                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-31-2006

USA v. Hartwell
Precedential or Non-Precedential: Precedential

Docket No. 04-3841




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                                        PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 04-3841


                      UNITED STATES

                              v.

                  CHRISTIAN HARTWELL,

                                   Appellant



   ON APPEAL FROM THE UNITED STATES DISTRICT
                    COURT
   FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                  (Dist. Ct. No. 03-CR-00384)
           District Court Judge: Hon. Jan E. DuBois


                    Argued: May 24, 2005


          Before: SCIRICA, Chief Judge, ALITO and
                  RENDELL, Circuit Judges

               (Opinion Filed: January 31, 2006)



Albert J. Raman (argued)
913 Public Ledger Bldg.
Sixth and Chestnut Streets
Philadelphia, PA 19106
Counsel for Appellant
Patrick L. Meehan
Laurie Magid
Robert A. Zauzmer
John N. Joseph (argued)
United States Attorney’s Office
615 Chestnut St., Suite 1250
Philadelphia, PA 19106

Counsel for Appellees



                   OPINION OF THE COURT


ALITO, Circuit Judge

       Christian Hartwell set off a metal detector at a security
checkpoint in an airport. Transportation Security Administration
(“TSA”) agents then used a magnetic wand to pinpoint any metal
on his person. They detected something in Hartwell’s pocket and
asked to see it. Ultimately, they discovered that the object was
crack cocaine and placed Hartwell under arrest. Hartwell argues
that the drugs should have been suppressed because the search
offended the Fourth Amendment.1 We hold that it did not.



                                I.



       1
         Hartwell also appeals the District Court’s decision that he
was not eligible for a safety valve departure at sentencing. We
reject this claim because Hartwell waived his right to appeal the
issue, and he said he understood the waiver at his plea colloquy.
Cf. United States v. Khattak, 273 F.3d 557, 561 (3d Cir. 2001) (“If
done knowingly and voluntarily, a statutorily created right to
appeal is generally held to be waiveable.”).


                                  2
       Hartwell arrived at the Philadelphia International Airport on
Saturday, May 17, 2003, intending to catch a flight to Phoenix. He
reached the security checkpoint, placed his hand luggage on a
conveyor belt to be x-rayed, and approached the metal detector.
Hartwell’s luggage was scanned without incident, but he set off the
magnetometer when he walked through. He was told to remove all
items from his pockets and try again. Hartwell removed several
items—including a large quantity of cash—from his pocket, and
passed through again.

       Transportation Security Administration agent Carlos
Padua took Hartwell aside after he passed through the metal
detector a second time.2 Padua used a handheld wand-like
magnetometer to discover what set off the metal detector. The
wand revealed a solid object in Hartwell’s cargo pants pocket.3
Padua asked what it was, but Hartwell did not respond.

       What occurred next is the subject of some dispute. Hartwell
claims that he was escorted to a private screening room near the
checkpoint, where he refused Padua’s repeated requests to reveal
the contents of his pocket. Frustrated by Hartwell’s unrespon-
siveness, Padua eventually reached into Hartwell’s pocket and
pulled out a package of drugs. He immediately called the
Philadelphia police, who searched Hartwell, found two additional
packages of drugs and about $3000 in cash, and promptly arrested
him.

       The government claims that neither Padua nor the police
officer ever reached into Hartwell’s pocket without his consent.
According to Agent Padua, the following occurred. After


       2
        The parties disagree about what happened as Hartwell
passed through. The government claims that he did not set off the
alarm, while Hartwell says that he did.
       3
        The parties also disagree as to how the wand detected the
item. Hartwell says that the wand beeped as it passed over his
pocket. Agent Padua avers that the wand did not beep, but that it
accidentally bumped into a solid object as it passed by Hartwell’s
pocket.

