United States v. Davis

¶4OPINION

¶5BROWNING, Circuit Judge:

¶6Appellant was convicted of attempting to board an aircraft while carrying a concealed weapon (49 U.S.C. § 1472(1)). The conviction was based upon the discovery of a loaded revolver in appellant’s briefcase by a Trans World Airlines employee during a search of the carry-on luggage of boarding passengers. Appellant’s motion to suppress was denied on the grounds that he “impliedly consented” to the search and that, in any event, “there was no governmental involvement.”

¶7We hold that the United States was sufficiently implicated in this airport screening search to require that it be conducted in compliance with the Fourth Amendment. We hold further that while airport screening searches per se do not violate a traveler’s rights under the *896Fourth Amendment, or under his constitutionally protected right to travel, such searches must satisfy certain conditions, among which is the necessity of first obtaining the consent of the person to be searched. A remand is necessary in this ease to determine whether appellant gave such consent.

¶8On March 16, 1971, appellant and a friend checked in a few minutes before TWA Flight 743’s scheduled 6:50 p. m. departure from San Francisco International Airport for Bangkok, Thailand, with an intermediate stop in Los Ange-les. Appellant was ticketed for Los An-geles.

¶9As appellant approached the loading gate, Malcolm Read, a TWA employee, told him that a routine security check was necessary, reached for his briefcase, opened it, and found a gun.1 Mr. Read handed the gun to Donald Graub, a United States Customs Service security agent who had been standing some six feet away. Mr. Graub found the gun to be loaded. Mr. Read, Mr. Graub, and United States Deputy Marshal Douglas Aaron, who had been standing with other deputy marshals about 15 feet away, thereupon escorted appellant to a nearby room where the officials conducted a search of appellant’s person. Following the search, Deputy Marshal Aaron formally took both appellant and the gun into custody.

¶10Appellant was charged with a minor offense under 49 U.S.C. § 1472(1). He pleaded not guilty and filed a motion to suppress. An evidentiary hearing was held before a United States magistrate on both the motion to suppress and the general issue of guilt or innocence. The motion to suppress was denied on a finding of implied consent. Appellant was found guilty and sentenced to pay a fine of $250.2

¶11Appellant appealed to the district court (18 U.S.C. § 3402; Rule 8(d), Rules of Procedure for the Trial of Minor Offenses before United States Magistrates), urging error in the denial of the motion to suppress. The district court affirmed, concurring in the magistrate’s finding of consent, and adding, as an alternate ground, that there was no governmental involvement in the seai’ch.

¶12I

¶13We consider first whether the United States was sufficiently involved to subject the search to the limitations of the Fourth Amendment.

¶14“[S]eareh is a functional, not merely a physical, process.” Lustig v. United States, 338 U.S. 74, 78, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949). A search begins with the planning of the invasion and continues “until effective appropriation” of the fruits of the search “for subsequent proof of an of*897fense.” Id.The Fourth Amendment applies to a search whenever the government participates in any significant way in this total course of conduct. “The decisive factor ... is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means.” Id. at 79, 69 S.Ct. at 1374.3

¶15The search of appellant’s briefcase was not an isolated event. It was part of a nationwide anti-hijacking program conceived, directed, and implemented by federal officials in cooperation with air carriers.

¶16The major governmental effort to meet the threat of hijacking began in late 1968, when hijacking of commercial aircraft reached serious proportions, and intensified steadily thereafter. '

¶17Various techniques for the surveillance and search of potential air passengers have been a part of that effort. At no time since late 1968 could activities of this kind at the nation’s airports have been described accurately as “an independent investigation by the carrier for its own purposes,” Gold v. United States, 378 F.2d 588, 591 (9th Cir. 1967), and thus beyond the reach of the Fourth Amendment. The United States has “significantly involved itself” in airport searches from the beginning. Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967).

