Petition — Shapiro v. Florida

) _ Supreme Court, U.S,

/ $0-1198 (ares

JAN 9 198)

MICHAEL RODAK, JR. CLERK

RL A enone ney

NO:

in the

Supreme Court

of the

United States

DONALD ALAN SHAPIRO,

Petitioner,

Vs.

THE STATE OF FLORIDA,

Respondent.

Petition For A Writ Of Certiorari

To The Supreme Court Of Florida

BERNARD S. YEDLIN

Rivergate Plaza, Suite 616

444 Brickell Avenue

Miami, Florida 33131

Telephone: (305) 371-7611

QUESTIONS PRESENTED FOR REVIEW

WHETHER A CITIZEN IS DENIED HIS

FOURTH AMENDMENT RIGHT TO BE FREE

FROM UNREASONABLE SEARCHES AND

SEIZURES WHEN HE IS SEARCHED AT

AN AIRPORT SECURITY CHECKPOINT

UPON UNFOUNDED SUSPICION.

TABLE OF CONTENTS

Page

Questions Presented For Review............... i

Petition For Writ Of Certiorari To The Supreme

oe | a re ere ee er ree 1

a Sarr rere eee ee Ter ree rete 2

pe ae re ere Pen wee 3

| ee res rrr 4

Le ey) tr 5-7

Reasons For Granting The Writ................ 7-10

SRE TIES LIE DRE SEO E eee Ser ee 11

CITATIONS

Cases:

Reid v. Georgia,

___ U.S. ___, 65 L Ed.2d 890, 100 S.Ct. (1980). . ..

Terry v. Ohio,

I Es ss Sak eae kde we aod

United States v. Albarado,

495 F.2d 799 (2d Cir. 1974)................

United States v. Davis,

482 F.2d 893 (9th Cir. 1973)...............

United States v. Homburg,

546 F.2d 1350 (9th Cir. 1976)..............

United States v. Kroll:

481 F.2d 883 (8th Cir. 1973)...............

United States v. Lindsey,

451 F.2d 701 (3rd Cir. 1971)...............

United States v. Miner,

484 F.2d 1075 (9th Cir. 1973)..............

United States v. Skysworth,

482 F.2d 1272 (5th Cir. 1973)..............

ili

Pages

Statutes: Pages

ge SB ye ee re re Carre 3,9

Ce hs a eS. 8

iv

NO:

‘in the

Supreme Court

of the

United States

DONALD ALAN SHAPIRO,

Petitioner,

vs.

THE STATE OF FLORIDA,

Respondent.

Petition For A Writ Of Certiorari

To The Supreme Court Of Florida

The Petitioner, DONALD ALAN SHAPIRO,

respectfully prays that a Writ Of Certiorari issue to

review the Judgment and Opinion of The Supreme

Court Of Florida entered on November 13, 1980.

OPINION BELOW

The Opinion of The Supreme Court Of Florida is

not as yet reported in the Southern Reporter system.

It is reported at 1980 Florida Law Weekly 580. That

Opinion is set forth in its entirety in Appendix A to

this Petition.

—

JURISDICTION

The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. Rule 17 (bc), Supreme Court Rules. The

Opinion of The Florida Supreme Court was entered on

November 13, 1980. This Petition is timely filed.

PROVISIONS INVOLVED

The pertinent portion of the Fourth Amendment

to the United States Constitution is:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated. . . :

STATEMENT OF THE CASE

The Petitioner was arrested and charged with

Possession With Intent To Sell A Controlled Substance

and Possession Of A Controlled Substance.

The Petitioner moved to suppress the evidence.

At the Hearing on his Motion To Suppress, the following

facts were presented:

On December 29, 1977, the Petitioner arrived

at the Miami International Airport with two

other men, Scarborough and Krausey. After

purchasing tickets, they placed placed a bag

in a coin locker, the Petitioner handing the

key to Krausey in a manner which attracted

the attention of a Dade County Public Safety

Department Detective. The detective

approached the Petitioner and asked for

identification. The Petitioner produced a Texas

driver's license in his own name and an airline

ticket in another name. The Petitioner explained

the discrepancy by stating that the airline had

made a mistake. As to the locker, the Defendant

said Krausey had gone to a ticket counter to

leave the key for a man named Dean. This was

verified by the ticket agent who said she had

referred Krausey to another airline. Krausey

could not be located. The detective asked the

Petitioner twice for consent to search his hand

luggage; the Petitioner refused both requests.

Although he was still suspicious, the detective

concluded that he had no reason to detain the

Petitioner any longer and he was permitted to

leave.

