US v.

DAVIS
June 29, 1973 | Browning, J. | Search & Seizure (Airport Searches)
PETITIONER: United States
RESPONDENT: Charles Davis
SUMMARY: Appellant was convicted of attempting to board an aircraft while carrying a concealed weapon. The conviction was
based upon the discovery of a loaded revolver in appellant's briefcase by a Trans World Airlines employee during a sea rch of the
carry-on luggage of boarding passengers. Appellant's motion to suppress was denied on the grounds that he "impliedly consented"
to the search and that, in any event, "there was no governmental involvement."
DOCTRINE: Searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as
part of a criminal investigation to secure evidence of crime, may be permissible under the Fourth Amendment tho ugh not supported
by a showing of probable cause directed to a particular place or person to be searched.

FACTS:
1. Mar. 16, 1971: Davis and a friend checked in a few minutes
before 6:50pm flight from San Francisco Intl Airport bound
for Bangkok, Thailand, with a stopover at Los Angeles.He had
a ticket for LA.
2. As he reached the loading gate, Malcolm Read, a TWA
employee conducted a routine security check. The latter
reached into the briefcase of Davis and found a gun. He gave
it to a customs security agent. They then conducted a search of
Davis person.
3. Davis filed a motion to suppress, but was denied because of
a finding of implied consent, and was sentenced to pay $250.
4. The Court then went on to discuss that since 1961, and
moreso in 1968, hijacking of American aircrafts have been on
the rise. The Government then undertook security measures
such as profiling of passengers, use of magnetometers,
weapon searches. By July 1972, US President ordered the
screening of all passengers and inspection of all carry -on
baggage.
RATIO:
1. Katz threshold test: If the complaining individual did not
have a reasonable expectation of privacy with regard to the
intrusion, the Fourth Amendment is inapplicable; if he did
have a reasonable expectation of privacy, however, the
government must demonstrate that the intrusion was justified
under Fourth Amendment standards.
2. In Katz, J. Harlans concurring opinion imposes "a twofold
requirement [for Fourth Amendment protection], first that a
person have exhibited an actual (subjective) expectation of
privacy and, second, that the expectation be one that society is
prepared to recognize as 'reasonable."'
3. In this case, Davis relied on the privacy of his briefcase to
conceal his gun. The second requirement was also satisfied,
but this does not mean that any kind of governmental intrusion
is allowed just because it has happened often enough.

5. Basically, the governments participation in implementation

of airport search program has been significant, such that any
search conducted pursuant to that program is within the reach
of the Fourth Amendment.
6. GOVERNMENT ARGUMENT: Search was consistent
with Fourth Amendment because (1) because appellant did not
have a reasonable expectation of privacy with respect to his
carry-on luggage, citing Katz v. United States, (Harlan, J.,
concurring), and (2) because "a police officer is not required
to have probable cause for arrest before he can seize a person
and subject him to a limited search for weapons," citing Terry
v. Ohio.

ISSUE/S:
W/N the search conducted on the luggage was valid. NO
RULING: Reversed and remanded for further consideration
of the consent issue

4. Terry v. Ohio also inapplicable because the search

conducted was against the general introduction of weapons or
explosive into a restricted area. The search was
indiscriminate, and, in view of its object, necessarily so,
absent a foolproof means of isolating in advance those few
individuals who were genuine hijack risks .
5. In addition the Court said that, Mr. Read had no particular
interest in appellant as an individual. He had no individualized
basis for the search at all, much less specific and articulable
facts that would justify a reasonably prudent man in believing
that appellant was about to commit a crime or that he was
carrying a weapon.
6. There is no reason to believe that the incidence of concealed
weapons is greater in airline passengers than in the general
public. Terry does not justify the wholesale frisking of the
general public in order to locate weapons to prevent future
crimes.

7. However, the search conducted in this case is in

furtherance of an administrative purpose and not as part
of a criminal investigation to secure evidence of a crime.
This is permissible under the Fourth Amendment. It seeks to
deter persons carrying weapons/explosives from boarding the
plane, though without showing of probable cause.
8. Reasonableness may only be determined by balancing the
need to seach against the invasion which the search entails. In
this case, the need to prevent airline hijacking is
unquestionably grave and urgent.
9. A pre-boarding screening of all passengers and carry-on
articles sufficient in scope to detect presence of weapons or
explosives is reasonably necessary to meet the need. Right
now, there is no foolproof method of confining the search to
the few who are potential hijackers.
10. It is not fatal that the search was conducted without a
warrant because requiring one would frustrate the
governmental purpose behind the search.

11. Also, the search is indistinguishable from searches for

plant pests and diseases.
12. THIS IS WHERE THE COURT ULTIMATELY
DECIDED THE MATTER: CONSENT
The court said that based on current screening program, a
prospective passenger may choose to leave if s/he doesn t
want to accede to the s earch. If he chooses to proceed, then it
means his consent is given. However, at the time Davis
boarded, the nature and scope of airport searched was not yet
widely known. There might have been signs around that
alerted him to such procedures, but these were not presented
as evidence.
13. The burden of proving whether consent was given rests on
the Government. The government and TWA could insist
upon a preboarding search; they could deny appellant the right
to fly if he refused to consent, or if his late arrival deprived
them of sufficient time to obtain his consent or to conduct the
search. But the government may not justify a search on the
basis of "consent" unless it first establishes that such consent
was
given,
expressly
or
by
implication.