Legal Research Primer

SEAT WORK NO. 1

Part 1: Statutes an act of legislature as an organized body, expressed in the form, and passed accdg to procedure, required to constitute it as part of the law of the land

1. What is the complete title of Act No. 1956?

Act No. 1956. An Act Providing For the Suspension of Payments, the Relief of Insolvent Debtors, the Protection of Creditors, and the Punishment of Fraudulent Debtors.

Act 1956 deals with three situations: (1)suspension of payments, for a debtor who possesses sufficient property to cover all his debts but foresees the impossibility of meeting them when they respectively fall due; (2)voluntary insolvency, for a debtor applying to be discharged from his debts and liabilities (amounting to the then sizeable amount of 1000 pesos); and (3)involuntary insolvency, or an adjudication of insolvency made on petition of three or more creditors of an insolvent debtor. Under this Act, the judicial courts had jurisdiction over such proceedings. 2. In what particular volume of the Official Gazette can you find Act No. 1956? Give

complete citation.

Vol. VII No. 32 O.G. CC 2: Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication

The Official Gazette print edition is published every Monday

articles and material intended for publication should be submitted at least one month ahead from the latest issue

3. Please see attached copy. 4. There are how many chapters and sections in Act No. 1956? Give exact number of

chapters and sections.

There are 2 sections in Act No. 1956.

Oklahoma City University School of Law

5. Other than the Official Gazette, in what other primary source can you find Act No. 1956? Give complete and exact citation as appearing in the other primary source.

Congress (1987-), Laws and resolutions (vol. 12, Bureau of Printing, Philippines 1958) 521.

Part 2: Treaties binding agreement under international law, entered by parties who

are subject to international law, mainly states and international organizations

pact formed between two nations or communities, each with the right of self-government

6. What is the complete title of the Warsaw Convention?

Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air

7. Where can you find the official complete text of the Warsaw Convention? Please

give the complete citation.

Philippine Treaty Series: a collection of the texts of treaties and other international agreements to which the Philippines is a party. Volume II (1948-1952) compiled and annotated by Haydee B. Yorac. 1968.

8. When did the Warsaw Convention enter into force in the Philippines? Please give

the exact date.

The Warsaw Convention entered into force in the Philippines on February 9, 1951.

9. What does Article 35 of the Warsaw Convention state? Please quote the exact

provision.

“Article 35. The expression “days” when used in this convention means current days, not working days.”

WARSAW CONVENTION

international convention which regulates liability for international carriage of persons, luggage or goods performed by aircraft for reward.

amended in 1955 at The Hague and in 1971 in Guatemala City

mandates carriers to issue passenger tickets; requires carriers to issue baggage checks for checked luggage; creates a limitation period of 2 years within which a claim must be brought

(Article 29); and limits a carrier's liability to at most:

Oklahoma City University School of Law

250,000 Francs or 16,600 special drawing rights (SDR) for personal injury; 17 SDR per kilogram for checked luggage and cargo, or $20USD per

kilogram for non-signatories of the amended Montreal Convention. 5,000 Francs or 332 SDR for the hand luggage of a traveller.

Part 3: Cases

You are counsel for the accused in a murder case and you want to plea voluntary surrender of your client as a mitigating circumstance. 10. Using the SCRA Quick Index, look for two cases that you can use as your

memorandum.

A. What are the two cases that you found to support your theory?

People v. Gadia, 365 SCRA 557

People v. Badriago, 587 SCRA 820

B. Which SCRA Quick Index(es) did you use? Please give the year(s) and the part(s).

Supreme Court Reports Annotated Quick Index-Digest, Year 2001, Part II

Supreme Court Reports Annotated Quick Index-Digest, Year 2009, Part II

C. What keyword(s) did you use in locating the cases? In what page(s) of the SCRA Quick Index(es) can you locate these cases?

Mitigating Circumstances, Pg. 1023

Voluntary Surrender, Pgs. 1378-1379

D. Please copy the exact portion of the ruling in these two (2) cases that you found, as appearing in the SCRA Quick Index.

