Petition — Freeland v. United States

FILED

en eer: IR. =

IN THE “ |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1977

No. A hy 547

JEFFREY SCOTT FREELAND

Petitioner,

vs.

UNITED STATES OF AMERICA,

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RAYMOND A. WHITE, Attorney

Suite 310 Mumma Building

345 West Second Street

Dayton, Ohio 45402

Attorney for Petitioner

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COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1460

TABLE OF CONTENTS

Page

OPINIONS BELOW _..... Ete eres see ae

cao 0a dob VU-wri-s'0p-a 0 a 0 oa 2

QUESTIONS PRESENTED FOR REVIEW ___.. 2

CONSTITUTIONAL PROVISIONS

INVOLVED...... . Realtree. on 3 3

STATEMENT OF THE CASE .................. 3

ARGUMENTS FOR GRANTING THE WRITS 5

CONCLUSION ........... hh ae eS

APPENDIX:

Appeal from the United States District Court for

the Eastern District of Kentucky __. ... la-6a

Judgment and Commitment. | aes 3) oe

Memorandum Opinion..._... etce ens 9a-l4a

Indictment......... Ts LAM Sef Sa yy 15a

Motion to Suppress _. | Saeus eae

INDEX TO CITATIONS

Cases: Page

Burton v. ae sides Authority, 365 U.S.

a A wer Rina. Weel hy, 9

Cipres v. United States, 343 F. 2d 95, 97 wa Cir.

eee air: Sree) A pt eben torte 6

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019,

82 L. Ed. 1461 (1938) ave 6

United States v. Allen, 349 F. Supp. 749 (1972) 6, 8

United States v. Bell, 335 F. sl 797, 803 at

RP re +>

United Staies v. Burton, 475 F. 2d 469 (1973) 9.

United States v. Como, 340 F. 2d 891, 893 (2d

Cir. 1965) eas 6 SP eat 6

United States v. Dalpiaz, 494 F. 2d 374 (6th Cir.

1965) ade e we: eee s

United States v. Davis, 482 F. 2d 893 (9th Cir.

1973) ¥ é 6, 7, 8, 10

United States v. Edwards, 498 F. 2d 496 Ge Cir.

1974) ) | +o 8

United States v. Freeland, 6th Cir. No. 76-2476

(1977) |

United States v. Guest, 383 U.S. 745 (1966) ie ae

United States v. Lopez, 328 F. Supp. 1077, 1092

(1971) es iui lin Ghee Mie

United States v. Meulener, 351 F. Supp. 1284,

SR eR ee 5, 6, 8

United States v. Miles, 449 F. 2d 1272 (1971) = 6

United States v. Mitchell, 352 F. Supp. 38 (1972) 0)

United States v. Ruiz-Estrella, 481 F. 2d 723

RR ai ag pri? oe eae 6, 7

United States v. Slocum, 464 F. 2d 1180 (1972) ... 8

United States v. Smith, 308 F. 2d 657, 663 ” Cir.

RO ee 6

cert. denied, 372 U.S. 906 83 S. Ct. 717, 9 L. Ed.

a Se a ae oe 6

United States v. Wright, 468 F. 2d 1184 (1972) | 7

Statutes and Constitutional Provisions:

United States Constitution:

Fourth Amendment .__.. Rare. 3, 5, 1l

28 U.S.C. Sec. 1254 (1) . | <COER eee re 2

Page

oo

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1977

No.

JEFFREY SCOTT FREELAND

Petitioner,

vs.

UNITED STATES OF AMERICA,

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner, Jeffrey Scott Freeland, prays that a

WRIT OF CERTIORARI issue to review the opinion and

judgment of the United States Court of Appeals for the

Sixth Circuit rendered in these proceedings on September

12, 1977.

OPINIONS BELOW

The opinion of the Court of Appeals for the Sixth Cir-

cuit (Case No. 76-2476) , as yet unreported, is presented in

the Appendix, infra, at pp. la-6a. The Opinion of the

2

Court of Appeals affirmed the Judgment of the District

Court for the Eastern District of Kentucky (Indictment

No. 76-21) rendered September 20, 1976, which Judgment

and commitment appears in the Appendix at p. 7a, and

accompanying Memorandum Opinion (filed September 20,

1976) appears in the Appendix at p. 9a.

JURISDICTION

The Opinion of the Court of Appeals for the Sixth Cir-

cuit was entered September 12, 1977, (See Appendix,

infra). This petition for certiorari was filed, pursuant to

Rule 22 (1.) of the RULES OF THE SUPREME COURT

OF THE UNITED STATES, within thirty days of said

entry, or with such additional time as granted this petition-

er under Rule 34(2.) of said Rules. The jurisdiction of

the Supreme Court of the United States is invoked under

28 U.S.C. Sec. 1254(1).

QUESTIONS PRESENTED FOR REVIEW

Mr. Freeland, the Petitioner herein, was found guilty,

in a nonjury trial in the District Court for the Eastern

District of Kentucky, of knowingly delivering a firearm to

a common carrier for shipment in interstate commerce

without written notice, in violation of 18 U.S.C. Sec. 922

(e) (1970). (See, Indictment, Appendix, infra p. 15a).

