United States v. Vinicio E. Ruiz-Estrella

America, UNITED STATES Appellee, RUIZ-ESTRELLA,

Vinicio E. Appellant. 73-1007. Docket

No. Appeals,

United States Court

Second Circuit.

Argued April 1973.

Decided June

gun de- exclusion of public portion of from a fendant and hearing. the rea- For below, sons we reverse the court. the district I. background may quickly facts day question,

summarized. On serving the ticket was David Falen checking agent Airlines, National for flight. passengers’ for tickets the Miami counter, of his ticket the location boarding general area, there were reading posters “It as follows: several Carry crime is a to: concealed Federal weapons aircraft Interefere with aboard Phylis Bamberger, York Skloot New Passengers flight crews City Legal (Robert Kasanof, The Aid subject Laws to search under: Federal Society, City), appellant. New York for Regulations.” Safety and FAA Raymond Atty. Dearie, U. S. J. Asst. hijacking “pro- Pursuant FAA (Robert Morse, Atty., A. E. N. U. D. S. file,” identified Falen Ruiz-Estrella as Y., Atty., Sheridan, L. Kevin Asst. U. S. sought the latter to check counsel), appellee. for flight.1 in for Miami Falen marked appellant’s accordingly, ticket and then SMITH, Before and TIM- HAYS identification, pro- BERS, Judges. asked for which was Circuit book, in the form of a social duced bank Judge: SMITH, security card, JOSEPH J. union Circuit card. presents This case lo- us with distress- Falen directed to the seat ingly possession gate familiar situation —the counter and He then cation area. dangerous agent, weapon by attempt- Angielski, gate of a one notified David ing May 17, approach- to board an airliner. On that a “selectee” was prepar- ing. prearranged Vinicio was Ruiz-Estrella In accordance with a Angielski appellant’s signal, board a Miami-bound National turned over flight Kennedy LaSota, Airlines at John In- a uniformed fed- F. ticket to John Airport. sky ternational A federal mar- eral marshal. bag shopping shal searched the he for Ruiz-Estrella then asked LaSota carrying, sawed-off found a He was not satisfied identification. shotgun inside. After unsuccessful an book, since it with the bank had attempt suppress before evidence it, identifying re- and lacked name on ludge Neaher in the District of Eastern marks or address. LaSota then took an York, stipulated New the end of into a stairwell at suppression hearing the minutes of the boarding ramp, and the door closed might serve as trial those of a He asked for further behind them. court, and was convicted fire- of various identification, and was handed the social arms offenses. security former and union cards. The it, major questions typed presented Ruiz” on for re- had name “Vinicio Ruiz-Estrella”; signed view center on the seizure of the but “Vinicio shot- Airport background pro Downs, 1. Tlie factual Seizures— of both Searches and general Approach, anti-hijacking system file and the L. 41 Fordham A Reasonable Note, Airport (1972); described detail States v. 301-06 Rev. Security 1082-1092 Searches Fourth (E.D.N.Y.1971). MeGinley Amendment, See & 1038-40. also 71 Colum.L.Rev. strong policy emphasized first name “Vincent.” We the latter bore the thought discrepan- confidentiality these such circum- behind LaSota stances, cies, if the iden- admitted that even and noted that letter-perfect, surely involved, impor- defendant while tification had been sought tant, to exam- have were not absolute. nonetheless would emphasizing shopping the limited ine the nature carrying. involved, exclusion we the procedure employed camera in Bell. [ap- him Consequently, “told LaSota go pellant] to Clark, he would have v. F.2d States 475 3 again (2d baggage 1973), handed search.”2 240 Cir. we faced the appeared problem excluding shopping bag, over the of a defendant from glance toys. hearing. suppression upon filled with the The de- first to be Clark purportedly fendant, up however, con- picked a box had been excluded LaSota hearing, just the taining toy truck, from and found that the entire the heavy. portion dealing unexpectedly Before limited with the secret box was profile. emphasized putting down, ap- that he further noticed We the that proval original cellophane wrapping procedure on the of the in camera retaped. exigencies opened package had been limited had been hand, e., opened protection i. the shot- He the box and found the secret profile. along gun, shells inside.3 exclusion with several from parts hearing those of the that dealt II. subjects with other was held to be an abridgement rights undue point appeal of con- con The first raised public suppression frontation trial. In view of cerns conduct govern rights, hearing. basic nature of re- those we the first Falen was hearing. versed the of conviction. ment at that Pursuant witness District, practice in the Eastern holding in Clark mandates rever- see United v. 328 States Only. portion sal here. a small (E.D.N.Y.1971); 1077 thirty pages transcript covering Fa- Bell, (2d Cir.), F.2d de 464 667 cert. testimony len’s is devoted to the secret nied, L. 34 U.S. profile. agent Bell, Unlike the ticket government Ed.2d independent who had