CA9: TSA suitcase search triggered by scanning machine made finding child pornography virtual plain view as administrative search

A CTX luggage scanner at Honolulu Airport indicated a dark spot in a luggage scan that suggested to the TSA screener that it could be a “sheet explosive,” designed to elude screeners. When the suitcase was opened, a laptop was where the CTX machine indicated to search further. When the laptop was pulled out, an envelope came out and photographs spilled out that had some child pornography in them. This administrative search was valid, and the district court erred in suppressing the search. The court credits that the officer was still looking for “sheet explosives” in the photographs. United States v. McCarty, 648 F.3d 820 (9th Cir. 2011), rev’g United States v. McCarty, 672 F. Supp. 2d 1085 (D. Haw. 2009):

So, as long as (1) the search was undertaken pursuant to a legitimate administrative search scheme; (2) the searcher’s actions are cabined to the scope of the permissible administrative search; and (3) there was no impermissible programmatic secondary motive for the search, the development of a second, subjective motive to verify the presence of contraband is irrelevant to the Fourth Amendment analysis. See id.; Edmond, 531 U.S. at 45-46; Aukai, 497 F.3d at 962; Bulacan, 156 F.3d at 967-68; Bowhay, 992 F.2d at 231. Thus, the presence here of a secondary desire to confirm that the items searched might be contraband could not, in and of itself, invalidate the initially constitutional administrative search Andrade conducted, at least as long as she actually engaged in a search for explosives and her actions were no more intrusive than necessary to clear the bag of any safety concerns. See Bowhay, 992 F.2d at 231 (“When the police conduct would have been the same regardless of the officer’s subjective state of mind, no purpose is served by attempting to tease out the officer’s ‘true motivation.” (citing Horton v. California, 496 U.S. 128 (1990))). The subjective intent of the individual officer in such a search thus becomes as relevant as objective conduct only at the point at which the search ceases legitimately to be for the valid administrative purpose, as that is the point after which the administrative exception can no longer justify continuation of the warrantless search.

2. Defining Search Scope

The crux of the issue, then, involves two related questions: (1) when did Andrade’s administrative search for explosives truly end, and become a wholly independent search for evidence of child pornography?; and (2) which of Andrade’s actions exceeded the scope of the administrative search by becoming “more extensive [or] intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives”? Davis, 482 F.2d at 913.

. . .

However unclear Andrade’s testimony was on other points—exactly which images she saw, how many photographs spilled onto the table, and whether she touched or did not touch the photographs on the table before calling the lead officer—she was consistently clear and emphatic that when she looked through the photographs in the envelope, she was still acting to ensure that there were no sheet explosives hidden inside. No testimony in the record contradicted hers on this point. Further, this search intent was consistent with the TSA protocol requiring Andrade to thumb through the photographs in order to clear the bag. The district court’s factual conclusion on this point is without support in the record, and must be vacated.