People v. Hyde

I agree with the majority view that the FAA anti-hijack screening procedures currently in effect suffer from no constitutional infirmity. In my view, however, the rationale adopted by the majority fails to provide an adequate basis for today's holding. I find it necessary, therefore, to express my opinion as to the proper resolution of the unique problem confronting us. 1

The majority approaches the question of the constitutionality of airport searches by labeling them as "administrative searches" and then justifies their lawfulness under the "administrative search doctrine" established in Camara v. Municipal Court

(1967) 387 U.S. 523 [ 18 L.Ed.2d 930 , 87 S.Ct. 1727 ] and its companion case, See v. City of Seattle (1967) 387 U.S. 541

[ 18 L.Ed.2d 943 , 87 S.Ct. 1737 ]. In doing so, however, the majority in my opinion fails to give proper weight to several unique features of airport searches which distinguish them from the health and fire inspections involved in Camara and See

and, for that matter, from many other types of governmental intrusions frequently characterized as administrative searches.

For example, the health or fire inspector seeks to enter and inspect a person's dwelling or place of business; absent a valid consent the entry and inspection may not be conducted without a prior showing of some functional equivalent to probable cause; there is no advance notice that the inspection will be conducted; and the owner or occupant may not lawfully refuse permission to enter and search once the inspector has secured proper judicial authorization. In contrast, the airport searches whose constitutionality we uphold today involve only a cursory inspection of the individual and his carry-on possessions conducted as a condition placed upon use of a public conveyance; there is no requirement of any level or quantum of probable cause; there is advance notice of the airport screening procedure; and the individual may avoid being searched by electing not to travel by airplane to his intended destination. 2 These particular features of the airport search, moreover, are characteristic of other "public facility screening searches" such as those one may be subjected to upon entering a courthouse or other public building or facility. *Page 171

(See Downing v. Kunzig (6th Cir. 1972) 454 F.2d 1230 [federal building]; Barrett v. Kunzig (M.D.Tenn. 1971) 331 F. Supp. 266 , cert. den., 409 U.S. 914 [ 34 L.Ed.2d 175 , 93 S.Ct. 232 ] [federal courthouse]; see also United States v. Miles (9th Cir. 1973) 480 F.2d 1217 [screening of commercial vehicles entering restricted area on military post].)

Lord Mansfield wisely observed long ago that "the law does not consist in particular cases; but in general principles, which run through the cases, and govern the decision of them." ( Rust v. Cooper (1777) 2 Cowp. 629, 632; 98 E.R. 1277, 1279.) Rather than attempt to compress airport searches within the confines of Camara — and rely on fictions such as the concept of an "on-going emergency" to do so — we should resolve the constitutional issues on the basis of the principles underlying the delicate balancing process which lies at the heart of a small but significant segment of our Fourth Amendment jurisprudence. 3 This balancing process focuses on the Fourth Amendment's standard of reasonableness and requires an examination of all the salient features of the particular type of search and seizure under scrutiny. ( Wyman v. James (1971) 400 U.S. 309 , 318-324 [ 27 L.Ed.2d 408, 414-418 , 91 S.Ct. 381 ]; Terry v. Ohio (1968) 392 U.S. 1 , 19 [ 20 L.Ed.2d 889, 904 , 88 S.Ct. 1868 ]; Camara v. Municipal Court, supra, 387 U.S. 523 , 537-538 [ 18 L.Ed.2d 930, 940-941 ]; see Blair v. Pitchess

(1971) 5 Cal.3d 258 , 272-273 [ 96 Cal.Rptr. 42 , 486 P.2d 1242 , 45 A.L.R.3d 1206 ].)

There is general agreement that the Fourth Amendment's mandate of reasonableness derives its substantive content from, and is shaped by, the command that "no warrants shall issue but upon probable cause." ( Cady v. Dombrowski (1973) 413 U.S. 433 , 439 [ 37 L.Ed.2d 706, 713 , 93 S.Ct. 2523 ], see also p. 451 [37 L.Ed.2d p. 720] (Brennan, J., dissenting); Almeida-Sanchez v. United States (1973) 413 U.S. 266 , 277 [ 37 L.Ed.2d 596, 605 , 93 S.Ct. 2535 ] (Powell, J., concurring); United States v. United States District Court (1972) 407 U.S. 297 , 315 [ 32 L.Ed.2d 752, 765 , 92 S.Ct. 2125 ]; Coolidge v. New Hampshire (1971) 403 U.S. 443 , 473-484 [ 29 L.Ed.2d 564, 587-594 , 91 S.Ct. 2022 ]; Katz v. United States (1967) 389 U.S. 347 , 357 [ 19 L.Ed.2d 576, 585 , 88 S.Ct. 507 ]; Camara v. Municipal Court, supra, 387 U.S. 523 , 528-529 [ 18 L.Ed.2d 930, 935-936 ].) Thus, "searches conducted . . . 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, supra, 389 U.S. 347 , 357 [ 19 L.Ed.2d 576 , *Page 172