The requisites of voluntary surrender are: (a) that the offender has not been arrested; (b) that he surrendered himself to a person in authority or to an agent of a person in authority; and (c) that his surrender was voluntary. (People v. Gadia, 365 SCRA 557)

For the mitigating circumstance of voluntary surrender to be appreciated, the surrender must be spontaneous and in a manner that shows that the accused made an unconditional surrender to the authorities either based on recognition of guilt or from the desire to save the authorities from the trouble and expenses that would be involved in the accused's search and capture. (People v. Badriago, 587 SCRA 820)

Oklahoma City University School of Law

11. Now locate in the Supreme Court Reports Annotated (SCRA) the complete text of

one of the cases you found in the SCRA Quick Index.

A. Which case did you look for in the SCRA?

People v. Gadia, 365 SCRA 557

B. What is the complete title of the case?

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARLON GADIA, alias ALLONG, accused-appelant.

C. What is the G.R. No. and date of promulgation of this case?

G.R. No. 132384, September 21, 2000.

D. Who were the justices who concurred with the ponente in this case? o Bellosillo (Chairman), Quisimbing, Buena and De Leon, Jr., JJ.

E. In what particular page of the SCRA can you find the portion you found in the

SCRA Quick Index and copied above? o Page 559

Part 4

12. What is the date of the opinion?

January 19, 1989

13. Who was the Secretary of Justice who rendered the opinion?

Sedfrey A. Ordonez

14. How did you locate this opinion? Please describe the manner you located the

opinion, indicating the resources you consulted and the keywords you used to

locate the opinion.

The group used the WorldWide Web to look for the opinion of Sec. Ordonez.

First, the keywords “Secretary of Justice public utilities Philippines” were used. Then,

when the results were unsatisfactory, the group used the keywords “60 40 ownership

Oklahoma City University School of Law

rule in the Philippines”. In succeeding searches, the following words were added to

the previous keywords: “Secretary of Justice,” “opinion,” and “DOJ opinion”.

The search result led to the RP Department of Agrarian Reform website.1

SEAT WORK NO. 2

REPORTER - publication of case law from a specific jurisdiction

OFFICIAL REPORTER - a collection of case law published by the jurisdiction

from which the case law originated.

COMMERCIAL REPORTER - collection of case law in a specific jurisdiction

published by an independent group (Westlaw, LexisNexis, fastcase)

During the colonial period American court decisions went unpublished,

and American judges and lawyers looked to English courts for precedent. In

1789, the first volumes of American court decisions were published in order to

allow America to build its own precedent.

COURT REPORTS –

COURT REPORTER - a state-appointed officer who originally collected and

published the cases

STATE/REGIONAL REPORTS - "official" reporter for a state;

state legislature can designate it as the official reporter

court of last resort (appellate) can require lawyers to cite to the reporter

When a lawyer practices in a state that has its own reporter, the attorney

is often required to cite to the state's official reporter

John B. West, an entrepreneur from Minnesota, started a private reporting

system in 1876

1880, West published case law for the entire United States

1 Republic of the Philippines Department of Agrarian Reform. „DOJ OPINION NO. 018, s. 1989‟ <http://www.lis.dar.gov.ph/home/document_view/9017> accessed 11 September 2012.

Oklahoma City University School of Law

UNITED STATES REPORTS - official reporter for U.S. Supreme Court decisions

First published 1883

1790-present because it republished the unofficial Supreme Court Reports

Standard citation: Johnson v. Muelberger 340 U.S. 581 (year)

(volume no.) U.S. (page number w/in volume) year decision rendered

United States v. Lopez, 328 F. Supp. 1077(E.D.N.Y. 1971) published in FEDERAL

SUPPLEMENT (decisions from Federal District Courts)

cases from some specialized courts

F. Supp. or F. Supp. 2d

Ray v. Foreman, 441 F2d 1266 (6th Cir. 1971) published in FEDERAL REPORTER

(decisions from US Court of Appeals)

F., F.2d., and F.3d.

FEDERAL CASE – must ensure court has jurisdiction

TYPE OF CITATIONS

PROPRIETARY – Bluebook (published by student-run law reviews at several

eminent law schools, namely Columbia Law Review, Harvard Law Review, University of

Pennsylvania Law Review and Yale Law Journal.)