no recollection of moved to exclude the defendant and testify only the defendant and could as public during from the courtroom Fa general practice, specifically to his Falen testimony, len’s which was to deal with happened here, remembered what had “profile.” the secret Defense counsel probably suppression because hear- objected on “the confrontation ing was held within about two months Amendment,” Sixth but the motion was incident, day’s and described the granted, and the courtroom cleared. events in some detail. Bell, supra, government candidly In United States v. conced argument held we that the exclusion of the defend ed at oral the exclusion public portion ant “technically” violates the Clark suppression hearing dealing However, correctly noting with rule. necessarily hijacking “pro Clark confidential involved a defendant who ex abridged file” neither cluded hearing, from the entire to con while public frontation nor to a trial. here was excluded cross-examination, Upon subsequent 2. questioning On LaSota testified FBI, lie “asked” Ruiz-Estrella to submit admitted he had bought shotgun For reasons which and sawed off its spell part infra, we out detail III A barrel. He said that he had intended unnecessary liquor we find it Miami, this to rob resolve store and then apparent inconsistency, Domingo. or even to decide flee to his native Santo inconsistency whether an exists. urges III. testimony, Falen’s to be harmless error find that we im- had not been Even if assuming arguendo that Even nature. portions properly excluded from fundamental such denials of hearing, nonethe- we would confrontation trial those reverse the convic- less be constrained to harmless, see deemed can ever tion here. have concluded Crutcher, F.2d United States seizure of search of 1968), (2d 394 U. Cir. shotgun by sky marshal, under 1018, 22 L.Ed.2d 219 S. case, particular circumstances (1969); rel. Bennett ex United States the Fourth under cannot be 1969) Rundle, 599, 608 Cir. 419 F.2d Amendment. States, (en Tanksley banc); v. United outset, patent At the think it 58, 59, (9th Alaska predicated upon the seizure here was not 1944); States, F. v. United Davis showing indeed, probable a of 394, (8th 1917), are unable cause — we 398 government the does not so contend. tes to so in this case. Falen’s conclude argument at conceded timony of a multitude here covered provided that Ruiz-Estrella no one with scope points far outside the confidential any suspicious him reason to be of at profile. alia, he Inter maintained airport; the Falen so testified spe that he had “a recollection of this hearing. sure, suppression the To be incident,” type cific in detail the recalled hijacking pro did fit pro of identification that Ruiz-Estrella file, one this sta but no contends that duced, placement testified of about Judge survey, tistical which Weinstein posters, remembered that Lopez identifying in described as an carrying shopping was a and that time, armed individual about contents, he had observed its and testi 6% F.Supp. 1097, 328 close to at can come suspicious fied that not did act supplying probable for traditional cause accompanied girl way, by was Meule v. See luggage, carried no was the who and ner, (C.D.Cal.1972). 351 1284 only day. selectee that jus Thus, light if the seizure be In the rather substantial tified, theory other than Fourth testimony wholly amount of unrelated to probable Amendment cause will have recognized employed. hearing, were barred from we are Bell, supra, the seizure unable to conclude that the error here person beyond from the of a selectee narcotics “harmless reasonable Terry doubt,” Chapman California, there the rationale of under 386 U.S. 1868, 18, 23, Ohio, 1, L. 88 20 392 U.S. 824, 87 S.Ct. 17 L.Ed.2d S.Ct. (1967). (1968). Bell, Ed.2d In With such fundamental consti profile, stake, particularly met the had ac tutional had but magnetometer passed he view tivated a fact hearing it, supply any in this was unable to case served as a trial on identification, merits, infor “any and volunteered the we cannot exclude rea just possibility prejudice sonable mation that he “had been released from de absence,” he out on fendant’s Peterson from the and that Tombs v. United States, 1074, (8th attempted Cir.), bail for murder and narcotics light charges,” 920, 247, 464 F.2d at 668-669. In U.S. 90 S.Ct. (1969), circumstances, we held that L.Ed.2d 199 or from of those that of public. reasonably acted conduct we hold marshal clothing” excluding ap the district court erred in of outer a “limited search pellant suspect, per testimony, from all of order to avoid Falen’s danger the air and that to himself and conviction ceived line-traveling public. must reversed. Id. at 673-674. Judge Friendly concurred, justified by Chief Ruiz-Estrella’s consent. great Supreme went further. Because of the recently dan- Court has had oc- ger property posed by casion, to human life and Bustamonte, in Schneckloth v. hijacking threat, 218, suggested U.S. 2041, he 2045, S.Ct. 36 L. Ed.2d 854 to undertake a com- danger “the alone meets the test of prehensive subject review of the of con- long reasonableness, so as the search