Mr. Freeland’s Motion to Suppress, infra, Appendix p. | 6a,

was previously overruled by the District Court.

The questions arising in these proceedings and presented

to this Court for review are as follows:

1. Whether the search of Mr. Freeland’s bag at the

airport, which bag was intended to be part of “checked”

baggage, and not “carry-on”, without clear, unequivocal

§

and informed consent by Mr. Freeland, constituted an

illegal search, and, therefore, that Mr. Freeland’s Motion to

Suppress should have been sustained.

2. Whether the search of Mr. Freeland’s bag at the air-

port by airport security personnel, in view of FAA regula-

tions regarding airport security, constituted governmental

involvement so as to bring the search within the proscrip-

tions of the Fourth Amendment.

CONSTITUTIONAL PROVISIONS INVOLVED

The CONSTITUTION of the United States, at Amend-

ment IV, Searches and Seizures, provides:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon pits cause, su

by oath or affirmation, an ne descri

ing the place to be searched, and the persons or things

to be seized.”

STATEMENT OF THE CASE

This case arose as a result of the arrest of Mr. Jeffrey

Scott Freeland on April 16, 1976, at the Greater Cincin-

nati Airport, Boone County, Kentucky. Mr. Freeland was

subsequently, on May 3, 1976, indicted in the United States

District Court for the Eastern District of Kentucky (Indict-

ment No. 76-21), on the charge that he “knowingly did

deliver, and caused to be delivered to Delta Airlines, a

common carrier, a suitcase in which there was a firearm,

that is, a Browning automatic 9 millimeter pistol, for ship-

ment in interstate commerce from Boone County, Ken-

tucky to Miami, Florida, to himself, a person other than

4

a licensed importer, manufacturer, dealer or collector of

firearms, without having given written notice to said carrier

that said firearm was being transported.”

On April 16, 1976, Jeffrey Scott Freeland presented him-

self at the Delta Airlines ticket counter at the Greater Cin-

cinnati Airport, Boone County, Kentucky, to purchase an

airline ticket for passage to Miami, Florida. After a brief

encounter with the Delta ticket agent, Carl Patterson, it

was determined by Mr. Patterson that Mr. Freeland met

the elements of a “‘profile” then in use by Delta Airlines.

Mr. Freeland delivered to Delta Airlines, at the ticket

counter, one suitcase to be checked through to Miami. Mr.

Patterson summoned his supervisor, Mr. Rayburn Miller,

for assistence by reason of Mr. Freeland’s matching the

elements of their “profile”. Mr. Miller then removed the

suitcase upstairs to another level of the air terminal, re-

questing Mr. Freeland to accompany him, and at the same

time, related to Mr. Freeland that the bag would have to

be x-rayed. Saying nothing more, Mr. Miller placed the

suitcase on the conveyer to the x-ray machine and caused

the suitcase to be x-rayed. One of the operators of the

x-ray units, Kaye Reeves, determined that there was an

unidentifiable object inside the suitcase. The suitcase was

then opened by a security employee, Miss Kathy Noakes;

Miss Noakes testified that she told Mr. Freeland that the

bag would have to be opened to which statement she said

Mr. Freeland replied with a shrug; Mr. Freeland testified

that the bag was opened before he reached the end of the

conveyor belt on which the suitcase was carried to Miss

Noakes and that he did not assent to its search. Upon

opening the suitcase, Miss Noakes determined that there

was contained therein, a gun. Mr. Freeland was then

arrested for knowingly delivering a firearm to a common

carrier.

5

A Motion to Suppress Evidence (filed May 28, 1976),

(Appendix p. 16a) asserting that a search of the suitcase

involved in Mr. Freeland’s arrest was unlawful, was heard

by the Honorable Engene E. Siler, Jr., Judge, United States

District Court, Eastern District of Kentucky, on June 28,

and July 28, 1976, and was denied by Judge Siler on Sep-

tember 7, 1976. A trial was had before Judge Siler, who,

after hearing the evidence on September 7, 1976, rendered

a finding of Guilty as charged against Mr. Freeland (writ-

ten Judgment and Opinion filed September 20, 1976).

(Appendix p. 7a) .

The Decision of the District Court was affirmed by Opin-

ion of the United States Court of Appeals for the Sixth

Circuit filed September 12, 1977, (See Appendix p. la). —

ARGUMENTS FOR GRANTING THE WRIT

Mr. Freeland did not consent.

