Opposition — DeAngelo v. United States

7 ~ Supreme Caurt, D” Y

FEB 14 1979

No. 78-908

In the Supreme Court of the United States

OCTOBER TERM, 1978

STEPHEN R. DEANGELO, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW J. LEVANDER

Assistant to the Solicitor General

SIDNEY M. GLAZER

Attorney

Department of Justice

Washington, D.C. 20530

INDEX

Page

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Neen cack sc ssanbsesensansencosvenecesces l

Nee ral scsidssscsssesseesesessoveccssseses 2

lc se lsh Gidd dsnmeubsaepseeindebacvcessenssasesceses 2

Sie lh schcdunsedanbacddancsencssechssscccevovccsscsess 4

Nees s dag a ssadcncpabascsoesenssesesoconcseses 11

CITATIONS

Cases:

Adams v. Williams, 407 U.S. 143 wo.ccceceeeceee seen 5

Bumper v. North Carolina, 391 U.S. 543. ........ 10

Camara v. Municipal Court, 387 U.S.

IN TIARMAEE Es eaidsnesenaescgeneessnssvcsscconcosrsocsseens 6

Elkins v. United States, 364 U.S. 206 .............0.. 4

Pennsylvania v. Mimms, 434 U.S. 106 ........... 4, 5

Schneckloth v. Bustamonte, 412 U.S. 218 .......... 8

Terry v. Ohio, 392 U.S. 1 u.......e ee. 4, 5, 6, 7, 10

United States v. Albarado, 495 F. 2d 799 .......... 7

United States v. Bell, 464 F. 2d 667, cert.

ET IPE TEE Cissestssscccncsosegpesccoscvsvscccscees 6

United States v. Dalpiaz, 494 F. 2d 374 ............. 7

United States v. Davis, 482 F. 2d 893 .......... 9, 10

United States v. Edwards, 498

Nee el cis sek ccncdassasssecvoossnscecs 6, 7-8, 9

United States v. Epperson, 454 F. 2d

769, cert. denied, 406 U.S. 947 woe 7

Cases (continued):

United States v. Fern, 484 F. 2d 666 ................. 7

United States v. Homburg, 546 F. 2d

1350, cert. denied, 431 U.S. 940 oo... 7, 10

United States v. Kroll, 481

is EE cau euatbeactaeoucutianas uasaniciaensés 7, 8, 9, 10

United States v. Martinez-Fuerte, 428

RI cnc 6

United States v. Miner, 484 F. 2d 1075. ........... 10

United States v. Moore, 483 F. 2d 1361. .......... 10

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

cert. denied, 414 U.S. 840 wou. ce ceeceeeeeeees 7

United States v. Skipwith, 482 F. 2d

PPUUE Secsstiblatin Pinca enlace niestes 6, 7, 8, 9-10

United States v. Slocum, 464 F. 2d 1180 ...... 7,8

United States v. Williams, 516 F. 2d II .............. y

Constitution, statutes and regulation:

United States Constitution, Fourth

FUR scccccsiditminhnbhantcinestecbiaenss eS oe

Air Transportation Security Act of 1974,

Pub. L. No. 93-366, 88 Stat. 415 we

RG CEA in II atvncosadscansictotacsessesneniiactudphasasescaer 2

OD OF ies Rn chcsstcdodedssesesasssshoclonanpenvniabeiilads

OF UB TEs. ncictiannnunitiimunadinnnmies 5

OR Sills PEN. sckde cas iiusindnniaiine p

BG oF a CR IO tarkercdaiassoensveteseeninstvescceetenbins 5

In the Supreme Court of the Hnited States

OCTOBER TERM, 1978

No. 78-908

STEPHEN R. DEANGELO, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 2a-4a) is

reported at 584 F. 2d 46. The oral opinion of the district

court (Pet. App. la) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 4, 1978, and a petition for rehearing was denied

on October 30, 1978 (Pet. App. 5a). On December 6,

1978, the Chief Justice extended the time in which to file a

petition for a writ of certiorari to and including December

6, 1978, and the petition was filed on that date. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

QUESTION PRESENTED

Whether the physical inspection of petitioner's brief-

case at an airline security checkpoint violated the Fourth

Amendment, where petitioner had voluntarily consented

to an X-ray examination of his briefcase as a prerequisite

to boarding an airplane and that examination had

revealed large suspicious dark areas in the briefcase,

STATEMENT

Following a bench trial in the United States District

Court for the Eastern District of Virginia, petitioner was

convicted on two counts charging possession of

marihuana and cocaine, in violation of 21 U.S.C, 844(a).