began sent searches. The Court from good pur- is conducted faith for the proposition prosecu- “[w]hen pose preventing hijacking like or rely upon tor justify seeks to consent damage scope with reasonable search, the lawfulness of a he has the given has been advance proving burden of was, consent liability notice of his to such a search fact, freely given.” voluntarily choosing by so can avoid 222, 2045, quoting Id. at 93 S.Ct. at by to travel Id. air.” at 675. Bumper Carolina, North 391 U.S. panel Neither written opinion, 20 L.Ed.2d 797 Judge Mulligan, Judge Mansfield, nor (1968). question While of volun- separately, who concurred found it nec- tariness is one that must be resolved essary conclusion, to reach a and hence through an totality examination of “the Judge Friendly’s theory deferred for an- [surrounding] of all the circumstances,” day. other id. at Court Clark, emphasized the frisk emphasized prosecution’s bur- only by in Bell had been showing by only den could not be met peculiar circumstances that ease. We acquiescence to a claim of lawful author- note, went to F.2d at 475 247: ity. 2041; Bumper, Id. at 93 S.Ct. proof compelling “Absent of similar supra, 548-549, 391 U.S. at circumstances or that Clark voluntari- 1788. ly intelligently consented to the sure, adopt To be the Court refused to search, opening and examination requiring prosecution a rule bag of Clark’s would in our view show, prerequisite as an absolute to a justifiable only upon showing a theory, suspect consent knew right he was aware that he had a right his to refuse the search. it But refuse to be searched if he should note, did as did court this choose not to board the aircraft. See Mapp, States v. 476 F.2d 77 Bell, supra, 464 F.2d knowledge that absence of such is one (concurring opinions 676 factor to be considered on the issue of Judge Friendly Judge Chief the voluntariness of a consent Mansfield); United States v. Meule- And, Court, refusing place while ner, F.Supp. (C.D.Cal.1972); what it termed “artificial restrictions” cf. Slocum, United States v. upon searches, consent stressed 1972).” approve such without '[t]o searches scrutiny most inquiry case, then, The careful would this sanction is a tri- possibility partite of official one. coercion.” We must 412 U. consider whether S. at (1) seizure here is either theory; (2) on a consent because inquiry necessarily Since focuses great danger hijacking and because given case, on the facts of it is to a Ruiz-Estrella knew he could avoid those at hand must now turn which we by boarding plane; search or scrutiny.” the mandated “careful Given (3) compelling “similar circum- specific setting factual adduced at stances” to those in Clark. hearing below, are unable to con- government clude met its has A. proving voluntarily freely burden of government urges strongly given consent, implic- absent the taint of shotgun the seizure of the official coercion. True, did hand over the much closer a traditional custodial bag marshal; sky away it was not situation. was taken against stairwell, wrenched from his hands his into areas conduct, admittedly him, will. But this door was closed while behind gov- relevant, will not suffice to meet the Ruiz-Estrella and the marshal were present. particular facts, ernment’s burden this Wheth- case. Under these adopt theory er we has no more shown than go through acquiescence apparent was told “he would have to lawful authori- (as ty, theory search” LaSota stated on consent cannot be direct), accepted. supra, F.Supp. or that he was “asked” to sub- See (as mit to such a search was testified on at 1093. See also United States v. Al- cross), len, (N.D.Cal. is of little The “re- moment. quest” place 1972).4 agent, took after the attired in a uniform badge, took Ruiz-Es- boarding away area, B. trella from the into stairwell, and closed the door behind then, We move on to Chief suspect, them. The fact that a who has Judge Friendly’s theory, lim that a right not been warned of his to refuse airport justified by ited search is search, silently hands over his danger long alone, as as the defendant is support such circumstances will not ability aware his to avoid the search given freely inference of consent. by refusing to board the Even aircraft. It is instructive to contrast the situa- assuming arguendo the correctness Bustamonte, tion here with theory,5 majority which the Bell did Supreme Court state adopt, the facts here do not amount finding There, court of voluntariness. showing [appellant] to “a that he permission to search was elicited aware that he had a to refuse to from an in the automobile be searched if he should choose not to presence companions, of five other aircraft,” Clark, supra, board the roadside encounter that was character- quite F.2d at 247. The record makes it “congenial.” Indeed, ized as even the agent, clear that neither the ticket the driver of the car the testified that as- boarding agent, nor the marshal given. freely sent to the search was made Ruiz-Estrella aware of such Supreme The Court that “the stressed option. environment” in which the consent took posters upon Nor can the be relied for being coercive,

