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Schaffer v. State (10/1/99) ap-1648

                              NOTICE
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          IN THE COURT OF APPEALS OF THE STATE OF ALASKA


MARINA SCHAFFER,              )
                              )          Court of Appeals No. A-7080
                 Appellant,   )      Trial Court No. 4FA-97-3089 Cr
                              )
                  v.          )              
                              )             O  P  I  N  I  O  N
STATE OF ALASKA,              )                
                              )
                  Appellee.   )       [No. 1648     October 1, 1999]
                              )


          Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Sigurd E. Murphy, Judge.

          Appearances:  Rex Lamont Butler, Anchorage, for
Appellant.  John A. Scukanec, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee. 

          Before:  Coats, Chief Judge, and Mannheimer and
Stewart, Judges. 

          MANNHEIMER, Judge.

          When Marina Schaffer checked in for a flight at the
Fairbanks airport, the Alaska Airlines ticket agent affixed special
white tags to her carry-on luggage   a purse and a backpack.  The
ticket agent did this because Schaffer fit a "profile" published by
the Federal Aviation Administration, a set of criteria designed to
identify people who might be carrying weapons, explosives, or
incendiary devices.  Unbeknownst to Schaffer, the white tag was a
directive to the people at the X-ray security station, telling them
to hand-search Schaffer's purse and backpack. 
          When Schaffer presented herself at the security station,
she put her purse and backpack through the X-ray machine.  When the
items had gone through, an agent took Schaffer aside and told her
that the contents of her carry-on luggage would have to be removed
and examined.  Schaffer initially agreed to this, but there is
conflicting evidence as to whether she withdrew her consent during
the ensuing search.  
          The agent thoroughly searched Schaffer's purse and then
began removing all the contents of Schaffer's backpack.  Among the
contents of the backpack, the agent found a pair of socks with
something wrapped inside them.  The agent unwrapped the socks and
found a small red zippered pouch, described in the testimony as a
coin purse.  Unzipping this purse, the agent discovered a small
baggie containing cocaine.  Schaffer ultimately pleaded no contest
to possession of cocaine [Fn. 1], preserving her right to contest
the legality of the search of her belongings.  
          The superior court upheld the legality of this search on
two theories.  The court first ruled that, because the search was
instigated by an airline employee and performed by a private
security agent, the search did not involve state action.  Rather,
it was a "private" search   a search not governed by the search and
seizure provisions of the federal and state constitutions. 
Alternatively, the superior court ruled that Schaffer agreed to have
the security agent search her belongings; thus, the search was
justified under the "consent" exception to the warrant requirement. 

          As explained in this opinion, both of the superior court's
rationales for upholding this search are at odds with the Alaska
Supreme Court's decision in Salit v. State. [Fn. 2]  If the search
of Schaffer's belongings is supportable, it must be under the
"administrative search" exception to the warrant requirement. 
Because the superior court did not consider this theory or make any
findings of fact concerning it, we must remand this case to the
superior court. 

          The search of Schaffer's belongings was "state action",
     not a private search, and thus the search is governed by the Fourth
Amendment.
          
               When Schaffer litigated her suppression motion, Superior
Court Judge pro tem Sigurd E. Murphy ruled that the search of
Schaffer's purse and backpack was a "private" search conducted by
airline employees.  Relying on the principle that private searches
are not governed by the constitutional limitations on search and
seizure [Fn. 3], Judge Murphy ruled that the search of Schaffer's
belongings was legal regardless of whether the Fourth Amendment to
the United States Constitution or Article I, Section 14 of the
Alaska Constitution would have barred government officers from
performing the same search. 
          "[T]he search and seizure clauses of the Alaska and United
States Constitutions apply only to governmental action".  A private
search   "one that is neither instigated nor joined in by the state"
  does not violate either constitution. [Fn. 4]  When the issue of
state action arises, the underlying question to be litigated is
whether, under the particular circumstances, the government so
substantially instigated or insinuated itself into the private
person's action that the search can no longer be deemed "private". 
          Even when we view the evidence in the light most favorable
to the superior court's ruling [Fn. 5],  we conclude that the search
of Schaffer's belongings was state action, not a private search. 
According to the testimony, the Federal Aviation Authority directed
all airline companies to enforce the "white tag" procedures by (1)
screening all passengers using the FAA's profile and then (2) hand-
searching the carry-on luggage of all passengers who fit the
profile.  The FAA directive warned the airlines that the FAA would
impose an $11,000 fine each time a passenger fitting the profile was
not subjected to the mandated search.  
          Obviously, airline companies share the government's
interest in not having airplanes blown up or hijacked.  But just as
obviously, the government did not trust the airlines to voluntarily
apply the FAA's screening profile and then hand-search all of the
selected passengers' carry-on luggage.  So, to motivate the airlines
to comply with the government's wishes, the FAA threatened the
airlines with administrative fines   effectively coercing them to
do the government's bidding.  The ensuing searches (including the
search at issue in Schaffer's case) constitute "state action". [Fn.
6]  "Quite clearly, a search is not private in nature if it has been
ordered ... by a government official." [Fn. 7]   
          The Alaska Supreme Court expressly rejected the "private
search" rationale in Salit v. State:
                     