It is well settled that a warrantless search may be justified

if the person searched has voluntarily given his consent;

and in so giving his consent, intentionally relinquished his

Fourth Amendment Constitutional rights to protection

against such searches. To be valid, however, such waiver

must be an intentional relinquishment or abandonment of

a known right or privilege to withhold such consent. This

basic premise of requiring intentional, informed waiver has

been found applicable to searches and seizures affecting air-

craft passengers and their luggage, and was clearly articu-

lated in U.S. v. Meulener, 351 F. Supp. 1284, 1287 (1972),

as follows:

“A search may be justified if the subject’s voluntary

consent has been given. However, consent to a search

amounts to a waiver of a constitutional right, and:

6

“waiver, in this context, means the ‘intentional relin-

quishment of a known right or privilege.’ Johnson

v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed.

1461 (1938). Such a waiver cannot be conclusively

presumed from a verbal expression of assent. The

court must determine from all the circumstances

whether the verbal assent reflected an understanding,

uncoerced, and unequivocal election to grant the

office (r) a license which the person knows may be

freely and effectively withheld . . . Cipres v. United

States, 343 F. 2d 95, 97 (9th Cir. 1965) .”

“To meet constitutional requirements, the consent

must be proved, by clear and positive evidence, to be

voluntary, unequivocal, specific and intelligently given

rather than resulting from duress or coercion, whether

actual or — United States v. Como, 340 F. 2d

891, 893 (2d Cir. 1965) ; United States v. Smith, 308

F. 2d 657, 663, (2d Cir. 1962), cert. denied, 372 U.S.

906, 83 S.Ct. 717, 9 L.Ed. 2d 716 (1963) .” ;

a States v. Bell, 335 F. Supp. 797, 803 (E.D.N.Y.

(See also, U.S. v. Lopez, 328 F. Supp. 1077, 1092 (1971) ;

U.S. v. Davis, 482 F. 2d 893, 913-914 (1973) ; U.S. v. Allen,

349 F. Supp. 749 (1972). The question of consent is one

of fact considering the particular circumstances involved,

but the consent is not to be lightly inferred, and must be

shown by the Government by clear and convincing evi-

dence to have been freely and voluntarily given (See, e.g.

U.S. v. Meulener, supra; U.S. v. Lopez, supra; U.S. v. Miles,

449 F. 2d 1272 (1971); U.S. v. Allen, supra; United States

v. Ruiz-Estrella, 481 F. 2d 723 (1973). The opinion of

the Court of Appeals for the Sixth Circuit in its decision

herein is in conflict with this principle where it stated, at

p. 4 of its decision:

“Where a motion to suppress evidence has been

made, the burden of establi that the evidence was

7

secured by an unlawful search is on the moving party.

E.g., United States v. Wright, 468 F. 2d 1184, 1185-86

(6th Cir. 1972) , cert. dented 412 U.S. 938 (1973). It

was thus incumbent upon Freeland to demonstrate

that sufficient governmental involvement existed to in-

voke the proscriptions of the Fourth Amendment.”

The Courts below held in part:

“that a person who proceeds to attempt to board a

plane in the face of widespread publicity about the

probability of air piracy and specific airport notices

concerning the security measures which are employed

to detect potential hijackers consents to a limited

search of his person and hand baggage.”

and in so holding, relied upon United States v. Dalpiaz,

494 F. 2d 374 (6th Cir. 1974) and United States v. Davis,

482 F. 2d 893 (9th Cir. 1973). The Court recognized,

however, that “There are apparently no cases involving

searching of baggage to be checked”.

Though widespread publicity may be an important con-

sideration, and has been so considered in recent court de-

cisions (citations omitted) , Dalpiaz involved a totally dif-

ferent set of facts, viz carry-on luggage search and implied

consent to limited search (of carry-on luggage or person)

in the face of widespread publicity concerning air piracy.

In the context of widespread publicity as a basis for justi-

fying a search, both Dalpiaz and Davis held that such pre-

boarding searches are valid only if the person is given the

opportunity to avoid the search by electing not to board

the aircraft. Such publicity, even taken with a profile fit,

has been held not to justify such search where the person

searched was not made aware of his option to avoid search

by electing not to board the aircraft (United States v.

Ruiz-Estrella, supra) .

The lower Courts further relied upon a sign, introduced

into evidence, in establishing consent. This sign was posted

at the ticket counter. It has been held that:

“The fact that a passenger continued aircraft boarding

process after reading posted and clearly observable

signs stating ‘PASSENGERS AND BAGGAGE SUB-

JECT TO SEARCH’ did not amount to implied con-

sent.” (United States v. Lopez, supra)

In Lopez, there was no express consent, and the Court

held that to hold that consent could be implied would be

inherently coercive (Lopez, at p. 1093). In United States

v. Edwards, 498 F. 2d 496 (2d Cir. 1974), also relied upon

by the District Court, a sign stated “Passengers and Baggage

Subject to Search” only in combination with announce-

ment over loudspeaker that baggage will be searched con-

stituted consent of carry-on baggage. It is well settled that

a passenger has not so impliedly consented to search of his

baggage by presenting himself for boarding at the airport,

(U.S. v. Allen, supra) and silence or acquiescence in official

action does not amount to consent. (U.S. v. Meulener;

U.S. v. Lopez; U.S. v. Allen, supra). Even if the airline

has the right to require a search as a condition of boarding

the aircraft, the passenger must be informed of his option

to avoid the search by choosing not to board the aircraft.