PUBLIC DOMAIN – refer to official reporters

Oklahoma City University School of Law

Part 1: Annotated Law Reports

1. Concealment of pregnancy as ground for annulment of marriage.

143 A2d 109

2. Assault as ground for disbarment of an attorney.

21 ALR3d 887 §4[b]

3. Liability of dentist using force to restrain or discipline patient.

36 ALR3d 1341

4. Keeping of gasoline on premises as increase of hazard voiding fire insurance

policy.

19 ALR3d 1339; 26 ALR2d 809

Part 2A: Court Reports

List the secondary authority cited by the Court in the majority opinion.

5. Jerke v. Delmont State Bank, 54 S.D. 446, 223 N.W. 585 (1929)

Secondary authorities:

Brannan, Negotiable Instruments Law (4th ed.)

“The minority of the courts take the view that the words “burden to prove”, in

the statute, in substance mean only burden to proceed with the introduction of

Oklahoma City University School of Law

testimony x x x It is advocated as the sounder view upon principle by some

masters of the theory of law of bills and notes.”

Lord Coke

“x x x conflict with the words so often used in the books since Lord Coke first

quoted, “Ad quaestionem facti non respondent judice, ad quaestionem juris non

respondent juratores,” namely, that “questions of fact are for the jury.”

Professor McBain

“Like most glittering generalities, this statement, to borrow the expression of

Professor McBain, is “weak and infirm of its own generality.”

Thayer, J.B., Preliminary Treatise on Evidence (1989)

“Professor Thayer, in his Preliminary Treatise on Evidence (page 208), states this

duty of the judge in this language: x x x”

6. Kanzler v. Smith, 125 N.J. Eq. 466, 6 A. 2d 200 (1939)

Secondary authority:

Dickinson‟s Chancery Precedents (Ed. 1984)

“A remittitur in equity (adopting the language of Dickinson‟s Chancery Precedents,

Ed. 1984, page 200) “becomes the law of the case, and care should be taken in

drawing it up that it embrace all the points determined where the decree is modified

or reversed, that the court below may know with precision the directions of the

court above.”

Part 2B: Court Reports

7. United States v. Lopez, 328 F. Supp. 1077(E.D.N.Y. 1971) published in

FEDERAL SUPPLEMENT (decisions from Federal District Courts)

Ratio decidendi: The Court took judicial notice of the constitutionality of the anti-

hijacking system including, among others, the “frisk”. The “frisk” conducted by

Marshals upon defendant was brought about through the identification by the

airline employee acting as agent of the government in the application of the anti-

Oklahoma City University School of Law

hijacking procedure. The act of identification by the airline employee, however,

constituted a violation of constitutional right of equal protection, where the

“profile” used to identify the defendant as potential hijacker included an ethnic

element as one of the characteristics and required individual judgment on the

part of the airline employee in the identification.

8. Ray v. Foreman, 441 F2d 1266 (6th Cir. 1971) published in FEDERAL

REPORTER (decisions from US Court of Appeals)

F., F.2d., and F.3d.

Ratio decidendi: Ray could not maintain cause of action against Hanes with

respect to the contract as such right has been expressly waived with the

relinquishment of any future payments which has been assigned to the latter as a

valid consideration. Evidence was insufficient to prove Ray‟s claim that Hanes

and Foreman fraudulently induced him to enter into the contracts governing

right to proceeds from the sale of the literary materials. Neither was it proven

that Hanes and Foreman acted in conspiracy to violate his right to fair trial.

Part 3: U.S. Reports

9. 340 U.S. 581 – Johnson v. Muelberger

10. 293 U.S. 388 – Panama Refining Co. et al. v. Ryan et al.

Part 4: U.S. Reports – Related Materials

A. Subject of a related annotation for: Panama Refining Co. v. Ryan

Delegation of legislative powers

B. Subject of a related annotation for: Johnson vs. Muelberger

Full Faith and Credit Clause

Part 5

Oklahoma City University School of Law

11.

