(concurring).
I concur on the grounds that although this search was a governmental one subject to the proscriptions of the Fourth Amendment, the persons executing it had probable cause to carry it out.
In my view, airline singular searches conducted by airline personnel are, in fact, governmental searches. Airlines are public carriers, their routes are allocated by the government, their rates are regulated by the government, and they have no alternative but to comply with governmental regulations, including those requiring airline searches. See, Note, Airport Security Searches and the Fourth Amendment, 71 Colum.L.Rev. 1039, 1041-1047 (1971). Thus, had I been on the panels that decided Echols and Burton, I would have taken a view that the searches there were governmental rather than private.
There are additional reasons for holding this search to be a governmental one. Effective February 6, 1972, each airline was required by Federal Aviation Regulations to screen passengers and carry-on baggage so that no explosives or weapons would be carried aboard aircraft.1 As of March 9, 1972, each airline was required to adopt a security program with respect to checked baggage and cargo to accomplish the same end.2 These regu*817lations which were in effect when this search was made but not when the Echols and Burton searches were made remove any doubt as to the government’s involvement in this search. Even though the search here was conducted by airline personnel, it was carried out at the instigation and direction of the government and should have been conducted in accordance with the Fourth Amendment to the United States Constitution.
It is one thing to hold that the threat of air piracy is so great at the present time that the reasonableness standards of the Fourth Amendment permits carefully limited searches of airline passengers, baggage and carry-on luggage for explosives and weapons in appropriate circumstances by persons subject to the Fourth Amendment.3 It is quite another thing to hold that such searches can be routinely conducted by persons uninhibited by the strictures of that Amendment. If we permit the latter, we invite general searches for contraband other than weapons and explosives by those who are uncontrolled by any governmental authority and open up wide avenues for personal harassment and deprivation of constitutional rights.
This case is not the one in which we should lay down a precise standard of reasonableness for airline searches, but it is a case in which it should be made clear that airline searches for firearms and explosives, conducted pursuant to Federal Aviation Regulations since February 6, 1972, are not private searches but are governmental ones for a very limited purpose which must be conducted in accordance with the Fourth Amendment. See and compare, United States v. Moreno, 475 F.2d 44 (5th Cir. 1972); United States v. Gerald Frank Kroll, 351 F.Supp. 148 (W.D.Mo., 1972, amended February 28, 1973); United States of America v. John Kenneth Meulner, 351 F.Supp. 1284 (C.D.Cal. 1972). Any other course of action will permit the person and property of millions of Americans to be searched without regard to constitutional standards. As serious as the air piracy problem is, I am not prepared to close my eyes to Fourth Amendment problems raised by airport searches on the technical grounds that the searches are private because they are conducted by personnel paid by the airlines.
. Prior to February 6, 1972, the airlines employed screening practices to reduce the probability of air piracy and sabotage. Pursuant to Federal Aviation Regulation § 121.538 issued by the Administrator on January 31, 1972, the implementation of a screening system became mandatory on February 6, 1972:
Ҥ 121.538 Aircraft security.
# $ # $ $
“(b) Each certificate holder shall, before February 6, 1972, adopt and put into use a screening system, acceptable to the Administrator, to prevent or deter the carriage aboard its aircraft of any sabotage device or weapon in carry-on baggage or on or about the persons of passengers, except as provided in § 121585 ”
37 Fed.Reg. 25.00, 2501 (1972).
This screening system apparently did not require that the person and carry-on baggage of every passenger be examined, but rather only those who met a profile established by F.A.A. needed to be subjected to a close examination.
. On February 29, 1972, Federal Aviation Regulation § 121.538 was revised by Amendment 121-85 to require further security precautions. In part, it required :
Ҥ 121.538 Aircraft security.
* * sN * si*
“(c) Each certificate holder shall prepare in writing and submit for approval by the Administrator its security program including the screening system prescribed by paragraph (b) of this section, and showing the procedures, facilities, or a combination thereof, that it uses or intends to use to support that program and that are designed to—
“(1) Prevent or deter unauthorized access to its aircraft;
“(2) Assure that baggage is cheeked in by a responsible agent or representative of the certificate holder; and
“ (3) Prevent cargo and checked baggage from being loaded aboard its aircraft unless handled in accordance with the certificate holder’s security procedures.”
37 Fed.Reg. 4904, 4905 (1972).
This amendment was not to be effective until at least April 6, 1972; and by its terms, it would seem that the security program need not have been implemented until specifically approved by the Administrator. However, on March 9, 1972, pursuant to his power under Federal Aviation Regulation § 121.538(g), the Administrator, in response to a statement by the President, announced that:
“ * * * the effective date of Amendment 121-85 is being changed from April 0, 1972, to March 9, 1972, and each certificate holder is being required to immediately adopt and put its security program into use. * * * ”
37 Fed.Reg. 5254 (1972).
Paragraph (b) of Federal Aviation Regulation § 121.538 was also amended by adding the following sentence:
Ҥ 121.538 Aircraft security.
“(b) . . . Each certificate holder shall immediately adopt and put into use its security program prescribed in paragraph (e) of this section.”
Id.
. On December 5, 1972, the Administrator, again acting under the emei'gency authority given him by Federal Aviation Regulation § 121.538(g), sent a telegram to the F.A.A. Regional Directors directing that commencing January 5, 1973, the carry-on baggage and persons of all passengers must be inspected prior to boarding. On this same date, the Administrator also issued an amendment to Part 107 of the Federal Aviation Regulations which required that no later than February 6, 1973, airport managers had to post armed law enforcement personnel at boarding gates. 37 Fed.Reg. 25934, 25935 (1962).