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PEOPLE v. LEE (1973)

Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Hubert Gan LEE, Defendant and Appellant.

Cr. 10823.

Decided: June 05, 1973

Wells & Chesney, Inc., Berkeley, for defendant-appellant. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, William D. Stein, Nancy S. Reller, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

Defendant appeals from a judgment of conviction1 for violation of Health and Safety Code section 11911 (possession for sale of restricted dangerous drugs) entered upon a plea of guilty following a denial of his motion to suppress evidence made pursuant to Penal Code section 1538.5. The appeal is based solely upon grounds involving a search and seizure the validity of which was contested pursuant to said section. (Rule 31(d), Cal.Rules of Court.)

On August 14, 1971, at 7:30 p. m., Deputy United States Marshal Stanley Winters was assigned to the San Francisco International Airport under the federal anti-hijacking program. He was stationed at gate 41 through which passengers were boarding Western Airlines flight 748 for Eugene, Oregon.

Winters was informed by ticket agent Woods that defendant had set off the magnetometer. Winters approached defendant and identified himself as a United States Marshal. He informed defendant that he had met the ‘profile’ and that ‘we would like to check his carry-on luggage and . . . a body frisk to reveal what metal he had on him.’ Defendant responded ‘Fine.’ Defendant was not informed that if he did not submit to the search he could not board the plane although refusal of permission to board was the usual sanction.

Winters and defendant then went into a hallway area. Upon request, defendant placed an unzipped red TWA bag on the floor. Winters had already formed an intention to complete his investigation by searching the bag. Defendant was asked by Winters to supply identification and he did so. Although he was not asked if he had any metal which might have triggered the magnetometer, defendant volunteered that the offending metal was a metal sieve. He offered to again walk through the gate without the sieve. He was not permitted to do so. Winters proceeded to search the TWA bag. The search revealed a variety of illegal drugs. Defendant was then arrested.

Defendant contends that the search of his luggage violated the Fourth Amendment in that Winters failed to comply with procedures prescribed by federal authorities and in that the prosecution failed to prove that the search was justified. He also asserts that he was denied due process, effective assistance of counsel, and the right of confrontation when he was denied the right to cross-examine relative to the ‘profile.’ The People contend that there is no support in the record for the contention that the government failed to comply with its own procedures; that defendant consented to the search, and that, in any event, the search was reasonable.

Adverting to the contention that Winters did not comply with federal procedures under anti-hijacking programs, we first observe that the record does not disclose what these procedures are. Winters testified that he was ‘looking for’ persons who met the ‘profile’ or set off the magnetometer. Defendant relies upon United States v. Lopez, 328 F.Supp. 1077, setting forth a procedure used in 1970 at John F. Kennedy International Airport to deter and apprehend hijackers. Lopez holds that these procedures survive constitutional scrutiny. (At p. 1101.) Such a holding does not necessarily mean that procedures other than those approved in Lopez do violence to the Fourth Amendment.

Our immediate inquiry is whether defendant's initial detention was proper. The law is well established in this state that circumstances short of probable cause to make an arrest may justify the stopping by an officer of pedestrians or motorists on the streets for investigation or questioning. (Restani v. Superior Court, 13 Cal.App.3d 189, 195, 91 Cal.Rptr. 429; People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531; People v. Mickelson, 59 Cal.2d 448, 450–451, 30 Cal.Rptr. 18, 380 P.2d 658.)

