# Lucas v. United States > District of Columbia Court of Appeals · January 24, 1980 · 411 A.2d 360 URL: https://www.frixlaw.com/law-library/cases/9719580 ## Case - **Full name:** Deborah A. LUCAS, A/K/A Deborah Lewis, Appellant, v. UNITED STATES, Appellee - **Court:** District of Columbia Court of Appeals - **Decided:** January 24, 1980 - **Citations:** 411 A.2d 360; 10 A.L.R. 4th 367; 1980 D.C. App. LEXIS 224 - **Precedential status:** Published - **Opinion:** Concurring in part by Mack - **Judges:** Gallagher, MacK, Yeagley - **Cited by:** 14 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/9719580 ## Opinion text *365 MACK, Associate Judge, concurring in part, dissenting in part: I endorse the holding of the majority that there was sufficient state action in this case to bring into play the operation of the Fourth Amendment. I have difficulty, however, with holding that the limited nature of the intrusion alone, when balanced against the governmental interest in detecting shoplifting, justifies our sanctioning this search as reasonable. I begin with the general rule, that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967). Accord, Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041, 2043 , 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); Chambers v. Maroney, 399 U.S. 42, 51 , 90 S.Ct. 1975, 1981 , 26 L.Ed.2d 419 (1970); Botts v. United States, D.C.App., 310 A.2d 237, 239 (1973). Of course the traditional exceptions provide little leeway to evaluate the type of search with which we are concerned. Here, it is the microwave sensors that search. The intrusion, albeit limited, is made at a time when there is no probable cause to arrest. The intrusion, unlike that countenanced in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), is not tied to the protection of life. As the majority has noted, the cases most closely in point are those dealing with the use of the magnetometer to detect weapons at airports. Although the courts have invariably concluded that the magnetometer search is constitutional (see cases cited in United States v. Edwards, 498 F.2d 496 n.1 (2d Cir. 1974) and United States v. Albarado, 495 F.2d 799 , 801 n.1 (2d Cir. 1974)), there has been no single view as to the rationale for this result. The cases have balanced the invasion involved against the need to prevent the crime of hijacking and its consequential danger to life to justify the search. United States v. Edwards, supra at 500 . Accord, United States v. Albarado, supra at 806. By contrast, while shoplifting is a costly crime to the public, the retailer and the consumer alike, the need for detection by a sensormatic device is less compelling than the need to prevent hijacking by magnetometer. However, in my view, there is one established exception to the rule of Katz v. United States, supra, that operates to validate searches by sensormatic devices under prescribed circumstances. Thus, it is “well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, supra. Accord, Zap v. United States, 328 U.S. 624, 628-30 , 66 S.Ct. 1277, 1279-1280 , 90 L.Ed. 1477 (1946); Davis v. United States, 328 U.S. 582, 594-99 , 66 S.Ct. 1256, 1262-1264 , 90 L.Ed.2d 1453 (1946). For consent to constitutionally justify a warrantless search, it must be “freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548 , 88 S.Ct. 1788, 1791 , 20 L.Ed.2d 797 (1968). Accord, Schneckloth v. Bustamonte, supra, 412 U.S. at 222 , 93 S.Ct. at 2045 . The question of whether a search is voluntarily consented to must be answered by looking at the “totality of all the circumstances” attending such a search. Id. at 227 . The totality of circumstances standard does not impose an undue burden (of showing consent) upon a retailer who chooses to use a sensormatic device. The posting of signs in the shopping area is a simple matter. Once such signs are posted, the entry of a shopper into the proscribed area may be taken as an implied consent to a voluntary search. Such reasoning finds support in magnetometer cases. See United States v. Edwards, supra; United States v. Albarado, supra; United States v. Lopez, 328 F.Supp. 1077, 1083 (E.D.N.Y.1971). 1 “The *366 intrusiveness of the airport frisk is . limited by foreknowledge of it.” United States v. Albarado, supra at 807. I would hold that a search by a sensor-matic detection system is constitutionally acceptable under circumstances where voluntary consent is implicit or express. 2 . In United States v. Lopez, supra, the following signs in English and Spanish were posted at the airport boarding gates: AIRCRAFT HIJACKING IS A FEDERAL CRIME PUNISHABLE BY DEATH *366 CARRYING CONCEALED WEAPONS ABOARD AIRCRAFT IS PUNISHABLE BY PRISON SENTENCES & FINES PASSENGERS AND BAGGAGE SUBJECT TO SEARCH Surely, it is not an undue burden to require mercantile establishments using this device (if they have not previously done so) to post similar signs in their shopping areas, to wit: SHOPLIFTING IS A CRIME PUNISHABLE BY IMPRISONMENT SHOPPERS AND THEIR BELONGINGS WILL BE SUBJECT TO SENSORMATIC SEARCH . I express no opinion as to whether the totality of circumstances in this case would support implied consent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9719580. Public record. Not legal advice.