                         The State ... suggests that the initial
          opening of the [airline passenger's] handbag, and therefore the
discovery of the [drug] paraphernalia, was not state action because
[the airport security agents] are employees of a private
corporation.  [This claim] is without merit.  Every court that has
examined the screening program has [deemed it to be] state action. 
Screening of carry-on luggage is required by law. 
                    
          613 P.2d at 249 n.11.  Thus, the search of Schaffer's belongings is
governed by the constitutional restrictions on search and seizure. 

          The search of Schaffer's carry-on luggage can not be
     justified as a consent search. 
          
               Judge Murphy offered an alternative rationale for denying
Schaffer's suppression motion:  he ruled that, even if the search
of Schaffer's belongings constituted state action and would normally
require a warrant, the search was nevertheless justified by the
"consent" exception to the warrant requirement.  
                     
                         The Court:  I'm finding, based on what has
          been presented here, that [Schaffer] did consent to the search.  She
went in[to] the [security] area, ... [knowing] that a search might
take place before she got on the ... plane.  ...  She may not have
realized that it would be [so] intensive or that they would open up
everything that was there, but she realized [that] the contents
could be searched.  
                    
                         And once she [realized] that the search
          was going to be a little more detailed ... than she [anticipated],
she had an opportunity to stop it, [but she] didn't take that
opportunity[.]  What I was looking for, quite frankly, ... was [some
action akin] to grabbing [the luggage] and starting to walk away,
saying "I'm out of here," or "I'm leaving", or "I don't want you to
do this," [or] "I don't want to take the flight," or [any] number
of other things ... that [w]ould have said, [in effect,] "I withdraw
my consent."  ...  I didn't hear [anything] ... to indicate that she
terminated the search that she'd voluntarily allowed.  Even though
she didn't like what was happening, she didn't stop it. 
                      
          These comments show that Judge Murphy's ruling was based on four 
premises:  (1) that Schaffer voluntarily consented to at least some
level of inspection of her carry-on luggage when she presented
herself at the security station; (2) that the security agent then
asked Schaffer to consent to a more thorough inspection, beyond the
normal X-raying; (3) that Schaffer voluntarily consented to the more
intrusive, hand-inspection of her belongings; and (4) that Schaffer
never withdrew that consent.  
          A person may voluntarily consent to have government
officials conduct a search or seizure that would otherwise be barred
by the constitution. [Fn. 8]  But a person's "consent to a
[warrantless] search, in order to be voluntary, must be unequivocal,
specific and intelligently given, [and] uncontaminated by any duress
or coercion[.]" [Fn. 9] 
          When the government relies on the "consent" exception to
the warrant requirement, two main issues must be litigated:  did the
defendant indeed consent, and did the defendant do so with the
requisite voluntariness?  Courts assess these issues by examining
all of the surrounding circumstances. [Fn. 10]  
          In the context of airport security searches, the basic
circumstances are well-known to all air travelers.  They can be
summarized as follows: 
                     
                         Under the current comprehensive [hijacker]
          screening system [in place at United States airports], as the
passenger approaches the boarding area (often an entryway to a
concourse where there are many boarding points)[,] he will be
required to place all carry-on items on a conveyor belt leading to
an X-ray device.  If the X-ray detects an object within a suspicious
configuration, then the passenger may not proceed without opening
the bag or other container for inspection.  While the carry-on items
are being screened, the passenger is directed to pass through a
magnetometer device of the walk-through type.  If the magnetometer
is activated, the passenger is requested to divest himself of all
metal objects and repeat the process.  In those few instances in
which the machine is activated once again, the passenger may not
proceed without clearing up the matter.  This may be done by the
passenger extracting additional items from his pockets and then
passing the magnetometer test, by his submitting to more
particularized inspection by a hand-held magnetometer which
pinpoints the [suspicious] object, or by his submitting to a frisk. 
                    