He was sentenced to six months’ imprisonment followed

by two years’ probation. The court of appeals affirmed

(Pet. App. 2a-4a).

The evidence at trial showed that at approximately 8:45

p.m. on October 4, 1977, petitioner entered the security

screening area in Washington National Airport in order to

board the 9:00 p.m. Eastern Airlines shuttle flight to New

York (S. Tr. 16, 17; Tr. 8-9, 48).' All passengers at the

airport must pass through a checkpoint where they and

their carry-on baggage are inspected for dangerous

weapons and explosives. See 49 U.S.C, 1356, 1511. At

least four signs were posted near and around the

boarding-security area, alerting passengers that they and

their carry-on baggage were subject to inspection. The

sign on the x-ray machine read:

X-RAY BAGGAGE INSPECTION

Carry-on baggage is being

inspected by X-ray

* Inspection will not affect ordinary undeveloped

film

'“S. Tr.” refers to the transcript of the suppression hearing. “Tr.”

refers to the transcript of the trial.

* Remove all X-ray and scientific film from baggage

* Physical inspection may be requested

(Gov't Exh, 1; S. Tr. 19, 34, 37)

Petitioner voluntarily placed his briefcase on the table

for the purpose of X-ray inspection and then proceeded

through the magnetometer (S. Tr. 24; Tr, 9, 14-15).'

Because a large portion of the briefcase appeared dark on

the x-ray machine, the security checker, Edna Rogers,

informed petitioner that his bag would have to be opened

for visual inspection (S. Tr, 21-22, 33, Tr. 10).4 When

petitioner objected and attempted to wrest his bag out of

Rogers’ hands, Federal Aviation Administration Police

Officer James McRae, Jr., interceded on Rogers’ behalf

and told petitioner that they would have to inspect the

briefcase before petitioner could board the plane (S, Tr,

22-23, 25; Tr. 10). Petitioner, who now appeared

extremely nervous, said that he would take another mode

of transportation to New York (S, Tr, 23, 24), However,

Officer McRae responded that the briefcase had to be

opened and searched for weapons, which he proceeded to

do (S. Tr. 23, 62; Tr. 15), Plainly visible in the opened

briefcase were 32 grams of marihuana, I4 grams of

hashish and approximately $21,000 in cash (S. Tr. 38, 40,

42; Tr. 15-16, 29, 38, 49-50; Gov't Exh, 2). A search of

petitioner incident to arrest produced 13 more grams of

marihuana and a small amount of cocaine (Tr, 17-18, 36-

37, 49, 50-51; Gov't Exhs. 3 & 4).

Petitioner moved to suppress the seized drugs, claiming

that the physical search of his briefcase violated the

‘The court of appeals slightly misquoted the sign (Pet, App, 3a),

‘The briefcase was large enough to contain various weapons or

explosives (S, Tr, 26-27),

‘Rogers was employed by a private security agency (S, Tr, 16, Tr,

12),

Fourth Amendment. Petitioner contended that he had not

consented to the search and that he should have been

permitted to leave the airport rather than submit to the

inspection, The district court denied the motion, however,

finding that the search was reasonable in light of all the

circumstances (Pet. App. la). The court of appeals

affirmed, concluding that petitioner had consented to the

search and that it was justified in any event under the

rationale of Terry v. Ohio, 392 U.S. | (1968), in order to

prevent possible injury to the officers or other persons at

the airport (Pet. App. 2a-4a).