The detective and his co-worker followed

the Petitioner to the security check station.

The guard using the monitor testified that

when the Petitioner’s bag went through the

X-ray monitor everything was clear except

for something that looked like scissors. She

drew this to the attention of her supervisor

and passed the bag through again. Both security

guards testified that all they observed on the

screen was a pair of scissors. The detective

claimed that he saw a gray mass in the center

of the screen. The security supervisor asked

the Petitioner if she could open the bag to

check the scissors. The Petitioner consented,

opened his bag, showed her the scissors and

was told that he could proceed. As the Petitioner

moved his bag down the table (at the checkpoint)

to close it, the detective reached over, opened

the suitcase further, and quickly lifted a pair

of folded jeans into the air causing a bag of

Cocaine concealed in the jeans leg to fall onto

the floor.

Following this testimony, the Trial Court denied

the Petitioner’s Motion To Suppress.

The Petitioner thereupon entered a Plea of Nolo

Contendere to Count I, Possession With Intent To Sell

A Controlled Substance, specifically preserving his right

to appeal the denial oi his Motion To Suppress. Count

II was abandoned by the State.

Following a Pre-Sentence Investigation, the

Petitioner was sentenced to five (5) years in the State

Penitentiary.

The Petitioner timely appealed to The Supreme

Court Of Florida. On appeal, The Supreme Court Of

Florida affirmed the ruling of the Trial Court specifically

finding that probable cause is not a prerequisite to a

search in an airport security boarding area and instead

finding that “the portent for evil supplies the requisite

Fourth Amendment reasonableness to justify the search

of any person who presents himself at a boarding gate

to enter an aircraft.”

In the instant case, the Fourth Amendment question

herein presented to this Honorable Court was raised

by Motion To Suppress in the Trial Court (R. 24-25,

30-42) and was specifically addressed in the Opinion of

The Florida Supreme Court herein sought to be reviewed.

REASONS FOR GRANTING THE WRIT

THE NONCONSENSUAL SEARCH OF THE

PETITIONER'S LUGGAGE AT AN AIRPORT

SECURITY CHECKPOINT MAY NOT BE

BASED UPON MERE SUSPICION.

A. In the recent case of Reid v. Georgia,

US , 65 L Ed.2d 890, 100 S.Ct. (1980), this Court

stated that, “any curtailment of a person’s liberty by

the police must be supported at least by a reasonable

and articulable suspicion that the person seized is engaged

in criminal activity.”

In the Opinion sought to be reviewed, The Supreme

Court Of Florida would not require a reasonable and

articulable suspicion to support a search instead holding

that “the portent for evil supplies the requisite Fourth

Amendment reasonableness to justify the search of

any person who presents himself at a boarding gate to

enter an aircraft.”

The Petitioner would, thus, first submit that the

instant Opinion of The Florida Supreme Court is in

conflict with the decisions of this Court as to the standard

necessary to justify police curtailment of a citizen's

liberty. See, also, Terry v. Ohio, 392 U.S. 1 (1968).

B. The instant decision concerned a search of the

Petitioner’s luggage at an airport security checkpoint.

The instant Opinion holds that no standard of

reasonableness or suspicion is necessary to justify such a

search. The Opinion holds that once a person merely

appears at such a checkpoint he necessarily subjects

himself to such a search without any further basis

whatsoever.

The Petitioner would first like to point out that he

was not the victim of an administrative search. He had

“passed” an administrative search and was proceeding

through the checkpoint when he was searched by the

rolice detective. Whatever justification, pursuant to

Title 49 §1356 U.S.C.A. (Air Transportation Security

Act of 1974) may have existed for an administrative

search vanished when he “passed” that administrative

search. The action of the detective in the instant case

was not part of an administrative search but the individual

action of a police officer which, the Petitioner submits,

must be guided by Fourth Amendment requirements.

In assessing the validity of searches undertaken

at an airport security checkpoint, the Fifth Circuit

Court of Appeals, in the case of United States v.

Skysworth, 482 F.2d 1272 (5th Cir. 1973) has maintained

that such a search may validly be conducted on mere or

unsupported suspicion.

Disagreeing with the unhindered license to search

espoused by the Fifth Circuit, the Second Circuit Court

Of Appeals, in United States v. Albarado, 495 F.2d 799

(2d Cir. 1974), the Third Circuit Court Of Appeals in

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

and the Eighth Circuit Court Of Appeals in United

States v. Kroll, 481 F.2d 884 (8th Cir. 1973) have all

found that the mere fact that a passenger appears for

boarding does not, in and of itself, justify a search of

his person and his effects.