In street detentions it has been held that to justify even a limited detention there must exist some suspicious or unusual circumstances which are sufficiently distinguishable from innocent activity so that taken together with the rational inferences to be drawn from the facts, they would reasonably lead one to believe that criminal activity may be afoot. (Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889; Cunha v. Superior Court, 2 Cal.3d 352, 356–357, 85 Cal.Rptr. 160, 466 P.2d 704; Remers v. Superior Court, 2 Cal.3d 659, 664–665, 87 Cal.Rptr. 202, 470 P.2d 11; Restani v. Superior Court, supra, 13 Cal.App.3d 189, 195, 91 Cal.Rptr. 429.) This rationale has recently been articulated in cases involving detentions respecting aircraft anti-hijacking programs. (See United States v. Lindsey, 451 F.2d 701, 703–704, cert. den. 405 U.S. 995. 93 S.Ct. 1270, 31 L.Ed.2d 463; United States v. Epperson, 454 F.2d 769, 771–772, cert. den. 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334; United States v. Lopez, supra, 328 F.Supp. 1077, 1083–1084, 1101; People v. Botos, 27 Cal.App.3d 774, 778–779, 104 Cal.Rptr. 193.) These cases recognize that an individual's expectation of privacy in an airline terminal is not the same as that in a street or park when considered in the light of the alarming increase in aircraft piracies over the last few years, the dangers presented to innocent bystanders, and the inherent difficulty of preventing hijackings. (See People v. Botos, supra; United States v. Lindsey, supra, 451 F.2d at p. 703; United States v. Epperson, supra, 454 F.2d at p. 771.) Accordingly, an investigative detention is justified at its inception where its sole purpose is to discover weapons and prevent air piracy because, when balanced with the well-known danger and the overwhelming interest of the government, the invasion of privacy is minimal. (United States v. Epperson, supra.)

In the light of the exigent national circumstances investigative detentions have been permitted when a person meets the hijacker ‘profile’ made up of statistical information describing specific characteristics (People v. Botos, supra. 27 Cal.App.3d 774, 777–778, 104 Cal.Rptr. 193) and in cases where the airline passenger activates a metal detecting device called a magnetometer to which he is exposed. (United States v. Epperson, supra, 454 F.2d 769, 770.)

In Epperson it was acknowledged that, indeed, the use of a magnetometer is in itself a ‘search’ since its purpose is to search for metal and disclose its presence in areas where there is a normal expectation of privacy, but that such a ‘search’ for the sole purpose of discovering weapons and preventing air piracy is ‘justified at its inception.’ (454 F.2d at pp. 770–771.)

We have found no case which holds that a search may be made of the person who meets the profile or of his hand luggage. In Botos it was held that where the investigative detention was justified at its inception, on the basis of the aircraft hijacker ‘profile,’ such detention is not limited to questioning for purposes of identification but may extend to a request to search the person's luggage because such a request is within the scope of the original investigation. (27 Cal.App.3d at p. 779, 104 Cal.Rptr. 193.) Botos does not discuss the alternatives if the request is refused since the case was decided on the basis that after the marshal requested permission to conduct the luggage search the defendant consented. (27 Cal.App.3d at p. 779, 104 Cal.Rptr. 193.)

In Epperson, a case involving a magnetometer ‘search’ and a resultant detention, the search of the defendant's jacket was held to be proper. But this was only after the magnetometer to which he was exposed disclosed an unusually high reading, after he was asked if he carried a large amount of metal, after he produced several metal objects, and after the magnetometer still gave a positive reading to his person.

In Lopez it was held that a person who fits the ‘profile’ or who activates the magnetometer may be ‘frisked’ for weapons; that any intrusion beyond the legitimate scope of a weapons search is clearly unjustified and the fruits of such an excessive search would be inadmissible in a subsequent criminal proceeding; and that contraband discovered as a result of such a search is admissible in a subsequent criminal proceeding if the search was one that was conducted in good faith to locate weapons and did not go beyond what was required to uncover such an object. (328 F.Supp. at pp. 1098–1099.) In that case the defendant was detained because he met the ‘profile’ and because he had activated a magnetometer. He was asked to go through the magnetometer installation again, first with, and then without, a small bag he was carrying. On each trip the magnetometer device was activated. Lopez was then patted down ('frisked') for weapons in the course of which a hard object was felt. An examination of this object revealed the presence of heroin.

