Petition — DeAngelo v. United States

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No.

STEPHEN R. DEANGELO, Petitioner

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Marvin D. MILLER

Attorney for Petitioner

117 North Fairfax Street

Alexandria, Virgiina 22314

(703) 836-5108

December, 1978

PRESS OF BykoN S. ADAMS PRINTING, INC., WASHINGTON, D. C.

aa.

TABLE OF CONTENTS

Page

I ee Le ud ecpacubeuieuseche oi 1

I ee ee ven ea sees kCNes eee wun 2

i er es accede ehnaenenedeeeansee Ps

CoNSTITUTIONAL AND StaTuTORY PROVISIONS .......... 2

IT GP TE GE oon nn ccc cc ccc ce ecwcccccuce 2

Reasons FOR GRANTING THE WRIT

I. Tue Decision Betow Is rn Conruict WitH De-

CISIONS IN OTHER CIRCUITS .............ec00. 5

Il. Tuts Deciswwn Is 1n Conruicr Witxo Tuis

Court’s Prior Decision 1n Bumper v. North

Nee ee ecaue gue 6

III. THe Decision 1n Tus Case Is 1n Conruict

With Txuis Court’s Prior Decision 1x Terry

cate cieeesGchavescutwnee ss 9

I a eG tha eS bed ys ese waNe See 12

APPENDIX:

A. United States v. DeAngelo, No. 76-239-A (E.D. Va.

Ne cba esc dasesennese la

B. United States v. DeAngelo, No. 77-1132 (4th Cir.

ei ented km eeiees aw ms ee 2a

C. United States v. DeAngelo, No. 77-1132 (4th Cir. -

Nees a ee mcganewen saws 5a

ES ee 6a

SAG Sek cbacwesecsdussees 7a

eo accu wee nececeeseonnes 8a

G. Eastern Airlines Standard Security Program 52-

EE OE ksh ns oa sos cS ebineccdescencnes 12a

ii TABLE OF AUTHORITIES

Page

Cases:

Adams v. Williams, 407 U.S. 143 (1972) .......... 9,10, 11

Bumper v. North Carolina, 391 U.S. 543 (1968) ...... 6,7,9

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ...... 7

Katz v. United States, 389 U.S. 347 (1963) .......... 7

Schneckloth v. Bustamente, 412 U.S. 218 (1973) ...... 7

Sibron v. New York, 392 U.S. 40 (1968) .......... 7, 9,11

Terry v. Ohio, 392 U.S. 1 (1968) .......... 4,5, 9, 10, 11, 12

United States v. Dalpiaz, 494 F. 2d 374 (6th Cir. 1974) 10

United States v. Davis, 482 F. 2d 893 (9th Cir. 1973) .. 6

United States v. Edwards, 498 F. 2d 496 (2d Cir. 1974) 8

United States v. Epperson, 454 F. 2d 769 (4th Cir.

RE Deeb aa ce ance bus Saab beh eaw ees 4,10

United States v. Homburg, 546 F. 2d 1350, 1351-52

cas kt oh da bh Che lie Wa OK Ais 60. 6s 4,5

United States v. Kroll, 481 F. 2d 884, 886 (Sth Cir.

aes oe aaa baile Meebbeew Rens ©

United States v. Lindsey, 451 F. 2d 701 (3rd Cir. 1971) 10

United States v. Miner, 484 F. 2d 1075 (9th Cir. 1973) 6

United States v. Moore, 483 F. 2d 1361 (9th Cir. 1973) 6

United States v. Moreno, 475 F. 2d 44 (5th Cir. 1973) 10

CONSTITUTIONAL PROVISIONS:

United States Constitution, Fourth Amendment ... .2, 6, 11

STATUTEs:

ee A eins used veebenseneece es 2,4, 11

nn Cio. Ce walens. eeeeaenneeeeab bas 2

ee ee ia. sau pecen cba ees bebewesans 2,11

OE Sen dak aan eee G waecnsenee wes 2,4, 11

OTHER:

Eastern Airlines Standard Security Program 52-

BPR rE ree Oe Le ere eee 2, 4, 8, 11

Webster’s New International Dictionary

Second Edition Unabridged (1946) .............. 8

IN THE

Supreme Court of the United States

OcToBER TERM, 1978

No. -

STEPHEN R. DEANGELO, Petitioner

vs.

Unirep States or AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner, STEPHEN R. DEANGELO, requests that a

Writ of Certiorari issue to review the decision and

judgment of the United States Court of Appeals for

the Fourth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fourth

Circuit has been officially reported in 24 Criminal Law

Reporter 2154 and is annexed to the Petition as Ap-

pendix B (p. 2a). The other relevant decisions in

this case have not been officially reported. The initial

decision of the District Court is annexed to the Petition

as Appendix A (p. la). The Order of the Court of

Appeals denying a rehearing is Appendix C (p. 5a).

