# Petition — Shapiro v. Florida

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 982

## Text

) _ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1165%3A1. Public record. Not legal advice.