People v. Waring

174 A.D.2d 16, 579 N.Y.S.2d 425, 1992 N.Y. App. Div. LEXIS 293
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 13, 1992
StatusPublished
Cited by4 cases

This text of 174 A.D.2d 16 (People v. Waring) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Waring, 174 A.D.2d 16, 579 N.Y.S.2d 425, 1992 N.Y. App. Div. LEXIS 293 (N.Y. Ct. App. 1992).

Opinion

OPINION OF THE COURT

Bracken, J.

The defendant argues that the warrantless search of a package, which had been seized from her person after she had attempted to smuggle it through an airport security checkpoint, was unconstitutional, and that the contraband discovered during the course of that search, therefore, must be suppressed (US Const 4th, 14th Amends; NY Const, art I, § 12; Mapp v Ohio, 367 US 643). The defendant argues that neither the consent nor the emergency exception to the warrant requirement may be applied, and that no other exception is available. As did the hearing court, we hold that neither the consent nor the emergency exception need be invoked in order to justify the warrantless search of a package, the presence of which is discovered during an airport security checkpoint search, and the contents of which, it is reasonably suspected, might include a weapon or explosives.

On December 13, 1988, at approximately 5:00 p.m., the defendant presented herself at a screening point located within the Delta Airlines terminal at LaGuardia Airport in New York. The defendant passed routinely through a magnetometer, that is, an "archway which [detects] any metal”. The magnetometer was activated upon the defendant’s first passage through. After she had been given two opportunities to remove various metal objects from her person, the defendant passed through the magnetometer a second time, and then a third time, and the magnetometer was activated on each try.

The defendant then consented to undergo a manual search, which was conducted by a private security guard with the use of a "hand wand”. During the course of this manual search, a Port Authority police officer observed a bulge under the defendant’s sweater, protruding from the small of her back. The officer, alert to the "possible risk of a bomb [or] a gun” conducted an immediate pat-down search and recovered a package which was approximately six inches by five inches by three inches in size.

After the seizure of the package, the defendant consented to accompany the officer to a security room. The defendant initially claimed that the package contained money which belonged to another individual, and that she had been in[18]*18structed to allow no one to open it. The package was placed on a table in the security room while a further hand search of the defendant proved to be negative for weapons.

A second police officer arrived at the security room sometime later. This officer requested permission to open the package. Although the present record supports the conclusion that the defendant, after an initial refusal, gave her consent, the hearing court, in its decision, made no express finding that the defendant in fact consented to the opening of the package. The search of the package revealed the presence of a white powdery substance which a field test proved to be cocaine, and was followed by the defendant’s arrest.

The hearing court denied a subsequent motion to suppress the cocaine and statements made by the defendant to the Port Authority police officer. As noted above, the court did not expressly rely on the consent exception to the warrant requirement, although the weight of the evidence would have supported a conclusion that the search of the defendant’s package was legal for this reason. Nor did the court find it necessary to determine whether "the facts as they unfolded were sufficient to establish the emergency exception [to the warrant requirement]”. Instead, the hearing court essentially held that the search of the defendant’s package was lawful because it was reasonable under all of the circumstances (citing United States v Edwards, 498 F2d 496 [2d Cir]; United States v Albarado, 495 F2d 799 [2d Cir]; United States v Kroll, 481 F2d 884, 886 [8th Cir]; United States v Mitchell, 352 F Supp 38 [ED NY], affd 486 F2d 1397).

On appeal, the defendant argues that the fact that the search of her package might have been reasonable under all of the circumstances does not render it lawful. She argues that the consent exception to the warrant requirement is unavailable because the People failed to urge this theory in the Supreme Court and because the Supreme Court itself did not rely on this theory. She also argues that the emergency exception is inapplicable (see generally, People v Mitchell, 39 NY2d 173, 177-178, cert denied 426 US 953; People v Smith, 135 AD2d 190). Because we agree with the analysis employed by the hearing court, we affirm.

The defendant is incorrect in asserting that the present search may be upheld only by application of either the consent or the emergency exception to the warrant requirement. The rules which define the extent of those two exceptions to [19]*19the warrant requirement have broad applicability to all persons or places searched and to all persons or things seized. It is clear from a review of the relevant case law that searches and seizures which occur at airport security checkpoints are to be examined in light of special rules which have evolved in response to the "jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane” (United States v Bell, 464 F2d 667, 675 [2d Cir, Friendly, Ch. J., concurring], cert denied 409 US 991). Searches which occur at airport security checkpoints are not, in other words, governed by the same standards as would be applied to searches conducted on the street, or in any other public or private place.

Courts have approved of the searching of carry-on luggage and the frisking of airline passengers on several theories. One theory is premised on the view that any passenger who attempts to board an aircraft or to enter a "sterile” area within an airport, implicitly consents to a full search of his or her person and effects. Pursuant to this theory, a search of carry-on luggage may be justified even in the absence of any reasonable suspicion, much less probable cause, to believe that the package in question might contain a weapon (see, e.g., People v Heimel, 812 P2d 1177 [Colo]; State v Kelsey, 67 Ore App 554, 679 P2d 335; cf., State v Wiley, 69 Haw 589, 752 P2d 102; State v Salit, 613 P2d 245 [Alaska]). This implied consent theory evolves naturally from the simple realization that " '[i]t is common knowledge that all airline passengers and their luggage are subject to being searched’ ” (People v Brown, 113 AD2d 893, 894, quoting People v Price, 54 NY2d 557, 563; see also, People v Ross, 157 AD2d 808).

Another theory is premised on application of the administrative search exception to the warrant requirement (see, e.g., United States v $124,570 U.S. Currency, 873 F2d 1240 [9th Cir]; United States v Davis, 482 F2d 893; State v Cornwall, 810 P2d 484 [Utah]; State v Wiley, supra; State v Salit, supra). This theory is founded on the fact that Federal regulations (see, e.g., 14 CFR 107.1 et seq.; see also, 14 CFR 121.538) require airport operators to maintain appropriate security programs (see, People v Heimel, supra).

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Cite This Page — Counsel Stack

Bluebook (online)
174 A.D.2d 16, 579 N.Y.S.2d 425, 1992 N.Y. App. Div. LEXIS 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-waring-nyappdiv-1992.