2

JURISDICTION

The Court rendered its decision on 4 October 1978.

An Order denying a rehearing was entered on 30 Oc-

tober, 1978. Thi8 Petition is timely filed, an Order

extending the time for filing this Petition for Cer-

tiorari to 6 December, 1978 having been entered. Juris-

diction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

QUESTION PRESENTED

Whether the Fourth Amendment is violated when a

prospective airline passenger’s brief case is physically

searched despite his clearly expressed intention of not

boarding the aircraft and his objection to the search

based on his reliance on the Fourth Amendment and

an official sign which indicated his right to refuse such

a search, if requested.’

CONSTITUTIONAL AND STATUTORY PROVISIONS

The constitutional and statutory provisions relevant

to this Petition are Amendment IV of the Constitu-

tion, 49 U.S.C. § 1356; 49 U.S.C. § 1511; 14 C.F.R.

§ 121.538; and Eastern Airlines Standard Security

Program 52-145, p. 11 and 12. They are set forth in

full as Appendix items D-G of this Petition.

STATEMENT OF THE CASE

On 4 October, 1976 Petitioner obtained a boarding

pass for the Eastern Airlines Shuttle Flight from

Washington, D.C. to New York City. At the screening

point, he passed through the magnometer without inci-

*The sign read as follows: ‘‘X-Ray Baacace INSPECTION, CARRY

On Baaaace Is Berna Inspectep By X-Ray. INspecTiION WiLL Nor

ArFrect OrpiNARY DevELOPED F'1LM. PuysicaL INSPECTION May Br

REQUESTED,”’

3

dent, but for reasons never explained the x-ray picture

of his brief case appeared black. (TR. 12 November

p. 21).* The security officer asked Petitioner if she

could physically inspect his brief case and he declined.

(TR. 12 November, p. 30). A Federal Aviation Ad-

ministration Officer joined the discussion and informed

Petitioner that he would have to take another means

of transportation if he did not allow the physical

search. (TR. 12 November p. 31). Relying on that

statement and an officially posted sign, Petitioner elec-

ted to refuse the requested search and not take the

flight. (TR. 12 November, p. 31).? When told of Peti-

tioner’s decision the F.A.A. officer, nonetheless, opened

the brief case and physically searched it without per-

mitting Petitioner to leave the airport. (TR. 17 Novem-

ber, p. 25 and 26). This search uncovered a small baggie

of marijuana and in a subsequent search of Petitioner,

a pinch, .002 grams, of cocaine and a small piece, 13.7

grams, of hashish were found. The only reasons given

for the search by the officer was that Petitioner was

in a secure area and that the contents of the brief

case were unknown. (TR. 17 November p. 26). There

was no evidence offered that Petitioner fit any profile

or that anyone at the scene thought him to be armed

or dangerous.

Petitioner was charged with the misdemeanor of

possessing controlled substances. Prior to his trial, he

filed and argued a motion to suppress the seized evi-

dence. Petitioner argued that he had the right to refuse

*The sign read ‘‘X-Ray Baaoace Inspection. Carry ON Baa-

GAGE Is Beno INspectep By X-Ray. Inspection Witt Nor AFrect

Orprnary FiLM. PuysicaL INspection May Be ReEQUESTED.”’

* This designation is that used in the Appendix to the Brief

filed in the Fourth Circuit.

4

physical inspection of his brief case and forego the

flight as the posted sign indicated and as law and the

Kastern Airline Security Program provided.’ There

were no articulated facts offered for a Terry pat-down

or frisk. The search of this brief case went far beyond

a pat down or frisk of the outer clothing. The suppres-

sion motion was denied. Trial by the Court, without a

jury, was held on 17 November, 1976. The motion to

suppress was renewed and denied. Petitioner was

found guilty of unlawful possession of controlled sub-

stances.

Petitioner noted his appeal and the case was argued

before the Fourth Circuit Court of Appeals on 12

September, 1978 and denied on 4 October, 1978, The

Court of Appeals held that Petitioner had consented to

the search by electing to fly and could not withdraw

his consent and that the posted sign clearly gave him

notice that a request to physically search, if made,

could not be refused.‘ The Court also held that the

decision in Terry v. Ohio, 392 U.S. 1 (1968) and United

States v. Epperson, 454 F. 2d 769 (4th Cir. 1972)

permitted this search of the brief case under the cir-

cumstances.’ This case expands those rulings beyond

* The airline regulations provide, as do the Federal Regulations

and the United States Code, that one who refuses a requested

search may not board an aircraft, and that signs informing the

publie of the right to refuse be posted, Eastern’s Security Pro-

gram 52-145, p, 11, 12; 49 U.S.C, 1511; 14 C.F.R, 121-538,

*The Court did recognize that the decision from the 9th Cireuit

in United States v. Homburg, 546 F, 2d 1350, 1351-52 (9th Cir.

