D.Haw.: TSA search that revealed child porn was unreasonable and suppressed

TSA exceeded its administrative search authority by searching for child pornography in defendant’s luggage. Whatever authority TSA had to search photographs for “sheet explosives,” this search was not for that purposes by the way it was conducted. United States v. McCarty, 672 F. Supp. 2d 1085 (D. Haw. 2009):

Despite the testimony indicating that the TSA employees searched the photographs solely to determine if any children were in harm’s way, the government argues that the search was nonetheless proper because Andrade was required to inspect the photographs for sheet explosives. Pl.’s Nov. 3 Suppl. Opp’n 2-6. The court readily accepts that a packet of photographs may cause a dense item alarm and TSA protocol requires the TSA employee to ensure that the photographs do not include any sheet explosives. The testimony, however, does not establish that Andrade and Moniz examined the photographs for sheet explosives — rather, after they noticed the photographs that were initially visible, they inspected the content of additional photographs for the purpose of determining their criminal nature. Further, that this inspection was not an administrative search for explosives is confirmed by the fact that Moniz and Andrade did not actually thumb through all of the photographs — if they were indeed searching the photographs for sheet explosives, protocol requires that they actually leaf through all of them. See id. at 148, 151. Rather, as described above, at some point during the search, they began to review the photographs not as part of an administrative search but rather to determine whether children were in harm’s way.

The government also argues that the entire contents of the envelope were in “plain view” such that the TSA’s review of them did not invade Defendant’s privacy. Pl.’s Nov. 3 Suppl. Opp’n 8-11. The “plain view” doctrine is limited “to situations where the officer had a legal right to be at the location from which the object was plainly viewed.” Bulacan, 156 F.3d at 968 (citing Horton v. California, 496 U.S. 128, 136, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990)). “[T]o justify the seizure, the incriminating nature of the object must be immediately apparent and the officer must ‘have a lawful right of access to the object itself.'” Id. (quoting Horton, 496 U.S. at 137). In this case, the government has failed to establish that the incriminating nature of the envelope and its contents was immediately apparent. Andrade could not identify what images she initially saw, and testified that she (1) did not believe anything was wrong when she first saw them; Doc. No. 57, at 63; (2) reviewed additional photographs because she “felt that the children were in a harmful way” and “needed to see more before I called my lead;” id. at 61-62; and (3) came to the conclusion that something was wrong based on reviewing everything combined together. Id. at 76-77. Accordingly, the plain view doctrine does not apply.

Finally, the government argues that the court should be guided by “practical considerations” in assessing TSA’s and HCPD’s actions. Pl.’s Nov. 3 Suppl. Opp’n 11-12. Even if relevant in this case, “practical considerations” do not alter the facts — Andrade and Moniz’s review of the contents of the envelope was not limited to a proper administrative purpose, resulting in a violation of Defendant’s Fourth Amendment rights. This is not a case where TSA employees found potentially incriminating photographs and simply continued on with their administrative search to clear the bag for airplane safety. Rather, the court concludes that Andrade and Moniz decided to conduct their own investigation in violation of Defendant’s Fourth Amendment rights. In sum, based on the evidence and testimony provided, the court finds that the government did not carry its burden that the search of the Travel Pro bag complied with the Fourth Amendment.