Kolovsky, Fritz and Crane. The opinion of the court was delivered by Kolovsky, P.J.A.D.
The State appeals, upon leave granted, from an order suppressing evidence found on defendant's person when he was frisked by a deputy United States marshal at the boarding area at Eastern Airline Gate 14 of the Newark Airport and evidence thereafter found when the attache case he was carrying was opened.
We reverse because we are satisfied that the marshal acted reasonably and lawfully in conducting a pat-down of defendant and then in placing him under arrest and searching his attache case when the pat-down disclosed incriminating evidence.
It is uncontradicted that the marshal was stationed in the boarding area in furtherance of the "anti-hijacking" program developed by the Federal Aviation Administration (F.A.A.). The F.A.A. program has uniformly withstood constitutional challenge. See United States v. Slocum, 464 F. 2d 1180 (3 Cir. 1972); United States v. Lopez, 328 F. Supp. 1077 (E.D.N.Y. 1971).
The program contemplates an initial screening of passengers by airline personnel to see whether they exhibit characteristics included within the "profile" of potential hijackers developed by the F.A.A. through the utilization of statistical, sociological and psychological data and techniques. If a passenger conforms to the profile, the airline personnel alert a deputy United States marshal or other personnel in the boarding area of the presence of a "selectee."
In the boarding area is installed a magnetometer, an electronic metal detector, through which all passengers must
pass. A passenger who matches the profile and who causes the magnetometer to light up, thus indicating the presence of metal on his person, is interviewed by the marshal. If the interview is less than satisfactory, the program calls for a frisk or pat-down by the marshal, either with or without the passenger's consent. (For a fuller description of the F.A.A. program, see United States v. Slocum, supra, and United States v. Lopez, supra.)
Courts which have dealt with challenges to searches of airplane passengers who have entered the boarding area of airports have taken varying approaches in ruling on the validity of the search.
In United States v. Skipwith, 482 F. 2d 1272 (5 Cir. 1973), defendant, who had a ticket bearing the name "S. Jackson," had been detained by airline personnel at a boarding gate of the Tampa airport "because he met the F.A.A. anti-skyjack profile and stated he had no identification." A deputy United States marshal was called in. When the marshal insisted that defendant produce his wallet, defendant admitted that his name was Skipwith, saying that S. Jackson was his "traveling name." Defendant was ordered to a private office. On the way there, another marshal called to the first marshal's attention a visible bulge about three inches long and two inches thick in defendant's right front trouser pocket. The wallet, when examined in the office, contained identification papers with the name "Skipwith." According to the marshal, defendant "was very nervous and appeared to be under the influence of either alcohol or some other drug." Defendant was ordered to stand up and empty his pockets. The search revealed a plastic bag containing powder later identified as cocaine. In upholding the validity of the search, the court, after noting the distinctive considerations applicable to a search in the general airport area (see United States v. Moreno, 475 F. 2d 44 (5 Cir. 1973)) and a search in a boarding area, said:
* * * Because of the widespread publicity given to the government's efforts to cope with the piracy of aircraft, it was general knowledge that citizens boarding planes were subject to special scrutiny and to weapon searches. Unlike Moreno or Legato [United States v. Legato, 480 F.2d 408 (5 Cir. 1973)] the officer did not go to Skipwith and stop and search him at a point where such a procedure was extraordinary or unexpected. Rather, Skipwith came to the specific part of the airport where he knew or should have known all citizens were subject to being searched.
Since Skipwith exhibited characteristics which corresponded to the F.A.A.'s likely skyjacker profile, it may be that this was all that was needed to validate his detention and search here. Undoubtedly this profile, developed from a distillation of characteristics attributable to previous skyjackers, is a valuable and useful tool in the hands of the airport security officers. However, the factual matrix of the case at bar makes it unnecessary for us to decide whether an airport search based on the profile alone would satisfy the test of reasonableness in all cases.
The government contends that, in light of the magnitude of the perils created by air piracy, searches of boarding passengers are controlled by the same standard applied to customs searches at the national border -- mere or unsupported suspicion. [ United States v. McDaniel, 463 F. 2d 129, 132 (5 Cir. 1972)] Bitter experience has taught us that the physical dangers of mass kidnapping and extortion posed by air piracy are even greater than the dangers against which the usual border search is directed. Necessity alone, however, whether produced by danger or otherwise, does not in itself make all non-probable-cause searches reasonable. Reasonableness requires that the courts must weigh more than the necessity of the search in terms of possible harm to the public. The equation must also take into account the likelihood that the search procedure will be effective in averting potential harm. On the opposite balance we must evaluate the degree and nature of intrusion into the privacy of the person and effects of the citizen which the search entails. [at 1274-1275]
Our conclusion, after this tripartite weighing of the relevant factors, is that the standards for initiating a search of a person at the boarding gate should be no more stringent than those applied in border crossing situations. In the critical pre-boarding area where this search started, reasonableness does not require that officers search only those passengers who meet a profile or who manifest signs of nervousness or who otherwise appear suspicious. Such a requirement would have to assume that hijackers are readily identifiable or that they invariably possess certain traits. The number of lives placed at hazard by this criminal paranoia forbid taking such deadly chances. * * * [W]e hold that those who actually present themselves for boarding on an air carrier, like those seeking entrance into the country, are subject to a search based on mere or unsupported suspicion. [at 1276]
* * * The logic which supports the application of this border search distinction to the standards governing airport searches is readily apparent. The public is assured that the net can sweep no wider than necessary since the broad right to search is limited to the last possible point in time and space which could protect the aircraft, the boarding gate (or secure corridor entrance). Thus, no mere passerby will be subjected to this search -- only those in the act of boarding planes could be involved. * * *. [at 1276-1277]
In United States v. Bell, 464 F. 2d 667 (2 Cir. 1972), the court sustained the denial of a motion to suppress evidence, a bundle of glassine envelopes containing heroin found in defendant's raincoat pocket after the marshal who patted down defendant felt "hard objects about four or five inches long" in the pocket. Although the three judges who decided the case agreed on the result, the majority ...