ARGUMENT

Petitioner contends (Pet, 5-12) that the search of his

briefcase violated the Fourth Amendment. But, as the

court of appeals correctly concluded, the search was

justified under either of two rationales. First, under the

principles of Terry v, Ohio, 392 U.S. | (1968), the airport

security personnel properly opened petitioner's briefcase

once the x-ray had shown large, suspicious dark areas

inside the bag and petitioner had nervously attempted to

wrest it away from the security guards (Pet. App. 3a).

Second, by proceeding through the well-marked security

area and voluntarily placing his briefcase on the x-ray

table for electronic examination, petitioner consented to

the further physical examination of his briefcase (Pet.

App. 4a). No court of appeals has reached a contrary

result with regard to a search similar to that involved

here, and further review by this Court is therefore

unwarranted,

|. Although petitioner asserts that the FAA officer

violated his Fourth Amendment rights by physically

inspecting his briefcase, “[iJt must always be remembered

that what the Constitution forbids is not all searches and

seizures, but unreasonable searches and seizures.” Elkins

v. United States, 364 U.S, 206, 222 (1960). See

Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977),

Petitioner entered the airline security checkpoint area

intending to board an airplane. In accordance with

statutorily mandated FAA _ regulations,’ the airline

personnel subjected both petitioner and his briefcase to

initial electronic searches.© When the x-ray attendant

announced that the bag had to be physically inspected

(because its contents appeared suspicious), petitioner

nervously attempted to take back the briefcase and leave

the security area. Since at that point “the circumstances

were sufficiently suspicious to cause a reasonably prudent

man to conclude that [petitioner] might endanger the

security officers and the other passengers in the airport”

(Pet. App. 3a), the limited physical search that subse-

_ quently occurred did not violate the Fourth Amendment,

See Terry v. Ohio, supra, 392 U.S. at 27.

This Court held in Terry that, even in the absence of

probable cause to arrest, a policeman could stop a person

for questioning and conduct a limited search for weapons

where “a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or that of

others was in danger.” 392 U.S. at 27. See also

Pennsylvania v, Mimms, supra; Adams vy. Williams, 407

U.S. 143 (1972). In concluding that such searches were

reasonable, the Court balanced the nature and extent of

‘In order to stem the tide of air piracy, Congress enacted the Air

Transportation Security Act of 1974, Pub, L, No, 93-366, 88 Stat.

415, In addition to prohibiting various acts of air piracy, including an

attempt to carry weapons aboard an airplane (see 49 U.S.C, 1472),

the statute directs the FAA to promulgate regulations designed to

deter and apprehend hijackers, See 49 U.S.C, 1356, I511, Accord-

ingly, the FAA requires air carries to use weapon detection devices to

screen all passengers and property that the airlines intendg to carry.

See 14 C.F.R. 121,538(b).

‘Petitioner voluntarily went through the magnetometer and

voluntarily placed his bag on the table for X-ray inspection, He

concedes that these initial searches did not violate the Fourth

Amendment (Pet. 7).

the governmental interests involved (protection of law

enforcement officers and the public) against the intrusion

on individual privacy occasioned by a limited weapons

search. 392 U.S. at 22-27. See also United States v.

Martinez-Fuerte, 428 U.S. 543, 555 (1976); Camara v.

Municipal Court, 387 U.S. 523, 537 (1967).

In the context of airplane hijackings, the governmental

interest, as measured by the threat to the public, is

unquestionably substantial. As Judge Friendly has

observed (United States v. Bell, 464 F. 2d 667, 675 (2d

Cir.) (concurring opinion), cert. denied, 409 U.S. 991

(1972)):