In the light of the principles articulated in the cases above cited we conclude that a person who meets the ‘profile’ or a person who gives a positive reading to the magnetometer may be detained for the sole purpose of discovering whether he has weapons or instruments that may be used in air piracy. In ‘profile’ cases he may be questioned as to his identification and a request may be made to search his person and hand luggage. If he refuses to consent to a search it would be proper in the governmental interest to refuse him passage on the aircraft.2 In magnetometer surveillance cases when there is a positive reading to the subject's person or his hand luggage, the person detained may be questioned as to his identification and should first be requested to produce from his person and hand luggage all metal objects that might have activated the magnetometer. After producing such metal objects he should again be requested to expose himself and his luggage to the magnetometer. If he refuses to produce such objects or refuses to again expose himself or his luggage to the magnetometer, passage should be refused. If the magnetometer continues to be activated when the person is once again exposes to it, a search for weapons may be made. If the magnetometer was activated by some metal object on the person's body a ‘frisk’ search which does not go beyond the limits of what is required to uncover such an object is proper. If, on the other hand, the magnetometer is activated by some metal object in hand luggage it would be proper to open such luggage and to search for weapons since such a search would obviously be one within the legitimate scope of a weapons search. In each instance, contraband revealed by such a search could be properly seized. Adherence to these procedures balances the governmental interest in searching against the invasion of privacy.

In the instant case the procedures we have outlined insofar as the magnetometer surveillance is concerned were not completely followed. However, defendant's initial detention on the basis of ‘profile’ and magnetometer activation was proper for purpose of identification and for the purpose of requesting whether defendant would voluntarily submit himself to a search of his luggage and a ‘frisk’ of his body. The request by Winters that he would like to search defendant's carry-on luggage and make a ‘body-frisk’ was properly within the scope of the investigative detention. Defendant's response, ‘Fine,’ to this request is substantial evidence of a voluntary consent to the search. Accordingly, the fact that the magnetometer surveillance procedures outlined above were not followed does not do violence to the Fourth Amendment.

A search preceded by a voluntary, freely given consent is a reasonable and permissible search under constitutional standards. (Castaneda v. Superior Court, 59 Cal.2d 439, 442, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852; People v. Henry, 65 Cal.2d 842, 845; 56 Cal.Rptr. 485, 423 P.2d 557; People v. Beal, 268 Cal.App.2d 481, 485, 73 Cal.Rptr. 787.) The consent must be voluntary and not in response to an express or implied assertion of authority. (People v. Henry, supra, 65 Cal.2d at p. 846, 56 Cal.Rptr. 485, 423 P.2d 557; Castaneda v. Superior Court, supra.) Whether a consent to search was freely and voluntarily given or was rather merely a nonvoluntary submission to an express or implied authority, is a question of fact resolvable upon reference to all the attendant circumstances. (People v. Michael, supra; Castaneda v. Superior Court, supra; Schneckloth v. Bustamonte,—U.S.—, —, 93 S.Ct. 2041, 36 L.Ed.2d 854; Davis v. United States, 328 U.S. 582, 593–594, 66 S.Ct. 1256, 90 L.Ed. 1453; People v. Bustamonte, 270 Cal.App.2d 648, 652, 76 Cal.Rptr. 17.) The burden, in each instance, is upon the government officials to show by clear and positive evidence that the consent was freely, voluntarily and knowledgeably given. (Blair v. Pitchess, 5 Cal.3d 258, 274, 96 Cal.Rptr. 42, 486 P.2d 1242; People v. Shelton, 60 Cal.2d 740, 744, 36 Cal.Rptr. 433, 388 P.2d 665; Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797.)

The record before us consists of the preliminary hearing transcript upon which motions pursuant to Penal Code sections 1538.5 and 995 were submitted. The only relevant testimony adduced was that of Winters3 who testified that defendant was ‘very cooperative.’ The record discloses that defendant not only answered ‘Fine’ to the request to search his person and his hand luggage, but that he voluntarily offered the information that it was the sieve that might have set off the magnetometer. There was no evidence that defendant's consent to the search was the product of duress, coercion or intimidation; nor is there any evidence that the consent was in response to an express or implied assertion of authority. The only evidence touching upon Winters' authority is his statement that he introduced himself to defendant by identifying himself as a United States Marshal and showing defendant his credentials. Such identification, standing alone, is not an express or implied assertion of authority within the meaning of the cases nullifying consent on the basis of an assertion of authority amounting to intimidation and duress. (See Parrish v. Civil Service Commission, 66 Cal.2d 260, 269, 270–271, 57 Cal.Rptr. 623, 425 P.2d 223; People v. Schomer, 17 Cal.App.3d 427, 432–433, 95 Cal.Rptr. 125; Channel v. United States, 285 F.2d 217, 219–221.)

