Opinion
For Opinion on Hearing, see 115 Cal.Rptr. 358, 524 P.2d 830.
Opinion on pages 128-132 omitted.
HEARING GRANTED
[108 Cal.Rptr. 787]George H. Chula, Santa Ana, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Mark L. Christiansen and Alan S. Meth, Deputy Attys. Gen., for plaintiff and respondent.
GERALD BROWN, Presiding Justice.
Frederick Weston Hyde, defendant, appeals his conviction after pleading guilty to possessing restricted dangerous drugs (Health & Saf.Code § 11910).
On December 24, 1971, Deputy United States Marshal Budd Johnson stopped Hyde at San Diego International Airport's boarding area because he fitted the F.A.A. skyjacker profile and activated the magnetometer. Johnson looked in Hyde's luggage, removed and opened a shaving kit and saw marijuana. Johnson arrested Hyde and then found restricted dangerous drugs in a search of Hyde's luggage. Hyde moved to suppress the drugs (Pen.Code § 1538.5) and to set aside the information (Pen.Code § 995). At the hearing on these motions, Johnson refused to divulge the content of the F.A.A. profile. The court determined Hyde had not consented to Johnson's search, but reasoned the search was justified and denied the motions.
The federal government's F.A.A. skyjacker profile contains statistical information describing specific characteristics of likely hijackers. The profile, to remain a useful tool in skyjack prevention, must be kept confidential (United States v. Lopez, D.C., 328 F.Supp. 1077, 1086, 1088). Hyde's attempt to elicit evidence of the profile's contents was properly denied. The relevance of the profile to his motion to suppress was doubtful, and was far outweighed by the national interest in its continued confidentiality.
Johnson's search was conducted without Hyde's consent. The marijuana and drugs taken from Hyde should be suppressed as evidence if Johnson's search was unreasonable (Cal.Const. Art. I, § 19; Pen.Code § 1538.5(a)). There is no ready formula by which to measure the reasonableness of a search, but several recognized exceptions to the general requirement of a search warrant suggest themselves here. Non-consensual searches are valid when made incident to a lawful arrest (Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685), or where there is probable cause for arrest (People v. Terry, 70 Cal.2d 410, 429, 77 Cal.Rptr. 460, 454 P.2d 36). Searches are justified by emergency circumstances, where the officer's conduct reasonably appears necessary to preserve lives, or to satisfy some other vital governmental interest (People v. Sirhan, 7 Cal.3d 710, 737-741, 102 Cal.Rptr. 385, 497 P.2d 1121). When detention of the subject is justified, a patdown search for weapons is allowed if the officer reasonably believes his own or others' safety is imperiled (Terry v. State of Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889).
Hyde activated the magnetometer when he, and his luggage, passed through it, and Johnson formed a subjective opinion Hyde fitted the profile. The facts do not constitute probable cause to arrest Hyde. Johnson's detention of Hyde as a potential passenger was warranted (People v. Botos, 27 Cal.App.3d 774, 778-779, 104 Cal.Rptr. 193). However, the search went beyond the limits of a weapons pat-down required for the protection of Johnson or the public, and may not be justified on that [108 Cal.Rptr. 788] basis. The real issue is whether the search was justified by emergency circumstances.
The People contend Johnson's search was necessary to prevent a possible aircraft hijacking. Aircraft piracy imperils both law enforcement officers and other innocent parties, and the prevention of this crime is inherently difficult. The right to be free from unreasonable governmental intrusion must be shaped by the context in which it is asserted (Terry v. State of Ohio, supra, 392 U.S. 1, 9, 88 S.Ct. 1881). Thus, while a police officer may not request consent to search without justification (People v. Henze, 253 Cal.App.2d 986, 988-989, 61 Cal.Rptr. 545), the request to search any person intending to board a commercial aircraft for weapons is justified by the dangers of air piracy (People v. Botos, supra, 27 Cal.App.3d 774, 778-779, 104 Cal.Rptr. 193). The result differs if consent is not given; a search is not justified by the threat of hijacking standing alone. When Hyde did not consent to a search, he need only have been denied passage to obviate the threat of a hijacking. When an emergency justifies a search, it may be conducted without warrant or consent. No facts demonstrating such an emergency have been shown here.
The People cite a developing line of cases interpreting Fourth Amendment requirements in light of the recent increase in air hijackings. These cases all involve searches conducted after consent was given, and are thus distinguished from this case. A recent federal case, United States v. Slocum, 3 Cir., 464 F.2d 1180, Justified a warrantless, nonconsensual search of a defendant who tripped the magnetometer after objective evidence taken in an in camera hearing showed he also fit the F.A.A. profile. Slocum was decided on the basis of an existing emergency. What seems the more logical rule was followed in United States v. Meulener, D.C., 351 F.Supp. 1284, where the court held a prospective passenger must be given the choice of consenting to a search or not boarding the plane. If the passenger chooses not to board the plane, there is not emergency situation justifying the search.
People v. Lacey, 30 Cal.App.3d 170, 105 Cal.Rptr. 72; People v. DeStrulle, 28 Cal.App.3d 477, 104 Cal.Rptr. 639; People v. Botos, 27 Cal.App.3d 774, 104 Cal.Rptr. 193.
Judgment reversed.
AULT and COLOGNE, JJ., concur.