Indeed, the Ninth Circuit Court Of Appeals, in the

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

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

1973), and United States v. Homburg, 546 F.2d 1350

(9th Cir. 1976) have gone even further. That Court has

held that a passenger can prevent such a search by

announcing his intention not to board the aircraft and

leaving the boarding area. Under the holding of the

instant case, such an action would not be possible and a

citizen would be susceptible to a search even if he tried

to leave the boarding area.

The Petitioner submits that the instant Opinion of

The Florida Supreme Court, is in conflict with the

decisions of the Second, Third, Eighth, and Ninth Courts

of Appeal, and that, pursuant to Rule 17 (1\b) this

Court should take jurisdiction of this cause to resolve

that conflict.

ce. The Florida Supreme Court, in the instant

Opinion, has announced the standard which it believes

is sufficient to support an airport security search and

not contravene the Fourth Amendment, to wit: mere

or unsupported suspicion. The ascertainment of the

proper Fourth Amendment standard required to sustain

such a search is an important question of federal law

which has not been, but should be settled, by this

Court. The bench and bar of every state that has an

airport needs the guidance of this Court in an area

where conflicting decisions have produced a disjointed

body of law.

10

CONCLUSION

The Petitioner respectfully submits that this

Honorable Court should take jurisdiction of this cause

for the following reasons:

1. The instant decision is in conflict with

decisions of thi. Court as to the standard

required for warrantless searches.

2. The instant Opinion is in conflict with

the decision of several federal appellate courts.

3. The instant Opinion has decided an

important question of federal law which has

not been, but should be, settled by this Court.

Based upon the foregoing facts, arguments, and

authorities, the Petitioner respectfully urges this

Honorable Court to issue its Writ Of Certiorari to The

Florida Supreme Court and take jurisdiction of this

cause.

Respectfully submitted,

BERNARD S. YEDLIN

Attorney for Petitioner

Rivergate Plaza, Suite 616

444 Brickell Avenue

Miami, Florida 33131

Telephone: (305) 371-7611

- Otte

BERNARD S. YEDXIN

11

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy

of the foregoing Petition For A Writ Of Certiorari To

The Supreme Court Of Florida was mailed this

day of January, 1981, to the Office of the Attorney

General: STEVEN R. JACOB, Assistant Attorney

General, Florida Regional Service Center, 401 N.W.

2nd Avenue, Miami, Florida 33128.

BERNARD S. YEDLIN

Attorney for Petitioner

Rivergate Plaza, Suite 616

444 Brickell Avenue

Miami, Florida 33131

Telepbone: (305) 371-7611

“Yelle

BERNARD S. YEDLIN

12

Appendix

SUPREME COURT OF FLORIDA

No. 54,097

DONALD ALAN SHAPIRO, Appellant,

vs.

STATE OF FLORIDA, Appellee.

[November 13, 1980]

ALDERMAN, J.

We have for review by direct appeal Donald Shapiro's

conviction for possession of cocaine. Because the trial

court upheld the constitutional validity of sections 893.13

and 893.03(2\aX4), Florida Statutes (1977), part of the

“Florida Comprehensive Drug Abuse Prevention and

Control Act,” we have jurisdiction pursuant to article

V, section 3(b\(1), Florida Constitution (1972).

In the trial court, by motion to dismiss, Shapiro

challenged the constitutionality of these statutory sections,

and, by motion to suppress, he challenged the admissibility

of 6.5 pounds of cocaine seized by an airport security

detective from his suitcase at the security boarding

area of the airport. Both motions were denied, and he

then pled nolo contendere expressly reserving the right

to appeal the constitutional and the suppression questions.

We hold that the challenged statutes are constitutional

and that the trial court’s denial of the motion to suppress

was proper, and we therefore affirm Shapiro's conviction

and sentence.

App. 1

Shapiro's constitutional attack on sections 893.13

and 893.03(2)(aX4) is totally without merit and warrants

only brief discussion. The inclusion of cocaine within

the statutorily prohibited class defined in section 893.13

is not arbitrary and unreasonable, does not violate

Shapiro’s right to equal protection of the laws, does not

render the statute overbroad, does not invade Shapiro's

right of privacy, and does not violate his right to be

free from cruel and unusual punishment. Cf. Hamilton

v. State, 366 So.2d 8 (Fla. 1978), wherein we upheld the

inclusion of marijuana within section 893.13 against

similar constitutional challenges.