585]; Cady v. Dombrowski, supra, 413 U.S. 433 , 439; Camara

v. Municipal Court, supra, 387 U.S. 523 , 528-529; see United States v. United States District Court, supra, 407 U.S. 297 , 314-321 [ 32 L.Ed.2d 752, 764-769 ].) Similarly, with very few exceptions, 4 "In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution." ( Chambers v. Maroney (1970) 399 U.S. 42 , 51 [ 26 L.Ed.2d 419, 428 , 90 S.Ct. 1975 ]; Almeida-Sanchez v. United States, supra, 413 U.S. 266 , 270 [ 37 L.Ed.2d 596, 601 ].) These principles are now part of our constitutional subsoil and, accordingly, where the government conducts searches without a warrant and without probable cause, as in an airport search, our determination as to the lawfulness of the governmental action "requires the essential Fourth Amendment inquiry into the `reasonableness' of the search and seizure in question, and the way in which that `reasonableness' derives content and meaning through reference to the warrant clause." ( United States v. United States District Court, supra, 407 U.S. 297 , 309-310 [ 32 L.Ed.2d 752, 762 ]; see Terry

v. Ohio, supra, 392 U.S. 1 , 20 [ 20 L.Ed.2d 889, 905 ].)

The probable cause requirement is the appropriate starting point for an inquiry into the constitutionality of current FAA airport pre-boarding screening searches. 5 The traditional concept of "probable cause," with its rigorous demands for reliability and specificity in the information upon which government action is predicated, 6 is the "time-honored" standard *Page 173

by which we ordinarily must measure the reasonableness of searches and seizures. ( Chambers v. Maroney, supra, 399 U.S. 42 , 51; Terry v. Ohio, supra, 392 U.S. 1 , 20; Camara v. Municipal Court, supra, 387 U.S. 523 , 539 [ 18 L.Ed.2d 930, 941 ].) Thus, if the case at bar involved a "conventional" search and seizure by law enforcement officers engaged in the investigation of criminal activity, we would have to ascertain whether probable cause existed to justify the intrusion into constitutionally protected privacy. ( United States v. United States District Court, supra, 407 U.S. 297 , 322 [ 32 L.Ed.2d 752, 769 ]; Terry v. Ohio, supra, 392 U.S. 1 , 20; Camara v. Municipal Court, supra, 387 U.S. 523 , 539.)

It is now settled, however, that there is no fixed standard of reasonableness that applies to all types of governmental action which is subject to the mandates of the Fourth Amendment. Where, as here, we deal with a type of official conduct that (1) has objectives qualitatively different from those of the conventional search and seizure in the criminal context 7 and (2) cannot feasibly be subjected to regulation through the traditional probable cause standard of justification, 8 we may assess the reasonableness of the particular type of search and seizure by examining and balancing the governmental interest justifying the search and the invasion which the search entails. (See United States v. Biswell, supra, 406 U.S. 311 ; Terry v. Ohio, supra, 392 U.S. 1 , 20-27 [ 20 L.Ed.2d 889, 905-909 ]; Camara v. Municipal Court, supra, 387 U.S. 523 , 534-538 [ 18 L.Ed.2d 930, 938-941 ]; Blair v. Pitchess, supra, 5 Cal.3d 258 , 270-273; Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn.L.Rev. 349, 422; La Fave, Administrative Searches and the Fourth Amendment: The Camara and See Cases 1967 Sup. Ct. Rev. 1 , 15-16.) Nevertheless, the notions which underlie the probable cause requirement remain "fully relevant." ( Terry v. Ohio, supra, 392 U.S. 1 , 20.) Accordingly, in focusing upon the governmental interest which allegedly justifies the official invasion of privacy, it is necessary to consider not only the nature and magnitude of the interest *Page 174

but also the suitability of predicating the government's right to search upon the existence of some functional equivalent of probable cause requiring a less demanding evidentiary showing. ( Almeida-Sanchez v. United States, supra, 413 U.S. 266 , 275-279 [ 37 L.Ed.2d 596, 604-606 ] (Powell, J., concurring); United States v. United States District Court, supra, 407 U.S. 297 , 322-323 [ 32 L.Ed.2d 752, 769-770 ]; Terry v. Ohio, supra, 392 U.S. 1 , 20-27; Camara v. Municipal Court, supra, 387 U.S. 523 , 534-539 [ 18 L.Ed.2d 930, 938-941 ]; Greenberg, supra, 61 Cal.L.Rev. 1011, 1021-1022.)

