(dissenting).
I respectfully dissent. The issues presented by the instant case are two-fold: first, whether probable cause existed for the search and secondly, whether the appellant voluntarily consented to the search. I find neither probable cause nor consent.
Airport searches have provoked a large amount of recent litigation. See such decisions as United States v. Ruiz-Estrella, 481 F.2d 723 (2d Cir., 1973); United States v. Moreno, 475 F.2d 44 (5th Cir. 1973); United States v. Skipwith, 482 F.2d 1272 (5th Cir., 1973); United States v. Legato, 480 F.2d 408 (5th Cir., 1973); United States v. Davis, 482 F.2d 893 (9th Cir., 1973); United States v. Doran, 482 F.2d 929 (9th Cir., 1973); United States v. Echols, 477 F.2d 37 (8th Cir., 1973); United States v. Kroll, 481 F.2d 884 (8th Cir., 1973), and United States v. Wilkerson, 478 F.2d 813 (8th Cir., 1973).
*670I do not believe that the type of “stop and frisk” situation discussed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) is applicable here. In Terry, the Court determined that a “frisk” or limited search for weapons “constitutes a severe, though brief, intrusion upon cherished personal security”, but the Court concluded at p. 29, 88 S.Ct. at p. 1884:
“. . . The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.”
There is no inherent right to travel to a certain place in a particular aircraft. Accordingly, airline authorities may condition the sale of a ticket or permission to board the airplane upon a person’s consent to be searched for weapons, explosives, and the like. One’s consent to such a search should be reasonably express; it should not be broadly implied because the consent to a search amounts to a waiver of a fundamental constitutional right. Waiver in this context means the “intentional relinquishment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
It is clear from the facts of this case that the search of the appellant’s handbag conducted here cannot be brought within the ambit of Terry.
The mere fact that the appellant fitted a “behavioral profile” does not constitute probable cause for the search in this case. Moreover, when faced with a heated issue such as this, I think we might reflect on the unfortunate ruling in Ko-rematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), before approving the search in this ease.
In the recent case of Condrado Almei-da-Sanchez v. United States, 413 U.S. 266, 274, 93 S.Ct. 2535, 2540, 37 L.Ed.2d 596 (1973), the Court said:
“. . . It is well to recall the words of Mr. Justice Jackson, soon after his return from the Nuremberg Trials:
‘These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among the deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.’ Brinegar v. United States, 338 U.S. 160, 180 [69 S.Ct. 1302, 1313, 93 L.Ed. 1879] (Jackson, J., dissenting).
“The Court that decided Carroll v. United States, ante [267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543], sat during a period in our history when the Nation was confronted with a law enforcement problem of no small magnitude ■ — -the enforcement of the Prohibition laws. But that Court resisted the pressure of official expedience against the guarantee of the Fourth Amendment.”
I believe that the evidence was illegally seized and must therefore be suppressed. Accordingly I would reverse.