E.D.Wash.: An administrative search to enter a govt building has to be reasonable, too, with a warning of consent and this was far too intrusive

Defendant was subjected to an intense search of all his belongings by attempting to enter a Social Security office in eastern Washington by private security contractors working the metal detector and x-ray machine. There was inadequate notice and consent of what would happen, and the search was too intensive for an administrative search considering all the technology available. United States v. Kerr, 2017 U.S. Dist. LEXIS 124378 (E.D. Wash. July 18, 2017):

The Government in this SSA facility employs a “hand inspection” of individuals’ bundles and belongings, which in Ms. Bunton’s case included opening an eyeglass case, which was carried inside a purse. In Ms. Kerr’s case, the “hand inspection” included opening a 2″x 2″ pill bottle, which was inside a 3″ x 4″ wallet that was zipped closed, which was in turn inside a purse.

This innocuously named “administrative inspection” is nevertheless an extraordinarily invasive undertaking. It is significantly more invasive than the x-ray screening at an airport, because that method evaluates bags and parcels as a whole unless something suspicious is identified in the x-ray. Here, all containers are opened, whether or not they are suspicious. Such a “hand inspection” sanctions the removal and handling, in a public place, of everything, including under clothes, legal materials and medications.

In referencing x-ray machines in the training manuals, the Government implies that x-ray technology is known and acceptable. See Government’s Exhibit 1-6. Inspector Curtis acknowledged that x-ray would be a more efficient way to search for firearms or explosives and would avoid the need to open certain containers.

The Government indicates the decision to employ hand searches is essentially a “funding” decision, and that it is unwilling to fund an x-ray machine and/or modify the space that would be necessary to accommodate the machine. However, the case law speaks to current “technology,” not current budgetary priorities.

As Judge Kozinski observed, “[n]ew technologies test the judicial conscience.” See United States v. Kincade, 379 F.3d 813, 871 (9th Cir. 2004) (dissenting opinion). The progressive miniaturization of destructive technology challenges courts to use technology to avoid the increasingly invasive searches that such miniaturization would otherwise lead us to.

The search in this case was not conducted with current technology. A widely available x-ray machine has the power to maintain the realm of privacy by effecting an equally effective but less intrusive means of searching entrants to the SSA building.

Accordingly, the Court finds the administrative searches at issue were not the least intrusive consistent with current technology.

. . .

There is no indication that the Government takes any steps to insure that the person to be searched understands (1) the essential aspects of an “administrative inspection” or that the Government will search all packages and all containers inside those packages, and any containers inside those containers, or (2) that the person may leave and come back another time.

The Government walks a very fine line when seeking to uphold a search without consent or a warrant, which depends for its validity on not seeking “criminal evidence,” yet probes ever deeper for what can only be considered “criminal materials.” The Ninth Circuit has repeatedly observed that because administrative searches can be conducted without a warrant or particularized suspicion, the Government is put in a position of power with a vast potential for abuse. See Bulacan, 156 F.3d at 967. Under such circumstances, consent and notice must have a role in protecting an individual’s privacy from this potential abuse.

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