Shapiro's challenge to the trial court’s order denying

his motion to suppress is also without merit but warrants

more extended discussion. First, we note that the trial

court’s conclusions of fact come to us clothed with a

presumption of correctness, and, in testing the accuracy

of these conclusions, we must interpret the evidence

and all reasonable deductions and inferences which

may be drawn therefrom in the light most favorable to

the trial judge’s conclusions. State v. Nova, 361 So.2d

411 (Fla. 1978). In that light, the record of the motion to

suppress hearing reveals the following pertinent facts.

Having arrived at the Miami International Airport and

having had purchased for him an airline ticket, Shapiro

and two other men proceeded to the coin lockers at the

airport terminal. Therein, they placed a bag. Shapiro

then, in a rather suspicious manner which attracted

the attention of a detective of the Dade County Public

Safety Department assigned to the airport, handed the

key to one of the two other men. Because of several

other unusual actions by Shapiro observed by the

detective for a period of at least fifteen minutes, the

detective approached Shapiro and asked him for

App. 2

identification. Appearing extremely nervous, Shapiro

produced a driver's license in his own name and produced

an airline ticket in another name. When questioned as

to the discrepancy, he informed the detective that the

airline had made a mistake. Fearing that Shapiro had

placed an explosive device in the locker, the detective

asked Shapiro whether he could search the locker.

Shapiro told him that if the detective could locate the

key to the locker, he could search it. The key, however,

was not located. The detective also requested that

Shapiro permit him to search the suitcase which Shapiro

intended to carry onto the plane, but Shapiro refused.

Although he was still suspicious, the detective told

Shapiro that he was free to leave.

The detective then followed Shapiro down the

concourse to the security boarding area of the airport.

When Shapiro’s suitcase was passed through the x-ray

monitor, the guard at the security check station noticed

something that looked like scissors. The detective, who

was also watching the monitor, observed a gray mass

which was approximately a foot to a foot and a half in

length and eight inches in width. He requested that the

bag be passed through again and that the guards take

a closer look because he had a genuine fear that there

was an explosive device in the suitcase. Viewing the

monitor, the detective could distinguish that the mass

was not clothing and that it could be plastic explosives.

When the suitcase was opened by Shapiro so that the

security guard could check the scissors, the detective

was a bulge in a pants leg which he thought was a

bomb. He, therefore, removed the pants from the suitcase.

The search, however, rather than revealing the presence

of a bomb, turned up the 6.5 pounds of cocaine.

App. 3

The trial court, having considered the totality of

the circumstances surrounding the search and seizure

of the cocaine, concluded that the detective had acted

reasonably.

Shapiro contends that the search and seizure violated

his fourth amendment rights and that the cocaine should

have been suppressed because the detective did not

have sufficient probable cause to search his luggage.

For several reasons, we hold that probable cause was

not a prerequisite to this search in the security area of

the airport, conducted for the limited purpose of

discovering weapons, explosives, or other devices which

could have been utilized to hijack an airplane.

In order for Shapiro to claim that his fourth

amendment rights were violated, he must first establish

that he had a reasonable expectation of privacy to be

free from this particular intrusion by the detective.

United States v. Salvucci, 48 U.S.L.W. 4859 (June 25,

1980); Rakas v. Illinois, 439 U.S. 128 (1978). A reasonable

expectation of privacy under a given set of circumstances

depends not only upon one’s actual subjective expectation

of privacy but also upon whether society is prepared to

recognize this expectation as reasonable. Smith v.

Maryland, 442 U.S. 735 (1979); Katz v. United States,

389 U.S. 347 (1967). Here, the defendant clearly failed

to demonstrate that he had a reasonable expectation of

privacy to be free from the particular intrusion involved

in this case — a search for what the detective thought

was a bomb. Shapiro testified that since 1971, he had

boarded airplanes at least twenty times and that he

was aware that there is a checkpoint at every airport

where carry-on baggage must be submitted for inspection.

He further testified that he had seen baggage opened

App. 4

at these security stations and that he was fully aware

that his could be opened. He knew that for his protection

and for the protection of other air passengers, searches

were conducted to prevent prospective hijackers from

boarding airplanes. By his own testimony, he established

that he had no subjective reasonable expectation that

his baggage would not be searched.

Additionally, we conclude that even if Shapiro had

some subjective expectation of privacy, society is not

prepared to recognize such expectation as reasonable.

