United States v. Charles Phillip Homburg

546 F.2d 1350
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 31, 1977
Docket75-3769
StatusPublished
Cited by38 cases

This text of 546 F.2d 1350 (United States v. Charles Phillip Homburg) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Charles Phillip Homburg, 546 F.2d 1350 (9th Cir. 1977).

Opinions

TRASK, Circuit Judge:

Charles Phillip Homburg appeals his conviction for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and possession of cocaine in violation of 21 U.S.C. § 844. All issues presented on appeal revolve around the central question of the constitutionality of a search of appellant’s suitcase.

On September 16, 1975, appellant passed through security inspection at Western Airlines Gate One at San Diego International Airport. His carry-on suitcase was subjected to x-ray inspection and he went through the magnetometer. Just prior to his arrival at the inspection point, security officers there were notified that an anonymous bomb threat had been received at the airport.

As appellant passed through the inspection point, security officers observed a rectangular bulge in the front portion of his trousers, which he awkwardly attempted to conceal with his suitcase. Appellant asked for directions to the men’s room and an officer was instructed to follow him there. In the restroom, appellant went inside a toilet stall and the officer heard a “cracking or rustling sound, like a plastic bag or something of that nature” (R.T. at 64), coming from inside the toilet stall. Appellant remained inside the stall for about fifteen minutes. When he exited, the bulge in his trousers was gone and he was carrying his suitcase normally. Appellant then took his place in the boarding line, nervously watching security officers.

A security officer approached appellant and told him he would have to be reinspected before boarding the plane. Appellant complied and returned to the inspection area, but upon arrival indicated to the officer that he wanted to leave the boarding area. Testimony varies as to the precise words appellant used, but there is no dispute that appellant indicated that he wished to leave the boarding area and that he took a step or two in that direction before being forcibly detained. The suitcase was then opened, contraband discovered and appellant was placed under arrest. On a motion to suppress the evidence seized [1352]*1352from his suitcase, the trial court held that the search was “reasonable . . . under the general implied consent doctrine.” (R.T. at 105.)

The government argues that the search of appellant took place in what it terms a “critical zone” which it compares to a border crossing and where, it argues, “special Fourth'Amendment considerations apply.” (Brief of Appellee at 17-18.) The government submits that “once a passenger enters a secured boarding area, he relinquishes any right to leave without being searched if a security officer’s suspicions are aroused.” (Brief of Appellee at 16.) The cases the government cites come primarily from the Fifth Circuit which does appear to have adopted a view of airports as similar to border crossings and qualitatively different from the home or the street for Fourth Amendment purposes. See, e. g., United States v. Cyzewski, 484 F.2d 509, 511 (5th Cir. 1973), petition for cert. dismissed, 415 U.S. 902, 94 S.Ct. 936, 39 L.Ed.2d 459 (1974); United States v. Skipwith, 482 F.2d 1272, 1276-77 (5th Cir. 1973); United States v. Legato, 480 F.2d 408, 411 (5th Cir.), cert. denied, 414 U.S. 979, 94 S.Ct. 295, 38 L.Ed.2d 223 (1973); United States v. Moreno, 475 F.2d 44, 51 (5th Cir.), cert. denied, 414 U.S. 840, 94 S.Ct. 94, 38 L.Ed.2d 76 (1973).

While there is authority from this circuit to support the government’s view of airports generally,1 we cannot accept the government’s argument that a passenger in a secured boarding area may not, as a general proposition, leave the area rather than submit to additional searches. Such a view runs contrary to the rationale of United States v. Davis, 482 F.2d 893 (9th Cir. 1973). In that case, we held that the justification for warrantless screening searches is the implied consent of the passenger. “[A]s a matter of constitutional law,” we stated in Davis, “a prospective passenger has a choice: he may submit to a search of his person and immediate possessions as a condition to boarding; or he may turn around and leave.” 482 F.2d at 913. Davis does not state specifically that the consent to additional searches after a preliminary screening may be revoked if a passenger agrees not to board the plane. The above-quoted portion of Davis strongly indicates, however, that a party may revoke his consent to be searched any time prior to boarding the plane, even when he has passed beyond the initial screening point, if he agrees to leave the boarding area. Other decisions of this court have also recognized that a passenger always maintains the option of leaving. See, e. g., United States v. Miner, 484 F.2d 1075 (9th Cir. 1973); United States v. Moore, 483 F.2d 1361 (9th Cir. 1973). We must therefore reject the government’s view of its power to search within the boarding area as too sweeping. Since the undisputed evidence indicates that appellant wished to leave the boarding area, the trial judge erred in finding the search reasonable under the general doctrine of implied consent.

We think, however, that the search was reasonable under the principles enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Terry, as does this case, involved a necessarily swift action predicated upon on-the-spot observations of a law enforcement officer which could not be “subjected to the warrant procedure.” Id. at 20, 88 S.Ct. 1868. Terry held that searches arising under such circumstances must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures. Id. In assessing the unreasonableness of the search at issue, the Supreme Court in Terry first identified the governmental interests which allegedly justified the official intrusion upon the constitutionally protected interests of the private citizen. Id. at 23, 88 S.Ct. 1868. The Court then balanced the governmental interests identified against the invasion which the search entailed. Id. at 24-26, 88 S.Ct. 1868. In performing the balancing of interest and invasion, the Court applied an objective standard:

“[W]ould the facts available to the officer at the moment of the seizure or the [1353]*1353search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Id. at 21-22, 88 S.Ct. at 1880.

Were Terry to be confined only to street encounters, these principles would be inapposite to this case.

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