2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-31-2006

USA v. Hartwell

Precedential or Non-Precedential: Precedential

Docket No. 04-3841

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-3841

UNITED STATES

v.

CHRISTIAN HARTWELL,

 Appellant

 

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(Dist. Ct. No. 03-CR-00384)

District Court Judge: Hon. Jan E. DuBois

Argued: May 24, 2005

Before: SCIRICA, Chief Judge, ALITO and

RENDELL, Circuit Judges

(Opinion Filed: January 31, 2006)

Albert J. Raman (argued)

913 Public Ledger Bldg.

Sixth and Chestnut Streets

Philadelphia, PA 19106

Counsel for Appellant
1

Hartwell also appeals the District Court’s decision that he

was not eligible for a safety valve departure at sentencing. We

reject this claim because Hartwell waived his right to appeal the

issue, and he said he understood the waiver at his plea colloquy.

Cf. United States v. Khattak, 273 F.3d 557, 561 (3d Cir. 2001) (“If

done knowingly and voluntarily, a statutorily created right to

appeal is generally held to be waiveable.”).

2

Patrick L. Meehan

Laurie Magid

Robert A. Zauzmer

John N. Joseph (argued)

United States Attorney’s Office

615 Chestnut St., Suite 1250

Philadelphia, PA 19106

Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge

Christian Hartwell set off a metal detector at a security

checkpoint in an airport. Transportation Security Administration

(“TSA”) agents then used a magnetic wand to pinpoint any metal

on his person. They detected something in Hartwell’s pocket and

asked to see it. Ultimately, they discovered that the object was

crack cocaine and placed Hartwell under arrest. Hartwell argues

that the drugs should have been suppressed because the search

offended the Fourth Amendment.1

 We hold that it did not. 

I. 
2

The parties disagree about what happened as Hartwell

passed through. The government claims that he did not set off the

alarm, while Hartwell says that he did. 

3

The parties also disagree as to how the wand detected the

item. Hartwell says that the wand beeped as it passed over his

pocket. Agent Padua avers that the wand did not beep, but that it

accidentally bumped into a solid object as it passed by Hartwell’s

pocket.

3

Hartwell arrived at the Philadelphia International Airport on

Saturday, May 17, 2003, intending to catch a flight to Phoenix. He

reached the security checkpoint, placed his hand luggage on a

conveyor belt to be x-rayed, and approached the metal detector.

Hartwell’s luggage was scanned without incident, but he set off the

magnetometer when he walked through. He was told to remove all

items from his pockets and try again. Hartwell removed several

items—including a large quantity of cash—from his pocket, and

passed through again. 

Transportation Security Administration agent Carlos

Padua took Hartwell aside after he passed through the metal

detector a second time.2

 Padua used a handheld wand-like

magnetometer to discover what set off the metal detector. The

wand revealed a solid object in Hartwell’s cargo pants pocket.3

Padua asked what it was, but Hartwell did not respond. 

What occurred next is the subject of some dispute. Hartwell

claims that he was escorted to a private screening room near the

checkpoint, where he refused Padua’s repeated requests to reveal

the contents of his pocket. Frustrated by Hartwell’s unresponsiveness, Padua eventually reached into Hartwell’s pocket and

pulled out a package of drugs. He immediately called the

Philadelphia police, who searched Hartwell, found two additional

packages of drugs and about $3000 in cash, and promptly arrested

him. 

The government claims that neither Padua nor the police

officer ever reached into Hartwell’s pocket without his consent.

According to Agent Padua, the following occurred. After
4

requesting private screening, Hartwell refused several requests to

empty his pocket, nervously backed away from Agent Padua while

he was being questioned, and suddenly dropped his pants. This

suspicious behavior prompted Padua to call for backup. A police

officer arrived and asked Hartwell to remove any items from his

pocket, and Hartwell complied by handing over one package of

drugs. He then feigned falling to the floor and dropped a second

package of drugs. 

The District Court found it unnecessary to resolve these

conflicting accounts, finding that the search was justified based on

undisputed facts. In particular, the Court observed that “[t]here is

no dispute that defendant triggered the magnetometer at least once

and that Padua attempted to resolve the alarm through the use of

the wand.” United States v. Hartwell, 296 F. Supp. 2d 596, 603–04

(E.D. Pa. 2003). The Court also noted that Hartwell “does not

dispute that he was instructed to remove all metal objects from his

person prior to each screening and that he was specifically

requested to remove the items in his lower pocket several times.”