          LaFave, sec. 10.6(a), Vol. 4, p. 620. 
          Some courts have relied on "consent" as the Fourth
Amendment rationale for these systematic searches of all boarding
airline passengers. [Fn. 11]  But LaFave concludes that "this
approach is basically unsound".  LaFave argues that, if courts
adhere to the recognized standards for determining the voluntariness
of a person's consent to search, the consent exception could never
justify all of the searches that are conducted during the hijacker
screening process: 
                     
                    Rather, ... [given] the nature of the
          established screening process[,] ... the attendant circumstances
will usually establish nothing more than acquiescence to apparent
lawful authority.  [E]ven if [the express] assent [of the passenger]
were obtained, the choices with which the passenger is confronted
are such that voluntariness will ordinarily be lacking.  Many courts
have thus concluded that screening inspections were not consensual
when the passenger submitted to the search in order to be able to
board his flight and reach his destination. 
                    
          LaFave, sec. 10.6(g), Vol. 4, pp. 644-45 (footnotes omitted). 
          Because most airline passengers never express their assent
(indeed, are never asked to assent) to the searches that occur at
airports, some courts have relied on a theory of implicit consent
to justify the search of airline passengers and their belongings. 
Under this theory, the passengers' consent to be searched is
inferred from the fact that people freely choose to travel by
airplane, and they make this choice knowing that they and their
possessions will be subject to screening before they are allowed to
board. [Fn. 12]  
          It is questionable whether air travel, with its attendant
security searches, is truly an optional activity in Alaska.  In many
towns and villages, air travel is the only realistic way to enter
and leave.  Even in those towns served by road, a trip by automobile
to the Lower 48 is time-consuming, relatively costly, and involves
border searches by two different national governments.  Thus, one
might reasonably doubt whether an Alaska traveler "freely" chooses
to submit to airport searches.  
          Moreover, as LaFave points out, the problem with the
"consent" theory is that it conceals   and fails to address   the
more fundamental question:  is the government's regulation of
airline passengers reasonable under the Fourth Amendment? 
                     
                    If it were really true that consent m[ight] be
          [inferred] because an airline passenger knows of the screening
process, then it would logically follow that if the government
tomorrow decided to subject those traveling by train, bus or car to
similar screening, notwithstanding the absence of any need to do so, 
all travelers would be deemed to have consented to searches of their
persons and effects.  This conclusion not only offends common sense,
but flies in the face of the most fundamental Fourth Amendment
principle that the government cannot "avoid the restrictions of the
Fourth Amendment by notifying the public that all telephone lines
would be tapped or that all homes would be searched." 
LaFave, sec. 10.6(g), Vol. 4, p. 646 (quoting United States v.
Davis,
482 F.2d 893, 905 (9th. Cir. 1973)).  
          Because of these concerns, most courts have ruled that the
screening of boarding airline passengers is justified, not under the
consent exception to the warrant requirement, but rather under the
administrative search exception. [Fn. 13]  The Alaska Supreme Court
adopted this view of the matter in State v. Salit. [Fn. 14] 
          In Salit, the State advanced essentially the same
"consent" theory that Judge Murphy relied on in Schaffer's case. 
The State suggested that airport searches could be justified as
consent searches because (1) the public generally knows that airline
passengers' bags can be searched, and (2) notices to this effect are
posted at virtually every airport. [Fn. 15]  But the supreme court
found the State's analysis "slightly askew": 
                     
                    Although the notices and foreknowledge of
          passengers are relevant to the reasonableness of the search [under
the administrative search exception], they do not make this, or any
other hijacking search, a consent search.  "Consent to a search, in
order to be voluntary, must be unequivocal, specific and
intelligently given, uncontaminated by any duress and coercion ...
."  It is clear that Salit did not expressly consent to the search
of [his] garment bag in the way that person who says, "Officer, you
may search my home," consents to a search.  [T]he mere fact that
persons are on notice that they may be searched cannot, by itself,
be the basis for [inferring] consent, [for this would] "mean that
any kind of governmental intrusion is permissible if it has occurred
often enough." 