At this point in time when airplane hijacking is at a

crisis level, such an expectation, to be free from the

limited intrusion brought about by the screening process

utilized in the boarding area of the airports, is not

justifiable under the circumstances. One who enters

the boarding area of the airport knows or should know

that he is subject to being searched for weapons or

other devices which could be used for hijacking. Notices

posted in front of boarding areas inform prospective

air passengers that all are subject to anti-hijacking

searches. These searches are not directed against

individuals but rather are a part of a general screening

process to avoid the carrying of weapons or explosive

devices onto an aircraft.

Since Shaprio did not demonstrate that he had a

reasonable expectation of privacy, the fourth amendment

is not implicated, and probable cause was not requisite

to justify the search.

Alternatively, assuming that Sharpiro’s fourth

amendment rights were implicated in this search, we

find that the present search conducted for the limited

purpose of preventing an airplane hijacking was proper

App. 5

under the fourth amendement. Two separate concepts

justify this finding.

One of the exceptions to the fourth amendment

requirement of a probable cause basis for a search is a

search conducted pursuant to consent. Schneckloth v.

Bustamonte, 412 U.S. 218 (1973). This consent must be

free and unconstrained, and the question of voluntariness

is a question of fact to be determined from the totality

of the circumstances. See Norman v. State, 379 So.2d

643 (Fla. 1980). Analyzing in depth the subject of consent

searches, the Supreme Court of the United States in

Schneckloth determined that while knowledge of the

right to refuse consent is a factor to be taken into

account, the government need not establish such

knowledge as an indispensable requisite to effective

consent. The Court refused to extend the requirement

of a knowing and intelligent waiver to the constitutional

guarantee against unreasonable searches and seizures

since, it explained, the protections of the fourth

amendment have nothing to do with promoting the

ascertainment of truth at a criminal trial. 412 U.S. at

241-42. See also Interest of R.L.J., 336 So.2d 132 (Fla.

1st DCA 1976).

Looking to the totality of the circumstances in the

present case, we find that Shapiro voluntarily consented

to the search. As previously stated, he was fully aware

that upon entering the security boarding area of the

airport, he was subject to a security search for weapons

or other devices which could be employed to hijack an

airliner. He also testified that he knew he did not have

to go through the checkpoint and did not have to board

the plane, or that he did not have to carry this suitcase

onto the plane. He willingly chose to do so and thereby

App. 6

consented to the search of his person and baggage for

the limited purpose of discovering weapons, explosives,

or other devices which could be utilized to hijack an

airplane. The fact that drugs instead of weapons were

found, however, does not require their supression since

the search was proper. See Abel v. United States, 362

U.S. 217 (1960); United States v. Skipwith, 482 F.2d

1272 (5th Cir. 1973).

Alternatively, even in the absence of consent, this

limited security boarding area search would not have

violated Shapiro’s fourth amendment rights. The fourth

amendment provides that the people are entitled to be

secure from unreasonable searches and seizures. The

specific content and incidents of the fourth amendment

guarantee are shaped by the context in which it is

asserted. Terry v. Ohio, 392 U.S. 1 (1968). To assess the

reasonableness of security checks at airport boarding

areas, we must balance the governmental interest

justifying the governmental intrusion against the invasion

which occurs as a result of the search. See Dunaway v.

New York, 442 U.S. 200 (1979).

As a result of serious problems caused by airplane

hijackings, the government developed screening

procedures to detect potential hijackers prior to their

boarding the airplane. The governmental interest in

these screening procedures is to prevent the carrying

of weapons or explosives aboard an aircraft and thereby

to prevent jeopardy to hundreds of lives and millions

of dollars of property at the hands of a lunatic, extortionist,

political terrorist, or political refugee. The intrusion

resulting from these procedures is minimal compared

to the monumental governmental interest involved.

Tragic experience has taught us that in order to protect

App. 7

the prospective victims of violence, the hijacker must

be discovered on the ground and before he boards the

airplane. There is a very limited period of time in

which the authorities can act to detect a possible hijacker.

Security searches in the boarding area are the least

intrusive possible because they are aimed at only those

boarding the airplane and only those who could pose

imminent danger to the air passengers, crew, and aircraft.

Furthermore, the intrusion is minor because no stigma

attaches when a person is searched at a known designated

airport search point and because the person subject to

the search voluntarily enters the search area and can

avoid the search by not entering the boarding area.

See United States v. Skipwith. CF. United States v.

Martinez-Fuerte, 428 U.S. 543 (1976).