FAA anti-hijack screening requirements were implemented to assure the uninterrupted and safe operation of our commercial air passenger transportation system. As the majority points out, the government has the most compelling reasons — the preservation of hundreds of lives and millions of dollars worth of private property — for subjecting airline passengers to a search for weapons and explosives which could be used to hijack an airplane. 9 Furthermore, the nature of the hijacking problem is such that there seems to be no practical means of limiting screening searches only to those passengers who are reasonably likely to hijack an airplane. ( United States v. Davis (9th Cir. 1973) 482 F.2d 893 , 907.) There is no solid basis for assuming that the "profile" screening procedure can successfully detect potential hijackers. (McGinley Downs, Airport Searches and Seizures — A Reasonable Approach (1972) 41 Fordham L.Rev. 293, 305-306; but see Note, Constitutionality of the 1973 Airport Searches: A Factual Analysis (1973) 8 U.S.F.L.Rev. 172.) Since weapons or explosives can be taken aboard an airplane in anyone's clothing or "carry-on" baggage, the only screening procedure with an acceptable level of effectiveness is to subject each passenger to a magnetometer test and a carry-on baggage inspection. (See United States v. Schafer, supra, 461 F.2d 856 , 858-859.) 10 Thus not only does the government have a compelling interest in screening passengers for weapons and explosives, but *Page 175

also there is no available method by which screening officials could establish either "probable cause" or some lesser evidentiary justification for subjecting individual passengers to current screening procedures.

On the opposite side of the balance, we must examine "the nature and quality of the intrusion on individual rights" incidental to the governmental action under scrutiny. ( Terry v. Ohio, supra, 392 U.S. 1 , 24 [ 20 L.Ed.2d 889, 908 ].) We are not confronted here with an intrusion by governmental agents into the sanctity of the home as in Camara or the privacy of private commercial premises as in See, Colonnade Corp. and Biswell.

Nor do we have even the "limited" indignity suffered by the individual who is stopped on the street by a police officer and frisked for weapons. (See Terry v. Ohio, supra, 392 U.S. 1 , 24-27 [ 20 L.Ed.2d 889, 907-909 ].) Rather, we are presented here with a situation in which individuals go to a quasi-public facility the use of which is conditioned upon walking through a magnetic field and opening for inspection any packages or containers capable of holding weapons or explosives. Although there is an invasion of constitutionally protected privacy interests, the intensity and scope of the intrusion is clearly minimal. The magnetometer reveals to governmental scrutiny nothing other than the presence of metallic objects, and the carry-on baggage inspection is strictly limited in scope to that which is reasonably necessary to detect weapons or explosives. There are, moreover, additional considerations which operate to ameliorate the privacy intrusion incident to this very limited screening search.

Of signal importance is the fact that airline passengers have advance notice that they will be subjected to a pre-entry screening for weapons and explosives. 11 Although advance notice in itself cannot operate to deprive an individual of his Fourth Amendment rights, it nevertheless has been recognized by the courts 12 and commentators 13 as a factor of major significance *Page 176

in evaluating the extent to which individual privacy is compromised and intruded upon by governmental action. Advance notice enables the individual to avoid the embarrassment and psychological dislocation that a surprise search causes. For example, an airline passenger with advance notice of pre-boarding screening procedures can remove and place in his non-carry-on baggage any personal effects or other items which would cause him embarrassment if they were observed by airport officials conducting the screening inspection. Indeed, by the simple device of checking all baggage rather than carrying some aboard, an airline passenger traveling on domestic flights may transport all his baggage to his intended destination without any inspection of its contents. Advance notice, therefore, operates to diminish significantly the privacy intrusion incident to airport searches and acts as a counterbalance to the reduced level of Fourth Amendment protections surrounding such searches.