¶18The first hijacking of an American commercial aircraft occurred in 1961.4 Congress responded by passing a statute making aircraft hijacking and certain related activities federal crimes.5 The statute also authorizes certain relevant conduct by the individual carriers: “Subject to reasonable rules and regulations prescribed by the [Federal Aviation] Administrator, any air carrier is authorized to refuse transportation to a passenger or to refuse to transport property when, in the opinion of the air carrier, such transportation would or might *898be inimical to safety of flight.” 6 This statute, and related rules issued under the regulatory authority of the Administrator,7 provide the basis for the anti-hijacking program.

¶19In 1963 the United States joined in the Tokyo Convention, an international agreement addressed to some of the jurisdictional problems involved in international hijackings.8 Little more occurred, however, until 1968.

¶20Between 1961 and 1968, hijackings of United States aircraft averaged about one per year. In 1968, however, the number rose to 18. In 1969 there were 40 attempted hijackings of United States aircraft, 33 successful.9

¶21Spurred by these events, the United States entered into additional international conventions aimed at solving complications left unresolved by the earlier Tokyo Convention.10 It also undertook domestic action to avert further hijacking episodes.

¶22Beginning in October 1968, a Federal Aviation Administration task force, including representatives of the Department of Justice and the Department of Commerce, compiled a “profile” of objective characteristics to identify potential hijackers.11 In December 1968, the Federal Aviation Administration held an intensive high-level symposium on the development of devices for the screening of individuals for possession of concealed weapons.12 The FAA Task Force,- working in cooperation with the carriers, then developed the initial anti-hijacking “system.”

¶23Although the specific elements varied over a period of time, the system generally included, first, the use of the “profile,” next, the use of a magnetometer to detect the presence of metal on any prospective passenger who met the “profile,” and finally, a weapons search of the carry-on luggage and/or person of anyone who activated the magnetometer.13

¶24*899The FAA and the airlines worked together to put the system into operation at the nation’s airports.14 As a part of this cooperative effort, United States deputy marshals and Customs Service agents were made available to carry out searches and make arrests.15 By September 1970, approximately 400 United States deputy marshals were assigned to surveillance and search activities at airport boarding gates.16

¶25On September 11, 1970, the President of the United States announced “A Program to Deal with Airplane Hijacking.” Pertinent excerpts appear in the margin.17 , The President “directed” the Department of Transportation to have airlines extend the use of surveillance equipment and techniques to all appropriate airports in the United States. The President further stated that “the federal government will pro*900vide enforcement officers to work this equipment, to conduct searches when appropriate, and to make necessary arrests.” 18

¶26Although “prepared to require it absolutely by rule,” the Department of Transportation continued for a time to employ informal means to obtain the cooperation of air carriers.19 By September 1971, however, the FAA had concluded that voluntary cooperation “had not satisfactorily provided [the] needed protection in many instances,” and proposed a new rule requiring all air carriers to submit a screening program to the FAA for approval.20 On February 1, 1972, the FAA issued a rule requiring air carriers to adopt and put into use within 72 hours a screening system “acceptable” to the FAA “to prevent or deter the carriage aboard its aircraft of sabotage devices or weapons in carry-on baggage or on or about the persons of passengers.” 21 This system was to require the screening of all airline passengers “by one or more of the following systems: behavioral profile, magnetometer, identification check, physical search.” 22

¶27*901In July 1972, the President “ordered” the screening of all passengers and inspection of all carry-on baggage on all “shuttle-type” flights.23 On August 1, 1972, the FAA issued a directive that no airline “shall permit any person” meeting the profile to board a plane unless his carry-on baggage had been searched and he had been cleared through a metal detector or had submitted to a “consent search” prior to boarding.24 On December 5, 1972, the FAA ordered that searches of all carry-on items and magnetometer screening of all passengers be *902instituted by January 5, 1973.25 Routine screening and searching under this procedure was to be conducted by airline personnel, but in the presence of armed law enforcement officers “(1) Authorized to carry and use firearms,” and “(2) Vested with a police power of arrest under Federal, State, or other political subdivision authority.” 26