1977) was in opposition to its point of view.

*The Court in its opinion stated that because the x-ray did not

reveal the contents of the brief case, Petitioner knew in advance

that this was going to happen notwithstanding the fact that no

explanation for the machinery failure was ever offered, The Court

5

any previous decisions and is in conflict with other

circuits.

REASONS FOR GHANTING THE WRIT

Preboarding airport searches are now employed in

airports across the country. These searches result in

criminal prosecutions from time to time and have re-

sulted in rulings by many of the circuit courts as to

their validitv. There seems to be two basic approaches

to this question, i.e., consent or a Terry rational. This

case contains both, and is not only in conflict with other

circuits on the consent issue, but has also expanded

the Terry ‘‘stop and frisk” rational further than any

previous decision of this Court. This Court has not

ruled on airport searches, and it is time that the ques-

tions surrounding this issue be addressed. When can

one withdraw consent? What notice is required to

create consent? What is the permissable scope of these

searches? These questions need answers from this

Court.

I. The Decision Below Is in Conflict With Decisions in

Other Circuits.

The Fourth Circuit in its decision below held that

once a prospective passenger voluntarily enters the

screening process he may not withdraw. This ruling, as

the Court recognized, is in conflict with the decision of

the Ninth Circuit. In United States v. Homburg, 546

F, 2d 1350, 1352 (9th Cir. 1977), the Ninth Circuit said

“«,.a party may revoke his consent to be searched any

held that he tried to carry articles unto the plane concealed from

x-ray, although when told that the x-ray did not disclose the

case’s contents and a physical search was requested, he said he

would forego the flight.

6

time prior to boarding the plane, even when he has

passed beyond the initial screening point, if he agrees

to leave the boarding area. Other decisions of this Court

have also recognized that a pessanger always maintains

the option of leaving. See e.g., United States v. Miner,

484 F. 2d 1075 (9th Cir. 1973) ; United States v. Moore,

483 F. 2d 1361 (9th Cir. 1973).’’ See additionally,

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

The Eighth Circuit went even further in United States

v. Kroll, 481 F. 2d 884, 886 (8th Cir. 1973) when it

held that ‘‘Compelling the defendant to choose be-

tween exercising Fourth Amendment rights and his

right to travel constitutes coercion; .. .’’

Had Petitioner been in an airport in Washington

State rather than in Washington, D.C., this case would

not now be before this Court. This conflict needs reso-

lution so that people flying from one state to another

will be accorded the same treatment in each airport.

One ought to be allowed to withdraw his consent so

long as he leaves the boarding area, for once he elects

not to board, the purpose of preventing weapons and

the like from being carried onto the plane by a passen-

ger has been accomplished.

Il. This Decision Is in Conflict With This Court’s Prior Decision

in Bumper v. North Carolina.

The decision in this case permits law enforcement

personnel to trick people into giving their consent and

prohibits someone from withdrawing consent once

given.

This Court has often ruled that warrantless searches

are per se unreasonable with certain carefully drawn

7

exceptions. Katz v. United States, 389 U.S. 347 (1963) ;

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ; Si-

bron v. New York, 392 U.S. 40 (1968). Consent has

been one of the exceptions and while one need not nec-

essarily have his right to withhold consent read like a

Miranda warning, he may not be coerced or tricked

into giving it, and if not given, consent cannot be the

basis of a search. Bumper v. North Carolina, 391 U.S.

543 (1968) and Schneckloth v. Bustamente, 412 U.S.

218 (1973).

The record in this case clearly shows that Petitioner

placed his brief case for x-ray inspection; that he

walked through the magnometer ; that when asked if he

would consent to physical inspection of his brief case

because of the failure of the x-ray to show its contents,

he refused; that hoe was told that he could not fly if he

refused; that he withheld his consent to search and

agreed not to fly; that he did not leave the screening

point and enter the boarding lounge, nor was he per-

mitted to leave the airport; and that the officially posted

sign stated unequivocally that physical inspection ‘‘may

be requested’’—not that it could be demanded. (Tr.

