expressed by FAA officials and others that, in fact, certain personnel of the air transportation security program at that time were more interested in detaining and searching and inspecting young people who were oddly attired or oddly behaving, not for the purpose of the security program, but for the purpose of enforcing the narcotics control program. When the bill was drafted, the lawyers that worked on it tried very hard to draft a tight statute which would preclude that kind of harassment in the air transportation security program.

The question is in S. 39, as it is written now, in your opinion, would the provision limit the admissibility of any other evidenced seized pursuant to a routine search for unlawful carriage of weapons?

Mr. CRAMTON. I have to admit I have not examined the provisions of S. 39 with that question in mind, so I don't have an informed opinion on it.

Mr. GINTHER. Could we get that for the record, Mr. Chairman? Senator CANNON. Would you supply that for the record, please? Mr. CRAMTON. Surely.

(The following information was subsequently received for the record :)

DEPARTMENT OF JUSTICE, Washington, D.C., January 29, 1973.

Hon. HOWARD W. CANNON, Chairman, Avaition Subcommittee, Committee on Commerce, U.S. Senate, Washington, D.C.

DEAR SENATOR CANNON : During the course of my testimony before the Aviation Subcommittee on January 10, 1973, the Subcommittee asked for the views of the Department of Justice on the question whether under S. 39 (93d Cong.), as presently drafted, non-weapon evidence seized from a person attempting to board an airplane is admissible in evidence against that person.

We have concluded that if, in the course of a lawful and reasonable search and seizure under the terms of S. 39, an airport security official obtains evidence other than weapons, that evidence is admissible in evidence against the person from whom it was seized. The controlling factor in this situation is the legality of the actual search and seizure; admissibility of the evidnce seized, whether it be weapons or contraband, is dependent upon the initial legality of the seizure.

The legality of a particular seizure under the terms of S. 39 is a question to which I will not address myself in this memorandum. There is, of course, a myriad of possible situations in which a search and seizure of an airplane passenger can be undertaken; the legality of each would be dependent on its reasonableness under the terms of the Fourth Amendment.

While the state of the law concerning the admissibility of non-weapon evidence seized in a lawful search for weapons is somewhat unclear, we think the strong implication of the case law is that such evidence is admissible. One of the earilest Supreme Court opinions dealing with the general issue was Harris v. United States, 331 U.S. 145 (1947), where, in the course of a search following execution of an arrest warrant for criminal fraud, federal officers found draft cards for which possession consisted a crime other than the fraud for which the custody was effectuated. In upholding the legality of the search, the Court noted:

"If entry upon the premises be authorized and the search which follows be valid, there is nothing in the Fourth Amendment which inhibits the seizure by law-enforcement agents of government property the possession of which is a crime even though the officers are not aware that such property is on the premises when the search is initiated." 331 U.S. at 155 (citing various decisions of the lower federal courts).

Despite the protestations of Justice Frankfurter, 331 U.S. at 155-82, and the subsequent limitations of the scope of searches conducted immediately following execution of an arrest warrant, Chimel v. California, 395 U.S. 752 (1969), it seems that the Harris approval of the admissibility of any evidence seized in the course of a lawful search remains the law today.

Recent decisions of the Court, while not specifically dealing with the precise issue, indicate that the general rule of Harris still applies. The Court in Terry v. Ohio, 392 U.S. 1 (1968), upheld limited searches for weapons (in the form of a frisk of outer garments) in certain carefully defined circumstances where less than probable cause exists. In two companion cases, Sibron v. New York and Peters v. New York, 392 U.S. 40 (1968), the Court applied the Terry rationale to situations where non-weapon evidence was found during the course of searches argued to have been conducted for the purposes of disarming the suspects. In Sibron, the Court held invalid a search of a suspected narcotics pusher because the officer had not established a reasonable fear for his safety to justify a Terry frisk; the Court appears to have assumed, however, that if the search had been justifiable under a Terry rationale, the non-weapon evidence seized (narcotics) could have been admitted into evidence. In Peters, the Court held admissible burglary tools seized as a result of a patdown frisk upon suspicion of attempted burglary. The majority of the Court appears to have upheld the search as one incidental to a lawful arrest, indicating that reliance on Terry was not necessary since the officer had probable cause to arrest the defendant. The search in Peters was not characterized by the Court as one solely for weapons.