Another significant feature of public facility screening searches in general and airport searches in particular is the fact that the individual may elect not to be searched. The psychological impact upon the individual is considerably less where he has an option to avoid an intrusion upon his privacy than where, as in the conventional search, there is no choice but to submit to the invasion. 14 The potential airline passenger may avoid all intrusion into his privacy by foregoing traveling or by using a means of transportation other than the airplane and, as previously noted, even those who are compelled to fly by personal or commercial necessity may avoid the most intrusive facet of the screening procedure — the carry-on baggage inspection — by checking all such baggage with the remainder of their luggage.

Such an election not to be searched is admittedly at the cost of some inconvenience, particularly where alternate means of transportation are significantly more expensive or less efficient. Nevertheless, the fact that the individual may unilaterally opt to avoid all or a major portion of the screening search is a factor which renders the governmental action under scrutiny more "reasonable" within the meaning of the Fourth Amendment. ( Wyman v. James, supra, 400 U.S. 309 , 321, 324 [ 27 L.Ed.2d 408, 416, 417 ]; United States v. Albarado, supra, 495 F.2d 799 , 807-808.) 15 *Page 177

Finally, a third feature of public facility screening searches which operates to soften the impact of their intrusion upon individual privacy is the fact that all citizens who wish to use the particular facility involved are subject to the same screening procedures. No one is singled out for different treatment from his fellow travelers. There is no social stigma associated with airport screening inspections and the individuals who must submit to these searches do not run the risk of public ridicule or suspicion. Indeed, as the majority points out, most airline passengers welcome these limited searches as necessary safety precautions.

When all the salient features of airport screening searches are considered together — the very limited and circumscribed scope of the search, the advance notice of the screening procedures, the option to avoid the search altogether or at least the more intrusive carry-on baggage inspection, and the absence of any social stigma — it becomes apparent that the intrusion upon individual privacy is of very minor dimensions.

As previously noted, the reasonableness of the questioned governmental action is determined by balancing the need to search against the intrusion which the search entails. In the instant case the conjunction of the three relevant considerations — the compelling nature of the governmental interest, the lack of an effective means of limiting the screening search to those reasonably likely to hijack an airplane, and the very minor intrusion upon the privacy of airline passengers — persuades me that, on balance, current airport screening searches are "reasonable" despite the fact that they are conducted in the absence of probable cause or some functional equivalent.

At this juncture it bears repeated emphasis that this "balancing approach" to the resolution of the constitutional questions posed by airport searches does not in any manner lessen the overall protections of the Fourth Amendment nor signal a retreat from the fundamental principle that searches and seizures conducted in the absence of probable cause are per se unreasonable except in specifically enumerated contexts. The standards applicable to conventional searches and seizures remain unaltered. As *Page 178

was stated by Mr. Justice White for the court in Camara , "Such an approach neither endangers time-honored doctrines applicable to criminal investigations nor makes a nullity of the probable cause requirement in this area. It merely gives full recognition to the competing public and private interests here at stake and, in so doing, best fulfills the historic purpose behind the constitutional right to be free from unreasonable government invasions of privacy." ( Camara v. Municipal Court, supra, 387 U.S. 523 , 539 [ 18 L.Ed.2d 930, 941 ].)

The conclusion that airport searches are justified or reasonable despite the absence of probable cause does not complete our analysis. Even searches which are otherwise reasonable may nevertheless be "unreasonable" within the meaning of the Fourth Amendment if government officials fail to secure a warrant authorizing the search. ( United States v. United States District Court, supra, 407 U.S. 297 , 314-324 [ 32 L.Ed.2d 752, 764-770 ]; Vale v. Louisiana (1970) 399 U.S. 30 , 34 [ 26 L.Ed.2d 409, 413 , 90 S.Ct. 1969 ]; Katz v. United States, supra, 389 U.S. 347 , 356-357 [ 19 L.Ed.2d 576, 585 ]; Camara v. Municipal Court, supra, 387 U.S. 523 , 528-539 [ 18 L.Ed.2d 930, 935-941 ].) As the majority notes, however, since the warrant procedure would totally frustrate the legitimate governmental purpose of airport screening procedures, the failure to secure prior judicial approval does not render these searches unreasonable. ( Schmerber v. California (1966) 384 U.S. 757 , 770-771 [ 16 L.Ed.2d 908, 919-920 , 86 S.Ct. 1826 ]; Preston v. United States (1964) 376 U.S. 364 , 367 [ 11 L.Ed.2d 777, 780 , 84 S.Ct. 881 ]; Carroll v. United States, supra, 267 U.S. 132 , 153 [ 69 L.Ed. 543, 551 ]; see Camara v. Municipal Court, supra, 387 U.S. 523 , 533 [ 18 L.Ed.2d 930, 937-938 ].) In addition, since there is no requirement of any level of probable cause for airport searches and since the time, place and scope of these searches are fixed by federal regulation, there is absolutely nothing for a neutral magistrate to pass judgment upon. In the context of airport searches, therefore, prior judicial approval is impractical if not impossible and would serve no purpose. It is thus not constitutionally required.

