At 3:43 PM -0500 12/24/03, [EMAIL PROTECTED] wrote: In a message dated 12/24/2003 12:28:47 PM Pacific Standard Time, [EMAIL PROTECTED] writes:
are you ok as long as you don't conceal it? Or if you have it in your carryon and it doesn't get detected?
I think my annotated federal code has a case on this issue, but I am unable to find the full text of the case free online. Maybe someone with full Lexis or Westlaw access wants to look it up and read it. It's U.S. v. Brown, 508 F.2d 427 (8th Cir. 1974).
Hmm... case concerns a minister, who inadvertently left a tear gas pistol in his carryon baggage.
"The statute in question required the prosecution to prove that the defendant (1) attempted to board or did board a commercial aircraft while (2) carrying a "deadly or dangerous weapon" which was (3) "concealed * * * on or about his person." 49 U.S.C. � 1472 (l). See United States v. Dishman, supra, 486 F.2d at 730; United States v. Margraf, supra, 483 F.2d at 709.
The Government has established the first two elements in this case. However, on the concealment issue, the stipulation entered into by the Government and Brown specifically recites that the "defendant made no attempt to hide, to use or to reach for the tear gas gun in his flight bag" and that the pistol was "found beneath numerous items of personal belongings." The magistrate, the factfinder in this case, made no express finding of concealment but merely stated an overall conclusion that the tear gas pistol found in the flight bag "was a concealed dangerous weapon." The district court, acting in the capacity of an appellate court without de novo factfinding powers, relegated the element of concealment to the following parenthetical statement: "(The fact that the handgun was concealed is amply proved.)" United States v. Brown, supra, 376 F. Supp. at 457. In light of the stipulation, we cannot accept this statement as dispositive of the concealment issue.
In examining what constitutes "concealment," we are cognizant that the circumstances surrounding preflight boarding procedures of aircraft have been drastically altered between the time of the passage of � 1472 (l) in 1961 and the time of the incident before us in August 1972. In 1961, prior to the institution of compulsory preflight boarding examination of luggage and person, any nondisclosure to airline personnel of an object considered to be a deadly or dangerous weapon could properly constitute a concealment of the weapon within the purview of the statute. Cf. United States v. Ware, 315 F. Supp. 1333 (W.D. Okla. 1970); United States v. Brown, 305 F. Supp. 415 (W.D. Tex. 1969). However, by August 1972, according to the stipulation, passengers intending to board commercial aircraft at the Kansas City airport were required, as a precondition for air travel, to present their carry-on luggage to airline personnel for a routine search and to present themselves for magnetometer detection.*fn3 The history of governmental regulations leading to procedures such as those in operation at the Kansas City airport for the purpose of preventing aircraft piracy and hijacking has been documented and explained in United States v. Davis, 482 F.2d 893 (9th Cir. 1973).
The institution of these preflight boarding procedures, such as those carried out during the incident in question, requires a court to consider whether a passenger who voluntarily tenders his hand luggage to a qualified inspector is concealing any item which will be observed upon routine inspection. Ordinarily, the act of a passenger presenting his hand luggage to responsible airline personnel for inspection suggests an intent to disclose rather than to conceal those items within the bag which will come into view on ordinary inspection.
[45] Here, the parties have stipulated that the search was routine and that the defendant made no attempt to hide the tear gas gun although the pistol and shells were found beneath numerous items of personal belongings. In amplification of the stipulation, the defendant testified that he had not completely unloaded his flight bag during his travels, but merely removed the items he needed and repacked them for his return trip, without being fully aware that the tear gas gun had been left in his flight bag.
[46] The circumstances apparent on the record here are more suggestive of a lack of concealment than the facts related in United States v. Margraf, supra, 483 F.2d at 709, where the defendant, upon inquiry, denied carrying "a knife, a weapon, or any o ther large metallic object," or in United States v. Dishman, supra, 486 F.2d at 729, where the passenger, who was carrying a starter pistol, initially denied carrying any metal object. Such a denial, which is not present in the instant case, may imply an intent to conceal. Although neither Margraf nor Dishman discussed the concealment issue, the convictions were subsequently vacated or reversed on other grounds.
We recognize that concealment can occur even though an airline passenger tenders his hand luggage for inspection. A potentially dangerous object may be hidden in a false bottom or secret compartment; a knife or gun may be wrapped in a wet diaper; or other evidence may exist indicating concealment. But no such circumstances are apparent from the record before us. Thus, in the absence of an adequate record and a specific finding by the magistrate, we cannot assume that concealment existed here. Accordingly, we hold that the conviction must be set aside and the case remanded. At the new trial, either party should be permitted to introduce further evidence, if any is available, bearing upon this question."
(Reversed and remanded with a strong hint that the government oughta drop the case).
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