                                 3
requesting private screening, Hartwell refused several requests to
empty his pocket, nervously backed away from Agent Padua while
he was being questioned, and suddenly dropped his pants. This
suspicious behavior prompted Padua to call for backup. A police
officer arrived and asked Hartwell to remove any items from his
pocket, and Hartwell complied by handing over one package of
drugs. He then feigned falling to the floor and dropped a second
package of drugs.

        The District Court found it unnecessary to resolve these
conflicting accounts, finding that the search was justified based on
undisputed facts. In particular, the Court observed that “[t]here is
no dispute that defendant triggered the magnetometer at least once
and that Padua attempted to resolve the alarm through the use of
the wand.” United States v. Hartwell, 296 F. Supp. 2d 596, 603–04
(E.D. Pa. 2003). The Court also noted that Hartwell “does not
dispute that he was instructed to remove all metal objects from his
person prior to each screening and that he was specifically
requested to remove the items in his lower pocket several times.”
Id. at 604. In the District Court’s view, these circumstances
justified the officers’ behavior, regardless of whose version of the
rest of the story was true. “Whether defendant voluntarily
produced the drugs or whether defendant was frisked,” the Court
stated, “the search was reasonable under the Fourth Amendment.”
Id. at 603.

        Although the District Court had no difficulty reaching this
result, it recognized that courts have not settled on a single
framework for analyzing warrantless searches at airport
checkpoints. The Court therefore considered three separate
justifications for Hartwell’s search, and found each sufficient. The
Court first held that the search passed muster under the Fourth
Amendment’s “general proscription against unreasonable searches
and seizures.” Id. at 602 (quoting United States v. Albarado, 495
F.2d 799, 804 (2d Cir. 1974)). See also United States v. Lopez,
328 F. Supp. 1077 (E.D.N.Y. 1971). The Court next sustained the
search under the theory that it was a “consensual administrative
search[].” Hartwell, 296 F. Supp. 2d at 602 (citing United States
v. Davis, 482 F.2d 893 (9th Cir. 1973)). Finally, the Court stated
that “by submitting to the screening process, defendant impliedly
consented to the search and was lawfully required to complete the

                                 4
search to determine the cause of the alarm.” Hartwell, 296 F.
Supp. 2d at 605. On appeal, Hartwell argues that all three
rationales are unfounded. We disagree.

                                II.

       We hold that the search was permissible under the
administrative search doctrine. Cf. United States v. Marquez, 410
F.3d 612, 616 (9th Cir. 2005) (“Airport screenings of passengers
and their baggage constitute administrative searches and are subject
to the limitations of the Fourth Amendment.”). Finding this
rationale sufficient, we deem it unnecessary to evaluate the District
Court’s alternative holdings on generalized reasonableness and
implied consent.

       The Fourth Amendment provides:
       The right of the people to be secure in their persons,
       houses, papers, and effects, against unreasonable
       searches and seizures, shall not be violated, and no
       Warrants shall issue, but upon probable cause,
supported by Oath oraffirmation, and particularly describing the
place to be searched, and the persons or things to be seized.

U.S. Const. Amend. IV. This provision limits government action
in two ways. First, it requires that searches and seizures be
reasonable, and second, it states that when a warrant is
required—in circumstances not explicitly defined by the text— it
must have certain characteristics. See California v. Acevedo, 500
U.S. 565, 581 (1991) (Scalia, J., concurring).

        The Supreme Court has read the Amendment’s twin
commands in tandem, holding that when people have a reasonable
expectation of privacy in their persons or effects, all searches and
seizures must be supported by a warrant, unless they fall into one
of the exceptions to that requirement. See Minnesota v. Dickerson,
508 U.S. 366, 372–73 (1993) (“Time and again, this Court has
observed that searches and seizures conducted outside the judicial
process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to a few
specifically established and well delineated exceptions.” (internal
quotation marks and citations omitted)).