Id. at 604. In the District Court’s view, these circumstances

justified the officers’ behavior, regardless of whose version of the

rest of the story was true. “Whether defendant voluntarily

produced the drugs or whether defendant was frisked,” the Court

stated, “the search was reasonable under the Fourth Amendment.”

Id. at 603. 

Although the District Court had no difficulty reaching this

result, it recognized that courts have not settled on a single

framework for analyzing warrantless searches at airport

checkpoints. The Court therefore considered three separate

justifications for Hartwell’s search, and found each sufficient. The

Court first held that the search passed muster under the Fourth

Amendment’s “general proscription against unreasonable searches

and seizures.” Id. at 602 (quoting United States v. Albarado, 495

F.2d 799, 804 (2d Cir. 1974)). See also United States v. Lopez,

328 F. Supp. 1077 (E.D.N.Y. 1971). The Court next sustained the

search under the theory that it was a “consensual administrative

search[].” Hartwell, 296 F. Supp. 2d at 602 (citing United States

v. Davis, 482 F.2d 893 (9th Cir. 1973)). Finally, the Court stated

that “by submitting to the screening process, defendant impliedly

consented to the search and was lawfully required to complete the
5

search to determine the cause of the alarm.” Hartwell, 296 F.

Supp. 2d at 605. On appeal, Hartwell argues that all three

rationales are unfounded. We disagree. 

II. 

We hold that the search was permissible under the

administrative search doctrine. Cf. United States v. Marquez, 410

F.3d 612, 616 (9th Cir. 2005) (“Airport screenings of passengers

and their baggage constitute administrative searches and are subject

to the limitations of the Fourth Amendment.”). Finding this

rationale sufficient, we deem it unnecessary to evaluate the District

Court’s alternative holdings on generalized reasonableness and

implied consent. 

The Fourth Amendment provides: 

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath oraffirmation, and particularly describing the

place to be searched, and the persons or things to be seized.

U.S. Const. Amend. IV. This provision limits government action

in two ways. First, it requires that searches and seizures be

reasonable, and second, it states that when a warrant is

required—in circumstances not explicitly defined by the text— it

must have certain characteristics. See California v. Acevedo, 500

U.S. 565, 581 (1991) (Scalia, J., concurring). 

The Supreme Court has read the Amendment’s twin

commands in tandem, holding that when people have a reasonable

expectation of privacy in their persons or effects, all searches and

seizures must be supported by a warrant, unless they fall into one

of the exceptions to that requirement. See Minnesota v. Dickerson,

508 U.S. 366, 372–73 (1993) (“Time and again, this Court has

observed that searches and seizures conducted outside the judicial

process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject only to a few

specifically established and well delineated exceptions.” (internal

quotation marks and citations omitted)). 
4

See also Katz v. United States, 389 U.S. 347, 353 (1967)

(electronic eavesdropping on a conversation in a phone booth is a

search because “the Fourth Amendment protects people—and not

simply ‘areas’”); Kyllo v. United States, 533 U.S. 27, 33 (2001) (“a

Fourth Amendment search occurs when the government violates a

subjective expectation of privacy that society recognizes as

reasonable”); United States v. Martinez-Fuerte, 428 U.S. 543, 556

(1976) (“checkpoint stops are ‘seizures’ within the meaning of the

Fourth Amendment”). 

6

The first step in Fourth Amendment analysis is to identify

whether a search or seizure has taken place. The Government

concedes that an airport pre-boarding security screening is a search.

See Br. at 19 (citing United States v. Davis, 482 F.2d 893, 904 (9th

Cir. 1973)).4

 But this concession obscures the difficult issue of

whether Hartwell experienced one prolonged search, or several

individual searches. The District Court considered this question

and found authority on both sides. Cases like United States v.

Skipwith, 482 F.2d 1272, 1275–76 (5th Cir. 1973), appear to

analyze an entire checkpoint search, including “[m]etal detectors,

visual inspection, and rare but potential physical searches,” as a

single search. By contrast, cases like United States v. Albarado,

495 F.2d 799, 805, 807 (2d Cir. 1974), treat a magnetometer

screening and a “frisk” as two separate searches. The District

Court concluded that the procedure would be permissible under

either view, and therefore did not decide which mode of analysis

was appropriate. We will employ Skipwith’s method of analyzing

Hartwell’s entire experience as a single search under the

administrative search doctrine, and—finding this approach

sufficient to resolve the case—do not pass judgment on the

Albarado approach. 

Thus, we find that Hartwell experienced a single,

warrantless search, which was initiated without individualized

suspicion. Since it was not conducted pursuant to a warrant, the

search must be grounded in an exception to the warrant

requirement. 

