United States v. Charles Phillip Homburg
546 F.2d 1350
9th Cir.
1977
Check Treatment

*2 used, words but there is no dis- TRASK, Before ELY and Circuit Judges, pute indicated that he PELT,* and VAN Judge. District boarding wished to leave the area and that step he took a or two that direction TRASK, Judge: being forcibly before detained. The suit- Homburg appeals his con- Phillip opened, case was then Charles contraband discover- heroin with intent possession viction for ed and placed under arrest. of 21 in violation U.S.C. suppress to distribute On a motion to the evidence seized * Pelt, Lincoln, Nebraska, Judge, Honorable Robert Van Senior United States District sit- ting by designation. suitcase, trial court held that not state specifically from his the consent . . . un- preliminary the search “reasonable additional searches after implied consent doctrine.” screening may passenger be revoked if a 105.) (R.T. agrees plane. not to board the The above- indicates, portion strongly of Davis quoted government argues the search *3 however, party may that a revoke his con- took in what it terms a prior to searched to sent be board- it a compares zone” which to bor “critical the even when he ing plane, passed where, argues, “special it crossing screening point, initial beyond the if he apply.” considerations Fourth'Amendment the agrees boarding to leave area. Other Appellee 17-18.) govern at (Brief of this court have recognized decisions of also passenger that “once a enters ment submits always passenger op- that a maintains the area, boarding relinquishes any a he secured See, leaving. g., e. United tion States v. if a right being to leave without searched (9th Miner, 1973); F.2d 1075 Cir. 484 United suspicions are aroused.” security officer’s Moore, (9th 483 F.2d 1361 v. Cir. States Appellee 16.) at The cases the (Brief of 1973). reject must We therefore the primarily cites come the government from government’s power view of its to search which have appear does to Fifth boarding within the area as sweeping. too airports adopted a view of as similar to undisputed the Since evidence indicates crossings qualitatively different border boarding wished to leave the the home or the street for Fourth from area, judge the trial finding erred in See, g., e. purposes. United Amendment search reasonable under the doc- 509, (5th 484 F.2d 511 Cyzewski, v. States implied consent. trine dismissed, 1973), petition for cert. 415 Cir. 94 39 S.Ct. L.Ed.2d 459 think, however, We Skipwith, 482 F.2d search was under principles reasonable 1272, 1276-77 (5th 1973); Cir. United States Terry enunciated in v. (5th Cir.), Legato, v. 480 F.2d (1968). 20 L.Ed.2d 889 Terry, S.Ct. as 414 U.S. S.Ct. case, does this involved a necessarily swift United v. More States predicated upon action on-the-spot observa no, (5th Cir.), 475 F.2d law tions enforcement officer which 38 L.Ed.2d 76 “subjected not could to the pro warrant (1973). cedure.” Id. at Terry arising held that searches under such cir authority there is from this While cumstances must be tested by the Fourth government’s support circuit to view general proscription against Amendment’s airports generally,1 accept we cannot unreasonable searches and seizures. Id. In argument passenger that a government’s assessing the unreasonableness not, boarding may gen area a secured issue, at search Court in leave the proposition, eral area rather than governmental first identified interests to additional searches. a view submit Such justified allegedly the official intru contrary to the rationale of United runs upon the constitutionally protected sion in Davis, (9th 1973). Cir. States private terests of the citizen. Id. at case, justification we held that 1868. The Court then balanced the screening warrantless searches is the interests governmental against identified implied passenger. consent of the “[A]s invasion which the search entailed. law,” we matter of constitutional stated in 24-26, 88 S.Ct. 1868. In performing the Davis, prospective passenger “a has a balancing invasion, of interest may submit to a search of his choice: applied objective standard: possessions immediate as a con person and boarding; may or he turn around the facts available to the dition “[W]ould 482 F.2d at 913. Davis does and leave.” the moment of seizure or the Doran, (9th