BOOKS AVAILABLE

IN THE

LIBRARY

(YES/NO)

TYPE OF

INDEX

TOTAL

NUMBER OF

VOLUMES IN

THE LIBRARY

PUBLISHER

DIGESTS OF THE

UNITED STATES

REPORTS,

LAWYER‟S

EDITION

YES General Index 6 volumes

A-B, C-D, E-H,

I-M, N-R, S-Z

(1990)

Rochester, NY:

Lawyer‟s

Cooperative

UNITED STATES

SUPREME

COURT DIGESTS

NO

FEDERAL

PRACTICE

DIGESTS

NO

DECENNIAL

DIGESTS

NO

UNITED STATES

REPORTS

NO

SUPREME

COURTS

REPORTERS

NO

SUPREME

COURT

REPORTS,

LAWYER‟S

EDITION

YES General Index 240 Rochester, NY:

Lawyer‟s

Cooperative

(1st)

Danvers, MA:

Lexis

Publishing (2nd)

Oklahoma City University School of Law

12. What state reporters are available in our library? Where are these located? For each

of these reporters, indicate whether they are official or unofficial reporters.

Court opinions, which have been published in full text, constitute the „Reporters‟

(Whisner, 2011)2. These may be classified as official or unofficial reports. Official

reports are published and printed by the United States government with the

authorization of the legislative department. Unofficial reports are printed and

published by private publishers with or without obtaining authorization from the

legislative department.

According to the Oklahoma City University School of Law3, state reporters in the

United States include the Atlantic Reporter, Southern Reporter, South Eastern Reporter,

South Western Reporter, North Eastern Reporter, North Western Reporter, Pacific

Reporter, California Reporter, and New York Supplement. Unlike major reporters,

regional or state reporters publish court decisions depending on the cases tried by their

respective regional jurisdiction.

In the San Beda Law Library, there are no state reporters available. The Law

Library only has major reporters namely, the Federal Reporter (3d and 2d), the United

States Supreme Court Reports (Lawyers‟ Edition, 2d and 3d), American Jurisprudence

2d, Am-Jur Legal Forms 2d, Corpus Juris Secundum, Am-Jur Trials, and the American

Law Reports Federal.

UNITED STATES SUPREME COURT REPORTS, LAWYERS' EDITION

commercial reporter published by LexisNexis

SC cases from 1790-present

contains Lexis editorial enhancements such as numbered head-notes.

2 Whisner, M., (23 March 2011) „Reporters & Digests‟. <http://lib.law.washington.edu/ref/repdig.html>

accessed 9 September 2012. 3 -- (11 June 2012) „Reporters‟. < http://law.okcu.libguides.com/content.php?pid=155853&sid=1320569> accessed 9 September 2012.

Oklahoma City University School of Law

*GREEN HIGHLIGHT – RATIO DECIDENDI *YELLOW HIGHLIGHT – OBITER DICTUM

DIGESTS Ray v. Foreman, 441 F2d 1266 (6th Cir. 1971) Facts: James Earl Ray was an accused for the murder of Martin Luther King, Jr. where he pled guilty.Prior to his guilty plea, he entered into a contract with his counsel, Hanes and Huie, a professional writer. Under the agreement, Huie undertook to prepare a book and other literary material concerning Ray and the King murder with the assistance and cooperation of Ray and Hanes. Huie was given exclusive rights to this material. In exchange, Huie agreed to pay Ray and Hanes each 30 percent of the gross receipts from its sale as payment to. Ray subsequently assigned portions of his rights under this agreement to Hanes. Upon his discharge as counsel, Hanes relinquished all his rights under the agreement. Ray and Huie executed a waiver of claims and causes of action against Hanes with respect to the contract and its subject matter. Ray assigned all his rights under the contract to Foreman, his new counsel, as the latter’s fee. On the day before Ray pled guilty, Foreman wrote him that if the plea is entered and the sentence accepted and no embarrassing circumstances take place in the court, he will assign all his receipts under the agreement in excess of $165,000 in Ray’s favor. Issue: Whether or not fraud was attendant which vitiated Ray’s consent to the contract Ruling: Summary of Ratio Decidendi Ray could not maintain cause of action against Hanes with respect to the contract as such right has been expressly waived with the relinquishment of any future payments which has been assigned to the latter as a valid consideration. Evidence was insufficient to prove Ray’s claim that Hanes and Foreman fraudulently induced him to enter into the contracts governing right to proceeds from the sale of the literary materials. Neither was it proven that Hanes and Foreman acted in conspiracy to violate his right to fair trial.