¶28The search in the instant case occurred on March 16, 1971 — after the President’s directive of September 1970, but before the issuance of formal regulations mandating pre-boarding searehes.*90427 It is entirely clear from the materials summarized above, however, that throughout the period since late 1968 the government’s participation in the development and implementation of the airport search program has been of such significance as to bring any search conducted pursuant to that program within the reach of the Fourth Amendment.28

¶29The government’s role in the airport search program is and has been a dominant one. But even if governmental involvement at some point in the period could be characterized accurately as mere “encouragement,” or as “peripheral, or . one of several cooperative forces leading to the [alleged] constitutional violation,” see United States v. Guest, 383 U.S. 745, 755-756, 86 S.Ct. 1170, 1177, 16 L.Ed.2d 239 (1966), that involvement would nevertheless be “significant” for purposes of the Fourth Amendment. Constitutional limitations on governmental action would be severely undercut if the government were allowed to actively encourage conduct by “private” persons or entities that is prohibited to the government itself.29

¶30It makes no difference that the act of opening appellant’s briefcase was accomplished by a “private” airline employee rather than a “public” official. The search was part of the overall, nationwide anti-hijacking effort, and constituted “state action” for purposes of the Fourth Amendment.

¶31II

¶32The government argues that the search of appellant’s briefcase was consistent with the Fourth Amendment (1) because appellant did not have a reasonable expectation of privacy with respect to his carry-on luggage, citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), and (2) because “a police officer is not required to have probable cause for arrest before he can seize a person and subject him to a limited search for weapons,” citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

¶33The search cannot be justified on either ground.

¶34Katz states a threshold test. Its purpose is to determine whether a given intrusion is subject to the Fourth Amendment. If the complaining individual did not haye a reasonable expectation of privacy with regard to the intru*905sion, the Fourth Amendment is inapplicable; if he did have a reasonable expectation of privacy, however, the government must demonstrate that the intrusion was justified under Fourth Amendment standards.

¶35As interpreted by Justice Harlan (an interpretation the government urges but that we do not necessarily accept30), Katz imposes “a twofold requirement [for Fourth Amendment protection], first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

¶36Clearly the first requirement was satisfied in this case: appellant relied on the privacy of his briefcase to conceal his gun.

¶37The second requirement was also sat- . isfied. This requirement does not mean that any kind of governmental intrusion is permissible if it has occurred often enough. The government could not avoid the restrictions of the Fourth Amendment by notifying the public that all telephone lines would be tapped, or that all homes would be searched. “Airport searches” are not outside the Amendment simply because they are being conducted at all airports. In none of the Supreme Court decisions excluding searches or seizures from the Fourth Amendment on the authority of Katz was the result based on such a rationale. Rather, in each case the individual’s alleged reasonable expectation of privacy was negated on some ground independent of the frequency of the challenged intrusion itself.31 There is no such independent ground in this case.

¶38Terry along with its companion case Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), and the more recent Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), is also inapposite to the validity of pre-boarding screening searches of passengers and luggage.32*906Those cases deal with a wholly different problem; and, in doing so, (1) they impose a requirement for justification of individual searches that pre-boarding screening searches cannot meet, and (2) they permit searches which are in some respects more extreme, and in other respects less so, than required to meet the need relied upon to justify pre-boarding screening searches.33

¶39Terry dealt with a street confrontation between a citizen and a policeman. The Court held that when a policeman is entitled to forcibly “stop” a person to inquire about possible criminal activity,34 and has reason to believe that the person is armed and dangerous, he may conduct a .limited pat-down search for weapons to protect himself while conducting the inquiry. In Terry, in Si-bron, and later in Adams, the Court went to great pains to make clear that the officer’s right to conduct such a search of an individual depends upon the officer’s possession of specific, articula-ble facts sufficient to satisfy a reasonably prudent person that the particular individual is in fact armed and dangerous. To justify a stop-and-frisk, the government must focus on each person and demonstrate that as to that individual there is specific cause to fear the justifying harm.35