1. United States v. F.2d 931 n. 1 Cir. a man of reasonable cau- he was carrying ‘warrant search suitcase normally, the belief’ that the action taken caused the officers to tion entertain a reasona- appropriate?” suspicious Id. at ble fear that the bulge had been transferred pocket to his suitcase. That thereafter nerv- only to street Terry to be confined Were ously watched the officers while he encounters, inap would be principles boarding waited in the line did nothing principles this case. But posite dispel the officers’ worries. These facts merely to street been confined have make it clear that the officers justi- were applied They have been in oth encounters. believing fied in that appellant might be See, contexts, airports. among them e. er carrying a bomb in his suitcase and that Fern, United States g., 1973); United States 464 F.2d others. *4 (2d Cir.), 409 U.S. 93 667 34 258 L.Ed.2d United Our of the government’s S.Ct. examination in- Epperson, Cir.), in searching appellant’s terest States suitcase does 92 here, 32 not end however. judicial We take 334 United States v. Lind of notice the fact that within the eighteen (3d period In this month sey, immediately preceding ep- the context, many emphasized courts have that isode with concerned, which we are there Terry permits an officer conduct a search major were three bombings at airport facili- only dangerous person a for his own ties in this country.3 addition, In we note protection but also for protection that two further bombings occurred within See, g., nearby.2 e. period others the four month immediately follow- 673; supra, F.2d at United ing here,4 States the incident at issue the most Epperson, supra, F.2d at 772. being serious at LaGuardia Airport in New City 29, 1975, York on December in which Applying principles to the facts of persons were killed and approximately case, we first consider nature and this injured.5 others were Acting against governmental interest in- extent backdrop, this we find that security government here had more volved. officers had an immediate and compelling a in detecting interest and than taking steps interest in to assure them- crime. preventing Terry, U.S. at selves that appellant did not detonate an 1868. moment passed From the explosive in the air terminal. through the security inspection point, appel- suspicious in a highly Having lant acted manner. a legitimate found that and com- attempt awkward to conceal a pelling governmental involved, His rectan- interest was bulge trousers, in the gular front his in let us balance that against interest the in- of a light recently anonymous received vasion which the search entailed. The se- threat, naturally attracted the curity bomb inter- officers searched suitcase. est of the area. His We find such a search perfectly reasonable spent light to the restroom where he in withdrawal of the threat imposed. In stall, during minutes inside a Terry, fifteen officer feared the heard, “cracking” coupled noises were his planning cohorts were an armed rob- the fact he emerged that when from bery, and therefore the officer .with frisked for bulge stall the in trousers gone handguns. Under circumstances, he 24, 26, Terry v. at Miami, 2. U.S. Airport, Florida, 4. Miami International S.Ct. 1868. 17, 1975; October and LaGuardia International Airport, York, New December 1975. Kennedy Airport, John F. International 3. New York, 1, 1974; Angeles May Los International Times, 5. New York December at California, Airport, Angeles, August Los col. 5. 1974; Airport, Boston, Logan International Massachusetts, August Supreme The court reasonably. As the found that the officers lacked acted trustworthy “sufficient information ‘to observed: prudent believing warrant a man in clearly unreason- appear to be would “[I]t had petitioner committed or was com- power officer the to take deny able ” mitting an offense.’ 483 F.2d at 1364. To whether to determine necessary measures read Moore as preventing the search insti- carrying weapon in fact person gated in this case would be rigid “a physical threat of and to neutralize application unthinking of the exclusionary 88 S.Ct. Terry, harm.” rule, protest against practice] in futile [a can which it never be used effectively to case, strong had the officers the instant In Terry, control.” 392 U.S. at bulge appel- suspect reasons reading 1876. Such of Moore would make transferred to the pocket lant’s had been very it the evil condemned the United their suitcase, rationally inferred from Terry: judicial Court in States the suitcase observations pretending to opinion comprehend prot- explosive. light an might contain variety of the street ean encounter. facts, opened the officers the suitcase. prevent We hold that does not us necessary that such a search was a We hold following the admonition determining whether measure deciding this case on its own Terry, facts. carrying explosive and was a fact at 15 and 1868. Given necessary neutralizing measure in his threat *5 facts, those we hold that the intrusion into harm. We hold that the search physical of proper was and suitcase reasonable. necessary to that which was was limited for Affirmed. discovery explosives. of