III.
5

While the Supreme Court has not directly spoken on airport

administrative searches, it has discussed them in dicta in two cases.

In Chandler v. Miller, 520 U.S. 305, 323 (1997), the Court

mentioned that blanket suspicionless searches “may rank as

‘reasonable’—for example, searches now routine at airports.” And

in City of Indianapolis v. Edmond, 531 U.S. 32, 47–48 (2000), it

stated that “[o]ur holding also does not affect the validity of border

searches or searches at places like airports and government

buildings, where the need for such measures to ensure public safety

can be particularly acute.” 

6

These searches are permissible without a warrant when: 1)

a substantial government interest informs the regulatory scheme

under which the search is made; 2) the search is necessary to

further the regulatory scheme; and 3) the statute’s inspection

program is a “constitutionally adequate substitute for a warrant.”

New York v. Burger, 482 U.S. 691, 702–04 (1987) (warrantless

administrative inspection of premises of closely regulated business)

(citing Donovan v. Dewey, 452 U.S. 594, 600–04 (1981) and

United States v. Biswell, 406 U.S. 311, 315 (1972)). See also

Michigan v. Tyler, 436 U.S. 499, 507–12 (1978) (administrative

inspection of fire-damaged premises to determine cause of the fire);

Camara v. Municipal Court of City and County of San Francisco,

387 U.S. 523, 534–39 (1967) (administrative inspection to ensure

compliance with city housing code is acceptable). 

7

These cases involve situations where “special needs,

beyond the normal need for law enforcement, make the warrant and

probable-cause requirement impracticable.” New Jersey v. T.L.O.,

469 U.S. 325, 351 (1985) (Blackmun, J., concurring). They

7

Hartwell’s search at the airport checkpoint was justified by

the administrative search doctrine.5

 “A search or seizure is

ordinarily unreasonable in the absence of individualized suspicion

of wrongdoing. While such suspicion is not an ‘irreducible’

component of reasonableness, [the Supreme Court has] recognized

only limited circumstances in which the usual rule does not apply.”

City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (citations

omitted). These circumstances typically involve administrative

searches of “closely regulated” businesses,6

 other so-called “special

needs” cases,7

 and suspicionless “checkpoint” searches. 
involve contexts such as schools, see Bd. of Educ. v. Earls, 536

U.S. 822, 829–30 (2002); Veronia Sch. Dist. 47J v. Acton, 515

U.S. 646, 653 (1995), employment, Treasury employees v. Von

Rabb, 489 U.S. 656 (1989); Skinner v. Railway Labor Executives’

Assn., 489 U.S. 602 (1989); O’Connor v. Ortega, 480 U.S. 709

(1987), and probation, Griffin v. Wisconsin, 483 U.S. 868, 873–74

(1987). See also Ferguson v. City of Charleston, 532 U.S. 67, 74

n.7 (2001) (explaining the origin of the special needs doctrine). 

8

See, e.g., Lidster, 540 U.S. at 426–27 (2004) (checkpoint

stop to find information about a “hit and run” one week before on

the same road is permissible); Edmond, 531 U.S. at 44

(checkpoints aimed at finding drug offenders in order to advance

an interest “ultimately indistinguishable” from a general interest in

crime control, are impermissible); Michigan Dept. of State Police

v. Sitz, 496 U.S. 444 (1990) (sobriety checkpoint aimed to catch

drunk drivers is acceptable); Delaware v. Prouse, 440 U.S. 648,

663 (1979) (discretionary, suspicionless stop for a spot check of a

motorist’s driver’s license and registration is illegal); United States

v. Martinez-Fuerte, 428 U.S. 543, 546–47 (1976) (border

checkpoint to search for illegal aliens 100 miles from the border is

legal). 

8

Suspicionless checkpoint searches are permissible under the

Fourth Amendment when a court finds a favorable balance between

“the gravity of the public concerns served by the seizure, the

degree to which the seizure advances the public interest, and the

severity of the interference with individual liberty.” Illinois v.