(U.S. v. Allen; U.S. v. Meulener; U.S. v. Davis; U.S. v.

Dalpiaz, supra). It is clear that the procedures, such as

use of a “profile”, for the protection of aircraft from illegal

acts of prospective passengers require certain action on the

part of airline employees or Government agents in the

event that a particular prospective passenger becomes sus-

pect; these include request and consent of the suspect

passenger to a search of his luggage, (U.S. v. Slocum, 464

F.2d 1180 (1972) , after fully informing him of his alterna-

tives.

Governmental Involvement

The search of Mr. Freeland’s bag was part of a national

policy performed within regulations prescribed by the Fed-

eral Aviation Administration (See 14 C.F.R. Sec 121.538) .

These regulations provided in part as follows:

121.538 Aircraft Security

“(b) Each certificate holder, shall adopt and put into

use a screening system, acceptable to the Administra-

tor, that is designed to prevent or deter the carriage

aboard its aircraft of any explosive or incendiary device

or weapon in carry-on baggage or on or about the

persons of passengers, except as provided in Sec. 121.-

585, and the carriage of any explosive or incendiary

device in checked baggage. Each certificate holder

shall adopt and put into use its security program pre-

scribed in paragraph (c) of this section.’

The Court of Appeals below held in part at p. 3 of its

decision: ,

“Contrary to the suggestion in the district court's

opinion, we do not believe that all searches of

passengers’ luggage at airports are invariably subject

to the proscription of the Fourth Amendment. Rather,

the question of governmental involvement in the

search is determined by the particular facts at hand.

Burton v. Wilmington Parking Authority, 365 US.

715, 722 (1961). See United States v. Burton, 475 |

F. 2d 469, 471 (8th Cir. 1973) ; United States v. Mitch-

ell, 352 F. Supp. 38, 42-43 (E.D. N.Y. 1972), aff'd

without opinion 486 F.2d 1397 (2d Cir. 1973). Here

the search was in fact carried on by private security

personnel engaged by the airlines. We find nothing in

the record to indicate that they were deputized or

otherwise agents acting under governmental direction

or authority.”

10

This is in conflict with the holding of the 9th Circuit in

U.S. v. Davis, supra, wherein that court held, at 482 F. 2d

904:

The government’s role in the airport search pro-

gram is and has been a dominant one. But even if

governmental involvement at some point in the period

could be characterized accurately as mere “encourage-

ment,’ or as “peripheral, or . . . one of several coopera-

tive forces leading to the [alleged] constitutional viola-

tion,” see United States v. Guest, 383 U.S. 745, 755-

756, 86 S.Ct. 1170, 1177, 16 L.Ed.2d 239 (1966), that

involvement would nevertheless be “significant” for

ewes of the Fourth Amendment. Constitutional

imitations on governmental action would be severely

undercut if the government were allowed to actively

encourage conduct by “private” persons or entities that

is prohibited to the governmt itself.?®

It makes no difference that the act of opening appel-

lant’s briefcase was accomplished by a “‘private”’ airline

employee rather than a “public” official. The search

was part of the overall, nationwide anti-hijacking

effort, and constituted “‘state action” for purposes of

the Fourth Amendment.

1]

CONCLUSION

Based on the foregoing, the Decision of the Court of

Appeals affirming Mr. Freeland’s conviction is:

1. contrary to previous decisions of the United States

Supreme Court;

2. inconsistent with holdings of other United States

Courts of Appeals;

3. in violation of Mr. Freeland’s rights under the

Fourth Amendment.

Therefore, for these reasons, a writ of certiorari should

issue to review the decision of the United States Court of

Appeals for the Sixth Circuit affirming the conviction of

Mr. Freeland. i,

Respectfully submitted,

. RAYMOND A. WHITE, Attorney

Suite 310 Mumma Building

345 West Second Street

Dayton, Ohio 45402

Attorney for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1977

No.

JEFFREY SCOTT FREELAND

Petitioner,

VS.

UNITED STATES OF AMERICA,

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RAYMOND A. WHITE, Attorney

Suite 310 Mumma Building

345 West Second Street

Dayton, Ohio 45402

Attorney for Petitioner

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

No. 76-2476

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ery ae

Plaintiff-Appellee,| United States Dis-

So | trict Court for the

JerFrey Scotr FREELAND, Eastern District of

Defendant-A ppellant. Kentucky.

Decided and Filed September 12, 1977.

Before: Puituips, Chief Judge; Weick and EnckL, Cir-

cuit Judges.

