Seitz, Chief Judge, and Van Dusen and Adams, Circuit Judges.
The defendant appeals from his district court conviction for possession of, with intent to distribute, cocaine in violation of 21 U.S.C. § 841(a) (1).
Defendant Slocum was arrested at Newark Airport by a Deputy United States Marshal assigned to the airport's Anti-Air Piracy Squad. Defendant had purchased a one-way ticket on a flight to Mexico City which included a stopover in Atlanta. The ticket agent had alerted the marshal that defendant's characteristics conformed to the Federal Aviation Administration's Anti-Air Hijack Profile ("the Profile"). Thus, as defendant accompanied other passengers through a magnetometer set up at the boarding gate the marshal monitored him with particular care. The magnetometer was designed and calibrated to detect the presence of metal objects with substantial ferrous content carried by a passenger either on his person or inside his carry-on luggage. Defendant registered a clearly positive reading which prompted the marshal to intercept him and request positive identification. Defendant's ticket was issued to "Ed Clark." However, he could provide no identification. Consequently, the marshal requested that defendant move to a location away from the boarding area where a pat-down search could be conducted. No weapons or explosives were found as a result of this search so the marshal then proceeded to inspect defendant's luggage. This search revealed a rolled up sock which the marshal described as concealing a "definite foreign substance." The marshal asked that the contents of the sock be identified. But defendant responded only that he did not wish the sock unrolled. This intensified the marshal's suspicion that the substance might be an explosive. He opened the sock and discovered a plastic bag containing a white powdery substance. Suspecting the powder to be some type of illegally possessed narcotic the marshal placed defendant under arrest. Tests subsequently confirmed that the bag contained 131 grams of cocaine.
Defendant challenges his conviction for possession of the cocaine on several grounds.
(1) CONSTITUTIONALITY OF THE PROGRAM
Defendant initially challenges the constitutionality of the pre-boarding screening program as designed by the Federal Aviation Administration. Consideration of defendant's challenge requires a summary of the program's various procedural components. See United States v. Lopez, 328 F. Supp. 1077, 1082-1085 (E.D.N.Y. 1971). If the program is in effect for a particular flight, screening begins when airline personnel process a passenger for boarding. The employees directly engaged in pre-flight passenger processing evaluate each passenger according to the FAA Profile. The Profile was developed by a group of professionals representing a cross-section of the various fields of expertise relevant to the hijacking problem. In its entirety the Profile establishes approximately twenty-five characteristics which studies have shown to be held in common by past hijackers. Several of these characteristics, all of which are readily discernible, are used by the airline personnel to screen passengers preliminarily.
If a passenger conforms to the Profile, airline personnel then alert either other employees or available U.S. marshals stationed at the boarding gate to observe the passenger carefully as he proceeds to board. Located at the boarding gate is the magnetometer and all passengers are required to pass through it. However, only the readings registered by passengers who have conformed to the Profile are noted. The magnetometer is calibrated to indicate a positive reading only if the amount of ferrous metal on a passenger or in his hand luggage equals or exceeds that typically incorporated into a small handgun. If the noted reading is neutral the particular passenger boards without further inquiry or surveillance. On the other hand, if a positive reading is noted the particular passenger is requested to pause for questioning. Basically, the questioning is limited to identification and short inquiries concerning what in the passenger's possession might have triggered the magnetometer. According to recommended procedures the passenger should be asked to divest himself temporarily of anything metallic and again move through the magnetometer. Only if he registers a second positive reading should he still not be permitted to board. Instead, he should be escorted beyond the boarding area and frisked for weapons or explosives. If none are found a request then should be made to search the passenger's hand luggage. The passenger should be arrested if the frisk or search discloses a weapon, explosives or contraband. Otherwise, he should be permitted to board.
Defendant challenges the constitutionality of this screening program on several grounds. Specifically, he contends that: (a) the use of the magnetometer without pre-existing probable cause is an unconstitutional search, the fruits of which are inadmissible; (b) the Profile does not satisfy the particularization requirement of the 4th Amendment; and (c) no exceptional circumstances existed at the time of boarding to justify the search of his luggage without a warrant.
The short answer to defendant's challenge directed against use of the magnetometer is provided by United States v. Epperson, 454 F.2d 769, 771 (4th Cir. 1972), cert. denied, 406 U.S. 947, 92 S. Ct. 2050, 32 L. Ed. 2d 334. The court there observed that "the danger [incident to air piracies] is so well known, the governmental interest so overwhelming, and the invasion of privacy so minimal, that the warrant requirement is excused by exigent national circumstances." As emphasized in Epperson, "the Constitution does not forbid searches and seizures: it forbids only those that are unreasonable." Id. Indeed, the underlying purpose of the warrant requirement announced by the 4th Amendment is "to guarantee that [the] decision to search . . . is justified by a reasonable governmental interest." See Camara v. Municipal Ct., 387 U.S. 523, 539, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1966). Reasonableness is the ultimate standard. And, we conclude that within the context of a potential hijacking the necessarily limited "search" accomplished by use of the magnetometer per se is justified by a reasonable governmental interest in protecting national air commerce. Under the circumstances suggesting a potential for the serious consequences incident to hijackings, employment of the magnetometer does not violate the 4th Amendment.
Prior to boarding a designated flight all passengers must pass through the magnetometer. Of course, as defendant is quick to point out, only a passenger who initially has met the Profile will be monitored for a positive reading. Defendant's position on appeal is not entirely clear. However, he apparently views the role of the Profile in the overall screening process as an attempt to establish, statistically, probable cause for the purpose of subsequently justifying use of the ...