United States v. Paul Howard Gumerlock, United States of America v. Marc Paul Fannon

Heroin was discovered in packages delivered to United Airlines by appellants for shipment. Appellants were charged with possession and conspiracy to possess in violation of 21 U.S.C. §§ 841 (a)(1) and 846; their motions to suppress were denied and they were convicted.

On appeal, a panel of this court held the search of appellants’ packages to have been governmental, rather than private, and therefore subject to Fourth Amendment requirements, which had not been met. United States v. Fannon, 556 F.2d 961 (9th Cir. 1977). It was undisputed that the packages *796 were searched solely by United Airlines’ employees, and that until the heroin was turned over to federal law enforcement officers no government official was involved. (Id. at 963.) The panel held, however, that section 204 of the Air Transportation Security Act of 1974, Pub.L. Ño. 93-366, Title II, 88 Stat. 415 (codified at 49 U.S.C. § 1511 (Supp. V, 1975)), subjected airfreight shipments such as these to “the government’s administrative scheme to strengthen the security of air transportation” (id. at 965); and that searches conducted pursuant to this government mandated program are subject to the Fourth Amendment, citing…

dissenting.

I agree with the majority’s conclusion that “Congress did not intend to require that aircraft shipments be subjected to the security screening process mandated by the Government for passengers and their carry-on possessions,” but the conclusion is not relevant in deciding the issue before us. The question is not whether Congress mandated a particular kind of security screening process for cargo, but whether Congress mandated the adoption of security screening procedures. If Congress directed airlines to undertake such measures, then searches conducted pursuant to that mandate are within “the government’s administrative scheme to strengthen the security of air transportation” (United States v. Fannon (9th Cir. 1977) 556 F.2d 961 , 965), and they are subject to the Fourth Amendment. (United States v. Davis, (9th Cir. 1973) 482 F.2d 893 .)

The federal regulations did mandate security procedures for cargo within 14 C.F.R. § 121.538 (c), which provides in pertinent part that “[e]ach certificate holder shall prepare in writing and submit for approval by the Administrator its security program including the screening system prescribed in paragraph (b) of this section, and…

(dissenting):

I respectfully dissent. Federal regulations require airlines to prepare a security program that includes airfreight within its scope. 14 C.F.R. § 121.538 (c)(3); see also §§ 121.538(e) and (g) (pertaining to FAA Administrator approval, modification, and amendment of airline security programs). If the challenged inspection in this case were conducted pursuant to such a security program, then I believe that the inspection *801 fell within “the government’s administrative scheme to strengthen the security of air transportation.” United States v. Fannon, 556 F.2d 961, 965 (9th Cir. 1977). As such, it would be subject to the Fourth Amendment. United States v. Davis, 482 F.2d 893, 904 (9th Cir. 1973). On the other hand, if the inspection were not conducted as a part of, or pursuant to, an approved security program, then I do not believe that it would have been within the ambit of a governmental scheme. In such event, the inspection would not, I think, be subject to Fourth Amendment restrictions. See United States v. Sherwin, 539 F.2d 1, 5-6 (9th Cir. 1976) (en banc).

The factual record before us does not indicate whether United Airlines operated under an approved…

590 F.2d 794 UNITED STATES of America, Plaintiff-Appellee, v. Paul Howard GUMERLOCK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Marc Paul FANNON, Defendant-Appellant. Nos. 76-2732, 76-2700. United States Court of Appeals, Ninth Circuit. Feb. 2, 1979. Frank J. Ragen (argued), Baxley, Ragen & Ray, San Diego, Cal., on brief; Donald A. Nunn (argued), San Diego, Cal., for defendant-appellant. Joseph Davies, Jr., Atty., Washington, D.C. (on the brief), Terry J. Knoepp, U.S. Atty., San Diego, Cal., Joseph Davies, Jr. (argued), Dept. of Justice, Washington, D.C., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before BROWNING, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED, KENNEDY, ANDERSON, HUG and TANG, Circuit Judges. BROWNING, Circuit Judge: 1 Heroin was discovered in packages delivered to United Airlines by appellants for shipment. Appellants were charged with possession and conspiracy to possess in violation of 21 U.S.C. §§ 841 (a)(1) and 846; their motions to suppress were denied and they were convicted. 2 On appeal, a panel of this court held the search of…