For the foregoing reasons I am of the opinion that although airport searches are conducted without either a warrant or probable cause, they do not run afoul of the Fourth Amendment's proscription against unreasonable searches and seizures and accordingly suffer from no constitutional defect. The screening search conducted in the instant case was properly confined to a magnetometer test and a carry-on baggage inspection, and the contraband observed in plain view in the course of this lawful search was constitutionally seized. ( Harris v. United States

(1968) *Page 179 390 U.S. 234 , 236 [ 19 L.Ed.2d 1067, 1069 , 88 S.Ct. 992 ].) I concur with the majority's conclusion that the marshal acted lawfully and that the judgment be affirmed.

Tobriner, J., and Sullivan, J., concurred.

1 The views expressed herein were prompted in large part by the excellent discussion of prevailing judicial approaches to the airport search question in Note, The Constitutionality of Airport Searches (1973) 72 Mich. L.Rev. 128.

2 Indeed, the only significant similarity between the searches involved in Camara and airport preboarding screening searches is that the primary purpose of both types of search is other than the gathering of evidence to be used in a criminal prosecution.

3 See generally Greenberg, The Balance of Interests Theory and the Fourth Amendment: A Selective Analysis of Supreme Court Action Since Camara and See (1973) 61 Cal.L.Rev. 1011.

4 See, e.g., United States v. United States District Court, supra, 407 U.S. 297 [domestic national security wiretap]; United States v. Biswell (1972) 406 U.S. 311 [ 32 L.Ed.2d 87 , 92 S.Ct. 1593 ] [search of business premises of licensed gun dealer]; Wyman v. James, supra, 400 U.S. 309 [home visits to welfare recipients]; Colonnade Corp. v. United States (1970) 397 U.S. 72 [ 25 L.Ed.2d 60 , 90 S.Ct. 774 ] [search of liquor licensee's business premises]; Terry v. Ohio, supra, 392 U.S. 1 [stop and frisk]; Camara v. Municipal Court, supra, 387 U.S. 523 [health code inspections of private dwellings]; see also, Almeida-Sanchez v. United States, supra, 413 U.S. 266 , 275-285 [ 37 L.Ed.2d 596, 604-610 ] (Powell, J., concurring) [searches of automobiles near international borders]; United States v. Schafer (9th Cir. 1972) 461 F.2d 856 , cert. den. 409 U.S. 881 [ 34 L.Ed.2d 136 , 93 S.Ct. 211 ] [screening search of airline passengers for quarantined plants and pests]; Downing

v. Kunzig, supra, 454 F.2d 1230 [federal building screening search].

5 Our conclusion as to whether probable cause or some functional equivalent is a constitutional prerequisite to a valid airport search may affect our analysis of the separate question whether prior judicial approval is required. (See Almeida-Sanchez v. United States, supra, 413 U.S. 266 , 277 (Powell, J., concurring).)

6 The demand for specificity and reliability in the information upon which searches and seizures are justified has been a central feature of our Fourth Amendment juris-prudence. (See Sibron v. New York (1968) 392 U.S. 40 , 66-67 [ 20 L.Ed.2d 917, 936-937 , 88 S.Ct. 1889 ]; Terry v. Ohio, supra, 392 U.S. 1 , 21, fn. 18 [ 20 L.Ed.2d 889, 906 ]; Aguilar v. Texas (1964) 378 U.S. 108 , 114 [ 12 L.Ed.2d 723, 728-729 , 84 S.Ct. 1509 ]; Wong Sun v. United States (1963) 371 U.S. 471 , 479-484 [ 9 L.Ed.2d 441, 450-453 , 83 S.Ct. 407 ]; Brinegar v. United States (1949) 338 U.S. 160 , 175 [ 93 L.Ed. 1879 , 1890, 69 S.Ct. 1302 ]; Carroll

v. United States (1925) 267 U.S. 132 , 159-162 [ 69 L.Ed. 543, 554-555 , 45 S.Ct. 280 , 39 A.L.R. 790 ]; Director General v. Kastenbaum (1923) 263 U.S. 25 , 28 [ 68 L.Ed. 146, 147-148 , 44 S.Ct. 52 ]; Stacey v. Emery (1878) 97 U.S. 642 , 645 [ 24 L.Ed. 1035, 1036 ].)