A search under S. 39 would clearly be in the nature of a Terry protective search for weapons; whether non-weapon evidence seized in the course of a lawful search in the airport situation would be admissible cannot be conclusively determined by Peters. But in Peters three concurring Justices, concluding that probable cause did not exist, said they would uphold the search and admit the evidence on the Terry rationale. Similarly, the majority opinion implies that the search could have also been sustained upon a Terry rationale and that the non-weapon evidence would have also been admissible under such a holding.

Searches of passengers attempting to board aircraft were the subject of a lengthy opinion by the Eastern District of New York in United States v. Lopez, 328 F. Supp. 1077 (E.D. N.Y. 1971). There the present FAA system for deterring and detecting potential hijackers was generally sustained over constitutional objections. The essential features of that system are that all passengers are screened against a "profile" based on physical and behavioral characteristics of known hijackers, and all are required to pass through a magnetometer. In Lopez, a selectee under the profile activated the magnetometer, and could not produce identification for the marshals who questioned him. A subsequent frisk revealed a hard object which turned out to be narcotics wrapped in tin foil. In an extensive examination of the issue, the courts upheld the legality of the seizure; non-weapon contraband obtained in such circumstances was generally deemed admissible into evidence:1

"If a search is conducted in good faith to locate a weapon and if it does not go beyond the limits of what is required to uncover such an object then the officer need not close his eyes to evidence of other crimes which he may

uncover ...

"What can be said with some assurance is that Terry, Sibron, and Peters do not stand for the proposition that contraband other than weapons should be excluded if it is discovered by a valid frisk. La Fave, 'Street Encounters' and the Constitution: Terry, Síbron, Peters and Beyond, 67 Mich. L. Rev. 40, 91–93 (1968); the Supreme Court, 1967 Term, 82 Harv. L. Rev. 63, 185-86 (1968). "Upon discovering that the suspicious package contained a white powder [which] appeared to be narcotics, it would have been unseemly to have handed back the package, assisting the defendant in a violation of Section 174 of Title 21 of the United States Code. No rule of law requires such an absurd result.

"While there may be some merit to the argument that exclusion of evidence of other crimes would serve to deter police from using the frisk as a guise for a general contraband search, we need not fear such abuse in this case since it is patent that the anti-hijacking system is specifically designed to isolate potential hijackers and to seize weapons. Cf. The Supreme Court, 1967 Term, 82 Harv. L. Rev. 63, 186 (1968).

1 Despite this general holding, the Court dismissed the indictments for concealment and facilitating the transportation of narcotics on other constitutional grounds. The Court found that the FAA's "neutral and objective' profile had been perverted by the addition by the airline of an ethnic element, and its authorization of subjective judgments by the clerks at the terminal.

"We conclude that contraband seized as a result of a properly circumscribed investigatory frisk predicated on information generated by a well administrated federal anti-hijacking system is admissible in evidence. Such a seizure comports with well-established Fourth Amendment principles. . . ." 328 F. Supp. at 1098-99.

S. 39 does not purport to limit the admissibility of non-weapon evidence seized by law enforcement officials in conjunction with weapons searches of persons attempting to board aircraft. We conclude that if the search of such persons is conducted in a manner that comports with both the terms of S. 39 and with the Fourth Amendment, any non-weapon evidence seized is admissible into evidence. Sincerely,

ROGER C. CRAMTON, Assistant Attorney General, Office of Legal Counsel.

Senator CANNON. Has the Department ever requested the death penalty in any hijacking cases?