Lidster, 540 U.S. 419, 427 (2004) (quoting Brown v. Texas, 443

U.S. 47, 51 (1979)) (internal quotations omitted).8

Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990),

provides an illustrative example of a permissible suspicionless

checkpoint procedure. In that case, Michigan established a

sobriety checkpoint along a state road, stopping every vehicle that

passed by in order to question the driver and look for signs of

intoxication. If the police observed indicia of impairment, they

would pull drivers aside to conduct additional tests. Applying the

Brown balancing test, the Court found the system permissible

because “the balance of the State’s interest in preventing drunken
9

Sitz makes clear that “[t]his passage from Brown was not

meant to transfer from politically accountable officials to the courts

the decision as to which among reasonable alternative law

enforcement techniques should be employed to deal with a serious

public danger.” Sitz, 496 U.S. at 453. The “effectiveness” prong

9

driving, the extent to which this system can reasonably be said to

advance that interest, and the degree of intrusion upon individual

motorists who are briefly stopped, weighs in favor of the state

program.” Sitz, 496 U.S. at 455. As to the State’s interest, the

Court wrote that “[n]o one can seriously dispute the magnitude of

the drunken driving problem or the States’ interest in eradicating

it.” Id. at 451. The stop was deemed effective because some

quantum of evidence showed that it furthered the purpose for

which it was created. “Conversely,” the Court stated, “the weight

bearing on the other scale—the measure of the intrusion on

motorists stopped briefly at sobriety checkpoints—is slight,”

because the stop lasted for only a short time and the investigation

was of minimal intensity. Id.

In this case, the airport checkpoint passes the Brown test.

First, there can be no doubt that preventing terrorist attacks on

airplanes is of paramount importance. See United States v.

Marquez, 410 F.3d 612, 618 (9th Cir. 2005) (“It is hard to

overestimate the need to search air travelers for weapons and

explosives before they are allowed to board the aircraft. As

illustrated over the last three decades, the potential damage and

destruction from air terrorism is horrifically enormous.”); United

States v. Yang, 286 F.3d 940, 944 n.1 (7th Cir. 2002) (“the events

of September 11, 2001, only emphasize the heightened need to

conduct searches at this nation’s international airports”); Singleton

v. Comm’r of Internal Revenue, 606 F.2d 50, 52 (3d Cir. 1979)

(“The government unquestionably has the most compelling

reasons[—]the safety of hundreds of lives and millions of dollars

worth of private property[—]for subjecting airline passengers to a

search for weapons or explosives that could be used to hijack an

airplane.”).

Second, airport checkpoints also “advance[] the public

interest,” as Brown requires.9

 As this Court has held, “absent a
does not require a “searching examination.” Id. at 454. “[F]or

purposes of Fourth Amendment analysis, the choice among such

reasonable alternatives remains with the governmental officials

who have a unique understanding of, and a responsibility for,

limited public resources, including a finite number of police

officers.” Id. at 453–54. 

10We do not purport to set the outer limits of intrusiveness

in the airport context. Nor do we devise any bright-line test to

implement the Brown standard in all future cases. Cf. Marquez,

410 F.3d at 617 (approving a random airport screening because it

“was no more extensive or intensive than necessary in order to

detect weapons and explosives”). We merely hold that Hartwell’s

search was “minimally intrusive” under Brown. 

10

search, there is no effective means of detecting which airline

passengers are reasonably likely to hijack an airplane.” Singleton,

606 F.2d at 52. See also Marquez, 410 F.3d at 616 (“Little can be

done to balk the malefactor after weapons or explosives are

successfully smuggled aboard, and as yet there is no foolproof

method of confining the search to the few who are potential

hijackers.” (internal quotation marks, brackets, and citation

omitted)); United States v. Skipwith, 482 F.2d 1272, 1275 (5th Cir.

1973) (procedures requiring the screening of all passengers and

luggage “have every indicia of being the most efficacious that

could be used”). Additionally, it is apparent that airport

checkpoints have been effective. 

Third, the procedures involved in Hartwell’s search were

minimally intrusive.10 They were well-tailored to protect personal

privacy, escalating in invasiveness only after a lower level of

screening disclosed a reason to conduct a more probing search.

The search began when Hartwell simply passed through a

magnetometer and had his bag x-rayed, two screenings that

involved no physical touching. See United States v. Slocum, 464

F.2d 1180, 1182 (3d Cir. 1972) (an airport magnetometer screen

“per se is justified”). Only after Hartwell set off the metal detector

was he screened with a wand—yet another less intrusive substitute

for a physical pat-down. And only after the wand detected

something solid on his person, and after repeated requests that he
11Some courts, including the District Court in this case, have

approved airport searches on consent-based rationales. See,

e.g., United States v. Henry, 615 F.2d 1223, 1230–31(9th Cir.

1980); United States v. Edwards, 498 F.2d 496, 500–01 (2d Cir.

1974); United States v. Mather, 465 F.2d 1035, 1036 (5th Cir.

