(dissenting) :
The exigencies of skyjacking and bombing, however real and dire, should not leave an airport and its environs an enclave where the Fourth Amendment has taken its leave. It is passing strange that most of these airport searches find narcotics and not bombs, which might cause us to pause in our rush toward malleating the Fourth Amendment in order to keep the bombs from exploding.
United States v. Legato, 5th Cir. 1973, 480 F.2d 408, 414 (Judge Goldberg, con*516curring). The majority recognize that the airport security search at issue in this case goes a step further than any we have previously approved. Specifically, that step is the retrieval of checked luggage well beyond the reach of the suspected skyjacker for the purpose of searching it. With deference, I cannot agree that the danger of air piracy warrants or authorizes upholding this search under Fourth Amendment standards.
Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 has served as the foundation of the airport security search cases. Under Terry a policy officer with facts giving rise to a reasonable suspicion of criminal activity, but not supplying probable cause to arrest, may make a forcible “stop” for investigative purposes. See also Adams v. Williams, 1972, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. Further, the officer may make a pat-down search of the suspect’s outer clothing if he reasonably apprehends that the suspect may be armed and dangerous to the officer or others. Though probable cause is not required to legitimate the investigative stop or the protective search, the Court in Terry stressed that the policeman’s suspicion of criminal activity and apprehension of danger must arise from “specific and ar-ticulable facts.” 392 U.S. at 21, 88 S.Ct. at 1830. Additionally, the Court emphasized that, .“The scope of the search must be ‘strictly tied to and justified by’ ” its protective purpose. 392 U.S. at 18, 88 S.Ct. at 1878.
In United States v. Moreno, 5th Cir. 1973, 475 F.2d 44 our court applied the Terry holding to an airport search and extended it slightly. We concluded there that the facts available to the law enforcement officers — including unexplained comings and goings at the airport, a false explanation to investigating officers, visible nervousness, changing lines at the ticket counter and later changing airlines, and a bulge in the suspect’s pocket — reasonably warranted the suspicion that he was armed and dangerous and was engaged in criminal activity, even though the facts did not supply probable cause. Further, we held that the great danger which each individual passenger represents to fellow passengers and flight crews as a potential skyjacker made reasonable under the Fourth Amendment a more intrusive search in the airport setting than Terry would authorize for on-the-street encounters. We said:
Due to the gravity of the air piracy problem, we think that the airport is a critical zone in which special considerations apply . In applying Terry were we to hold that airport officials must always confine themselves to a “pat down” search where there is a proper basis for an air piracy investigation, we think that such a per se restriction in the final analysis would be self-defeating.
United States v. Moreno, supra at 51. The intrusion which was upheld was the removal of the suspect’s coat and an inspection of the contents of his pockets-— somewhat more than a pat-down search. Again, the rationale for this extension was the great danger which skyjacking represents.
The Moreno principles were applied straightforwardly in United States v. Legato, 5th Cir. 1973, 480 F.2d 408 to uphold the search of a package carried by a suspect in an airport. Similarly, United States v. Slocum, 3d Cir. 1972, 464 F.2d 1180 upheld an extensive search of carry-on luggage with less than probable cause.1
*517Prior to the majority’s decision today, no case has gone so far as to authorize the seizure and search of a passenger’s checked luggage — I emphasize that we are not dealing here with a search of carry-on luggage — on the basis of suspicious conduct, i. e., less than probable cause. Terry, Moreno, Legato, and Slocum all dealt with a search of the suspect’s person, or of his clothing or packages in his immediate possession. None of them authorized retrieval and search of a distant piece of luggage or other distant property on the basis of facts creating only suspicion of wrongdoing. Even a probable-cause arrest of a suspect would not legitimate a search of his checked luggage as incident to the arrest. Chimel v. California, 1969, 395 U. S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. Nothing less than probable cause to believe that the checked bag contained something subject to seizure — contraband or fruits, instrumentality, or evidence of a crime — would authorize a valid search, even if a warrant were not required under the circumstances. See Warden v. Hayden, 1967, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. Thus, in extending Terry to sustain a search of distant property in this ease the majority go significantly beyond existing precedent.
Just as Moreno and Legato relied on the danger factor to uphold more intrusive searches in an airport setting than would be allowed outside an airport, contemplation of the “ubiquitous hijacking menace” and the “potentially catastrophic consequences of hijacking” has led the majority to approve the checked luggage search in this case. The day is past for questioning the soundness of the Moreno and Legato holdings, but we are not bound to, and should not, apply and extend their rationale uncritically to approve every search sought to be justified in the name of the skyjacking menace. Without minimizing the urgency of the air piracy problem, we must recognize limits to the extent of intrusion it can legitimate.
