# Petition — DeAngelo v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2162%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 440 U.S. 935 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2162%3A1. Public record. Not legal advice.