1972). Other courts, however, remain skeptical. See, e.g., United

States v. Albarado, 495 F.2d 799, 806–07 (2d Cir. 1974); United

States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973). See also Wayne

R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment, § 10.6(g) at 307–09 (4th ed. 2004) (explaining that

consent theories are “basically unsound” in the airport context

because screening systems rarely meet the requirements for express

consent under Schneckloth v. Bustamonte, 412 U.S. 218, 222, 228

(1973), and an implied consent analysis merely “diverts attention

from the more fundamental question of whether the nature of the

regulation undertaken by the government is in fact reasonable

under the Fourth Amendment”). We find it unnecessary to reach

this issue because we sustain the screening procedure under the

11

produce the item, did the TSA agents (according to Hartwell) reach

into his pocket. 

In addition to being tailored to protect personal privacy,

other factors make airport screening procedures minimally

intrusive in comparison to other kinds of searches. Since every air

passenger is subjected to a search, there is virtually no “stigma

attached to being subjected to search at a known, designated airport

search point.” See United States v. Skipwith, 482 F.2d 1272, 1275

(5th Cir. 1973). Moreover, the possibility for abuse is minimized

by the public nature of the search. “Unlike searches conducted on

dark and lonely streets at night where often the officer and the

subject are the only witnesses, these searches are made under

supervision and not far from the scrutiny of the traveling public.”

Id. at 1276. And the airlines themselves have a strong interest in

protecting passengers from unnecessary annoyance and

harassment. See id. 

Lastly, the entire procedure is rendered less offensive—if

not less intrusive— because air passengers are on notice that they

will be searched.11 Cf. Singleton, 606 F.2d at 52 (approving a
administrative search doctrine. 

12Hartwell argues that once the TSA agents identified the

object in his pocket and he refused to reveal it, he should have had

the right to leave rather than empty his pockets. We reject this

theory. As several courts have noted, a right to leave once

screening procedures begin “would constitute a one-way street for

the benefit of a party planning airport mischief,” United States v.

Herzbrun, 723 F.2d 773, 776 (11th Cir. 1984) (internal quotation

marks and citation omitted), and “would ‘encourage airline

terrorism by providing a secure exit where detection was

threatened,’” People v. Heimel, 812 P.2d 1177, 1182 (Colo. 1991)

(quoting Pulido-Baquerizo, 800 F.2d at 902). See also Torbet v.

United Airlines, Inc., 298 F.3d 1087, 1089 (9th Cir. 2002) (“To

avoid search, a passenger must elect not to fly before placing his

bag on the x-ray belt.” (citation omitted)).

12

search where passengers “were given advance notice that the

search was to be conducted, and could elect not to be searched by

deciding not to board the aircraft”). Air passengers choose to fly,

and screening procedures of this kind have existed in every airport

in the country since at least 1974. The events of September 11,

2001, have only increased their prominence in the public’s

consciousness. It is inconceivable that Hartwell was unaware that

he had to be searched before he could board a plane. Indeed, he

admitted that he had previously been searched before flying.

Hartwell, 296 F. Supp. 2d at 605. Cf. United States v. PulidoBaquerizo, 800 F.2d 899, 901 (9th Cir. 1986) (“in light of the

circumstances surrounding today’s airport checkpoints,” travelers

who put their belongings on a conveyor belt “impliedly consent to

a visual inspection and limited hand search of their luggage if the

x-ray scan is inconclusive”).12 

In conclusion, Hartwell’s search does not offend the Fourth

Amendment even though it was initiated without individualized

suspicion and was conducted without a warrant. It is permissible

under the administrative search doctrine because the State has an

overwhelming interest in preserving air travel safety, and the

procedure is tailored to advance that interest while proving to be
13Even assuming that the sole purpose of the checkpoint was

to search only for weapons or explosives, the fruits of the search

need not be suppressed so long as the search itself was permissible.

See Minnesota v. Dickerson, 508 U.S. 366, 377 (1993) (“The

seizure of an item whose identity is already known occasions no

further invasion of privacy.”) (collecting cases); United States v.

Edwards, 498 F.2d 496, 500 (2d Cir. 1974) (“unless and until there

should be evidence of abuse, we hold to the traditional rule that if

the search is proper, it is of no moment that the object found was

not what the officer was looking for”) (citation omitted). Since the

object in Hartwell’s pocket could have been a small knife or bit of

plastic explosives, the TSA agents were justified in examining it.

See also Marquez, 410 F.3d at 617 (“The screening at issue here is

not unreasonable simply because it revealed that Marquez was

carrying cocaine rather than C-4 explosives.”).

13

only minimally invasive, as that term is understood in Brown.

13