There can be no doubt that traditional Fourth Amendment principles and values are altered and ultimately inverted as we increase our reliance on the danger factor and the need for “security” to justify greater and greater intrusions. Traditionally, privacy has been regarded as the norm, and special justification has been required to permit a search. Probable cause is the traditional mechanism for balancing the individual interest in privacy against the public interest in detecting and preventing crime, even dangerous crime. Terry modified the equation only slightly by permitting a limited pat-down search of a suspect’s person on reasonable suspicion of criminal activity plus reasonable apprehension of danger. As we accord greater weight and importance to the danger factor, whether as justification for the initiation of a search, e. g., United States v. Skipworth, supra, or for enlarging its permissible scope, e. g., United States v. Moreno, supra, search becomes more the norm and privacy more the exception. This drastic inversion of values is apparent in the majority opinion in this case.
Airport security measures are reasonable, therefore, insofar as they permit government agents to determine whether a suspect presents an immediate danger to air commerce. The search may continue until the law enforcement official satisfies himself that no harm would come from the passenger’s boarding the plane. . Only when it becomes unreasonable for the suspect’s innocence to be further questioned does the security search itself become unreasonable.
Reasonable suspicion, a vague and minimal standard at best, permits the initiation of the investigation. The individual, “the suspect,” must then submit to an unlimited search until the search dem*518onstrates or he can otherwise convince the official that further intrusion is not warranted. We should be slow to increase our emphasis on the danger factor in Fourth Amendment analysis in the name of reasonableness, when the result will be to invert the fundamental values the Amendment represents.
In this case, I must conclude that the majority improperly allow a “protective” search to extend beyond the scope reasonably necessary to neutralize the threat of harm from appellants, as suspected skyjackers, to police officials and others. The scope of the search must be strictly tied to and justified by the circumstances which give rise to its initiation. In Terry the search was limited to a pat-down search of the suspect because weapons on the person of suspects represent a high risk to police and others. The Court observed:
American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.
Terry v. Ohio, supra, 392 U.S. at 23-24, 88 S.Ct. at 1881. Elaborate, technically complex weapons not located on the suspect’s person may be imagined which would also endanger police, but the search was limited to the suspect’s person, the area which according to experience involves a high risk. To use the Terry-Moreno rationale to approve a checked luggage search we should be able to declare that would-be skyjackers commonly do, or at least reasonably could, use weapons or devices in checked luggage to commit air piracy. But the primary danger in the airport setting seems to be that the skyjacker will carry some weapon on board the aircraft with him. The screening procedues prescribed by the Federal Aviation Administration are designed to thwart the carry-on threat and do not provide for searching or magnetometer testing of checked luggage. See United States v. Slocum, supra. This seems to indicate that the FAA does not consider checked luggage to present a significant skyjacking danger. The record does not show that skyjackers commonly use devices in checked luggage, and I do not believe we may properly take judicial notice of the danger presented by any such hypothetical mo-dus operandi. Unless the nexus between the checked luggage and the danger of air piracy is established, the “protective search” rationale cannot properly be used to uphold a checked luggage search. Being unpersuaded that checked luggage does represent a substantial skyjacking threat, I think the search went beyond its legitimate “protective” scope.
There is a second reason why the search in this case should not be upheld. Even if law enforcement officers could properly seize the checked bag or remove it from the aircraft for protective reasons, they had no authority to search it without a warrant. We have recently held in United States v. Soriano, 5th Cir. 1973, 482 F.2d 469 that police officers with probable cause to believe that a suitcase contained contraband were justified by exigent circumstances in seizing it without a warrant, but that they were obligated to secure a warrant before inspecting its contents. See also United States v. Garay, 5th Cir. 1973, 477 F.2d 1306. Yet the majority holds that the law enforcement officials in this case, who had only suspicion, and not probable cause to believe the bag contained any item subject to seizure, could seize and search the bag without a warrant. Surely, if a warrant is required for a probable cause search, no less can be required for a “reasonable suspicion” search. To decide this case consistently with Soriano and Garay we should reject the warrantless search of the checked bag.
I would affirm the ruling of the district court suppressing the marijuana found in the bag.
. In our Circuit not even reasonable suspicion is required to search passengers in the preboarding area. In United States v. Skipwith, 5th Cir. 1973, 482 F.2d 1272 we held that “those who actually present themselves for boarding on an air carrier . . ■ . are subject to a search based on mere or unsupported suspicion.” Id. at 1276. Consent is not required ; the individual has no right to leave to avoid the search. Id. at 1277. But see United States v. Anderson, 9th Cir. 1973 [13 Crim. L.Rptr. 2395, June 29, 1973] (passenger searches are “administrative searches” whose validity depends on consent or obtaining a *517warrant). As in Moreno the reason given for the paring back of the individual’s right of privacy in Skipwith was “the magnitude of the perils created by air piracy.” Skipwith, supra at 1275.