¶40The Court also emphasized that the justification for a Terry “frisk” was primarily the officer’s self-protection,36*907and that all searches must be “reasonably related in scope to the justification for their initiation,” Terry, 392 U.S. at 29, 88 S.Ct. at 1884. Consequently, the Court held, the permissible scope of a Terry “frisk” is limited to a patting down of the “stopped” person’s outer clothing, for no more is required to detect the presence of weapons that might be available for immediate use against the officer.37

¶41The search of appellant, however, occurred as part of a screening process directed not against appellant or any other person as such, but rather against the general introduction of weapons or explosives into a restricted area. The search was indiscriminate, and, in view of its object, necessarily so, absent a foolproof means of isolating in advance those few individuals who were genuine hijack risks. Moreover, it required an intrusion sufficient in scope to detect not only weapons that were immediately accessible to appellant when he was stopped prior to boarding, but also any weapons that would be accessible to him after boarding.

¶42Terry, Sibron, and Adams are inap-posite because Mr. Read had no particular interest in appellant as an individual. He had no individualized basis for the search at all, much less specific and articulable facts that would justify a reasonably prudent man in believing that appellant was about to commit a crime or that he was carrying a weapon.

¶43Moreover, the search exceeded the scope necessary to assure Mr. Read that appellant did not have a weapon immediately available for use against him. Some rationale other than that of Terry is required to justify extension of the “frisk” to appellant’s briefcase.38

¶44Extension of the Terry stop- and-frisk rationale to authorize airport screening searches would result in intrusions upon privacy unwarranted by the need. As the Court made explicit in Adams, Terry applies when “the officer is entitled to make a forcible stop.” 407 U.S. at 146, 92 S.Ct. at 1923. In this situation, Terry permits a forcible search: the officer could hardly be required to secure a legitimately detained person’s permission to conduct a reasonable, self-protective search. As will be discussed below, however, neither forcible detention nor forcible search is justified by the legitimate governmental interest served by airport screening searches.

¶45If Terry’s authorization of a stop- and-frisk is separated from the requirement that there be specific articulable facts establishing reasonable cause to believe that the individual stopped and searched is committing or about to commit an offense and is armed and dangerous, there is no readily apparent limitation on the policeman’s power short of a concession that governmental agents may detain and search anyone, anywhere, whenever there is a serious threat of crime. There is no reason to believe that the incidence of concealed weapons is greater among airline passengers than among members of the *908public generally,39 and Terry does not justify the wholesale “frisking” of the general public in order to locate weapons and prevent future crimes.

¶46Ill

¶47The appropriate standards for evaluating the airport search program under the Fourth Amendment are found in a series of Supreme Court cases relating to “administrative” searches and in two Court of Appeals decisions applying these precedents.40

¶48The essence of these decisions is that searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched.

¶49As we have seen, screening searches of airline passengers are conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings. The essential purpose of the scheme is not to detect weapons or explosives or to apprehend those who carry them, but to deter persons carrying such material from seeking to board at all.41

¶50Of course, routine airport screening searches will lead to discovery of contraband and apprehension of law violators. This practical consequence does not alter the essentially administrative nature of the screening process, however, or render the searches unconstitutional. One purpose of the searches authorized in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d *90987 (1972); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), was to discover continuing violations of regulatory codes.42

¶51There is an obvious danger, nonetheless, that the screening of passengers and their carry-on luggage for weapons and explosives will be subverted into a general search for evidence of crime.43 If this occurs, the courts will exclude the evidence obtained.44 Appellant does not argue that airport searches are currently being used as a subterfuge for the prohibited “general search.”

¶52*910To pass constitutional muster, an administrative search must meet the Fourth Amendment’s standard of reasonableness. “Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.” Camara v. Municipal Court, supra,387 U.S. at 536-537, 87 S.Ct. at 1735.

¶53The need to prevent airline hijacking is unquestionably grave and urgent.45 The potential damage to person and property from such acts is enormous. The disruption of air traffic is severe. There is serious risk of complications in our foreign relations.46

¶54A pre-boarding screening of all passengers and carry-on articles sufficient in scope to detect the presence of weapons or explosives is reasonably necessary to meet the need. Little can be done to balk the malefactor after such material is successfully smuggled aboard, and as yet there is no foolproof method of confining the search to the few who are potential hijackers.