When the risk is the jeopardy to hundreds of human

lives and millions of dollars of property inherent in

the pirating or blowing up of a large airplane, the

danger alone meets the test of reasonableness, so long

as the search is conducted in good faith for the

purpose of preventing hijacking or like damage and

with reasonable scope and the passenger has been

given advance notice of his liability to such a search

so that he can avoid it by choosing not to travel by

air,

By the same token, the intrusiveness of airline security

procedures is significantly less than that posed by the

street encounters approved in Terry. Because all

passengers, having voluntarily submitted to the security

check by choosing to travel by airplane, are subject to the

procedures, the limited weapons searches that occur do

not carry any stigma. See United States v. Edwards, 498

F. 2d 496, 500 (2d Cir. 1974); United States v. Skipwith,

482 F. 2d 1272, 1275-1276 (Sth Cir. 1973). Moreover, the

public nature of the limited search and the airlines’ strong

interest in minimizing harassment of their passengers

greatly reduce the likelihood that abusive searches will

occur. /bid. In addition, a passenger can further reduce

the chance that his luggage will be physically searched by

~~ = —>

checking it on board the airplane rather than carrying it

on personally. Accordingly, all the courts of appeals that

have considered the question have concluded that a

limited Terry-type weapons search of a passenger and his

carry-on baggage does not violate the Fourth Amend-

ment, provided that there are “specific, articulable facts

* * * to support a reasonably prudent man’s belief that

his or others’ safety might be in danger.” United States v.

Albarado, 495 F. 2d 799, 810 (2d Cir. 1974). See, e.g.,

United States v. Homburg, 546 F. 2d 1350, 1352-1354 (9th

Cir. 1976), cert. denied, 431 U.S. 940 (1977); United

States v. Edwards, supra; United States v. Dalpiaz, 494 F.

2d 374 (6th Cir. 1974); United States v. Fern, 484 F. 2d

666 (7th Cir. 1973); United States v. Skipwith, supra;

United States v. Kroll, 481 F. 2d 884, 886-887 (8th Cir.

1973); United States v. Slocum, 464 F. 2d 1180 (3d Cir.

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

cert. denied, 406 U.S. 947 (1972).

Here, petitioner’s briefcase failed to satisfy the x-ray

examination. The large suspicious dark areas that showed

on the x-ray screen could well have contained a pistol,

explosive or other dangerous weapon. See, e.g., United

States v. Moreno, 475 F. 2d 44, 49 (Sth Cir.), cert. denied,

414 U.S. 840 (1973). And when the x-ray attendant stated

that she would have to open the suspicious briefcase,

petitioner became extremely nervous and attempted to

wrest tne briefcase away from her. In these circumstances,

the officers had reasonable grounds to fear for their own

safety and the safety of the passengers who had already

passed through the screening devices (see Pet. App. 3a),’

and they therefore properly opened petitioner’s briefcase

to look for weapons.’ See, e.g., United States v. Edwards,

At the time petitioner entered the boarding area, some 50 other

passengers had already cleared security (S. Tr. 20).

‘Once the briefcase was opened, of course, the officers were

justified in seizing the marihuana that fell into plain view.

supra, 498 F. 2d at 500-501; United States v. Kroll, supra,

481 F. 2d at 886-&87; United States v. Slocum, supra, 464

F. 2d at 1183.

2. The court of appeals also correctly concluded that

petitioner consented to the search of his briefcase by

attempting to pass through the security checkpoint and to

board the airplane. A number of signs warned petitioner

that airline passengers and their carry-on luggage were

subject to search prior to boarding.? Furthermore,

“because of the widespread publicity given to the

government’s efforts to cope with the piracy of aircraft, it

[is] general knowledge that citizens boarding planes [are]

subject to special scrutiny and to weapon searches.”

United States v. Skipwith, supra, 482 F. 2d at 1274.!°

Petitioner, nonetheless, voluntarily chose to travel by

airplane. He therefore filled out his boarding pass, entered

the security area and placed his briefcase upon the x-ray

table for inspection. Although petitioner concedes that he

thereby consented to the initial electronic searches, he

claims that he should have been allowed to revoke his

consent when his bag did not pass the x-ray inspection, so

*In addition to the sign that was posted on the x-ray machine, FAA

requires that the following sign be posted in the vicinity of the

security checkpoint (C.A. App. A-14 to A-1I5):

IT IS & CRIME to carry a concealed weapon aboard aircraft

Federal safety rules require inspection of persons and hand

carried articles passing an inspection point

Inspection may be refused

Persons refusing inspection will not be permitted to pass the

inspection point

(“C.A. App.” refers to the appendix in the court of appeals.)