Adverting to defendant's contention that he was denied due process, effective assistance of counsel, and the right of confrontation, we observe that this claim of error is based on the trial court's sustaining of an objection to defense counsel's question, ‘Now then, you say he fit the profile. What is the profile?’ during his cross-examination of Winters. During the argument on the objection, defense counsel offered to submit to an in-camera investigation of the ‘profile’ where only the judge, the witness, defense counsel, the clerk and the court reporter would be present. Defense counsel, in conjunction with said offer, agreed to stipulate to a waiver of his client's right to be present and to the right to a public trial, and represented as an officer of the court that he would not reveal the in-camera proceedings to anyone but his law partner.

The People contend that the ‘profile’ was ‘official information’ under Evidence Code section 1040 and, therefore, was not subject to disclosure. As used in that section “official information' means information acquired in confidence by a public employee in the course of his duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made. . . .' (Evid.Code, § 1040, subd. (a).) Under the statute only a public entity has a privilege to refuse to disclose official information and to prevent another from disclosing such information if the disclosure is forbidden by an act of Congress or a statute of this state or the disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice. (Evid.Code, § 1040, subd. (b).) Where the privilege exists it must be claimed and the claim of privilege must be made by a person authorized by the public entity to do so. (Evid.Code, § 1040, subd. (b).)

The subject ‘profile’ clearly appears to constitute ‘official information’ within the meaning of Evidence Code section 1040 and as such was subject to the claim of privilege provided in the statute. However, no claim of privilege was made in the court below. The prosecution merely interposed a general objection to the question asked by defense counsel and the objection was sustained. Ordinarily, an objection which does not specify the specific defect is insufficient and amounts to a waiver of the defect. (Evid.Code, § 353, subd. (a); Bundy v. Sierra Lumber Co., 149 Cal. 772, 776, 87 P. 622; People v. Jacobs, 73 Cal.App. 334, 345, 238 P. 770.) There is an exception to this rule where the question is objectionable from every standpoint and the answer could not have been admissible under any theory. (Short v. Frink, 151 Cal. 83, 86, 90 P. 200; Swan v. Thompson, 124 Cal. 193, 195, 56 P. 878.) In the instant case it appears that the trial court sustained the objection on the basis that the disclosure of the elements of the profile was not necessary to establish reasonable and probable cause.

It is proper to point out here that in view of the overwhelming public and governmental interest in preventing air piracy, a trial judge may sua sponte prevent a courtroom disclosure of the ‘profile’ notwithstanding the neglect or failure to claim the privilege under Evidence Code section 1040. A trial judge may exclude inadmissible matter or foreclose improper questions on his own motion without any objection by counsel. (People v. White, 43 Cal.2d 740, 747, 278 P.2d 9; Kimic v. San Jose-Los Gatos etc. Ry. Co., 156 Cal. 379, 390, 104 P. 986; Davey v. Southern Pacific Co., 116 Cal. 325, 330, 48 P. 117; People v. Williams, 17 Cal.App.2d 122, 125, 61 P.2d 813.) This rule is particularly applicable where highly prejudicial matters are offered. (See People v. Arends, 155 Cal.App.2d 496, 508, 318 P.2d 532.)

It is a matter of generalized knowledge that the characteristics of the ‘profile’ have not been revealed to the general public. It is obviously critical to the public safety that if the ‘profile’ is to be used as a useful weapon in the suppression of air piracy its characteristics be not widely disseminated, for such knowledge would encourage potential hijackers to dissimulate the ‘profile’ appearance. Accordingly, since the privilege against the public disclosure of the ‘profile’ reasonably belongs to the public generally, its preservation ought not to depend on the happenstance of a public official's familiarity with Evidence Code section 1040 or his assertion of the privlege therein provided. In sum, it is a judicial duty sua sponte to five effect to the privilege against public disclosure of the hijacker ‘profile.’