ENGEL, Circuit Judge. Defendant Freeland was found

guilty in a non-jury trial of knowingly delivering a firearm

to a common carrier for shipment in: interstate commerce

without written notice, in violation of 18 U.S.C. § 922 (e)

(1970) .

The sole issue in Freeland’s appeal is the validity of

the search of his luggage at the Greater Cincinnati Air-

port which produced the gun. Following a hearing on

Freeland’s motion to suppress, the district court ruled that

he had consented to the search and that in any event, it

la

2a

was valid under United States v. Dalpiaz, 494 F. 2d 374

(6th Cir. 1974). We affirm.

Shortly before flight time on the evening of Friday,

April 16, 1976, Jeffrey Scott Freeland presented himself

at the Delta Airlines ticket counter in the Greater Cin-

cinnati Airport for the purpose of purchasing a one-way

passage to Miami, Florida, which he had earlier reserved

under the fictitious name of Floyd Perry. Ticket Agent

Harold Patterson was suspicious of Freeland because he

appeared to meet certain elements of a hijacker profile

then in use by Delta Airlines. When Freeland sought to

pay cash for the ticket and failed to produce any personal

identification, Patterson summoned his supervisor, Ray-

burn Miller. On Miller's instructions Patterson issued the

ticket. Meanwhile, Freeland had placed his suitcase on

the weight scale next to the counter to be checked through

to Miami. There was no indication that it was to ac-

company him personally on the plane. Nevertheless, Mil-

ler, after placing the baggage ticket on the suitcase, told

Freeland that the suitcase would have to be x-rayed. Miller

accordingly picked up the bag and asked Freeland to

follow him. Together they went upstairs to the passenger

screening area where Miller placed the suitcase on the con-

veyor to be x-rayed. One of the operators of the x-ray

units, Kay Reeves, observing an unidentifiable object on

the inside of the suitcase, asked a fellow employee, Kathy

Noakes to “hand check it”. Reeves and Noakes were both

involved in the pre-screening of passengers and had been

furnished to Delta Airlines for that purpose by the Wacken-

hut security agency. While the defendant disputed it,

the trial court accepted the testimony of Ms. Noakes that

she told Freeland that the bag would have to be opened,

and that he replied with a shrug. Upon opening the suit-

case, the gun was discovered. Ms. Noakes promptly sum-

3a

moned Sergeant Wendell Kegley of the Cincinnati Airport

police. Upon his arrival Kegley observed the firearm

which had already been discovered in the suitcase and ar-

rested Freeland.

On the foregoing facts the government urged before the

district court that Ms. Noakes’ opening of Freeland’s bag

was a search by a nongovernmental airline employee and

was not subject to the Fourth Amendment. The district

court, on the other hand, ruled that “the search was part

of a national policy and was done within the regulations

prescribed by the Federal Aviation Administration”,' and

was therefore subject to Fourth Amendment scrutiny, re-

lying on the authority of United States v. Davis, 482 F.

2d 893 (9th Cir. 1973). See also United States v. Fannon,

46 U.S.L.W. 2049.

Federal Aviation Administration regulations require the

presence of at least one law enforcement officer at the point

of and throughout the final passenger screening process

prior to boarding? and define that officer as one who is not

only authorized to carry and use firearms, but who is vested

'See 14 C.F.R. § 121.538.

214 C.F.R. 107.4 provides:

[EJach airport operator shall, not later than January 6, 1973,

submit for gpd by the Administrator an amendment to the

master security plan included in its security program that sets

forth facilities and procedures which insure that as soon as pos-

sible, but in no event later than February 6, 1973 —

cate holder required to have a security program under § 121.538

of this chapter, and by each foreign air carrier that requests such

law enforcement support;

(b) The law enforcement officer is contin

18 eh dees on Geo casa being bonded axe cand ant Ge

4a

with a police power of arrest under federal, state, or other

governmental authority. 14 C.F.R. § 107.1 (e).

Contrary to the suggestion in the district court's opinion,

we do not believe that all searches of passengers’ luggage

at airports are invariably subject to the proscription of the

Fourth Amendment. Rather, the question of govern-

mental involvement in the search is determined by the

particular facts at hand. Burton v. Wilmington Parking

Authority, 365 U.S. 715, 722 (1961). See United States v.

Burton, 475 F. 2d 469, 471 (8th Cir. 1973) ; United States

v. Mitchell, 352 F. Supp. 38, 42-43 (E.D. N.Y. 1972), aff'd

without opinion 486 F. 2d 1397 (2d Cir. 1973). Here

the search was in fact carried on by private security per-

sonnel engaged by the airlines. We find nothing in the

record to indicate that they were deputized or otherwise

agents acting under governmental direction or authority.

Apparently Reeves and Noakes did not conceive that they

had any authority to effectuate an arrest since they called

upon the airport police sergeant for this purpose.