Oklahoma City University School of Law

Court Decision: 1. Where, on defendants’ motion for dismissal, the court accepted as true, arguendo, all testimony

presented in plaintiff’s case in chief, and dismissal was made solely on grounds of legal insufficiency, no formal findings of fact were necessary. (OBITER DICTUM)

2. Evidence was insufficient to support plaintiff’s claim that attorneys who had represented him

fraudulently induced him to enter into contracts governing right to proceeds from sale of literary material concerning murder to which plaintiff had pleaded guilty.

3. Where prisoner (plaintiff) expressly released attorney from all claims arising from contracts under

which attorney was to share in proceeds from literary material concerning murder to which he had pleaded guilty, and attorney relinquished any future payments which had been assigned to attorney, prisoner’s release of attorney was made for a valid consideration, and prisoner could not maintain contract action against attorney.

4. Evidence in suit by prisoner against former attorney failed to establish that attorney did not live up

to bargain to defend prisoner in return for assignment of proceeds from publication of material about murder to which he had pleaded guilty.

5. Although Tennessee law does not impose very strict duty on attorneys to demonstrate falsity of

claim of taking unfair advantage of client in business dealings, burden of going forward with proof is not shifted onto lawyer; the client must initially demonstrate that he has prima facie case. (OBITER DICTUM)

6. Evidence, in suit against attorneys and writer by prisoner alleging that defendants used positions of

trust to impose on him contracts providing for publication of materials concerning murder to which he had pleaded guilty and that defendants placed their own financial interests in the contracts ahead of prisoner’s interests as a defendant and conspired to violate his right to a fair trial, would not support allegations of violation of his civil rights.

United States v. Lopez, 328 F. Supp. 1077(E.D.N.Y. 1971) Facts: The U.S. Government has implemented an anti-hijacking system which includes a procedure where a passenger who meets a prescribed “profile” is focused on by airline employees. The “profile” established by the Federal Aeronautics Administration (F.A.A.) utilizes statistical, sociological and psychological data ant techniques to identify and isolate potential hijackers. In July 1970, the Pan American Passenger Service Manager issued a memorandum purporting to “update” the “profile” to be applied in the anti-jacking procedure. It introduced an ethnic element as one of the fundamental characteristics for which there is no experimental basis, thus raising serious equal protection problems. A second added criterion called for an act of individual judgment on the

Oklahoma City University School of Law

part of airline employees. Both the government and Pan American disowned the memorandum, hence not duly authorized. In November 1970, Lopez, together with his companion,Gonzalez, was apprehended as he was about to board a Pan American flight. An airline employee pointed out Lopez and Gonzalez as persons whose profile suggested a substantial likelihood that they were potential hijackers. Marshals then approached the two and asked if they would walk through the magnetometer installation. A magnetometer sets to flash a warning light when magnetic force deflecting power equal to or greater than that of an average 25 caliber gun is detected. Lopez and Gonzalez activated the device after passing through it twice. The Marshals asked the two to accompany them to a private area adjacent to the boarding ramp where their outer clothing was patted down or “frisked” for weapons. A tinfoil covered plastic envelope tightly packed with white powder was discovered in Lopez’s clothing. After field testing, the powder proved to be positive for heroin. Lopez and Gonzalez were arrested and charged with concealment and facilitating the transportation of the packet of narcotics and with conspiring to commit the crime. Lopez filed a motion to suppress evidence on the ground that it was obtained in violation of his constitutional rights. Issue: Whether or not the seizure of evidence was obtained in violation of a constitutional right Ruling: Summary of Ratio Decidendi The Court took judicial notice of the constitutionality of the anti-hijacking system including, among others, the “frisk”. The “frisk” conducted by Marshals upon defendant was brought about through the identification by the airline employee acting as agent of the government in the application of the anti-hijacking procedure. The act of identification by the airline employee, however, constituted a violation of constitutional right of equal protection, where the “profile” used to identify the defendant as potential hijacker included an ethnic element as one of the characteristics and required individual judgment on the part of the airline employee in the identification. Court Decision: 1. In proceedings on motion to suppress evidence seized as a result, in part, of use of flux-gate

magnetometer installed at airport as part of official program designed to detect aircraft hijackers, court would take judicial notice of the scientific principles utilized in design of the magnetometer, but, in evaluating the magnetometer’s capabilities, would also rely upon expert testimony adduced at the suppression hearing.