Mr. CRAMTON. Well, yes; in the sense that it participated in the enactment in 1961 of the aircraft piracy statute, which does carry provisions for the death penalty. And that statute is now in effect. It is quoted in one of the footnotes of my prepared statement.

Senator CANNON. But have you actually sought the death penalty in a hijacking case? I'm not talking about the law.

Mr. CRAMTON. Oh, as far as I know, the Department has not sought the death penalty in an aircraft piracy case. That statement has to be viewed in light of the fact that the death penalty has been under a severe cloud in the United States in the last 5 years, since court decisions suggested the unconstitutionality of the death penalty and all executions were stayed. Thus, there was a tendency not to seek the death penalty in some cases in which it might be appropriate just because the Department didn't want to allow a delay, appeal, or possible reversal on death penalty grounds.

So the Department generally has been very conservative in terms of asking for the death penalty. Although the hijacking statute dates back 10 years to 1961, there were a relatively small number of hijackings until very recently. Thus the hijackings to which the death penalty might have applied have occurred during the period when the death penalty has really been under a cloud.

Senator CANNON. Thank you very much, sir. Any questions?

Senator HART. It's the effort to get counsel that I respect on this subject, now that he is still in town, before he's back in Long Island. This may be my last chance before the criminal law subcommittee of the judiciary will. We now have, I suppose, Senate bill 1, the Criminal Procedure Revision. And it does propose, under certain conditions, the death penalty.

Clearly, this was written subsequent to, and attempts to respond to, the Furman case, and the others. It takes this course: Two trials, first, whether the act charged occurred, and then, second, a proceeding to determine the sentence. And in deciding-this would be in connection with the second trial-whether a sentence of death should be imposed, the court and jury shall be guided by the mitigating and aggravating circumstances set forth below.

The following shall be mitigating circumstances in the case of both murder and treason, and they list seven; the following shall be aggravating circumstances in cases of treason, three; and in case of murder, eight.

Now, I want to ask this question more specifically than I asked you earlier. If you do have this kind of lineup-in your opinion-does it meet the Furman test?

Mr. CRAMTON. I think so, if it's narrowly enough applied. Now, we have preferred a somewhat different mechanism which calls for a bifurcated trial and separate proceeding on sentencing. It would ask the jury to return special findings as to whether or not a number of aggravating circumstances exist we actually have seven in our present draft and we have five circumstances which, if found by the jury, would preclude capital punishment.

Only in a situation in which they found the existence of one or more of the aggravating circumstances, and none of the mitigating circumstances, would the judge be required or mandated to sentence the individual to death.

Senator HART. When I asked you about this kind of four and three arrangement earlier, I think you reminded me that the bill that you were proposing, or the frame you were suggesting, avoided the problem of balancing three against two.

Mr. CRAMTON. That's right.

Senator HART. The problem which is contained in Senate bill 1. Mr. CRAMTON. Well, we think the present draft of the Federal Criminal Code revision staff in the Department of Justice is to be preferred over the present provisions of the McClellan bill. Senator HART. Thank you very much.

Senator CANNON. Thank you very much, Mr. Cramton. (The statement follows:)

STATEMENT OF ROGER C. CRAMTON, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

Mr. Chairman and Members of the Subcommittee: I am pleased to appear today to discuss with you the death penalty provision in the aircraft hijacking legislation pending before the Subcommittee. As passed by the Senate last October, S. 2280, 92d Cong., would provide for the discretionary imposition of the death penalty by the jury or the court for certain air piracy offenses as defined in the international Convention for the Suppression of Unlawful Seizure of Aircraft.

Consideration of the continuing viability of the death penalty at the federal as well as the state level of government is necessitated by the decision of the Supreme Court last June in Furman v. Georgia, 408 U.S. 238 (1972). In this landmark decision, the Court held by a 5-4 vote that the imposition of the death penalty in the circumstances of three state cases involving murder and rape constituted "cruel and unusual" punishment in violation of the Eighth and Fourteenth Amendments.