7 Of course, one of the general objectives of the particular type of search under scrutiny here is to detect criminal activity, i.e., the carrying of unauthorized weapons and explosives aboard airplanes. However, the overriding and more immediate interest is to prevent hijackings and thereby to save human lives and private property.

8 It is clear that if airport officials are required to establish probable cause before subjecting any airline passenger to a screening search, few, if any, passengers could lawfully be searched.

9 Of course, even the most compelling governmental interest may not in itself excuse noncompliance with the Fourth Amendment's warrant and probable cause requirements. Thus in United States v. United States District Court, supra, 407 U.S. 297 , even the government's interest in protecting the nation against subversion and sabotage was not in itself sufficient to justify warrantless domestic national security wiretaps, and in order to secure a warrant for these wiretaps the government was required to show a functional equivalent of probable cause. ( Id., at pp. 311-324 [32 L.Ed.2d at pp. 762-770].) Therefore, in addition to the legitimacy and importance of the governmental objectives behind a particular type of search we also must examine the question whether the objectives can be accomplished with an acceptable degree of effectiveness if the government is required to obtain a warrant based upon probable cause or some functional equivalent prior to conducting the search.

10 In Schafer the court concluded that all airline passengers leaving Hawaii were lawfully subject to a minimally intrusive pre-boarding screening search for prohibited plants and pests. The court reasoned that there was no effective means of detecting which airline passengers were reasonably likely to be carrying the quarantined items and therefore probable cause was not required to justify a baggage search. In contrast, as one commentator has observed, "[T]he traditional probable cause test has not proved to be a bar to an acceptable level of criminal law enforcement. . . ." (La Fave, supra, 1967 Sup. Ct. Rev. 1 , 16.)

11 Signs prominently displayed at airports and the publicity given to airplane hijackings and governmental efforts to deal with the problem make it highly unlikely that potential airline passengers are unaware of airport screening procedures. ( United States v. Albarado (2d Cir. 1974) 495 F.2d 799 , 807-808; United States v. Davis, supra, 482 F.2d 893 , 914.)

12 United States v. Biswell, supra, 406 U.S. 311 , 316 [ 32 L.Ed.2d 87, 92 ]; Wyman v. James, supra, 400 U.S. 309 , 320-321 [ 27 L.Ed.2d 408, 415-416 ]; United States v. Albarado, supra, 495 F.2d 799 , 807-808; United States v. Miles, supra, 480 F.2d 1217 , 1219; Barrett v. Kunzig, supra, 331 F. Supp. 266 , 274; see Almeida-Sanchez v. United States, supra, 413 U.S. 266 , 270-271 [ 37 L.Ed.2d 596, 601-602 ].)

13 Greenberg, supra, 61 Cal. L.Rev. 1011, 1029-1030; La Fave, supra, 1967 Sup. Ct. Rev. 1 , 19-20, 34-35.

14 The United States Supreme Court has recognized that the psychological impact of a governmental intrusion upon privacy is a factor which bears upon the reasonableness of the governmental action. Thus in Camara the court observed that health and fire inspections were generally welcomed by the public ( Camara v. Municipal Court, supra, 387 U.S. 523 , 537 [ 18 L.Ed.2d 930, 940 ]) and in Terry it was noted that a pat-down frisk was less "frightening" and "annoying" than a full-blown criminal search. ( Terry v. Ohio, supra, 392 U.S. 1 , 25 [ 20 L.Ed.2d 889, 908 ].)

15 As the majority observes, it is axiomatic that searches conducted in the absence of probable cause must be strictly tied to and justified by the circumstances which render their initiation permissible. ( Terry v. Ohio, supra, 392 U.S. 1 , 19, 26 [ 20 L.Ed.2d 889, 904, 908-909 ]; People v. Collins

(1970) 1 Cal.3d 658 , 662 [ 83 Cal.Rptr. 179 , 463 P.2d 403 ].) The only justification for searching airline passengers for weapons and explosives is that such individuals are going aboard an airplane and might use a weapon or explosive to hijack the airplane. Thus a person who proceeds up to the point where the searches are being conducted must be permitted to elect not to be searched if he is willing to abandon his plans to board the airplane. Such individuals will not thereby be able to board another airplane unscreened because all passengers boarding all airplanes must undergo the same screening procedures. (Accord, United States v. Albarado, supra, 495 F.2d 799 , 807-808; United States v. Davis, supra, 482 F.2d 893 , 910-912.)

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