Adverting to the instant case it appears that even though the court may have acted on an improper ground, defendant may not claim error on appeal on the basis that the subject privilege was not claimed if courtroom disclosure of the ‘profile’ was nevertheless impermissible, since the reason for the court's decision is immaterial if the result is correct. (See Careaga v. Moore, 70 Cal.App. 614, 623, 234 P. 121; Bohn v. Gruver, 111 Cal.App. 386, 396, 295 P. 891.) It remains for our consideration, however, to determine whether defendant was deprived of his Sixth Amendment right to confrontation and its implicit right of cross-examination.

The Sixth Amendment rights to confront witnesses are normally vital to due process and a fair trial. (Dutton v. Evans, 400 U.S. 74, 79, 91 S.Ct. 210, 27 L.Ed.2d 213; California v. Green, 399 U.S. 149, 157–158, 90 S.Ct. 1930, 26 L.Ed.2d 489; Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 [reh. den. 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80].) Basic to our judicial system is the right to cross-examination, and an improper denial of this fundamental right constitutes a denial of due process. (Alford v. United States, 282 U.S. 687, 691–692, 51 S.Ct. 218, 75 L.Ed. 614; Priestly v. Superior Court, 50 Cal.2d 812, 818–819, 330 P.2d 39, and concurring opinion, Carter, J., at p. 822, 330 P.2d 39; People v. Redwine, 166 Cal.App.2d 371, 388, 333 P.2d 188: McCarthy v. Mobile Cranes, Inc., 199 Cal.App.2d 500, 506, 18 Cal.Rptr. 750.)

In Botos, the only California case dealing with the disclosure of the ‘profile,’ the appellate court held that the aircraft hijacker ‘profile’ need not be shown to justify the limited investigative detention because under the circumstances attendant the public interest in preventing hijackings ‘No one may reasonably entertain an expectation his privacy will be free from this type of intrusion . . ..’ (27 Cal.App.3d 774, 779, 104 Cal.Rptr. 193, 195.) Botos does not discuss the nondisclosure of the ‘profile’ in relation to the Sixth Amendment rights to confront witnesses and the concomitant right of cross-examination.

In Priestly it was held that ‘When the prosecution relies . . . on communications from an informer to show reasonable cause and has itself elicited testimony as to those communications on direct examination, it is essential to a fair trial that the defendant have the right to cross-examine as to the source of those communications. If the prosecution refuses to disclose the identity of the informer, the court should not order disclosure, but on proper motion of the defendant should strike the testimony as to communications from the informer.’ (50 Cal.2d at pp. 818–819, 330 P.2d 39, at p. 43.)

In the instant case we are not dealing with a refusal to disclose the identity of the informer. The record is silent as to whether Winters was informed by someone else that defendant met the ‘profile’ or whether he himself drew that conclusion based on his personal knowledge of the characteristics of the ‘profile.’ In any event, it is clear from his proffered examination that defendant's counsel was not concerned with the mental process by which Winters made the determination that defendant met the ‘profile’ but specifically with the characteristics that made up the ‘profile.’ The thrust of defendant's contention is that if he was detained because of certain characteristics making up the ‘profile,’ he was entitled to know what they were so that he could rebut them by showing that he did not fit these characteristics and that, accordingly, there was no basis for the initial detention on the basis of ‘profile.’