2. In proceedings on motion to suppress evidence secured, in part, as result of use of magnetometer at

airport as part of official anti-hijacking program, though the person who actually adjusted the machine was not available, court would accept testimony with respect to custom and practice as to such adjustment

3. In proceedings on motion to suppress evidence detected by application of system intended to

thwart aircraft hijacking and utilizing a “profile” of potential hijackers consisting of group of

Oklahoma City University School of Law

individual characteristics found to distinguish such persons from aircraft passengers in general, exclusion of defendant from portion of hearing involving testimony as to the profile did not deny his constitutional right to confront witnesses where profile was important part of effective anti-hijacking system and revelation of the characteristics involved would seriously undermine the system and where defense counsel was present and permitted to cross-examine witnesses.

4. In system designed to prevent hijacking of aircraft, use of “profile” consisting of group of individual

characteristics, together with metal-detecting magnetometer, to select passengers who would be “interviewed” did not violate constitutional guarantees of equal protection and due process, where profile was developed by use of appropriate, statistical, sociological and psychological data and techniques, was precisely designed to select only those who present high probability of being dangerous, was proved to be highly effective in isolating potential hijackers, and did not discriminate against any group on the basis of religion, origin, political views, or race.

5. Right to public trial attaches at hearing on motion to suppress evidence.

6. Despite right of defendant to public trial and independent right of the public to be present at

criminal proceedings, exclusion of the public, or portions of it, for limited purposes and for short periods is often justified in the public interest or in the interest of the defendant.

7. Where “profile” consisting of group of individual characteristics exhibited by potential aircraft

hijackers had proved highly effective in isolating potential hijackers and revelation of any characteristic within the profile would seriously undermine the anti-hijacking system by allowing hijackers to fabricate an acceptable profile, exclusion of public from portion of suppression hearing involving testimony with respect to the profile did not violate defendant’s right to a public trial. U.S.C.A. Const. Amends.5, 6; Fed. Rules Crim. Proc. Rule 43, 18 U.S.C.A.

8. Suppression hearing is considered part of trial at which defendant is entitled to confront witnesses.

9. Right to confront witnesses is not absolute but may be waived by acts or statements of the

defendant, and defendant may be excluded when necessary to preserve order and decorum in the courtroom.

10. Exclusion of defendant from portion of suppression hearing could not be justified solely on theory

that exclusion constituted harmless error when defense counsel was present; even where issue is such that defendant cannot by his presence contribute to his defense, defendant is entitled to assurance by reason of his direct observation that justice was done.

11. Though there is limited power to keep information from defendant during pretrial discovery

proceedings, disclosure must be had if failure will infringe his constitutional rights or if information regards witnesses or material to be produced at hearing or trial.

12. Even state secret privilege may not be utilized in any way that will deny defendant constitutional

rights and generally where state privilege has been applied and it is directly related to a substantive issue in a criminal case, dismissal is required.

13. Government has privilege to refuse to disclose identity of informer but if informer may have

evidence necessary to fair determination of material issue in a criminal case, election not to disclose

Oklahoma City University School of Law

must lead to dismissal; however where guilt or innocence is not directly in issue and informer’s name or information bears only on legality of the method of obtaining evidence, court has much greater discretion.

14. In balancing public interest in protecting flow of information against individual’s right to prepare his

defense, with respect to determination of whether government will be required to disclose identity of informer on pain of dismissal, it is necessary that a form of in camera procedure be utilized in some suppression hearings; despite defendant’s right to confront witnesses against him.