¶55It is not fatal that the search of appellant’s briefcase was conducted without a warrant. Under the indiscriminate screening procedures required by current regulations and applied in this ease, the decision to search the carry-on luggage of a particular passenger is not “subject to the discretion of the official in the field,” Camara, supra, 387 U.S. at 532, 87 S.Ct. at 1733; and the practical effect of a warrant requirement would be to “frustrate the governmental purpose behind the search.” Id. at 533, 87 S.Ct. at 1733.47

¶56In this and other relevant respects,48 the airport search program is indistinguishable, for Fourth Amendment purposes, from the warrantless screening inspection of air passengers and their luggage for plant pests and disease approved in United States v. Schafer, 461 F.2d 856 (9th Cir. 1972).

¶57One important caveat should be stressed, however. To meet the test of reasonableness, an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.49 It follows that airport screening searches are valid only if they recognize the right of a person to *911avoid search by electing not to board the aircraft.50

¶58It is difficult to see how the need to prevent weapons and explosives from being carried aboard the plane could justify the search of a person who had elected not to board. Perhaps it could be argued that a compelled search might lead to the apprehension of a potential hijacker, eliminating or at least reducing the chance that he would try again. Compared to the degree of additional intrusiveness that compulsory searches involve, however, this possibility seems so slight as to be inconsequential. The risk of successful hijacking is not enhanced by allowing a potential passenger to avoid a search on a particular occasion by electing not to fly. Airport screening searches, as carried out in this ease and as currently employed nationwide, are not selective. A prospective passenger who elects not to fly on an earlier flight is, like all other passengers, certain to be subjected to a search before he can board a later flight.

¶59It is significant that the regulations establishing the airport search program do not authorize or require compelled searches.51

¶60Since a compelled search of persons who elect not to board would not contribute to barring weapons and explosives from the plane, it could serve only the purpose of apprehending violators of either the criminal prohibition against attempting to board an aircraft while carrying a concealed weapon, 49 U.S.C. § 1472(J), or some other criminal statute. Such searches would be criminal *912investigations subject to the warrant and probable cause requirements of the Fourth Amendment.52

¶61In sum, airport screening searches of the persons and immediate possessions of potential passengers for weapons and explosives are reasonable under the Fourth Amendment provided each prospective boarder retains the right to leave rather than submit to the search.

¶62IV

¶63This conclusion is consistent with a full recognition of appellant’s constitutional right to travel.53

¶64Although the right to travel is not absolute,54 and its scope and limitations remain uncertain,55 it is firmly settled that freedom to travel at home and abroad without unreasonable governmental restriction is a fundamental constitutional right of every American citizen. “This Court long ago recognized that the nature of our Federal Union and our constitutional concepts, of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969).56

¶65At the minimum, governmental restrictions upon freedom to- travel are to be weighed against the necessity advanced to justify them, and a restriction that burdens the right to travel “too broadly and indiscriminately” cannot be sustained. Aptheker v. Secretary of State, 378 U.S. 500, 505, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). “‘[E]ven though the governmental purpose be legitimate and substantial, that purpose *913cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’ ” Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1961), quoted in Aptheker v. Secretary of State, supra, 378 U.S. at 508, 84 S.Ct. 1659.57 Moreover, exercise of the constitutional right to travel may not be conditioned upon the relinquishment of another constitutional right (here, the Fourth Amendment right to be free of unreasonable search), absent a compelling state interest.58

¶66These doctrines dictate a critical examination of each element of the airport security program to make certain that neither the passenger’s right to travel nor his right to personal privacy is burdened beyond the clear necessities of current circumstances.

¶67As we have seen, however, the need for some limitations upon these rights is clear. In light of that need, a screening of passengers and of the articles that will be accessible to them in flight does not exceed constitutional limitations provided that the screening process is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives, that it is confined in good faith to that purpose, and that potential passengers may avoid the search by electing not to fly.59

¶68V

¶69The magistrate and the district court, as we have said, found that appellant “consented” to the inspection of his briefcase, and that the search was therefore lawful.