                                 5
       The first step in Fourth Amendment analysis is to identify
whether a search or seizure has taken place. The Government
concedes that an airport pre-boarding security screening is a search.
See Br. at 19 (citing United States v. Davis, 482 F.2d 893, 904 (9th
Cir. 1973)).4 But this concession obscures the difficult issue of
whether Hartwell experienced one prolonged search, or several
individual searches. The District Court considered this question
and found authority on both sides. Cases like United States v.
Skipwith, 482 F.2d 1272, 1275–76 (5th Cir. 1973), appear to
analyze an entire checkpoint search, including “[m]etal detectors,
visual inspection, and rare but potential physical searches,” as a
single search. By contrast, cases like United States v. Albarado,
495 F.2d 799, 805, 807 (2d Cir. 1974), treat a magnetometer
screening and a “frisk” as two separate searches. The District
Court concluded that the procedure would be permissible under
either view, and therefore did not decide which mode of analysis
was appropriate. We will employ Skipwith’s method of analyzing
Hartwell’s entire experience as a single search under the
administrative search doctrine, and—finding this approach
sufficient to resolve the case—do not pass judgment on the
Albarado approach.

       Thus, we find that Hartwell experienced a single,
warrantless search, which was initiated without individualized
suspicion. Since it was not conducted pursuant to a warrant, the
search must be grounded in an exception to the warrant
requirement.

                                III.



       4
        See also Katz v. United States, 389 U.S. 347, 353 (1967)
(electronic eavesdropping on a conversation in a phone booth is a
search because “the Fourth Amendment protects people—and not
simply ‘areas’”); Kyllo v. United States, 533 U.S. 27, 33 (2001) (“a
Fourth Amendment search occurs when the government violates a
subjective expectation of privacy that society recognizes as
reasonable”); United States v. Martinez-Fuerte, 428 U.S. 543, 556
(1976) (“checkpoint stops are ‘seizures’ within the meaning of the
Fourth Amendment”).

                                 6
       Hartwell’s search at the airport checkpoint was justified by
the administrative search doctrine.5 “A search or seizure is
ordinarily unreasonable in the absence of individualized suspicion
of wrongdoing. While such suspicion is not an ‘irreducible’
component of reasonableness, [the Supreme Court has] recognized
only limited circumstances in which the usual rule does not apply.”
City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (citations
omitted). These circumstances typically involve administrative
searches of “closely regulated” businesses,6 other so-called “special
needs” cases,7 and suspicionless “checkpoint” searches.

       5
         While the Supreme Court has not directly spoken on airport
administrative searches, it has discussed them in dicta in two cases.
In Chandler v. Miller, 520 U.S. 305, 323 (1997), the Court
mentioned that blanket suspicionless searches “may rank as
‘reasonable’—for example, searches now routine at airports.” And
in City of Indianapolis v. Edmond, 531 U.S. 32, 47–48 (2000), it
stated that “[o]ur holding also does not affect the validity of border
searches or searches at places like airports and government
buildings, where the need for such measures to ensure public safety
can be particularly acute.”
       6
        These searches are permissible without a warrant when: 1)
a substantial government interest informs the regulatory scheme
under which the search is made; 2) the search is necessary to
further the regulatory scheme; and 3) the statute’s inspection
program is a “constitutionally adequate substitute for a warrant.”
New York v. Burger, 482 U.S. 691, 702–04 (1987) (warrantless
administrative inspection of premises of closely regulated business)
(citing Donovan v. Dewey, 452 U.S. 594, 600–04 (1981) and
United States v. Biswell, 406 U.S. 311, 315 (1972)). See also
Michigan v. Tyler, 436 U.S. 499, 507–12 (1978) (administrative
inspection of fire-damaged premises to determine cause of the fire);
Camara v. Municipal Court of City and County of San Francisco,
387 U.S. 523, 534–39 (1967) (administrative inspection to ensure
compliance with city housing code is acceptable).
       7
       These cases involve situations where “special needs,
beyond the normal need for law enforcement, make the warrant and
probable-cause requirement impracticable.” New Jersey v. T.L.O.,
469 U.S. 325, 351 (1985) (Blackmun, J., concurring). They