12 November, P. 21, 22, 30, 31, 34).

Petitioner did not consent to a physical inspection of

his brief case. His consent to the magnometer and the

x-ray did not extend to physical intrusions. There is no

statute or decision from this Court to the effect that

one may not give limited consent, e.g., you can search

the interior of my car, but not my trunk, or that con-

sent once given may not be withdrawn, e.g., I consented

to your search of the ground floor of my house, but I

have now decided not to agree to any search of the up-

stairs—please leave.

8

When the officers asked for Petitioner’s consent to

search his brief case, they acted properly. The posted

sign did not say that prospective passengers were ‘‘sub-

ject to search” as in United States v. Edwards, 498 F.

2d 496 (2d Cir. 1974); rather, it said that ‘‘physical

inspection may be requested’’. One ought to be per-

mitted to rely on the common meaning and usage of

his Country’s official language. The words ‘‘may be

requested’’ simply do not mean that a request, if made,

most be honored, i.e., they do not mean, can be de-

manded. Webster’s New International Dictionary Sec-

ond Edition Unabridged (1946) defines request as ‘‘1.

Act or an instance of asking for something or some

action desired; expression of desire; entreaty; peti-

tion’’. No dictionary defines ‘‘request’’ as demand. The

intention of the author of the sign in this case may have

been to indicate that prospective passengers were sub-

ject to physical searches and that physical searches

could be demanded or even required, but that is not

what was printed. The decision in this case would per-

mit prospective passengers to be tricked for they could

not trust the ordinary meaning of words on official

signs. It is not the intent or purpose which controls, it

is the words used. It should also be noted that the East-

ern Airlines Security Program required that “At all

locations . . . both within and outside the U.S.—con-

spicuously post a sign with signs advising individuals

that:

(a) those passing the screening point must be

screened, and

(b) an individual may refuse to be searched but, if

he does so, he will not be permitted to pass the screen-

ing point.’’ There was no such sign posted; the only

9

sign was the one indicating that ‘‘physical inspection

may be requested.”

When the officers searched the brief ease over Pe-

titioner’s objection, they were not conducting a con-

sent search.

This decision is contrary to Bumper, supra not only

because there was no actual consent but also because

the decision results in permitting one to be tricked into

giving consent when one clearly does not intend to.

Such a ruling is inherently unfair.

Ill. The Decision in This Case Is in Conflict With This Court's

Prior Decision in Terry v. Ohio.

This Court’s ruling in Terry v. Ohio, 392 U.S. 1

(1968) was intended to strike a balance ‘‘to permit a

reasonable search for weapons for the protection of the

police officer where he has reason to believe that he is

dealing with an armed and dangerous individual .. .’’

Id, p27. The criteria set forth was that of the reason-

ably prudent man. In Sibron v. New York, 392 U.S. 40

(1968), a companion case, the Court clarified this cri-

teria by requiring that ‘the must be able to point to

particular facts from which he reasonably inferred that

the individual was armed and dangerous”. Jd. p64.

Once it was established that there was a reasonable

likelihood that the individual was armed and danger-

ous, with articulable facts, a search confined ‘‘to what

was minimally necessary to learn’’ whether or not the

individual was armed was permitted. Terry, supra at

30. This concept of the limited intrusion was reiterated

recently in Adams v. Williams, 407 U.S. 143 (1972).

In that case, an officer acting on a reliable tip ap-

proached a suspicious car in a high crime area late at

night and reached in the car window removing a gun

10

from the driver’s waistband where the tipster said it

would be located.

The pat down frisk in Terry and the officer’s actions

in Adams were based upon articulated reasonable sus-

picion that the individuals were armed and were care-

fully confined to minimal intrusions of the persons’

outer clothing. Similarly, in airport searches based on

the Terry rational one usually finds articulable facts

such as prominent bulges in clothing and unusual be-

havior, such as unusual nervousness and activated mag-

nometers. Cf. United States v. Moreno, 475 F. 2d 44

(5th Cir. 1973); United States v. Lindsey, 451 F. 2d

701 (3rd Cir. 1971) ; and United States v. Dalpiaz, 494

F. 2d 374 (6th Cir. 1974). In this case, however, there

were no bulges, as in Moreno and Lindsey, supra; there

was no activation of the magnometer as in Dalmaz,

supra and as in United States v. Epperson, 454 F. 2d

769 (4th Cir. 1972), and there was no unusual behavior.°

The sole reason for this search as stated by the offi-

cers was the black x-ray screen and the fact that Pe-

titioner was at the screening point. (TR, 17 November,

p. 26). No magnometer was set off, no profile was

matched and no one suspected that he was armed or

*In Moreno, supra, the defendant seemed unusually apprehen-

sive, had a prominent bulge in his coat, when confronted was

evasive, hesitant and lied; in Lindsay, supra, the defendant had

two large bulges in his pockets, had a ticket in one name and

gave the ticket agent another name, rushed into the boarding area

only four minutes before departure, was nervous, looking around

and perspiring and produced identification with conflicting names;

in Dalpiaz, supra the defendant showed the security officer a gun

holster, large bladed knife and a gun and even after removing

all of the metal from his pockets he still activated the magno-

meter. In Epperson, supra, the defendant set off the magnometer

after removing all of the metal from his pockets. He gave an

unusually high reading. A pat down of his jacket revealed a gun.