Where a motion to suppress evidence has been made,

the burden of establishing that the evidence was secured

by an unlawful search is on the moving party. E.g., United

States v. Wright, 468 F. 2d 1184, 1185-86 (6th Cir. 1972),

cert. denied 412 U.S. 938 (1973). It was thus incumbent

upon Freeland to demonstrate that sufficient governmental

involvement existed to invoke the proscriptions of the

Fourth Amendment.

Assuming, however, because the district court did, that

the Wackenhut personnel effecting the search were law

enforcement officers within the meaning of FAA regula-

tions and measuring the search and seizure by Fourth

Amendment standards, we have no difficulty in agreeing

with the district court that Freeland consented to the

search of his luggage. As the district court found:

5a

Although Miller did not tell Freeland he could with-

draw the bag or refuse to board, nevertheless, a sign

was posted at the ticket counter advising Freeland of

this and that checked baggage could be examined.

Had Freeland asked for the bag back, Miller would

have allowed him the bag and would have allowed

him not to board the plane.

Our review of the testimony convinces us that the trial

judge’s holding is fully supported by the record.

As observed by Mr. Justice Stewart in Schneckloth v.

Bustamonte, 412 U.S. 218, 227 (1973),

. . . the question whether a consent to a search was

in fact ‘voluntary’ or was the product of duress or

coercion, express or implied, is a question of fact to

be determined from the totality of all the circum-

stances. While knowledge of the right to refuse con-

sent is one factor to be taken into account, the gov-

ernment need not establish such knowledge as the

sine qua non of an effective consent. As with police

questioning, two competing concerns must be accom-

modated in determining the meaning of a ‘voluntary’

consent — the legitimate need for such searches and

the equally important requirement of assuring the ab-

sence of coercion.

Both such concerns were fully accommodated here. The

need of the airport officials to satisfy themselves that it

was safe to accept the luggage for transportation to Miami

was altogether compelling. As we did in Dalpiaz, supra,

494 F. 2d at 378, we approve without repeating the lan-

guage of Judge Gewin in United States v. Moreno, 475

F. 2d 44, 49 (5th Cir.) cert. denied, 414 U.S. 840 (1973).

Coercion was altogether lacking here. There is nothing to

indicate that Freeland could not have withdrawn the bag-

gage. There appears to have been nothing threatening

in the conduct of the persons involved. The occurrence

6a

took place in the public areas of the airport. Freeland

was not arrested or even personally restrained until after

the bag had been opened and a police officer had been

summoned.

It is true that, unlike Dalpiaz, Freeland’s baggage was

to be checked through and was not to accompany him in-

side the passenger compartment, where the bag’s contents

might have posed the threat of direct use. The risk re-

mained, however, that stored baggage could hold explosives

or other material posing danger to the craft, given today’s

sophistication in their use.

A respect for the very real obligation of the airlines to

protect the passengers entrusted to their care demands that

the reasonableness of their conduct be measured against

the very real risks they seek to avoid. As long as Free-

land could have freely withdrawn his baggage from the

flight and avoided the search, we see no impediment in

holding that his failure to do so amounted to a consent to

the search.

Affirmed.

7a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

CRIMINAL NO. 76-21

UNITED STATES OF AMERICA,

PLAINTIFF,

vs.

JEFFREY SCOTT FREELAND,

DEFENDANT.

JUDGMENT AND COMMITMENT

(Filed September 20, 1976)

On September 7, 1976, came the defendant in person

and by counsel, Raymond White and Thomas C. Smith.

IT IS ADJUDGED that the defendant has been con-

victed upon the finding of the Court of his guilt of de-

livering to common carrier, concealed firearm for inter-

state shipment without giving notice to carrier in violation

of Title 18, Sec. 922 (e) U.S. Code as charged in the in-

dictment, and the Court having asked the defendant and

his attorneys whether they had anything to say why judg-

ment should not be pronounced, and no sufficient cause to

the contrary being shown or appearing to the Court,

IT IS ADJUDGED that the defendant is guilty as

charged and convicted.

8a

IT IS ADJUDGED that the defendant is a youth of-

fender under twenty-two years of age at the time of con-

viction and that the offense is punishable by imprisonment

under applicable provision of law other than the Youth

Corrections Act.

IT IS ADJUDGED that the defendant is hereby com-

mitted to the custody of the Attorney General or his au-

thorized representative for supervision and treatment un-

der the Federal Youth Corrections Act until discharged by

the Youth Correction Division of the Board of Parole, as

provided in Secs. 5010(b) and 5017 (c), Title 18, U. S.

Code.

IT IS ORDERED that the Clerk deliver a certified copy

of this Judgment and Commitment to the United States

Marshall or other qualified officer and that the copy serve as

the commitment of defendant.

This 20 day of September, 1976.

/s/ EUGENE E. SILER, JR. JUDGE

9a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

CRIMINAL NO. 76-21

UNITED STATES OF AMERICA,

PLAINTIFF,

vs.

JEFFREY SCOTT FREELAND,

DEFENDANT.

