and passengers who use their facilities would lead to a contrary inference. If there were any doubt upon this question, the appropriate procedure would be to remand the case to the district court for the purpose of ascertaining the existence of such security program, either by the introduction of evidence or by appropriate mechanisms for taking judicial notice of documents filed with the public agency.
*802 In the second place, the airline instituted security procedures, even if it did not undertake the paperwork envisioned by the federal regulations. I do not understand why security procedures thus used can be deemed outside the “nationwide, anti-hijacking program conceived, directed, and implemented by federal officials in cooperation with air carriers.” (United States v. Davis, supra, 482 F.2d at 897 .) As we said in Davis , there is governmental action when private persons and the Government engage in a joint activity. Under such circumstances, “the United States has ‘significantly involved itself! in airport searches from the beginning.” (Id. at 897.)
Finally, it should be immaterial whether the federal regulation particularly prescribes the manner of conducting a security screening process for cargo. Whether the method is by opening all the packages and luggage or using some kind of a mechanical device, the airline is pursuing a security program which has been mandated by federal regulations. It should be obvious that, in absence of mechanical screening devices, the only available method is to open the cargo packages to detect explosives or incendiary devices. We can surely judicially notice that, even in respect of carry-on baggage, air carriers that do not have functioning mechanical screening devices, use airline personnel to open carry-on packages and luggage. No different method is available when packages are shipped as cargo, rather than as carry-on articles.
I adhere to the views that the panel expressed in United States v. Fannon, supra.