11

dangerous. The Court’s rational appears to rest upon

the fact that the requested search was refused and the

brief case could not be adequately inspected by x-ray.

There was, however, no explanation as to the x-ray

failure. Was it the machine or the brief case? No one

has ever said. As for the refusal, the posted sign indi-

cated that he could refuse, if requested.

To permit this decision to stand would improperly

expand Terry to permit searches based upon an indi-

vidual’s refusal to agree to a search and a lack of

knowledge of the contents of the article to be searched ;

further, it would expand the scope of Terry beyond

the minimal pat-down and frisk to searches of brief

cases, suit cases and the like. To permit such expansive

intrusions into one’s privacy on such flimsy grounds

would be inconsistent with the concepts embodied in the

Fourth Amendment to the Constitution.

If searches in airports are to be justified on the de-

cisions in Terry, supra; Sibron, supra; and Adams,

supra, then they must meet their high standards. Air-

ports like automobiles are not talisman in whose pres-

ence the Fourth Amendment vanishes,

The airport screening search ought not to be allowed

to degenerate to general searches for the discovery of

crime. The regulations which currently exist are de-

signed solely to prevent the carriage by passengers of

weapons and the like on airline flights.’ Refusal to sub-

"49 U.S.C. 1356(a) empowers the Administration to promulgate

regulations such as 14 C.F.R. 121-538 for the screening of pros-

pective passengers. 49 U.S.C. 1511 prohibits the transporting of

persons who do not agree to be searched. The remedy is not to

search in spite of a refusal but to deny transport, This was the

remedy set forth in Eastern Airlines’ Security Program 52-145,

p. 11, It was not followed, however.

12

mit to a physical search when the x-ray picture of one’s

earry on items is black is not and ought not to be suffi-

cient grounds under Terry for a detailed physical

search. Had there been a fear of weapous or a bomb

it is doubtful that this search would have occurred right

at the screening point.

CONCLUSION

Air travel has become an inherent aspect of American

life, and the airport pre-boarding searching of passen-

gers is a part of air travel. Passengers ought to be able

to expect uniformity and fairness from one airport

to another.

For the reasons set forth herein, it is requested that

this Petition be granted.

Respectfully submitted,

Marvin D. MILLER

Attorney for Petitioner

117 North Fairfax Street

Alexandria, Virgiina 22314

(703) 836-5108

December, 1978

APPENDIX

la

APPENDIX A

Tue Court: In the case of the United States against

DeAngelo, the motion to suppress will be denied. I think the

test here is whether the search was reasonable. I don’t think

you have to go to the Terry case and make that sort of a

justification for the search.

The search here was reasonable under the circumstances

and those circumstances were these.

The first, the notice posted, at least four of which were

posted, that a physical inspection may be requested; the

fact that the defendant had in the face of such a notice gone

through the magnetometer; and that his reaction to the

request for a search, as Judge Friendly said in one of the

cases, ‘‘This defendant just miscalculated the odds.’’

Having gone through the magnetometer and having had

the magnetometer reveal information which gave cause to

search for the purpose for which the magnetometer was

there, mainly to deter and prevent hijacking, he cannot,

once it looks like the odds are against him, decide he wants

to go back out.

There is no evidence that the search here was for any

reason other than a good faith effort to comply with the

purpose for which the magnetometer and searches have

been set up, mainly deterrents have been set up as a means

of preventing skyjacking.

For these reasons, the motion to suppress is denied.

2a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No, 77-1132

Unirep States or America, Appellee,

ve

Stepuen R. DeAnaevo, Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Albert V. Bryan, Jr.,

District Judge.

Argued September 12, 1978 Decided October 4, 1978

Before Haynswortu, Chief Judge, and Butzner and

Pui.uips, Circuit Judges.

Marvin D. Miller for appellant; Robert F. McDermott, Jr.,

Assistant United States Attorney (William B. Cummings,

United States Attorney and Guy B. Maseritz, Special

United States Attorney on brief) for appellee.