                                  7
       Suspicionless checkpoint searches are permissible under the
Fourth Amendment when a court finds a favorable balance between
“the gravity of the public concerns served by the seizure, the
degree to which the seizure advances the public interest, and the
severity of the interference with individual liberty.” Illinois v.
Lidster, 540 U.S. 419, 427 (2004) (quoting Brown v. Texas, 443
U.S. 47, 51 (1979)) (internal quotations omitted).8

       Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990),
provides an illustrative example of a permissible suspicionless
checkpoint procedure. In that case, Michigan established a
sobriety checkpoint along a state road, stopping every vehicle that
passed by in order to question the driver and look for signs of
intoxication. If the police observed indicia of impairment, they
would pull drivers aside to conduct additional tests. Applying the
Brown balancing test, the Court found the system permissible
because “the balance of the State’s interest in preventing drunken



involve contexts such as schools, see Bd. of Educ. v. Earls, 536
U.S. 822, 829–30 (2002); Veronia Sch. Dist. 47J v. Acton, 515
U.S. 646, 653 (1995), employment, Treasury employees v. Von
Rabb, 489 U.S. 656 (1989); Skinner v. Railway Labor Executives’
Assn., 489 U.S. 602 (1989); O’Connor v. Ortega, 480 U.S. 709
(1987), and probation, Griffin v. Wisconsin, 483 U.S. 868, 873–74
(1987). See also Ferguson v. City of Charleston, 532 U.S. 67, 74
n.7 (2001) (explaining the origin of the special needs doctrine).
       8
         See, e.g., Lidster, 540 U.S. at 426–27 (2004) (checkpoint
stop to find information about a “hit and run” one week before on
the same road is permissible); Edmond, 531 U.S. at 44
(checkpoints aimed at finding drug offenders in order to advance
an interest “ultimately indistinguishable” from a general interest in
crime control, are impermissible); Michigan Dept. of State Police
v. Sitz, 496 U.S. 444 (1990) (sobriety checkpoint aimed to catch
drunk drivers is acceptable); Delaware v. Prouse, 440 U.S. 648,
663 (1979) (discretionary, suspicionless stop for a spot check of a
motorist’s driver’s license and registration is illegal); United States
v. Martinez-Fuerte, 428 U.S. 543, 546–47 (1976) (border
checkpoint to search for illegal aliens 100 miles from the border is
legal).

                                  8
driving, the extent to which this system can reasonably be said to
advance that interest, and the degree of intrusion upon individual
motorists who are briefly stopped, weighs in favor of the state
program.” Sitz, 496 U.S. at 455. As to the State’s interest, the
Court wrote that “[n]o one can seriously dispute the magnitude of
the drunken driving problem or the States’ interest in eradicating
it.” Id. at 451. The stop was deemed effective because some
quantum of evidence showed that it furthered the purpose for
which it was created. “Conversely,” the Court stated, “the weight
bearing on the other scale—the measure of the intrusion on
motorists stopped briefly at sobriety checkpoints—is slight,”
because the stop lasted for only a short time and the investigation
was of minimal intensity. Id.

        In this case, the airport checkpoint passes the Brown test.
First, there can be no doubt that preventing terrorist attacks on
airplanes is of paramount importance. See United States v.
Marquez, 410 F.3d 612, 618 (9th Cir. 2005) (“It is hard to
overestimate the need to search air travelers for weapons and
explosives before they are allowed to board the aircraft. As
illustrated over the last three decades, the potential damage and
destruction from air terrorism is horrifically enormous.”); United
States v. Yang, 286 F.3d 940, 944 n.1 (7th Cir. 2002) (“the events
of September 11, 2001, only emphasize the heightened need to
conduct searches at this nation’s international airports”); Singleton
v. Comm’r of Internal Revenue, 606 F.2d 50, 52 (3d Cir. 1979)
(“The government unquestionably has the most compelling
reasons[—]the safety of hundreds of lives and millions of dollars
worth of private property[—]for subjecting airline passengers to a
search for weapons or explosives that could be used to hijack an
airplane.”).

