{"id":5012,"date":"2011-04-14T07:29:05","date_gmt":"2010-12-22T00:18:56","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-12-21T21:03:59","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5012","title":{"rendered":"FL1: TSA’s random opening of luggage to swab for explosives was reasonable, and it found child pornography"},"content":{"rendered":"

TSA random search of a suitcase at Pensacola airport for swabbing of exterior and contents for explosives resulted in a \u201cplain view\u201d of child pornography. Nothing was suspicious at all about defendant or his luggage. The TSA officer was permitted to look through papers rather than swab them [sounds like a search not in good faith to me]. The court distinguished two federal cases that found criminal searches by TSA unreasonable. Higerd v. State<\/a>, 54 So. 3d 513 (Fla. App. 1st DCA 2010):<\/p>\n

This is an issue of first impression; our independent research has not revealed any case directly deciding whether a purely administrative, physical search of checked luggage violates the Fourth Amendment. See United States v. Fofana<\/a>, 620 F. Supp. 2d 857, 861-62 n.2 (S.D. Ohio 2009) (noting United States Supreme Court has not directly ruled on reasonableness of domestic airport checkpoint searches); cf. United States v. McCarty<\/a>, 672 F. Supp. 2d 1085, 1091 (D. Hawaii 2009) (examining administrative physical search of passenger\u2019s checked luggage where suspicion was aroused by x-ray of the luggage). …<\/p>\n

Administrative searches in airports are an established exception. See United States v. Aukai<\/a>, 497 F.3d 955, 959 (9th Cir. 2007) (\u201cairport screening searches … are constitutionally reasonable administrative searches because they are \u2018conducted as part of a general regulatory scheme\u2019\u201d) (quoting United States v. Davis<\/a>, 482 F.2d 893, 908 (9th Cir. 1973)). In 1980, the Florida Supreme Court held that a person attempting to board an airplane may be searched without probable cause within the security area of an airport as long as the search is reasonable and conducted solely for the purpose of discovering an immediate threat to air commerce. Shapiro v. State<\/a>, 390 So. 2d 344, 350 (Fla. 1980). <\/p>\n

Consent is not required to conduct an airport screen search, if the search is otherwise reasonable and conducted pursuant to statutory authority. McCarty<\/a>, 672 F. Supp. 2d at 1096. … <\/p>\n

TSA\u2019s protocol required officers to physically open a certain number of randomly selected bags, swab the inner contents, and test the swabs in one of the explosive detection machines. The TSA officer\u2019s testimony was that she discovered several photographs while thumbing through a large file. TSA\u2019s protocol reveals that the TSA officer had the discretion to flip through the papers found in Appellant\u2019s bag while conducting the open bag search in lieu of swabbing every piece of paper. … <\/p>\n

Recently, two federal district courts determined similar administrative airport searches were unreasonable because they were not confined, in good faith, to searching for weapons or explosives. See Fofana, 620 F. Supp. 2d at 863-64; McCarty, 672 F. Supp. 2d at 1096. These opinions are distinguishable but instructive. <\/p>\n

Unlike the officers in McCarty and Fofana, the TSA officer\u2019s testimony in this case demonstrates her search remained confined, in good faith, to the purpose of searching for explosives or weapons. The TSA officer\u2019s testimony was simple and unwavering: She was required to open a certain number of bags; Appellant\u2019s bag was the next randomly selected bag; she was required to thumb through the contents of the accordion-type file folder found in Appellant\u2019s bag, under TSA protocol; and she saw the photographs as soon as she opened the folder. She immediately stopped the search and contacted a supervisor. \u201cThe mere fact that a screening procedure ultimately reveals contraband other than weapons or explosives does not render it unreasonable, post facto.\u201d United States v. Marquez<\/a>, 410 F.3d 612, 617 (9th Cir. 2005). Unlike the officers in Fofana and McCarty, the TSA officer\u2019s testimony here did not hint that she was intentionally looking for evidence of criminal behavior. <\/p><\/blockquote>\n

Note: So, where is all the outrage about TSA frisks now?<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-5012","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/5012","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=5012"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/5012\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=5012"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=5012"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=5012"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}