The in-camera procedure suggested by defense counsel in the instant case was utilized in Lopez. In that case, unlike the offer in the present case, there was no stipulation waiving the defendant's presence and the right to a public trial. The court in Lopez held that the danger in revealing the ‘profile’ is so great as to warrant the public's exclusion for a limited period and concluded that an in-camera proceeding without the defendant's presence did not do violence to his right of confrontation when balanced with the public's interest in preventing aircraft hijackings. (328 F.Supp. at pp. 1088–1092.) The court's rationale was that if one characteristic of the ‘profile’ is revealed the system could be seriously undermined by hijackers fabricating an acceptable ‘profile,’ and an in-camera testimony which revealed the specific characteristics included in the ‘profile’ and the findings which led to its adoption at which the defendant's counsel was present and able to cross-examine witnesses balanced the public interest in protecting the flow of information against the individual's right to confrontation. (328 F.Supp. at pp. 1086, 1089–1092.) Nonetheless, the court suppressed the evidence because the ‘profile’ had been misused.4

It appears to us that in a case involving the characteristics of an aircraft hijacker's ‘profile’ the judge may properly balance the interest of the public in not disclosing the characteristics of the ‘profile’ with the defendant's right to a fair trial by the utilization of an in-camera procedure such as that utilized in Lopez.5

As rationalized in Lopez, the information under the system adopted by the federal authorities and the airlines to combat airline hijackings is the system itself and not an individual. That system ‘communicating through the airline, acts as an informer providing information leading to interview and search. The reliability of that information depends upon the nature of the profile and on how well the airline employees have applied it.‘ (328 F.Supp. at p. 1092.)

Accordingly, in the instant case it was error for the trial court, in the absence of a claim of privilege under Evidence Code section 1040 and a determination thereunder whether the disclosure of the ‘profile’ was against public interest, to deprive defendant of the right to have his counsel cross-examine Winters in an in-camera proceeding concerning the credibility of the information that defendant met the ‘profile’ by requiring information as to what the ‘profile’ was and giving defendant an opportunity to present contrary or impeaching evidence as to the truth of Winters' testimony and the reasonableness of his reliance on the information received from Woods.

Defendant also attacks his initial detention on the basis of Woods' information to Winters that defendant had set off the magnetometer. He contends that there is no evidence that he set off the magnetometer, that there is no evidence that the magnetometer was functioning properly, and that even if it were shown to have been functioning properly, it could only show the presence of metal, not the presence of weapons.

Defendant's contention that there was no evidence that he set off the magnetometer is based essentially on the ground that it was hearsay. We first observe that when Winters testified on direct examination that Woods informed him that defendant had set off the magnetometer no objection was interposed. It was not until cross-examination that defendant made a motion to strike. Such motion was not timely. (Evid.Code, § 353, subd. (a); People ex rel. Dept. of Public Works v. Alexander, 212 Cal.App.2d 84, 98, 27 Cal.Rptr. 720; People v. Corrigan, 48 Cal.2d 551, 556, 310 P.2d 953; People v. Castro, 257 Cal.App.2d 643, 645–646, 65 Cal.Rptr. 62; People v. Foster, 271 Cal.App.2d 763, 765–766, 76 Cal.Rptr. 775.)

In any event, Winters' testimony was not hearsay since it was not offered to prove the truth of what was stated but only to establish whether Winters had cause to initially detain defendant. (Evid.Code, § 1200; People v. Nichols, 3 Cal.3d 150, 157, 89 Cal.Rptr. 721, 474 P.2d 673, cert. den. 402 U.S. 910, 91 S.Ct. 1388, 28 L.Ed.2d 652; People v. Smith, 13 Cal.App.3d 897, 910, 91 Cal.Rptr. 786.) Moreover, it is well established that hearsay is competent for the purpose of establishing reasonable and probable cause for search and seizure. (People v. Boyles, 45 Cal.2d 652, 656, 290 P.2d 535; People v. Hale, 262 Cal.App.2d 780, 789, 69 Cal.Rptr. 28; People v. King, 140 Cal.App.2d 1, 4–6, 294 P.2d 972.) Woods was a reliable informant and Winters was therefore reasonably justified in acting on his information. (See People v. Melchor, 237 Cal.App.2d 685, 689–693, 47 Cal.Rptr. 235; People v. Prewitt, 52 Cal.2d 330, 337, 341 P.2d 1; People v. Cedeno, 218 Cal.App.2d 213, 219, 32 Cal.Rptr. 246.) Winters testified that airlines operate under the hijacking program in conjunction with federal marshals who proceed with detentions and interviews when advised by airline personnel that a prospective passenger meets the ‘profile’ or activates the magnetometer. Winters' testimony sufficed to establish that a system adopted by the federal authorities and the airlines to combat hijackings was in operation at the San Francisco International Airport at the time of the subject detention.