       Second, airport checkpoints also “advance[] the public
interest,” as Brown requires.9 As this Court has held, “absent a


       9
        Sitz makes clear that “[t]his passage from Brown was not
meant to transfer from politically accountable officials to the courts
the decision as to which among reasonable alternative law
enforcement techniques should be employed to deal with a serious
public danger.” Sitz, 496 U.S. at 453. The “effectiveness” prong

                                  9
search, there is no effective means of detecting which airline
passengers are reasonably likely to hijack an airplane.” Singleton,
606 F.2d at 52. See also Marquez, 410 F.3d at 616 (“Little can be
done to balk the malefactor after weapons or explosives are
successfully smuggled aboard, and as yet there is no foolproof
method of confining the search to the few who are potential
hijackers.” (internal quotation marks, brackets, and citation
omitted)); United States v. Skipwith, 482 F.2d 1272, 1275 (5th Cir.
1973) (procedures requiring the screening of all passengers and
luggage “have every indicia of being the most efficacious that
could be used”). Additionally, it is apparent that airport
checkpoints have been effective.

       Third, the procedures involved in Hartwell’s search were
minimally intrusive.10 They were well-tailored to protect personal
privacy, escalating in invasiveness only after a lower level of
screening disclosed a reason to conduct a more probing search.
The search began when Hartwell simply passed through a
magnetometer and had his bag x-rayed, two screenings that
involved no physical touching. See United States v. Slocum, 464
F.2d 1180, 1182 (3d Cir. 1972) (an airport magnetometer screen
“per se is justified”). Only after Hartwell set off the metal detector
was he screened with a wand—yet another less intrusive substitute
for a physical pat-down. And only after the wand detected
something solid on his person, and after repeated requests that he



does not require a “searching examination.” Id. at 454. “[F]or
purposes of Fourth Amendment analysis, the choice among such
reasonable alternatives remains with the governmental officials
who have a unique understanding of, and a responsibility for,
limited public resources, including a finite number of police
officers.” Id. at 453–54.
       10
         We do not purport to set the outer limits of intrusiveness
in the airport context. Nor do we devise any bright-line test to
implement the Brown standard in all future cases. Cf. Marquez,
410 F.3d at 617 (approving a random airport screening because it
“was no more extensive or intensive than necessary in order to
detect weapons and explosives”). We merely hold that Hartwell’s
search was “minimally intrusive” under Brown.

                                 10
produce the item, did the TSA agents (according to Hartwell) reach
into his pocket.

        In addition to being tailored to protect personal privacy,
other factors make airport screening procedures minimally
intrusive in comparison to other kinds of searches. Since every air
passenger is subjected to a search, there is virtually no “stigma
attached to being subjected to search at a known, designated airport
search point.” See United States v. Skipwith, 482 F.2d 1272, 1275
(5th Cir. 1973). Moreover, the possibility for abuse is minimized
by the public nature of the search. “Unlike searches conducted on
dark and lonely streets at night where often the officer and the
subject are the only witnesses, these searches are made under
supervision and not far from the scrutiny of the traveling public.”
Id. at 1276. And the airlines themselves have a strong interest in
protecting passengers from unnecessary annoyance and
harassment. See id.