Salit, 613 P.2d at 254. [Fn. 16]  The supreme court therefore ruled
that the search of Salit's garment bag could not be justified as a
consent search. 
          The facts of Schaffer's case are different from the facts
in Salit in one respect:  security personnel searched Salit's
garment bag without asking him [Fn. 17], while the security agent
in Schaffer's case did inform her of the impending search of her
belongings.  According to the security agent's testimony, she
informed Schaffer that, because the purse and the backpack had been
"white tagged", she was required to remove and search the contents
of the luggage.  The security agent asked Schaffer if it was all
right to do this, and Schaffer allegedly said yes.  
          Viewing this testimony in the light most favorable to the
State, Schaffer expressly assented to the search of her belongings. 
But express assent is not sufficient.  As explained above, a search
is not justified by the "consent" exception to the warrant
requirement unless the State proves that the consent was voluntary,
unequivocal, intelligently given, and not the product of duress or
coercion.  
          It is conceivable that an air traveler might freely
consent to a search above and beyond the security screening searches
routinely conducted at United States airports.  But as LaFave points
out, even when security agents obtain a passenger's express assent
to a search, this assent ordinarily will not constitute a valid
"consent".  Rather, "the attendant circumstances will usually
establish nothing more than acquiescence to apparent lawful
authority." [Fn. 18]  This was true in Schaffer's case.  
          According to the testimony, Schaffer watched the security
agent conduct a thorough search of her purse.  The agent examined
every item in the purse, removed most of these items, and looked in
every area of the purse.  When Schaffer asked why the security agent
was searching the purse in this manner, the agent replied that this
was required.  
          After the security agent finished searching the purse, the
agent next began to search Schaffer's backpack.  Schaffer
interposed, "You don't have to do this," but the security agent
continued the search, explaining that she was required to do this. 
When the security agent came to the pair of socks with the coin
purse wrapped inside them, Schaffer said, "Don't touch that," and
"put that one back".  The security agent nevertheless unwrapped the
socks and removed the coin purse, then unzipped the purse and
examined its contents.  
          Given this record, we conclude that Schaffer's assent to
the search of her belongings was "nothing more than acquiescence to
apparent lawful authority".  It did not constitute the voluntary,
uncoerced consent required by our case law and our constitution. 

          The search of Schaffer's belongings is potentially
     justifiable as an administrative search, but this issue can not be
decided without further proceedings in the superior court. 
          
               As explained above, Salit holds that even though airport
security searches are not "consent" searches, they can be justified
under the "administrative search" exception to the warrant
requirement.  The State asks us to uphold the search of Schaffer's
belongings on this alternative ground.  But several questions of
fact must be answered before we can determine whether the search of
Schaffer's carry-on luggage was a lawful administrative search.   
          According to LaFave, airport security searches can be
deemed lawful administrative searches because (1) these searches
constitute relatively limited intrusions  geared toward finding
particular items (weapons, explosives, and incendiary devices) that
pose grave danger to airplanes and air travelers; (2) the scrutiny
of carry-on luggage is no more intrusive (in both its scope and
intensity) than is necessary to achieve the legitimate aims of the
screening process (that is, to ensure air travel safety); (3)
airline passengers have advance notice that their carry-on luggage
will be subjected to these security measures, thus giving passengers
the opportunity to place their personal effects in checked luggage;
(4) all passengers are subject to the same screening procedures; and
(5) passengers are aware that they can avoid the screening process
altogether by electing not to board the plane. [Fn. 19] 
          From the record before us, it is unclear whether the
exhaustive inspection of Schaffer's belongings can be justified as
an administrative search under these criteria. The superior court
heard conflicting testimony on some of these issues, and little to
no testimony on others.  It is, of course, the State's burden to
justify any warrantless search. [Fn. 20]  On remand, it will be the
State's burden to show that the search of Schaffer's belongings was
justified under the administrative search rationale embraced by the
Alaska Supreme Court in Salit.  

          Conclusion
          
               The superior court gave two reasons for denying Schaffer's
suppression motion:  first, that the search of Schaffer's belongings
was not state action; and second, that Schaffer consented to the
search.  Both of these reasons were rejected by the Alaska Supreme
Court in Salit.  It is possible that the search of Schaffer's
belongings was a valid administrative search under Salit, but this
determination can not be made until various issues of fact are
resolved. 
          Accordingly, the decision of the superior court is VACATED
and this case is remanded for further proceedings on Schaffer's
suppression motion.  Because the parties have stipulated that this
motion is dispositive of the charge against Schaffer, if the
superior court rules in Schaffer's favor, the court should then
dismiss the charge.  
          We do not retain jurisdiction of this case. 