the Given facts, compel- and that an immediate ELY, Judge (dissenting): justified interest ling governmental respectfully I dissent. The carefully majority’s that was restricted “to un- search concern over of derstandable recent appropriate discovery airport what was to the bombings justify abridgement cannot an sought],” Terry, 392 of particular [item Amendment, no the Fourth because 88 S.Ct. we can reach U.S. “[i]f provisions of the Constitution ap- upheld but that the search of be not other conclusion they pinch as well they was reasonable. when as when pellant’s suitcase com- fort, may they as well be abandoned.” is not at conclusion odds with this This Assoc, Building Blaisdell, Home & Loan Moore, in United States v. court’s decision 398, U.S. 78 L.Ed. difference between this supra. One obvious (1933) (Sutherland, J., dissenting). is that there was no case and Moore bomb precipitating a need for threat None of the cases majori- relied on by the Moreover, there was no rapid police action. ty involved defendant who any indicated suspect in Moore that indication to leave the boarding desire area of an engaged dangerous or in some either airport.1 only authority The appears Rather, activity. the facts of squarely point is to be United States v. that the officers searched case indicate Moore, (9th 483 F.2d 1361 1973), Cir. and suspicious only who was be- an individual holding in that directly case is contrary appeared to be under the influence holding cause he by here made majority. drugs Moore, and that the search at of alcohol defendant was discovered discovery aimed toward inception attempting obviously its use false identifica- not weapons. contraband and tion and told he would not be allowed to Fern, States v. 484 F.2d 666 Lindsey, 1. See United United States v. 1973); United States v. (3d Cir. heavily All of these cases relied Cir.), (2d strong governmental pre- on the interest in the 34 L.Ed.2d 258 skyjacking. Concededly, vention of that inter- (4th Cir.), Epperson, 454 F.2d 769 applicable est is not here. 406 U.S. While plane. waiting ary board the for the will prove not to be a workable test luggage, return of his defendant became resolving problems kinds of extremely agitated, appeared to be un- Finally, future. the majority’s emphasis on drugs. Airport agents influence anonymous bomb threat raises a trou- masking tape applied noticed that had been blesome issue fully addressed in the bags around one his the key- over opinion: majority’s To what extent may a receiving bags holes of another. After his search based on Terry Ohio, left hurriedly, dropping the defendant L.Ed.2d 889 (1968), be ticket, though still refundable even on justified the basis of potentially exotic followed, calling agents they out that had dangers?2 We have obviously come a long Eventually, it. defendant in Moore was way from the simple pat-down search con- searched, stopped, posses- arrested for templated Terry to such an intrusive marijuana sion of found in his suitcase. of a invasion locked piece private lug- gage is now upheld by the majority. reversed, stating: Our court This extension of the Supreme Court’s care- a Terry “But even if ‘frisk’ were war- fully restricted Terry holding justified ranted, extend it could no further than ‘a any special not on airport status of hijack search carefully limited of the outer control but would apply as logically when- . clothing [appellant] in an anonymous ever an bomb threat has been attempt weapons to discover might busy public received building. The assault agents],’ Terry used to [the disclaimer majority’s of any attempt to set S.Ct. at rule does not soften its dramatic hardly thus could include investigation abridgement of Homburg’s Fourth Amend- contents suit- locked rights. ment I would reverse. case.” at 1363. (Emphasis supplied.) majority’s attempt distinguish grounds: Moore rests on three That in no

Moore there was indication that the sus-

pect was either or engaged in

some activity, (2) that the search, at its inception, was aimed MARTIN, Dennis G. Administrator of the discovery of toward contraband Harry Eugene Walker, Estate dangerous weapons, that there was Plaintiff-Appellee, no bomb threat Moore justifying need rapid police action. I respectfully sub- mit that of these alleged none distinctions America, UNITED STATES of any validity whatsoever. Defendant-Appellant. A comparison the facts in Moore with No. 75-2918. present those in the case demonstrate that United States Appeals, Court of Moore acted more far than erratically did Ninth Circuit. here, yet the court character- ized Moore’s conduct “no more than sus- Dec. picious.” My Id. at 1363. Brothers here Rehearing Denied Jan. describe the search Moore as “aimed to- discovery ward the of contraband.” It me, however,

seems to descrip- such a

tion can only be characterized as conclusion- emphasized,

2. As the designed knives, “[t]he guns, clubs, to discover justification present sole the search in the other hidden instruments for the assault of the protection police situation is the police 1, 29, officer.” nearby, and others and it must therefore be (1967). 20 L.Ed.2d 889 scope reasonably confined to an intrusion