Courts have generally held that airport security

measures, such as the search in the present case, instituted

to detect a prospective hijacker, are reasonable and

constitutionally justified as a limited and relatively

insignificant intrusion of privacy viewed against the

grave necessity to protect an aircraft and its passengers

and crew. See United States v. Edwards, 498 F.2d 496

(2d Cir. 19740) United States v. Cyzewski, 484 F.2d 509,

512 (5th Cir. 1973), cert. dismissed, Cyzewski v. United

States, 415 U.S. 902 (1974); United States v. Moreno,

475 F.2d 44 (5th Cir. 1973), cert. dismissed, Moreno v.

United States, 414 U.S. 840 (1973).

In United States v. Skipwith, the United States

Circuit Court of Appeals, Fifth Circuit, held that the

nonprobabie cause search of Skipwith, who had presented

himself for boarding at the Eastern Air Lines boarding

gate at the Tampa International Airport, was lawful

and that the contraband uncovered by the search was

App. 8

properly admitted into evidence. Initially, the Court

pointed out that Skipwith knew or should have known

that he was subject to being searched after presenting

himself in the boarding area and explained:

His only reason for being there had to be to

board the aircraft. Because of the widespread

publicity given to the government’s efforts to

cope with the piracy of aircraft, it was general

knowledge that citizens boarding planes were

subject to special scrutiny and to weapon

searches . . . [T]he officer did not go to Skipwith

and stop and search him at a point where such

a procedure was extra-ordinary or unexpected.

Rather, Skipwith came to the specific part of

the airport where he knew or should have

known all citizens were subject to being

searched.

482 F.2d at 1274. Employing a test of reasonableness in

upholding the search of Skipwith, the Fifth Circuit

emphasized that “reasonableness” requires courts to

weigh more than the necessity of the search in terms of

possible harm to the public. Courts must also take into

account the likelihood that the search procedure will

be efficacious in averting the potential harm. It stated

that balanced against public necessity and efficacy of

the search are the degree and nature of intrusion into

the privacy of the person and effects of the citizens

which the search entails. Weighing these three factors

determinative of reasonableness, the Fifth Circuit

acknowledged the necessity to ensure that the potential

harms of air piracy are foiled and found that the airport

boarding area search procedures have every indicia of

being the most efficacious possible. Although recognizing

App. 9

that the intrusion may be inconvenient and annoying,

the Fifth Circuit held that this particular type of search

was less offensive to the searched person than similar

searches in other contexts and that the circumstances

under which these searches were conducted made abuses

much less likely to occur. The court explained:

Unlike searches conducted on dark and lonely

streets at night where often the officer and

the subject are the only witnesses, these searches

are made under supervision and not far from

the scrutiny of the traveling public. Moreover,

the airlines, which have their representatives

present, have a definite and substantial interest

in assuring that their passengers are not

unnecessarily harassed. The officers conducting

the search under these circumstances are much

more likely to be solicitous of the Fourth

Amendment rights of the traveling public than

in more isolated, unsupervised surroundings.

482 F.2d at 1276.

The Fifth Circuit rejected Skipwith’s argument

that even if a weapon discovered during his search

could have been introduced into evidence, the cocaine

seized should have been excluded since the search was

not and could not properly have been conducted for the

purpose of discovering illicit drugs and stated:

The strictures of the Fourth Amendment protect

the citizen from unwarranted and unreasonable

intrusion by the government on his person or

into his effects. The rule excluding the admission

App. 10

of illegally obtained evidence was designed to

effectuate this purpose by removing the principal

incentive to conduct illegal searches. The rule

does not exist because the evidence is not

probative, or to chastise errant law officers,

or to benefit the accused.

[It is important to note that the imposition

which must be considered is the intrusion on a

citizen’s right to be free of unreasonable

searches, not upon any right to be free of

criminal prosecution. Certainly the imposition

of a criminal penalty for possession of drugs

found during an airport search will burden the

one on whom it is imposed; constitutionally

speaking, however, he has suffered only the

same intrusion as other passengers who were

searched. Although the discovery of cocaine

in a search for weapons may be unexpected by

the government, there is nothing in the

Constitution that gives the apprehended felon

a right to complain because the product of the

protective action was not anticipated. Such a

result cannot properly be classified as a windfall.

It is the product of valid police work. The

government has no duty to catch a carrier of

dope sportingly or according to any game book

rule. Nor is it material whether the

circumstances leading to the discovery of the

cocaine were of the defendant’s making; all

that matters is that the search be legally

conducted.