Burtzner, Circuit Judge:

Stephen DeAngelo appeals his conviction for the unlaw-

ful possession of drugs, assigning as error the district

court’s admission of evidence seized in an airport search.

Because we believe that the search was reasonable, we find

no infringement of the fourth amendment.

3a

The airport terminal displayed signs which stated: ‘‘X-

Ray Baaoace Inspection. Carry on Baaoace Is Berne Iy-

specrep BY X-Ray. Inspection May Be Reqvestep.’’ DeAn-

gelo submitted his brief case to x-ray examination. When

a large portion of the case appeared black on the x-ray

‘screen, the security officer told him that a physical inspec-

tion would be necessary. DeAngelo protested, saying that

he preferred not to take his flight rather than permit the

inspection. Security officers opened the brief case never-

theless and saw some marijuana and some hashish. De-

Angelo was then arrested, and a search of the brief case

and DeAngelo incident to the arrest revealed other drugs.

DeAngelo contends that he had a right to avoid the

physical inspection by electing not to board the flight. He

emphasizes that the sign did not say that his brief case

would be subject to search, but only that physical inspec-

tion ‘‘may be requested.’’

In United States v. Epperson, 454 F.2d 769 (4th Cir.

1972), we upheld the validity of an aircraft boarding search

under the rationale of the stop and frisk exception to the

warrant requirement that was established by Terry v.

Ohio, 392 U.S. 1 (1968). Here, as in Terry and Epperson,

we believe that the circumstances were sufficiently suspi-

cious to cause a reasonably prudent man to conclude that

DeAngelo might endanger the security officers and the

other passengers in the airport. The officers knew that

DeAngelo had attempted to board the aircraft carrying a

brief case that could not be inspected adequately by x-ray,

and they were justified in opening it to determine whether

he was carrying a gun or explosive device which could pose

an immediate danger to persons in the vicinity if the brief

case were returned to him. Applying the principles ex-

pressed in Epperson, we conclude that the officers acted

reasonably and that the search was not forbidded by the

fourth amendment. Accord, United States v. Homburg, 546

F.2d 1350, 1352-54 (9th Cir. 1977); United States v. Dal-

piaz, 494 F.2d 374, 376-79 (6th Cir. 1974).

4a

We also conclude that the search was reasonable because

DeAngelo consented to it. The FAA security regulations

state that the screening system is designed to deter as well

as prevent passengers from carrying weapons or explo-

sives. 14 C.F.R. 121.538(b). DeAngelo had a choice of trav-

eling by air or by some other means. The signs in the ter-

minal gave him fair notice tha‘ if in the course of the total

screening process a physical inspection of his hand luggage

should be considered necessary to assure the safety of the

traveling public, he could be required to submit it for that

purpose. When he then voluntarily entered upon the

screening process DeAngelo acquiesced in its full potential

scope as represented to him, including physical inspection

if, as developed, that should be requested. Allowing him to

withdraw his luggage when the x-ray raised the suspicions

of the security officers would frustrate the regulation’s

purpose of deterring hijacking. We therefore conclude that

having consented to the search, DeAngelo could not with-

hold permission after the first step of the process disclosed

that he was attempting to carry aboard the aircraft articles

that were concealed from x-ray. See United States v. Kd-

wards, 498 F.2d 496 (2d Cir. 1974); United States v. Skip-

with, 482 F.2d 1272, 1277, 1280 (5th Cir. 1973). Contra,

United States v. Homburg, 546 F.2d 1350, 1351-52 (9th Cir.

1977).

The judgment of the district court is affirmed.

5a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1132

Unitep States or America, Appellee,

V.

SrepHen R. DeAncew, Appellant.

Order

Upon consideration of the appellant’s petition for re-

hearing and suggestion for rehearing en bane, and no judge

having requested a poll on the suggestion for rehearing en

banc,

It is Apsupcep and Orperep that the petition for rehear-

ing is denied.

Entered at the direction of Judge Butzner for a panel

consisting of Judge Haynsworth, Judge Butzner, and Judge

Phillips.

For tHe Court,

/8/ WiuuraM K, Swarts, II

William K. Slate, II

Clerh

6a

APPENDIX D

§ 1511. Authority to refuse transportation; grounds; agreements

for carriage of persons or property deemed to include

agreements to refuse carriage upon refusal of consent to

search

(2) The Administrator shall, by regulation, require any

air carrier, intrastate air carrier, or foreign air carrier to

refuse to transport—

(1) any person who does not consent to a search of

his person, as prescribed in section 1356(a) of this

title, to determine whether he is unlawfully carrying a

dangerous weapon, explosive, or other destructive sub-

stance, or

(2) any property of any person who does not con-

sent to a search or inspection of such property to

determine whether it unlawfully contains a dangerous

weapon, explosive, or other destructive substance.