place inherently was not showing. putting such a Even one to “interrogation cry a far from custodial government’s side the concession at ar- Id., in some remote station house.” 412 gument rely that it does not at all 36, at U.S. 247 and n. 93 S.Ct. at 2058 posters case,6 in this it is clear that the Here, posters environment which passengers do not alert to their police place questioning took ability refusing comes by to avoid search to posting signs 4. Nor would the mere Terry general consistent with both airport govern principles. seem to meet Fourth Amendment See Mc- showing Ginley Downs, supra ment’s 1, burden voluntariness. & n. 41 Fordham Meulener, 1288; supra, F.Supp. at Note, Airport at L.Rev. 315-16. Se- Cf. Lopez, supra, curity 1092. We Searches and the Fourth Amend- question case, ment, supra 1, need not reach that in this n. 71 Colum.L.Rev. however, 1049-50, suggesting conditioning since maintained that ex- apparently argument, upon at oral an at ercise of the to travel relin- tempt quishment to minimize the difficulties aris of Fourth Amendment testimony, constitutionally impermissible. from Falen’s camera is In view rely presence upon disposition express that it did ease, of our of this we posters. warning no views on the merits of either of thene contentions. 5. At least two commentators have viewed Judge Friendly’s 4, supra. Bell concurrence as in- 6. See note single reasoning magnetometer Indeed, there was but had board. used, posters activated, been in the en- have brief reference to would been hearing, acting simply so we would tire marshal was as magnetometer” be loathe to infer from that “human opened bag. appellant’s had had seen them and taken But such a con apprise ability only ignores prin him of his clusion not them to settled ciple justi the merits of avoid search. that searches are not Whatever Judge concurrence, Friendly’s they up, it is fied Ohio, Bell what turn Beck factually inapplicable 223, 89, here. 379 U.S. 13 L.Ed.2d 142 it also much of misconstrues C. There, empha what we said in Bell. we magnetometer sized use of a is then, question The final is “a reasonable caution” in justified view whether seizure can be magnitude of the in societal interests less-than-probable on the cause stand per volved and the absence of “the Terry Ohio, upon ards which we indignities sonal 464 F.2d frisk.” Bell, relied in Bell. In have noted we Slocum, at 673. above, present States v. we number of found Cf. 1972); 1180, facts,” Terry, “specific and articulable Epperson, supra, F.2d 769 392 U.S. at S.Ct. (4th Cir.), justified 406 U.S. L.Ed.2d mar (1972). danger. suspicion suspect 32 L.Ed.2d shal’s quite privacy profile, minimal invasion of met also magnetometer magnetometer, involved in use of produced activated a no precisely identification, and admitted to a recent factor recommends use; light history. logic its broad the same cannot serious criminal of all factors, employed justify pat- necessarily these we found the limited objects passenger more down frisk of the to be reason intrusive search for device, able, initially might employed, if introduction into have evidence contraband found revealed.