482 F.2d at 1277-78 (emphasis added).

App. 11

We hold that these searches are reasonable if

conducted solely for the purpose of discovering whether

a prospective air passenger poses an immediate threat

to air commerce. Although the initiating purpose of

the search is limited to the detection of a would-be

hijacker, the search may be extensive because the

airplane hijacker’s weaponry could be any of a number

of easily concealed things including plastic explosives

or gasoline. The fact that 2n object was not metal and

therefore did not set off the magnetometer at the security

boarding station does not mean the search must end at

that point. See United States v. Bell, 464 F.2d 667 (2d

Cir. 1972), cert. denied, Bell v. United States, 409 U.S.

991 (1972). So long as the object of the search is prevention

of an airplane hijacking, the search is reasonable and

proper and does not require probable cause for its

foundation. But, as Judge Clark said in United States

v. Skipwith:

[cJertainly all citizens look forward to the day

when skyjackings and their sequels, airport

search and security measures, cease. When

the threat of air piracy disappears the standards

of reasonableness which we here recognize

will go with it. Until that time arrives, however,

the portent for evil supplies the requisite Fourth

Amendment reasonableness to justify the search

of any person who presents himself at a boarding

gate to enter an aircraft.

482 F.2d at 1279.

In view of our holding that probable cause was not

a prerequisite to this limited search in the security

boarding area of the airport, we need not reach the

App. 12

question of whether, under the facts of this case, the

detective actually had probable cause to search.

Accordingly, we hold that section 893.13 and section

893.03(2)(a\4) are constitutional. We further hold that

the trial court properly denied Shapiro’s motion to

suppress evidence found as a result of a search by a

detective of the Dade County Safety Department initiated

to ensure that Shapiro was not a prospective airplane

hijacker. When a valid “hijack” search takes place,

evidence of another crime discovered during the search

is admissible. The judgment and sentence are affirmed.

It is so ordered.

SUNDBERG, C.J., BOYD, OVERTON and McDONALD,

JJ., Concur ADKINS, J., Dissents with an opinion with

which ENGLAND, J., Concurs

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION AND, IF FILED,

DETERMINED.

ADKINS, J., Dissenting.

The facts are not disputed. I disagree with the

conclusions of law made by the trial judge and by the

majority opinion here. Inasmuch as I believe the motion

to suppress should have been granted, I decline to

reach the constitutionality of the statutes. Singletary

v. State, 322 So.2d 551 (Fla. 1975).

As with virtually all search and seizure issues, the

factual circumstances are of utmost importance. Viewed

in the light most favorable to the state, State v. Nova,

App. 13

361 So.2d 411 (Fla. 1978), the record from the hearing

on the motion to suppress reveals the following facts.

On December 29, 1977, the appellant (hereinafter

referred to as the defendant) arrived at the Miami

International Airport with two other men, Scarborough

and Krausey. After purchasing tickets, the defendant

either helped or actually placed a bag in a coin-locker,

then gave a key to Krausey in a manner which attracted

the attention of a detective of the Dade County Public

Safety Department’s Organized Crime and Narcotics

Section. The detective approached the defendant and

asked for identification, whereupon the defendant

produced a Texas driver's license in his own name and

an airline ticket in another. When questioned about the

discrepancy, the defendant became nervous and said

the airlines made a mistake. As to the locker, the

defendant said Krausey had gone to a ticket counter to

leave the key for a man named Dean. This was verified

by the ticket agent who said she had referred Krausey

to another airline. Krausey could not be located. The

detective asked the defendant twice for consent to

search his hand luggage; the defendant refused both

requests. By this time the detective felt that the defendant

exhibited many characteristics of the so-called drug-

courier and hijacker profiles. See United States v.

McCaleb, 552 F.2d 717 (6th Cir. 1977). The bare fact

that one fits a profile does not provide a reasonable

basis for an investigative detention. United States v.

Mendenhall, 596 F.2d 706 (6th Cir. 1979); United States

v. Ballard, 573 F.2d 913 (5th Cir. 1978). Concluding that

they had no reason to detain the defendant any longer,

the officers permitted him to leave.

App. 14

The detective and his co-worker followed the

defendant to the security check station. The guard

viewing the monitor testified that when the defendant's

bag went through, everything was clear except for

something that looked like scissors. She drew this to

the attention of her supervisor and passed the bag

through again. Both security guards testified that all

they observed on the screen was a pair of scissors. The

detective claimed he saw a grey mass in the center of

the screen. The supervisor asked the defendant if she

could open the bag to check the scissors. The defendant

consented, opened his bag, showed her the scissors and

was told he could proceed. As the defendant moved his

bag down the table to close it, the detective reached

over, opened the suitcase further, and quickly lifted a

pair of folded jeans causing a bag of cocaine to drop to

the floor.