                            FOOTNOTES


Footnote 1:

     Fourth-degree controlled substance misconduct, AS
11.71.040(a)(3). 


Footnote 2:

     613 P.2d 245 (Alaska 1980). 


Footnote 3:

     See Snyder v. State, 585 P.2d 229, 231 (Alaska 1978)
("[S]earches by airline employees, acting for an independent and
legitimate airline purpose and not in conjunction with or at the
direction of the police, do not violate constitutional prohibitions
against unreasonable search and seizure."). 


Footnote 4:

     Long v. State, 772 P.2d 1099, 1101 (Alaska App. 1989) (citing
Snyder, 585 P.2d at 232; Whittemore v. State, 617 P.2d 1, 3 (Alaska
1980);  McConnell v. State, 595 P.2d 147, 151 (Alaska 1979); State
v. Stump, 547 P.2d 305, 307 (Alaska 1976);  Bell v. State, 519 P.2d
804, 807 (Alaska 1974)).


Footnote 5:

     Cf. State v. Laraby, 842 P.2d 1275, 1280 (Alaska App. 1992);
Long v. State, 772 P.2d at 1101 (applying this rule when assessing
the sufficiency of the evidence to support a trial judge's findings
of fact). 


Footnote 6:

     See United States v. Davis, 482 F.2d 893, 897 (9th Cir. 1973),
holding that the search of an airline passenger's carry-on luggage
was government action because it was "part of a nationwide anti-
hijacking program conceived, directed, and implemented by federal
officials in cooperation with air carriers."  The court noted that
the government had developed the hijacker detection profile and that
the FAA had issued a directive that forbade airlines from permitting
any person fitting the profile from boarding an airplane unless
their carry-on luggage was searched.  This case is discussed in
Wayne R. LaFave, Search and Seizure:  A Treatise on the Fourth
Amendment (3rd ed. 1996), sec. 1.8(c), Vol. 1, p. 240 n.90.  


Footnote 7:

     LaFave, sec. 1.8(a), Vol. 1, p. 222.  See also LaFave, sec.
10.6(a),
Vol. 4, p. 620:  "[S]earches conducted under the [airport security
screening] system ... , even when [performed] by private guards
rather than law enforcement officers, are subject to the
requirements of the Fourth Amendment."  


Footnote 8:

     See Katz v. United States, 389 U.S. 347, 358 n.22; 88 S.Ct.
507, 515 n.22; 19 L.Ed.2d 576, 586 n.22 (1967); Sleziak v. State,
454 P.2d 252, 256 (Alaska 1969). 


Footnote 9:

     Erickson v. State, 507 P.2d 508, 515 (Alaska 1973) (footnote
omitted) (quoting Rosenthall v. Henderson, 389 F.2d 514, 516 (6th
Cir. 1968)).  


Footnote 10:

     See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36
L.Ed.2d 854 (1973); Sleziak v. State, 454 P.2d 252 (Alaska 1969). 



Footnote 11:

     See United States v. Miner, 484 F.2d 1075 (9th Cir. 1973);
United States v. Doran, 482 F.2d 929 (9th Cir. 1973); United States
v. Mather, 465 F.2d 1035 (5th Cir. 1972); Shapiro v. State, 390
So.2d 344 (Fla. 1980) (alternative ground of decision). 


Footnote 12:

     See the cases noted in LaFave, sec. 10.6(g), Vol. 4, p. 645
n.106-08. 


Footnote 13:

     LaFave, sec. 10.6(c), Vol. 4, pp. 628-635. 


Footnote 14:

     613 P.2d at 250-51. 


Footnote 15:

     Id. at 253-54. 


Footnote 16:

     Quoting, first, Erickson v. State, 507 P.2d 508, 515 (Alaska
1973), and second, United States v. Davis, 482 F.2d 893, 905 (9th
Cir. 1973). 


Footnote 17:

     Salit, 613 P.2d at 248. 


Footnote 18:

     LaFave, sec. 10.6(g), Vol. 4, p. 645.  


Footnote 19:

     LaFave, sec. 10.6(e), Vol. 4, pp. 638-641. 


Footnote 20:

     See D'Antorio v. State, 837 P.2d 727, 733 (Alaska App. 1992).