15. Exigencies of time involved in weapons frisk of suspected potential hijacker about to board aircraft

excused failure to secure warrant, if frisk was otherwise reasonable.

16. Exercise of individual’s constitutional right to travel may not be conditioned on voluntary relinquishment of Fourth Amendment rights; thus fact that passenger after reading posted and clearly observable signs stating “PASSENGERS AND BAGGAGE SUBJECT TO SEARCH” did not amount to implied consent to weapons frisk, particularly where, once detained, defendant was not free to revoke such purported consent by reversing decision to board the aircraft.

17. Fact that passenger about to board aircraft did not resist or protest when officers asked him to

accompany them to private area adjacent to boarding ramp for search did not constitute voluntary consent to the search.

18. Weapons search could not be justified as incident to arrest where arrests were not made until after

frisk had been completed and contraband seized.

19. Probability of danger justifying frisk for weapons is less than probable cause required to support arrest and “full blown search for evidence” but may require a higher level of probability than investigative stop and cannot be supported by surmise or hunch; officer must be able to point to specific and articulable facts.

20. In order to assess the reasonableness of search it is necessary to examine the governmental interest

which allegedly justifies intrusion upon the constitutionally protected interests of the private citizen; thus search based upon information that bomb is being aboard airplane may be justified by lower degree of probability than search intended merely to stop flow of contraband out of the country.

21. Degree of community resentment aroused by particular practice is relevant to assessment of

reasonableness of frisking, as is the manner in which the frisk is conducted.

22. Though objective standard for testing reasonableness with the subjective standard necessarily applied by officer concerned with immediate sense of risk to himself, objective rule is useful as insurance against dishonesty by officer who may be willing to fabricate remembered emotions to validate protective frisk, and to assure public that courts are attempting to maintain constitutional protections.

23. In reviewing weapons search, court must determine objective evidence then available to the officer

and decide what level of probability existed that the individual searched was armed and about to engage in dangerous conduct, and then rule on whether that level of probability justified the “frisk”

Oklahoma City University School of Law

in light of the manner in which the frisk was conducted, as bearing on the resentment it might justifiably arouse in the individual and the community, and of the risk to the officer and the community of not disarming the individual at once.

24. Though mere statistical information does not by itself justify weapons searches, where anti-hijacking

system consisting inter alia, of purely objective “profile”, independent of race, color or creed, of individual characteristics of potential hijackers, resulted in selection of group of .1% of all passengers which included practically all potential hijackers, statistically established probability that 6% of such group would be found to have a weapon sufficed to justify narrowly circumscribed weapons search conducted in private with as much courtesy as possible, in light of the substantial interest in preserving the integrity and safety of air travel.

25. In searching suspected potential hijacker, search beyond a legitimate scope of a weapons search is

unjustified and the fruits thereof are inadmissible in subsequent criminal proceeding.

26. “Frisk” of suspected potential aircraft hijacker which revealed hard object about four inches wide and six inches long and three-quarters of an inch deep, large enough to contain pistol or explosive material, justified removal of the object from underneath defendant’s clothing, which lead to visual observation that package was covered with tin foil, and opening of the package was then justified.

27. If “frisk” for weapons is conducted in good faith to locate weapon believed to be present on basis of

information generated by well-administered federal anti-hijacking system and does not go beyond limits of what is required to uncover such an object, seizure of evidence of crimes other than those involved in boarding aircraft with weapon is justified.

28. Though proper application of officially approved federal anti-hijacking system, involving use of

“profile” consisting of group of objective characteristics found to distinguish potential hijackers without discriminating on basis of origin or race, will warrant weapons search of person identified by the system, where airline official undertook to “update” the profile by eliminating one of the fundamental characteristics and introducing an ethnic element of which there was no experimental basis and a second criterion calling for individual judgment on the part of airline employees, and such altered system may have been utilized by airline personnel in selecting defendant as potential hijacker, weapons search which revealed package of heroin, was unconstitutional, requiring suppression of the evidence.

29. Where airline employees, purporting to apply officially approved federal anti-hijacking system,

selected individual as potential hijacker, resulting in weapons search by federal marshal, airline employees were acting as government agents for purposes of application of Fourth Amendment protection.