¶70We agree that in this case the issue may be dealt with as one of “consent.”

¶71We have held that, as a matter of constitutional law, a prospective passenger has a choice: he may submit to a search of his person and immediate possessions as a condition to boarding; or he may turn around and leave. If he chooses to proceed, that choice, whether viewed as a relinquishment of an option to leave or an election to submit to the search, is essentially a “consent,” granting the government a license to do what it would otherwise be barred from doing by the Fourth Amendment.

¶72The Supreme Court recently re-examined the nature of “consent” in the Fourth Amendment context in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The Court was concerned with whether a consent, concededly given, was given “voluntarily.” As stated by the Court, “The precise question in this case . . . is what must the state prove to demonstrate that a consent was ‘voluntarily’ given.” 412 U.S. at 223, 93 S.Ct. at 2045. The Court concluded that “the *914question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or eoei'cion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of effective consent.” Id. at 227, 93 S.Ct. at 2047-2048. The Bus-tamonte test would be applicable in determining whether consent to a pre-boarding search was “voluntarily” given. See United States v. Ruiz-Estrella, 481 F.2d 723, 730 (2d Cir. 1973).

¶73There is, however, a threshold question, not presented in Bustamonte. That question is whether in fact consent has been given. Only after some form of consent-in-fact is shown can “the precise question” of the “voluntariness” of that consent arise.

¶74It may well be that under the present airport screening program, operating pursuant to current regulations, the alternatives presented to a potential passenger approaching the screening area are so self-evident that his election to attempt to board necessarily manifests acquiescence in the initiation of the screening process.

¶75It is not so clear, however, that this was true when appellant sought to board TWA’s Flight 743 on March 16, 1971. The nature and scope of airport searches were not then widely known. The regulations mandating pre-boarding searches of passengers on all flights had not yet been issued. See text at note 27. The flights affected and the procedures employed varied with different carriers; the record discloses that passengers seeking to board TWA Flight 743 were searched only because this was a “Red Alert” flight — one having no more than a single domestic stop before departing for a foreign destination.

¶76It may be that signs, pre-boarding announcements, screening operations underway at nearby boarding gates, or other circumstances justified an inference that appellant was alerted to the procedures being employed and, by his attempt to board, manifested his willingness to submit to the search of his briefcase. No such evidence was offered, however. The hearing focused instead upon the instant Mr. Read reached for appellant’s briefcase and appellant relinquished it; and the posture of the evidence was simply that appellant’s briefcase “was taken from his hand, opened before he had a chance to really do or think anything.” See note 1.

¶77This record would not support an inference that appellant had decided to accede to the search — any more than if it appeared that appellant had set his briefcase down and turned away for a moment, and Mr. Read had opened it without his knowledge.

¶78The magistrate apparently recognized the absence of either direct or circumstantial proof of consent-in-fact. He held, however, that because appellant arrived late, the burden of proof was not on the government to show “consent,” but on appellant to show the lack of it: “I think there are certain hazards that go along with arriving late, and I must find in such a situation an implied consent . . . . ” The district court presumably agreed.

¶79This was error. It is settled, of course, that the government bears the burden of proving “consent.” See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Montana v. Tomich, 332 F.2d 987, 989 (9th Cir. 1964); see also Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921). The government and TWA could insist upon a preboarding search; they could deny appellant the right to fly if he refused to consent, or if his late arrival deprived them of sufficient time to obtain his consent or to conduct the search. But the government may not justify a search on the basis of “consent” unless it first establishes that such consent was given, expressly or by implication.

¶80*915It may well be, as we have said, that proof is available that would justify an inference that appellant’s attempt to board manifested a consent to the search. This evidence may not have been offered because of the magistrate’s misconception as to who, in the circumstances, bore the burden of proof. A remand for further consideration of the consent issue is therefore appropriate.

¶81Reversed and remanded.