Subject to reasonable rules and regulations prescribed by

the Administrator, any such carrier may also refuse

transportation of a passenger or property when, in the

opinion of the carrier, such transportation would or might

be inimical to safety of flight.

(b) Any agreement for the carriage of persons or prop-

erty in air transportation or intrastate air transportation

by an air carrier, intrastate air carrier, or foreign air

carrier for compensation or hire shall be deemed to include

an agreement that such carriage shall be refused when

consent to search such persons or inspect such property for

the purposes enumerated in subsection (a) of this section

is not given.

Pub.L. 85-726, Title XI, § 1111, as added Pub.L. 87-197, § 4,

Sept. 5, 1961, 75 Stat. 467, and amended Pub.L. 93-366,

Title II, § 204, Aug. 5, 1974, 88 Stat, 418,

7a

APPENDIX E

§ 1356. Screening procedures for passengers; promulgation and

amendment of regulations by Administrator; reports to

Congress; exempted air transportation operations

(a) The Administrator shall prescribe or continue in

effect reasonable regulations requiring that all passengers

and all property intented to be carried in the aircraft cabin

in air transportation or intrastate air transportation be

screened by weapon-detecting procedures or facilities em-

ployed or operated by employees or agents of the air car-

rier, intrastate air carrier, or foreign air carrier prior to

boarding the aircraft for such transportation. One year

after August 5, 1974, or after the effective date of such regu-

lations, whichever is later, the Administrator may alter or

amend such regulations, requiring a continuation of such

screening only to the extent deemed necessary to assure

security against acts of criminal violence and aircraft

piracy in air transportation and intrastate air transpor-

tation. The Administrator shall submit semiannual reports

to the Congress concerning the effectiveness of screening

procedures under this subsection and shall advise the Con-

gress of any regulations or amendments thereto to be

prescribed pursuant to this subsection at least 30 days in

advance of their effective date, unless he determines that

an emergency exists which requires that such regulations

or amendments take effect in less than 30 days and notifies

the Congress of his determination.

(b) The Administrator may exempt from the provisions

of this section, in whole or in part, air transportation oper-

ations, other than those scheduled passenger operations

per, »rmed by air carriers engaging in interstate, overseas,

or fureign air transportation under a certificate of public

convenience and necessity issued by the Civil Aeronautics

Board under section 1371 of this title or under a foreign air

carrier permit issued by the Board under section 1372 of

this title.

Pub. L, 85-726, Title III, § 315, as added Pub.L. 93-366,

Title II, § 202, Aug. 5, 1974, 88 Stat. 415.

8a

APPENDIX F

§121.538 Aircraft security.

(a) For purposes of this section, ‘‘certificate holder’’

means an air carrier as defined in § 121.1(a) (1) or (2) and

a commercial operator engaging in common carriage cov-

ered by § 1217,

(b) Each certificate holder shall adopt and put into use

a screening system, acceptable to the Administrator, that is

designed to prevent or deter the carriage aboard its air-

craft of any explosive or incendiary device or weapon in

carry-on baggage or on or about the persons of passengers,

except as provided in § 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 prescribed in paragraph (c) of this section.

(c) Each certificate holder shall prepare in writing and

submit for approval by the Administrator its security pro-

gram including the screening system prescribed by para-

graph (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—

(1) Prevent or deter unauthorized access to its aircraft;

(2) Assure that baggage is checked in by a responsible

agent or representative of the certificate holder;

(3) Prevent cargo and checked baggage from being

loaded aboard its aircraft unless handled in accordance

with the certificate holder’s security procedures; and

(4) Assure that only persons authorized under § 121,-

585(a) are permitted to have on or about their persons or

property a deadly or dangerous weapon accessible to them

while aboard any of its aircraft.

(d) Hach certificate holder shall submits its security to

the Administrator. Each certificate holder that is operat-

ing before March 9, 1872, shall submit its program no later

9a

than May 8, 1972. Each certificate holder that obtains the

issue of its certificate under this part after March 8, 1972,

shall submit its program at least 60 days before the date

of intended operations.

(e) Within 60 days after receipt of the program, the

Administrator approves the program or notifies the cer-

tificate holder to modify the program to comply with the

applicable requirements of this section. The certificate

holder may petition the Administrator to reconsider the

notice to modify. The petition must be filed with the Ad-

ministrator within 30 days after the certificate holder re-

ceives the notice. Except in the case of an emergency re-

quiring immediate action in the interest of safety, the filing

of the petition stays the notice pending a decision by the

Administrator.