The implications of the Furman decision for the Congress, as the federal lawmaker, and for the Executive Branch, as the law-enforcer, are extremely important since the decision casts doubt on the constitutionality of existing federal death penalty provisions. The Court's decision, however, does not go so far as to foreclose a more discriminating application of the death penalty. The Department of Justice believes that the death penalty remains a legitimate sentencing alternative for at least a small category of carefully circumscribed criminal offenses which have a planned or premeditated quality, are heinous in character, or involve a vitally important federal interest. Aircraft hijacking which results in death clearly falls within this category, especially if the statute is carefully drawn to meet the major objections which the Court found in the Furman cases.

The Department of Justice would vigorously defend in court a congressional judgment, made in this context, that the death penalty has deterrent value,

provides protection against incorrigible and dangerous individuals, and may contribute to social stability.

The remainder of this statement will discuss, first, the import of the Court's decision in Furman; second, the effect of the decision on the existing federal death penalty provision governing aircraft piracy and on the similar provision contained in S. 2280; and third, some possible legislative alternatives which will provide for capital punishment as a sentencing alternative in some aircraft hijacking situations.

I. THE IMPORT OF FURMAN V. GEORGIA

In June 1972, a 5-4 majority of the Supreme Court held that imposition of the death penalty in the circumstances of three state cases involving two rapists and one murderer constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238 (1972). The death penalties in Furman had been imposed by juries as discretionary judgments, without standards to guide the exercise of discretion. This procedure, which is customary under both state and federal law, had been upheld by the Supreme Court only a year earlier in McGautha v. California, 402 U.S. 183 (1971), over due process and equal protection objections. Since the decision of the Court is based upon the Eighth Amendment (as applied to the States by_the_Fourteenth Amendment), it is also applicable to federal crimes.

The import of the Furman decision is far from clear. Although there are 253 pages of expression of personal views by the nine Justices, there was no opinion for the Court. The per curiam order of reversal rested on the votes of five Justices-Douglas, Brennan, Stewart, White and Marshall-each of whom wrote a concurring opinion in which none of their brethren joined. Two Justices, Brennan and Marshall, concluded, on the basis of somewhat differing theories, that capital punishment is unconstitutional per se. Justice Douglas took the position that current capital punishment systems discriminated, in practice, against minorities, and that this violated an equal protection concept he found implicit in the Eighth Amendment. Justices White and Stewart emphasized the rarity of the imposition of death in relation to the substantial numbers of similar cases where it is a potential penalty, resting their conclusions of invalidity essentially on alleged arbitrariness in the operation of existing systems. The four dissenting Justices Burger, Blackmun, Powell and Rehnquist-found no constitutional infirmity in the death penalty per se, or in the manner of its imposition in the cases before the Court. Three of the dissenting opinions, by the Chief Justice, and Justices Powell and Rehnquist, were joined by all four of the dissenting Justices. There is little or no room left for the death penalty under the opinions of Justices Brennan and Marshall, who seem to take the position that capital punishment is per se unconstitutional. The opinions of Justices Douglas, Stewart and White stop short of the Brennan-Marshall per se position, each Justice preferring to speak to the constitutionality of the death penalty as applied to the specific cases before the Court. Each of the three Justices expressly reserved decision on the constitutionality of the death penalty in other situations.

The nub of Justice Stewart's opinion is expressed in the following sentences: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed . . . I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed." 408 U.S. at 309-10.

This language seems to suggest that if imposition of the death sentence reflected a more rational pattern, it might be constitutional. However, there is nothing in Justice Stewart's opinion indicating his view that that result might be achieved under any discretionary sentencing system. Unlike the opinion of the Chief Justice, Justice Stewart's opinion, which reflects a distaste for the death penalty, does not intimate that the constitutional defect might be cured by legislative action.

Justice White's opinion indicates that he might sustain the death penalty with respect to a narrowly-defined range of offenses, provided some rational pattern in its imposition could be shown or anticipated. He stated at the outset that