Accordingly, Winters was entitled to rely on Woods' information that defendant set off the magnetometer, and he was entitled, as a result of this information, to assume that the magnetometer as operated by airline personnel was operating properly. Moreover, although Winters had not tested the magnetometer on the day in question, he was familiar with its operation and when he went through the machine on previous occasions the magnetometer worked properly. We are here concerned with whether Winters was acting reasonably, and not with whether the machine was working properly, although the evidence was such that an inference could properly be drawn that it was working properly. We see no merit in the contention that the machine could only show the presence of mental. This is what it was supposed to do. It is a matter of common knowledge that most weapons are made of metal.

Although the court erred under the circumstances of this case in not permitting the cross-examination concerning the ‘profile,’ that error was harmless beyond a reasonable doubt. ‘[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ (Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.) There is no reasonable probability that a different result would have been reached had defendant been permitted to inquire into the ‘profile.’ This case was not tried before a jury. The trial court, in making its ruling, properly pointed out that defendant's detention was first brought about because of the activation of the magnetometer and that this activation in and of itself sufficed to detain defendant irrespective of whether or not he had met the ‘profile.’

We are not required in the present case to decide whether an airline, upon the basis that every passenger is a hijack ‘suspect,’ may search his luggage or may, as a condition precedent to his boarding the aircraft, require him to consent to a search of his luggage or person under penalty of denial of passage if he refuses.7 The principles discussed by us deal with the right to detain a passenger based on indicia supplied by the utilization of a ‘profile,’ a magnetometer, or similar device.

The judgment is affirmed.


1.  Defendant appeals from an order granting probation which is deemed to be a final judgment of conviction. (Pen.Code, § 1237.)

2.  We observe that in the instant case Winters testified that passengers who do not voluntarily consent to a search after being so detained are not permitted to board the aircraft.

3.  The only other witness who testified was Robert C. Canulla, a deputy sheriff who booked defendant after his arrest, and to whom the contraband in question was turned over as evidence.

4.  This misuse consisted of the Pan American Passenger Service manager's memorandum ‘updating’ the ‘profile.’ This memorandum was not authorized by the Pan American Security Services, the Federal Aeronautics Administration, or the United States Marshal Service. It eliminated one criterion included in the official ‘profile’ established by the Federal Aeronautics Administration and added two additional categories. (328 F.Supp. at p. 1101.)

5.  We observe that this concept is reflected in section 1040 of the Evidence Code in cases involving conditional privilege. As stated in the Legislative Committee comment to this statute, ‘The judge must determine in each instance the consequences to the public of disclosure and the consequences to the litigant of nondisclosure and then decide which outweighs the other. He should, of course, be aware that the public has an interest in seeing that justice is done in the particular cause as well as an interest in the secrecy of the information.’

7.  In People v. McKinnon, 7 Cal.3d 899, 913–914, 103 Cal.Rptr. 897, 500 P.2d 1097, the reviewing court observed that under current traffic provisions a common carrier to whom goods have been consigned in a sealed package is authorized to open and inspect the package if it suspects that the nature or value of the contents does not correspond to the representations of the shipper; and that such carrier, pursuant to its general duty of care towards all the goods it transports, has the right to open and inspect a package which it suspects contains a dangerout device that may damage other goods in shipment or the vehicle carrying them, and, because it has the right and duty not to knowingly allow its property to be used for criminal purposes, it has the additional right to open and inspect a package which it suspects contains contraband.

MOLINARI, Presiding Justice.

SIMS, and ELKINGTON, JJ., concur.

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PEOPLE v. LEE (1973)

Docket No: Cr. 10823.

Decided: June 05, 1973

Court: Court of Appeal, First District, Division 1, California.

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