(f) Each certificate holder shall maintain at least one

complete copy of its approved security program at its prin-

cipal business office, and shall make it available for inspec-

tion upon request of the Administrator.

(g) The Administrator may amend any screening sys-

tem or any security program approved under this section

upon his own initiative if he determines that safety in air

transportation and the public interest require the amend-

ment, or upon application by the certificate holder if the

Administrator determines that the same considerations

allow the amendment,

(1) In the case of an amendment upon his own initiative,

the Administrator notifies the certificate holder, in writing,

of the proposed amendment, fixing a reasonable period

(but not less than 7 days) within which it may submit

written information, views, and arguments on the amend-

ment, After considering all relevant material, the Admin-

istrator notifies the certificate holder of any amendment

adopter, or rescinds the notice. The amendment becomes

effective not less than 30 days after the certificate holder

receives the notice, unless it petitions the Administrator to

reconsider the amendment in which case its effective date

10a

is stayed by the Administrator. If the Administrator finds

that there is an emergency requiring immediate action with

respect to safety in air transportation or in air commerce,

in the case of a commercial operator that makes the pro-

cedure in this paragraph impracticable or contrary to the

public interest, he may issue an amendment, effective

without stay, on the date the certificate holder receives

notice of it. In such a case, the Administrator incorporates

the findings, and a brief statement of the reasons for it, in

the notice of the amended screening system or security

program to be adopted.

(2) An applicant must file its application for an amend-

ment of a screening system or security program with the

Administrator at least 15 days before the date it proposes

for the amendment to become effective, unless a shorter

period is allowed by the Administrator. Within 30 days

after receiving from the Administrator a notice of refusal

to approve the application for amendment, the applicant

may petition the Administrator to reconsider the refusal

to amend.

(h) Each certificate holder shall at all times maintain

and carry out the screening system prescribed by para-

graph (b) of this section and the security program ap-

proved under paragraph (c) of this section.

(i) When a certificate holder receives a bomb or air

piracy threat considered to be against a particular aircraft

or flight, the certificate holder shall take the following

actions to determine whether any explosive or incendiary

devices, or weapons are aboard the aircraft involved.

(1) Conduct a security inspection on the ground before

the next flight of the aircraft or, if the aircraft is then in

flight, immediately after its next landing.

(2) If the aircraft is being operated on the ground,

advise the pilot in command to immediately submit the

aircraft for a security inspection.

lla

(3) If the aircraft is in flight, advise the pilot in com-

mand to take the emergency action he considers necessary

under the circumstances, in accordance with § 121.557 or

§ 121.559, whichever is applicable.

(j) Upon receipt of information that an act or suspected

act of aircraft piracy has been committed, a certificate

holder shall immediate:y notify the Administrator.

(k) Each certificate holder shall refuse to transport—

(1) Any person who does not consent to a search of his

person in accordance with the screening system prescribed

by paragraph (b) of this section; and

(2) Any property of any person who does not consent to

a search or inspection of that property in accordance with

the screening system prescribed by paragraph (b) of this

section.

12a

APPENDIX G

Posting Screening Point Signage

General Signage

1. At all locations—both within and outside the U. S.—

conspicuously post a sign or signs advising individuals

that:

(a) those passing the screening point must be screened,

‘and

(b) an individual may refuse to be screened, but, if he

does so, he will not be permitted to pass the

screening point

Within the United States, ensure that the sign(s)

posted contain the following information:

—It is a crime to carry a concealed weapon aboard an

aircraft

——Federal safety rules require inspection of persons

and hand-carried articles passing an inspection point.

—Inspection may be refused

—Persons refusing inspections will not be permitted to

pass the inspection point

Outside the United States, to the extent consistent with

local laws, include the same information in the sign(s)

posted as that indicated above—both in English and the

local language.

Signage Where Baggage is Inspected by X-Ray

i.

At any location where an x-ray baggage inspection sys-

tem is used—whether within or outside the U. S—

conspicuously post a sign or signs advising individuals

that their carry-on items will be inspected by x-ray.

13a

. If the inspection system would expose a carry-on item

to one milliroentgen or less of x-ray, post sign(s)—

within the United States—which contain the following

information:

—Inspection will not affect ordinary undeveloped film

—Remove all x-ray and scientific film from your bag-

gage

—Passengers may request physical inspection of photo-

graphic equipment and film packages

. If the inspection system would expose a carry-on item

to more than one milliroentgen of x-ray, post a sign—

within the United States—which advises passengers to:

——Remove film of all kinds from your baggage