MEMORANDUM OPINION

(Filed September 20, 1976)

This matter is before the Court on Motion by the de-

fendant to suppress the firearm, to wit, a Browning semi-

automatic 9mm pistol, taken from the luggage of the de-

fendant at the Greater Cincinnati Airport on April 16,

1976. For reasons stated below the Court will by separate

order overrule the motion.

FINDINGS OF FACTS

On April 16, 1976, the defendant, Jeffrey Scott Freeland,

a resident of Dayton, Ohio, went to the Greater Cincinnati

Airport, Boone County, Kentucky, to board an airplane

for Miami, Florida. Accompanying him to the airport was

a friend, Jerry Thomas.

Freeland had not purchased a ticket in advance, but he

had a reservation in the fictitious name of Floyd Perry.

Thomas went to another area in the airport and told the

10a

ticket agent, Carl Patterson, that he wanted to buy a

ticket to Miami, that his name was Floyd Perry. He had

one bag to check. He purchased with cash a one-way,

single-coupon (meaning no changes along the way) air

ticket from Cincinnati to Miami. When the ticket agent

asked him if he had any identification, Freeland told the

agent he did not. The agent then asked if there was some-

one else at the airport who could identify him and Freeland

replied there was not.

The agent then called his supervisor, Ray Miller, since

Freeland met their “profile” (the testimony for which

was heard in Court out of the presence of the defendant,

but in the presence of defense counsel). When Miller ar-

rived at the ticket counter, the agent gave the airline

ticket to Miller and Miller picked up the bag Freeland

attempted to check through to Miami. Miller told Free-

land that the bag would have to be x-rayed and to follow

him.

Although Miller did not tell Freeland he could with-

draw the bag or refuse to board, nevertheless, a sign was

posted at the ticket counter advising Freeland of this and

that checked baggage could be examined.' Had Freeland

' The sign, introduced into evidence, stated as follows:

lla

asked for the bag back, Miller would have allowed him

the bag and would have allowed him not to board the

plane.

Miller took Freeland to the security check-point, where

luggage and passengers are run through magnetometers

and/or x-ray machines. At the check-point, Miller put

the bag on a conveyor belt of the x-ray machine and the

bag was x-rayed. One of the private security force op-

erating the x-ray machine saw that a square unidentifi-

able object showed up inside the suitcase. Katherine

Noakes, another of the security force, took the bag off the

belt and told Freeland, “I'll have to look inside.” Freeland

shrugged his shoulders and Noakes then opened the bag

and found the firearm along with a large quantity of cash

inside an inner bag.

The Court finds the defendant’s actions at the airport

met the Federal Aviation Administration ‘‘profile” of per-

sons who are most likely to attempt to hijack or damage

an aircraft.

The Court further finds that by virtue of the sign posted

at the ticket counter and wide-spread publicity, Freeland

knew or should have known of his right to refuse to board

and that he and his baggage were subject to search prior

to boarding.

CONCLUSIONS OF LAW

There are apparently no cases involving searching of

baggage to be checked, as in this case, perhaps since the

search of checked baggage was not instituted until recently.

Such searches were precipitated by a bomb left in checked

baggage in LaGuardia Airport in New York within the last

year or two, resulting in the death and injury of many

persons.

12a

However, there is still adequate language from other

cases which would apply to this situation. For instance,

each such inquiry to determine whether the intrustion was

justified and, thus, a reasonable search and seizure under

the Fourth Amendment, is done on a case-by-case basis.

United States v. Dalpiaz, 494 F.2d 374 (6th Cir. 1974) ;

United States v. Moreno, 475 F.2d 44 (5th Cir.), cert.

denied, 414 U.S. 840 (1973).

It has been held that a person who proceeds to attempt

to board a plane in the face of wide-spread publicity about

the probability of air piracy and specific airport notices con-

cerning the security measures which are employed to detect

potential hijackers consents to a limited search of his per-

son and hand baggage. See United States v. Dalpiaz, supra;

United States v. Davis, 482 F.2d 893 (9th Cir. 1973). It

follows that with the new wide-spread publicity about the

LaGuardia bombing and the new signs indicating that

checked baggage is subject to search and passengers may

refuse to board, then there is a further consent to the

limited search of the checked baggage by running it through

the x-ray machine to determine if there are explosives

inside.

Moreover, searches of passengers and baggage in aircraft

boarding situations have become a serious national prob-

lem. Thus, it was said in United States v. Edwards, 498

F.2d 496, 498 (2d Cir. 1974):

(A) n airport search is not to be condemned as vio-

lating the Fourth Amendment simply because it does

not precisely fit into one of the previously recognized

categories for dispensing with a search warrant, but

only if the search is “unreasonable” on the facts.

Moreover, it was held in United States v. Bronstein, 521

F.2d 459, 462 (2d Cir. 1975) :

13a

There can be no reasonable expectation of privacy

when one transports baggage by plane, particular-

ly today when the menace to public safety by the sky-

jacker and the passage of dangerous or hazardous

freight compels continuing scrutiny of passengers and

their impediments.

