United States v. Charles Phillip Homburg

546 F.2d 1350 UNITED STATES of America, Plaintiff-Appellee, v. Charles Phillip HOMBURG, Defendant-Appellant. No. 75-3769. United States Court of Appeals, Ninth Circuit. Nov. 22, 1976. Rehearing Denied Jan. 31, 1977. Frank T. Vecchione (argued), of Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant. Terry J. Knoepp, U. S. Atty., Robert D. Krause, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee. Before ELY and TRASK, Circuit Judges, and VAN PELT, * District Judge. TRASK, Circuit Judge: 1 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. 2 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…

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…

(dissenting):

I respectfully dissent. The majority’s understandable concern over recent airport bombings cannot justify an abridgement of the Fourth Amendment, because “[i]f the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.” Home Building & Loan Assoc, v. Blaisdell, 290 U.S. 398, 483 , 54 S.Ct. 231, 256 , 78 L.Ed. 413 (1933) (Sutherland, J., dissenting).

None of the cases relied on by the majority involved a defendant who indicated any desire to leave the boarding area of an airport. 1 The only authority that appears to be squarely in point is United States v. Moore, 483 F.2d 1361 (9th Cir. 1973), and the holding in that case is directly contrary to the holding here made by the majority. In Moore , the defendant was discovered attempting to use obviously false identification and told he would not be allowed to *1355 board the plane. While waiting for the return of his luggage, defendant became extremely agitated, and appeared to be under the influence of drugs. Airport agents noticed that masking tape had been applied around one of his bags and over the keyholes of another. After receiving his bags the…