Airport searches have received considerable

attention since the late 1960's because of the frequency

of skyjacking, which posed a severe threat to public

safety. See e.g. United States v. Moreno, 475 F.2d 44

(5th Cir. 1973); United States v. Lopez, 328 F. Supp.

1077 (E.D. N.Y. 1971). This menace engendered the

development of screening procedures to detect potential

hijackers prior to boarding the aircraft. See 3 W.R.

LaFave Search & Seizure, A Treatise on the Fourth

Amendment, section 10.6(a) — (g) at 327-56 (1979). Under

the current system all persons entering the boarding

area and their effects are mechanically checked. A

practical ramification of this 100% screening process is

that persons with contraband in their carry-on luggage

may be apprehended. United States v. Davis, 482 F.2d

893 (9th Cir. 1973). Care must be taken to see that

these routine airport inspections do not become vehicles

App. 15

by which otherwise impermissible searches and seizures

are validated.

In the case at bar, the detectives were on duty as

organized crime and narcotics officers. They admittedly

did not have probable cause to arrest or search the

defendant after the initial encounter in the terminal

area. They followed him to the screening area. One

detective admonished the security guard to check

defendant’s bag carefully. He also positioned himself to

view the monitor as the bag passed through. The

defendant had been cleared by the security guards

when the detective reached for the blue jeans in the

partially-opened suitcase. The detective’s testimony

that he saw a gray mass on the X-ray monitor and

feared an explosive device is untenable in light of his

expertise and his actions. Cf. United States v. Scott,

406 F. Supp. 443 (E.D. Mich. 1976). Seizing the clothing

so as to cause the concealed item to drop to the floor is

not consistent with the caution one should exhibit in

the presence of a putative bomb.

The officer's conduct must be gauged by established

Fourth Amendment principles. A warrantless seizure

of the jeans clearly occurred. At no time did the defendant

consent to a search by the detective. Cf. Myles v.

State, 374 So.2d 83 (Fla. 3d DCA 1979); Husted v. State,

370 So.2d 853 (3d DCA 1979). No contraband was in

plain view. Coolidge v. New Hampshire, 403 U.S. 443

(1971). The defendant was in the process of closing his

bag when the officer reached in; there was no evidence

that the bulge represented an immediately accessible

weapon. McNamara v. State, 357 So.2d 410 (Fla. 1978).

App. 16

The state contends that the detective’s knowledge

of the immediately preceding events gave him a “founded

suspicion” that the bag contained a weapon or explosive

and that this justified the seizure pursuant to Terry v.

Ohio, 392 U.S. 1 (1968). In Terry, the Supreme Court

applied a balancing test to justify an officer's detention

and “frisk” or “pat-down” of a defendant’s person for a

weapon upon less than the traditional probable cause

standard. The Court weighed the danger to the officer

against the degree of intrusion involved in a pat-down

type search. Terry is inapplicable to the case at bar.

The officer did not testify he believed the defendant

was armed or presently dangerous except that there

might be a bomb, in which case his actions only increased

the danger. There is no reason to judge his conduct by

less than a probable cause to search standard. Applying

that standard to the instant facts, I find no support for

a warrantless seizure of the defendent’s clothing. All

this officer knew was that the defendant fit a profile,

he was nervous, and a grey mass appeared on the

monitor. Neither of the trained security guards saw

the grey mass and the defendant cleared airport security.

At most, the officer had a suspicion that something

was amiss. State v. Stevens, 354 So.2d 1244 (Fla. 4th

DCA 1978).

The trial court did not enter a written order denying

the motion to suppress. The ruling consisted of the

following:

The Court: I say, in this issue, as in the case

of most issues, the law of common sense is the

prevailing one.

App. 17

It would be, I think, to disregard common

sense to hold that a reasonable person in this

officer’s position, knowing what this officer

knew, did not have reasonable grounds to

believe, as a man of reasonable cause of action

[sic.]., that an offense had been committed.

Therefore, I will deny the motion to suppress.

This is the appropriate standard for ascertaining

the validity of a warrantless arrest, not a warrantless

seizure. See State v. Doe, 115 N.H. 682, 371 A.2d 167

(1975).

The sentence should be vacated, the conviction

reversed, and the cause remanded to the trial court for

further proceedings.

ENGLAND J. Concurs

An Appeal from the Circuit Court in and for

Dade County,

Alan R. Schwartz, Judge — Case No. 77-35055

Bernard S. Yedlin, Miami, Florida,

for Appellant

Jim Smith, Attorney General, and

Steven R. Jacob, Assistant Attorney General,

Miami, Florida,

for Appellee

App. 18