In this case, there was no general inspection of all

checked baggage, as there has been of all passengers and

hand baggage. Therefore, the selection of this person’s

baggage for the x-ray must have been baséd upon “‘specific

and articulable facts which, taken together with rational

inferences from those facts, reasonable warrant that in-

trusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968).

The testimony of the airline employees meets that test.

The defendant fit the “profile” which the Court finds not to

be discriminatory or unreasonable. When the defendant fit

the “profile’’ and could not produce identification, the

supervisor, Ray Miller, had every right and perhaps the

duty to have the suitcase x-rayed. Thus, when the x-ray

showed some unidentifiable object, the security people had

a further right to open the bag and look inside, finding the

pistol. See Terry v. Ohio, supra.

At the time of opening the suitcase, the security guard’s

advising the defendant that the bag would have to be

opened was similar to that in United States v. Canada, 527

F.2d 1374 (9th Cir. 1975), where it was held that consent

was given when the defendant said nothing when so ad-

vised by the guard.

The United States urges that this is an administrative

search by airline employees, not government agents, and

thus not prohibited by the Fourth Amendment, see United

States v. Issod, 508 F.2d 998 (7th Cir. 1974). But these

cases involved searches of bags under different circum-

stances, not in accordance with governmental regulations.

Here, the search was part of a national policy and was

l4a

done within the regulations prescribed by the Federal Avia-

tion Administration and was thus subject to the Fourth

Amendment. See United States v. Canada, supra; United

States v. Davis, supra.

Three cases which should be mentioned in passing are

those involving the search of checked baggage of boarding

passengers, but at a time before the present policy was

instituted. In all three cases, the baggage had been checked

and was on the plane or was about to be placed on the

plane. In United States v. Palozzo, 488 F.2d 942 (5th

Cir. 1974) ; and United States v. Garay, 477 F.2d 1306 (5th

Cir. 1973), the Court held that the opening of the bag-

gage constituted a violation of the Fourth Amendment to

the Constitution. However, in each of those two cases,

the suitcase was opened before it was run through an x-day

or magnetometer, facts which appear to be significant to

this Court, although perhaps not as significant to the

Court deciding the cases at the time. On the other hand,

in United States v. Cyzewshi, 484 F.2d 509 (5th cir. 1973),

after a checked bag activated the magnetometer a subse-

quent search producing marijuana was justified.

The case at bar appears more closely related to that in

United States v. Cyzewski, supra, where the intrusion was

only the running of a detection machine over the outside

of the baggage. Moreover, this Court finds that the de-

cisions of United States v. Dalpiaz, supra; United States

v. Skipwith, 482 F.2d 1272 (5th Cir. 1973); and United

States v. Moreno, supra, are applicable. Therefore, in bal-

ancing the needs of society against the protected interest

of private citizens, the slight intrusion here was justified

and thus reasonable under all circumstances.

An order in conformity with this Opinion has already

been entered.

This 20 day of September, 1976.

/s/ EUGENE E. SILER, JR., JUDGE

+ acme

15a

THE INDICTMENT

(Returned and filed May 3, 1976)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

INDICTMENT NO. 76-21

(T. 18, Sec. 922 (e) , USC)

UNITED STATES OF AMERICA

vs.

JEFFREY SCOTT FREELAND

TO THE GRAND JURY CHARGES:

On or about the 16th day of April, 1976, in the East-

ern District of Kentucky,

JEFFREY SCOTT FREELAND

knowingly did deliver, and cause to be delivered to Delta

Airlines, a common carrier, a suitcase in which there was

a firearm, that is, a Browning automatic 9 millimeter pistol,

for shipment in interstate commerce from Boone County,

Kentucky to Miami, Florida, to himself, a person other

than a licensed importer, manufacturer, dealer or collector

of firearms, without having given written notice to said

carrier that said firearm was being transported.

A TRUE BILL

| FOREMAN

/s/ ELDON L. WEBB

UNITED STATES ATTORNEY

16a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

INDICTMENT NO. 76-21

(T. 18, Sec. 922(e) USC)

UNITED STATES OF AMERICA

vs.

JEFFREY SCOTT FREELAND

MOTION TO SUPPRESS

(Filed May 28, 1976)

NOW COMES THE DEFENDANT, JEFFREY

SCOTT FREELAND, and moves the Court for an Order

to suppress one (1) Browning automatic 9 millimeter

pistol, which evidence was obtained by an unlawful search

of a suitcase at the Boone County Airport on the 16th day

of April, 1976. Said search was unreasonable and in viola-

tion of the Fourth Amendment of the UNITED STATES

CONSTITUTION.

/s/ RAYMOND A. WHITE

Trial Attorney for Defendant

/s/ THOMAS C. SMITH

Attorney for Defendant

(Memorandum Omitted)

an to ctint chad Sit With cmt ee te tat at