AIRPORT SEARCHES

482 F.2d 893 (1973)

U.S. v. DAVIS
BROWNING

Summarized by Gabi

Davis was convicted before a magistrate of attempting to board an aircraift while

carrying a concealed weapon. The district court affirmed. The Court of Appeals (this is a
CA decision) reversed on the ground that the search (which the state participated in)
was brought under the limitations of the Fourth Amendment, and although a
preboarding search of all passengers was reasonable per se, it was only so if
passengers were given the right to avoid search by choosing not to board the
aircraft. Davis was not aware of the procedures being employed because the
regulations thereon had not yet been issued at the time, and so it could not have been
said that he had consented to the search. Reversed and remanded.

IMPORTANT PEOPLE
Charles Davis, aka Marcus Anderson, defendant-appellant

FACTS
1. Davis and a friend checked in a few minutes before their flight from San
Francisco to Bangkok, Thailand with an intermediate stop in Los Angeles.
2. As Davis approached the loading gate, TWA employee Malcolm Read told
him that a security check was necessary, reached for his briefcase, opened it,
and found a gun.
3. Read handed the gun to US Customs Service security agent Donald Graub,
who was standing nearby (6ft away). Graub found it to be loaded. Read,
Graub, and US Deputy Marshall Douglas Aaron, who was standing nearby
(15 ft away), escorted Davis to a nearby room where he was searched. Aaron
then took Davis and the gun into custody.
4. CHARGE: minor offense ender 49 USC sec. 1472(l) (attempting to board an
aircraft while carrying a concealed weapon).
5. PLEA: Not guilty.
6. Davis filed a MOTION TO SUPPRESS, and after the evidentiary hearing, the
motion was DENIED on a finding of implied consent.
7. MAGISTRATE: Guilty. Penalty: fine of $250.
8. DISTRICT COURT: Affirmed magistrate. Added alternate ground aside from
implied consent: no governmental involvement in the search.
9. COURT OF APPEALS: present petition.

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ISSUE with HOLDING

W/N the state was sufficiently involved to subject the search to the limitations of
the Fourth Amendment – YES
The search of Davis’s briefcase was not an isolated event but part of a
nationwide anti-hijacking program implemented by federal officials in cooperation with
air carriers. The first time an American commercial aircraft was hijacked was in 1961,
and up to 1968 there was an average of one hijacking per year. In 1968, the number
rose to 18. In 1969, there were 33 successful hijackings out of 40 attempted. Since late
1968, it could not be said that measures of this kind were part of an independent
investigation by the carrier for its own purposes.
The security system was as follows: a profile of objective characteristics to
identify potential hijackers, a magnetometer to detect metal, and then a weapons search
of the carry-on luggage of anyone who activated the magnetometer. Initially cooperation
by air carriers was voluntary, but this was found not to be enough. The Federal Aviation
Administration (FAA) then required carriers to submit a screening system to them for
approval and to put it into use. This required screening of all passengers by one or more
of the following: behavioral profile, magnetometer, identification check, physical search.
Later, it was required that all were to be subjected to searches of carry-on items.

W/N Davis had a reasonable expectation of privacy with respect to his carry-on
luggage – YES
Government cited the case of Katz (citing Terry v. Ohio: “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”)
"Airport searches" are not outside the Amendment simply because they are being
conducted at all airports. In each of the Supreme Court decisions excluding searches or
seizures from the Fourth Amendment on the authority of Katz, the individual's alleged
reasonable expectation of privacy was negated on some ground independent of the
frequency of the challenged intrusion itself. There is no such independent ground here.
Terry, which Katz cited, was based on the protection of the police officer. This
search was directed against hijacking, and was necessarily indiscriminate. Terry does
not justify the wholesale frisking of the general public in order to locate weapons and
prevent future crimes.

W/N the search and seizure was valid - NO

Screening searches of airline passengers are conducted as part of a general
regulatory scheme to prevent hijackings. The essential purpose of the scheme is not to
detect weapons or explosives or to apprehend those who carry them, but to deter
persons carrying such material from seeking to board at all. The danger it seeks to
prevent is unquestionably grave and urgent.
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 However, it is not meant to be a general search for evidence of crime.
It is not fatal that the search was conducted without a warrant; it would frustrate
the purpose behind the search to require it. But it must be limited in its intrusiveness as
needed for the satisfaction of its objective. Therefore, these screening searches are
valid only if they recognize the right of a person to avoid search by electing not to board.
A compelled search of persons who elect not to board could only work to
apprehend violators of either the criminal prohibition against attempting to board an
aircraft while carrying a concealed weapon or some other criminal statute. Such
searches would be criminal investigations subject to the warrant and probable cause
requirements of the Fourth Amendment.

W/N consistent with the right to travel – YES

The right to travel is not absolute. Screening is reasonable provided that 1) it is no more
extensive than necessary to detect weapons or explosives and prevent those who have
them from flying, and 2) potential passengers may avoid the search by electing not to
fly.

W/N Davis consented to the search - NO

Although it may not be the case at present because passengers are fully aware
of their choices (to board or not to board, and the consequences if they choose to
board), at the time Davis attempted to board his flight, the nature and scope of
airport searches were not then widely known. The regulations mandating pre-
boarding searches of passengers on all flights had not yet been issued.
(Passengers seeking to board TWA Flight 743 were searched only because this was a
"Red Alert" flight-one having no more than a single domestic stop before departing for a
foreign destination.) His mere attempt to board could not be taken as an acquiescence
to the search.
There was no evidence that signs, pre-boarding announcements, screening
operations underway at nearby boarding gates, or other circumstances had informed
Davis that such operations were being employed. His briefcase "was taken from his
hand, opened before he had a chance to really do or think anything."

DISPOSITIVE PORTION
Reversed and remanded.