S.D.Ohio: TSA search for contraband was invalid

TSA search for contraband was invalid as not a search for items prohibited from airplanes. The search continued after it was apparent that there were no prohibited items. United States v. Fofana, 620 F. Supp. 2d 857 (S.D. Ohio 2009):

The evidence also established that before the envelopes were opened, Fofana’s bags had already been thoroughly searched and that opening the envelopes containing the passports did not serve safety-related ends. By the time the envelopes were opened, the bags had been examined through the x-ray machine, tested for explosives residue, and emptied during a thorough hand search by Stroud. Stroud had also already manipulated the envelopes by hand, discovering that they were thin and unbendable. Although Mirow testified that a bulky “mass” of paper, such as 100 one-dollar bills or a book, would need to be investigated to ensure that nothing dangerous was disguised within the mass, his testimony suggests that something as thin as a passport would not be bulky enough to trigger that concern. (5/13/2009 Hr’g Tr. 40-42 (testifying that 5 bills would not be bulky enough to require scrutiny).)

The Government argues that Stroud’s subjective intent is irrelevant because, in the context of administrative searches, the purpose driving the search is assessed at the programmatic level. Edmund, 531 U.S. at 44-47 (explaining that cases dealing with administrative searches “have often required an inquiry into purpose at the programmatic level”). But, the Government failed to establish through evidence that opening the envelopes containing the passports was necessary to serve the programmatic purpose of an airport screening search, i.e., to unearth weapons or explosives. As already explained, the bulk of the evidence presented suggests that it was not. While it is conceivable that, as the Government argues, an envelope containing a passport-sized item might need to be opened, despite the use of other screening technologies, to detect a small prohibited item hidden inside, the Government has not supported that argument with evidence. For example, the TSA did not present, or submit for in camera review, SOPs or other regulations stating that all items, including non-bulky business-sized envelopes, must be opened as part of a secondary screening to ensure that there are no prohibited items contained within. It is equally conceivable to the Court that a combination of x-ray screening and external manipulation would be sufficient to exclude the presence of weapons or explosives in the envelopes Fofana was carrying. In fact, Stroud testified to that effect. (5/13/2009 Hr’g Tr. 97-99.)

Defendant did not cite the Fourth Amendment in his claim that he was held unreasonably long before he gave a statement, so he could not rely on the Fourth Amendment on appeal. United States v. Kirkland, 2009 U.S. App. LEXIS 11722 (7th Cir. June 1, 2009).

Court credits officer that defendant dropped a baggy of drugs when he was approached by the police. United States v. Walker, 2009 U.S. Dist. LEXIS 45850 (E.D. Mo. June 2, 2009).*