D.V.I.: Post-flight x-ray of bags was unreasonable

CBP x-rayed bags of passengers flying between St. John’s and St. Thomas VI during Carnival between 7 am and 5 pm. A gun was found in defendant’s carry-on bag. It was not a flight involving Customs, as flights from and to the U.S. mainland are. The purpose of the x-raying was to indict firearms coming to Carnival. The search was unreasonable and violated the Fourth Amendment. Like the intermediate border checkpoint rejected by SCOTUS in Torres, this search cannot be justified merely by crime control. The CBP officers had to know, or at least should have known, that the search was illegal, and suppression is the proper remedy. United States v. Rivera, 2014 U.S. Dist. LEXIS 151950 (D. V.I. October 23, 2014):

The Government has misread Hartwell by overlooking the critical importance of motive in administrative search cases. Indeed, in City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000), the Supreme Court, in finding a narcotics checkpoint to be impermissible, instructed that “what principally distinguishes [unlawful] checkpoints from those we have previously approved is their primary purpose.” See also Al-Kidd, 131 S.Ct. at 2080 (in administrative search cases “actual motivations do matter”). Hartwell must be read in conjunction with Edmond. If not, the Brown test employed in Hartwell could be used to justify any ordinary law enforcement checkpoint, even the narcotics checkpoint found impermissible in Edmond. Rather, in determining whether a warrantless, suspicionless checkpoint is permissible, a court “must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue.” Edmond, 531 U.S. at 42-43 (emphasis added).

Hartwell makes clear that the nature of the interests threatened in that case was air travel safety. Underpinning the holding in Hartwell was the obvious fact that the pre-boarding airport screening at the Philadelphia airport was part of a national regulatory scheme, authorized by statute, to protect the flying public from the threat of “terrorist attacks on airplanes.” Hartwell, 436 F.3d at 179. This was the overarching motive for the screening of the defendant in that case. The pre-boarding search was “permissible under the administrative search doctrine because the State has an overwhelming interest in preserving air travel safety, and the procedure is tailored to advance that interest while proving to be only minimally invasive. …” Hartwell, 436 F.3d at 180 (emphasis added).

Here, the nature of the interests protected by the “baggage screening checkpoint” is that of general crime control. Interdicting the flow of guns and drugs into St. Thomas during Carnival serves a very compelling government interest, to be sure, but it has nothing to do with preventing terrorist attacks on airplanes. Viewed through the prism of Edmonds and the purpose-driven inquiry it requires, the “baggage screening checkpoint” does not meet the three-pronged test in Hartwell because the nature of the threat protected has little to do with air travel safety.

Indeed, the airport checkpoint found permissible in Hartwell is so unlike the “baggage screening checkpoint” in this case that Hartwell actually lends support to the motion to suppress. To begin, the primary purpose of the pre-boarding checkpoint in Hartwell was to “prevent terrorist attacks on airplanes.” Hartwell, 436 F.3d at 180. The primary purpose of the “baggage screening checkpoint” here was to “address the threat of gun violence during Carnival.” Opposition at 1 [ECF No. 38]. The TSA checkpoint in Hartwell was authorized by federal statute and implemented by regulations. 49 U.S.C. § 44901; 49 C.F.R. 1540.111(c). There is no statutory or regulatory authority for the “baggage screening checkpoint” in this case.

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Moreover, the Government has cited no authority, and this Court has found none, applying the administrative search exception to a post-flight screening of passengers arriving on a nonstop domestic flight.13 On the contrary, those cases involving a search of the baggage of arriving passengers who did not cross a border, have relied on a warrant, individualized suspicion, or the consent of the passenger. See, e.g., United States v. Place, 462 U.S. 696, 699 (1983) (DEA agents obtained warrant to search baggage arriving on flight from Miami to New York); United States v. Tyson, 653 F.3d 192, 196 n.4 (3d Cir. 2011) (ATF agents obtained warrant to search baggage arriving on flight from Tennessee to St. Thomas) United States v. Frost, 999 F.2d 737, 739 (police officers obtained consent to empty pockets then obtained warrant to search baggage arriving on flight from Ft. Lauderdale to Philadelphia); United States v. Bueno, 21 F.3d 120, 122 (6th Cir. 1994) (defendant arriving on flight from New York to Cincinnati consented to search of carry-on bag); United States v. Rowland, 464 F.3d 899, 909 (9th Cir. 2006) (Guam customs officials had reasonable suspicion to search luggage of passengers arriving in Guam on nonstop flight from Honolulu based on informant’s tip).

B. The Purpose of the Post-Flight “Baggage Screening Checkpoint”

Even though the Government admits that the “baggage screening checkpoint” was primarily intended to interdict the flow of guns and drugs during Carnival, it nevertheless urges that the screening served the lawful secondary purpose of protecting personnel and aircraft on the airport ramp, a secure area. That argument is belied by the non-regularized and selective nature of the checkpoint search, as well as by the character of that search.

The Government’s claim that the safety of air travel is advanced by searching the bags of only some passengers after they have completed their flight and are leaving the airport strains logic. It is just as incongruous as claiming that the courtroom is made safe by screening visitors as they leave the courthouse building. A checkpoint that is nonexistent for 364 days of the year, and that screened only some passengers arriving from St. Croix on its only day in operation, could hardly be intended to protect personnel and aircraft on an airport ramp that operates year round. Moreover, the Government has not explained how the use of a drug-sniffing dog promoted the “detection and prevention of firearms being carried in secure locations at the airport.” Opposition at 5 (emphasis added). [ECF No. 38].

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This Court is not unaware of the tremendous, negative impact of random gun violence on life in the Virgin Islands in general and on Carnival in particular. Tragically, festivities meant to celebrate cultural resiliency and vibrancy have, in recent years, been hijacked by an unscrupulous few who see them as an opportunity to settle scores at the public’s expense. The problems associated with keeping guns away from the open, public venues of Carnival are intractable and challenging. At their core, they involve balancing the Government’s duty to keep the public safe against the individual’s right to be free from impermissible Government intrusion.

However that balance is struck, the outcome must be measured, not simply by the needs of law enforcement but by the limitations that the Constitution places on the Government’s power to act. The gravity of the threat of gun violence in the Virgin Islands “cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.” Edmonds, 531 U.S. at 42 (emphasis added). In Fourth Amendment jurisprudence especially, the ends (i.e. stopping gun violence at Carnival) seldom justify the means (erecting a checkpoint at the airport). Indeed, the primary justification for the Fourth Amendment’s exclusionary rule is “to deter unreasonable searches, no matter how probative their fruits.” Oregon v. Elstad, 470 U.S. 298, 307 (1985). That the search in this case uncovered a loaded firearm in an airline passenger’s baggage does not make it reasonable per se, no matter how fortuitous that discovery may be.

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