Oishi v. State

400 So. 2d 480
District Court of Appeal of Florida·Decided May 6, 1981·No. 79-1092/T4-559·Published·Cited by 4 cases

Opinion

400 So.2d 480 (1981)

Howard Takashi OISHI, Appellant,
v.
STATE of Florida, Appellee.

No. 79-1092/T4-559.

District Court of Appeal of Florida, Fifth District.

May 6, 1981.
Rehearing Denied June 18, 1981.

Richard A. Lazzara, Bennie Lazzara, Jr., and Anthony F. Gonzalez, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, Evelyn D. Golden, Asst. Atty. Gen., Daytona *481 Beach and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.

ORFINGER, Judge.

Appellant entered a plea of nolo contendere to possession of cocaine, section 893.13(1)(3), Florida Statutes (1977), specifically reserving his right to appeal the denial of his motion to suppress. We affirm.

During a routine airport boarding gate security search, the security guard[1] thought she detected a letter opener in appellant's briefcase when the briefcase passed through the x-ray machine. When a second run through the machine did not satisfy her, and after appellant denied having a letter opener, she asked appellant if she could look inside the briefcase and received an affirmative reply. Upon opening the case, she found a large manila envelope, and opening it revealed another manila envelope with the top folded down.[2] Although appellant requested the guard not to open the second envelope, she did so because she was not satisfied that a weapon was not present, and when she opened the second envelope, she discovered in it a clear plastic envelope with a white powder inside, whereupon she summoned a law enforcement officer who placed appellant under arrest. No letter opener or other weapon was found in the briefcase.

Appellant contends that the warrantless search was an unreasonable and unwarranted intrusion into his right to privacy, that there was no probable cause to search and that the search violated his right to be free from unreasonable searches and seizures as guaranteed to him by the Fourth Amendment to the United States Constitution and by Article I, Section 12, of the Declaration of Rights of the Florida Constitution.

The issues raised by appellant have been answered contrary to his position by several federal courts, but of controlling precedent here is the recent case of Shapiro v. State, 390 So.2d 344 (Fla. 1980). There, a security guard discovered cocaine in Shapiro's suitcase while conducting a security check at the boarding area of the airport. In disposing of Shapiro's contention of a fourth amendment violation, the court said:

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, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (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, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (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.
* * * * * *
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 airports, is not justifiable under the circumstances. One who enters the boarding *482 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 Shapiro 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... .

Shapiro, at 347, 348.

Sub judice, there is no allegation nor proof that the search conducted by the security guard was a pretextual search or anything other than what it purported to be; a search for weapons as a part of a routine procedure involving every passenger who boards a commercial airline. Consequently, the Fourth Amendment is not implicated here and probable cause was not requisite to justify the search.

The question remains as to how far the search at the airport security gate can go once we determine that no reasonable expectation of privacy exists and that a limited search may be made. The Fifth Circuit has held that the search may continue until the security officer is satisfied that no harm would come from the passenger's boarding the plane. U.S. v. Cyzewski, 484 F.2d 509, 513 (5th Cir.1973). Only when it becomes unreasonable for the suspect's innocence to be further questioned does the security search itself become unreasonable. Id., at 514. The Florida Supreme Court seems to have approved such an extensive search:

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.

Shapiro, at 350.

In Shapiro, the Supreme Court recognizes and quotes extensively from U.S. v. Skipwith, 482 F.2d 1272 (5th Cir.1973) and of particular note is this passage:

[I]t 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.

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