       Lastly, the entire procedure is rendered less offensive—if
not less intrusive— because air passengers are on notice that they
will be searched.11 Cf. Singleton, 606 F.2d at 52 (approving a


       11
         Some courts, including the District Court in this case, have
approved airport searches on consent-based rationales. See,
e.g., United States v. Henry, 615 F.2d 1223, 1230–31(9th Cir.
1980); United States v. Edwards, 498 F.2d 496, 500–01 (2d Cir.
1974); United States v. Mather, 465 F.2d 1035, 1036 (5th Cir.
1972). Other courts, however, remain skeptical. See, e.g., United
States v. Albarado, 495 F.2d 799, 806–07 (2d Cir. 1974); United
States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973). See also Wayne
R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment, § 10.6(g) at 307–09 (4th ed. 2004) (explaining that
consent theories are “basically unsound” in the airport context
because screening systems rarely meet the requirements for express
consent under Schneckloth v. Bustamonte, 412 U.S. 218, 222, 228
(1973), and an implied consent analysis merely “diverts attention
from the more fundamental question of whether the nature of the
regulation undertaken by the government is in fact reasonable
under the Fourth Amendment”). We find it unnecessary to reach
this issue because we sustain the screening procedure under the

                                 11
search where passengers “were given advance notice that the
search was to be conducted, and could elect not to be searched by
deciding not to board the aircraft”). Air passengers choose to fly,
and screening procedures of this kind have existed in every airport
in the country since at least 1974. The events of September 11,
2001, have only increased their prominence in the public’s
consciousness. It is inconceivable that Hartwell was unaware that
he had to be searched before he could board a plane. Indeed, he
admitted that he had previously been searched before flying.
Hartwell, 296 F. Supp. 2d at 605. Cf. United States v. Pulido-
Baquerizo, 800 F.2d 899, 901 (9th Cir. 1986) (“in light of the
circumstances surrounding today’s airport checkpoints,” travelers
who put their belongings on a conveyor belt “impliedly consent to
a visual inspection and limited hand search of their luggage if the
x-ray scan is inconclusive”).12

       In conclusion, Hartwell’s search does not offend the Fourth
Amendment even though it was initiated without individualized
suspicion and was conducted without a warrant. It is permissible
under the administrative search doctrine because the State has an
overwhelming interest in preserving air travel safety, and the
procedure is tailored to advance that interest while proving to be




administrative search doctrine.
       12
         Hartwell argues that once the TSA agents identified the
object in his pocket and he refused to reveal it, he should have had
the right to leave rather than empty his pockets. We reject this
theory. As several courts have noted, a right to leave once
screening procedures begin “would constitute a one-way street for
the benefit of a party planning airport mischief,” United States v.
Herzbrun, 723 F.2d 773, 776 (11th Cir. 1984) (internal quotation
marks and citation omitted), and “would ‘encourage airline
terrorism by providing a secure exit where detection was
threatened,’” People v. Heimel, 812 P.2d 1177, 1182 (Colo. 1991)
(quoting Pulido-Baquerizo, 800 F.2d at 902). See also Torbet v.
United Airlines, Inc., 298 F.3d 1087, 1089 (9th Cir. 2002) (“To
avoid search, a passenger must elect not to fly before placing his
bag on the x-ray belt.” (citation omitted)).

                                  12
only minimally invasive, as that term is understood in Brown.13




       13
         Even assuming that the sole purpose of the checkpoint was
to search only for weapons or explosives, the fruits of the search
need not be suppressed so long as the search itself was permissible.
See Minnesota v. Dickerson, 508 U.S. 366, 377 (1993) (“The
seizure of an item whose identity is already known occasions no
further invasion of privacy.”) (collecting cases); United States v.
Edwards, 498 F.2d 496, 500 (2d Cir. 1974) (“unless and until there
should be evidence of abuse, we hold to the traditional rule that if
the search is proper, it is of no moment that the object found was
not what the officer was looking for”) (citation omitted). Since the
object in Hartwell’s pocket could have been a small knife or bit of
plastic explosives, the TSA agents were justified in examining it.
See also Marquez, 410 F.3d at 617 (“The screening at issue here is
not unreasonable simply because it revealed that Marquez was
carrying cocaine rather than C-4 explosives.”).

                                13