that frisk. today decide, We need not as the opinion Clark Our noted that we Epperson, supra, Fourth did in Circuit require compelling would “similar cir whether the frisk of a can be justify opening cumstances” mag solely through use of the bag. passenger’s examination of a however, note, netometer. We do patent think it that such circumstances regard case, facts do not here neither exist. Ruiz-Estrella activated the second device a passed nor activated removing time after several metal ob r,7 magnetomete and conceded that jects person, presenting from his as nothing period he did all at compelling far more situation than question that could be construed Similarly, one at hand. de need worst, suspicious in nature. At he met precise quantum “specific cide what of produced profile marginally and con suspect and articulable facts” about fusing identification, any and reliance necessary, and his behavior are either negatived latter factor must be themselves, and of see United States v. by the candid admission that marshal’s Moreno, (5th Cir., 1973); 475 F.2d 44 the identification was irrelevant Lindsey, v. intended (3rd 1971), Cir. 405 U.S. sought 1270, judge L.Ed.2d

The district to meet this 92 S.Ct. conjunction Terry absence of facts” with use “articulable apparently metal-deteeting incidents There was no both of which involved airport magnetometers present gate particular were where device same place. Compare present, where this incident took the fact situation Riggs, contrary, profile, 474 of evidence to the I see United States v. would hold 1973), or in con- consented to the search of F.2d luggage. junction the combined use of his with Slocum, magnetometer, su- very recent case of Schneckloth Terry pra; Lopez, supra, meet the Bustamonte, 412 U.S. dealing Especially standard.8 with (1973) support to 36 L.Ed.2d 854 lends concept sus- as elusive as “reasonable this conclusion. There the Court said at necessity picion,” inquiry will p. 248, p. 93 S.Ct. at 2059: case-by-case Compare Terry with one. question is a fact “Voluntariness York, 40, 64, Sibron New 392 U.S. the circum- be determined from all (1968). 20 L.Ed.2d 917 We stances, subject’s knowl- and while the only particular hold that under the facts edge factor to of a to refuse is a case, did noth- of this account, prosecution be taken into suspicious all and did not activate required is not to demonstrate such magnetometer, Terry rationale knowledge prerequisite to estab- as a bag. support the of his search will lishing voluntary consent.”

IV. thus conclude that the seizure of shotgun here cannot un- rationale, applicable der particular suppress,

the motion to on the granted. shown,

facts should have been concluded, for the

We have also reasons II, supra, part

noted in the exclu- public sion INC., DISTRIBUTORS, MIDLAND hearing part Plaintiff-Appellant, judg- inwas error. ment of the district court is reversed. America, UNITED STATES Defendant-Appellee. HAYS, Judge (concurring Circuit dissenting): No. 72-3019. agree majority I with the this Appeals, States Court However, must be reversed. I Fifth Circuit. opinion concur of the court July 11, 1973. respect

with to the exclusion of the de- portion fendant and the from that suppression hearing during agent

ticket Falen testified to material “profile”

unrelated to the FAA material. ap- I believe that the search which

pellant complains case

lawful because the consented highly It is it. unrealistic to believe

that this was not aware that plane

if his not to board chose

baggage If would not be searched. thought passengers

was ever true that

their would be searched wheth- they plane,

er or not boarded the long

day past. In the absence since Meulener, supra, 8. But see who both met suppressed magnetometer. court obtained evidence activated luggage search of the

Case Details

Case Name: United States v. Vinicio E. Ruiz-Estrella

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 11, 1973

Citation: 481 F.2d 723

Docket Number: 784, Docket 73-1007

Court Abbreviation: 2d Cir.