People v. Tiffany

Opinion

ROTH, P. J.— Appellant Tiffany on October 2, 1971, in the process of boarding an airplane bound for San Francisco, alerted a magnetometer through which he was required to pass. Accosted by a deputy marshal who inquired whether he had “any guns, knives, weapons or tear gas,” he was asked to “step over to the table immediately adjacent to the area for inspection of your carry on articles.”

[181]In reply to the deputy’s question whether he had guns, appellant said no. No contraband or metal was found. As . the deputy replaced the removed articles into the bag from which they were emptied appellant said to the deputy “It is a good thing you did not find my machine gun in there.”

The deputy without frisking appellant demanded that appellant remove a small plastic opaque box four and one-half inches in length by three and one-half inches width, one-half inch thick visible in appellant’s breast coat pocket. Appellant did so, opened it at the deputy’s request and the deputy noticed what he thought were two empty shell casings which looked like bullets but were the .disassembled parts of a cigarette holder. As the deputy reached for the box, it fell to the floor and one of the parts of the cigarette holder expelled what appeared and proved to be cocaine in small plastic bindles. A further search resulted in discovery of dangerous drugs.

Appellant’s motion to suppress under section 1538.5 of the Penal Code was denied. The matter proceeded to trial on one count only and after a submission of the matter on the basis of the preliminary hearing transcript a judgment was entered against appellant finding him guilty of a violation of section 11500 (possession of cocaine) of the Health and Safety Code. The district attorney dismissed the remaining counts. Appellant appeals contending the motion was improperly deniéd.

Issue

Appellant’s argument predicated upon" United States v. Lopez (E.D.N.Y. 1971) 328 F.Supp. 1077, is that his Fourth Amendment rights were violated because of the deputy’s failure to follow FAA guidelines in respect of airline searches which specified the use of an FAA profile,1 a device designed to pinpoint those expectant passengers who are most likely to be air-hijackers, was not used. Appellant quotes Lopez at page 1083 as follows: “A magnetometer is installed in the passageway leading to the plane so that all passengers must pass through it. It is set to flash a warning light when metal equal to or greater than an average 25 caliber gun in magnetic force deflecting power is carried by....