In any event, knowledge of the right not to consent to a search is

not a prerequisite to the valid waiver of Fourth Amendment rights.

See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). The fact

that the consent is, as here, an informed decision is a factor to be

considered by the courts in assessing the existence and scope of the

consent (ibid.).

long as he was willing to forego the airplane trip (Pet. 7).!!

But petitioner’s consent to the inspection of his briefcase

necessarily encompassed not only the x-ray analysis but

also any further reasonable procedures needed to ensure

that petitioner was not carrying a weapon. See, e.g.,

United States v. Skipwith, supra, 482 F. 2d at 1276-

1277,!2

Petitioner's position, if accepted, would allow an airline

passenger to withdraw his consent whenever the initial

search indicated that he might be carrying a weapon. It

would thus create a risk-free inspection system for would-

be hijackers. If the hijacker’s weapons are not detected

by the x-ray machine or magnetometer, he would board

the airplane. If they are detected, he would merely

withdraw from the security area, free to try another day.

In short, as the court of appeals correctly concluded,

petitioner’s informed decision to board the airplane must

constitute a consent to the full security screening process.

See United States v. Williams, 516 F. 2d 11 (2d Cir. 1975);

United States v. Edwards, supra, 498 F. 2d at 501-505

(Oakes, J., concurring); United States v. Davis, 482 F. 2d

893, 913 (9th Cir. 1973); United States v. Skipwith, supra,

''Petitioner relies (Pet. 8-9) on the wording of the x-ray sign. See

pages 2-3, supra. However, the phrase “physical inspection may be

requested” refers only to a passenger's option of asking to have his

belongings (e.g., scientific or developed photographic film) physically

inspected rather than risking x-ray damage. Thus, there is no basis

for arguing that the FAA officer, in protecting the public, was limited

to “requesting” a physical examination of petitioner's bag.

"Of course, the consent is limited only to reasonable procedures

calculated to detect weapons. If these procedures are exceeded, the

fruits of the unreasonable search would not be admissible on the

consent rationale. Sec United States v. Kroll, supra, 481 F. 2d at 886.

Petitioner does not contend that the search in this case exceeded the

scope required to maintain airport security or that it was merely a

pretext to look for items other than weapons.

10)

482 F. 2d at 128! (Aldrich, J., dissenting on other

grounds).!'

'}Petitioner erroneously contends (Pet. 5-6) that the decision below

conflicts with other courts of appeals’ decisions. Although the Ninth

Circuit indicated in United States v. Homburg, supra, that a

particular airport search was not justified as a matter of consent, that

statement was dictum, since the court upheld the search on the

rationale of Terry v. Ohio, supra. Two earlier Ninth Circuit cases are

also distinguishable because at the time of the searches, which

occurred before the airlines posted warning signs, the passengers had

not yet entered the boarding area. See United States v. Moore, 483 F.

2d 1361 (9th Cir. 1973); United States v. Miner, 484 F. 2d 1075 (9th

Cir. 1973). And the continuing validity of United States v. Davis, 482

F. 2d 893 (9th Cir. 1973), insofar as it rejected the Jerry rationale,

has been called into question by the Ninth Circuit's subsequent

decision in Homburg. Moreover, Davis involved a search that

occurred before the FAA required airlines to post signs warning

passengers that they were subject to search. Finally, the Eighth

Circuit's decision in United States v. Kroll, supra, is completely in

accord with the decision below. In that case, the court found that

although the principles enunciated in Jerry justified a briefcase search

similar to that which occurred here, the further search of a seemingly

innocent envelope found inside the briefcase was not required by

considerations of airport security.

Petitioner's reliance upon Bumper v. North Carolina, 391 U.S, 543

(1968), is also misplaced. That case involved a “consent” based upon

official coercion. Here, petitioner concedes that he knowingly

consented to the initial x-ray search (Pet. 7).

11

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapbE H. McCRrEE, JR.

Solicitor General

Puitip B. HEYMANN

Assistant Attorney General

ANDREW J. LEVANDER

Assistant to the Solicitor General

SIDNEY M. GLAZER

Attorney

FEBRUARY 1979

DOJ-1979-02