# Opposition — DeAngelo v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 440 U.S. 935

## Text

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
Neen ee esses aces sccnsnsnnanssoseossoossocesecees l
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2162%3A2. Public record. Not legal advice.