D.Minn.: TSA behavioral observations led to valid intense secondary screening and seizure of cash

TSA officers noticed defendant and his traveling companion because of suspicious activities at the Delta counter at MSP airport, according to a behavioral specialist. By the time they got to security, officers were sure they would be subjected to secondary screening, and that led to intensive questioning and seizure of case in aid of local law enforcement who also got involved, reporting that defendant was allegedly involved in a drug deal the day before. United States v. Rosales, 2011 U.S. Dist. LEXIS 140949 (D. Minn. October 28, 2011):

Warrantless and suspicionless airport screening searches “are constitutionally reasonable administrative searches because they are ‘conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.’” United States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)). TSA is statutorily charged with developing and executing airport screening search procedures. See 49 U.S.C. § 44901(a). More generally, TSA is responsible for creating “regulations to protect passengers and property on an aircraft … against an act of criminal violence or aircraft piracy.” 49 U.S.C. § 44903(b). Under 49 C.F.R. § 1540.111(a), individuals may not carry a “weapon, explosive, or incendiary” onto an airplane. Title 49 of the United States Code, Section 44902(a) requires that TSA prohibit commercial airlines from transporting “a passenger who does not consent to a search … [thus] establishing whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance.” 49 U.S.C. § 44902(a). Pursuant to its mandate, TSA has established a “prohibited items list” which is posted online and sets forth what items may not be carried aboard aircraft. 68 Fed. Reg. 7444, 49 C.F.R. § 1540.3. The prohibited items list includes a number of small items such as razors, matchbooks, blasting caps, flares, plastic explosives, and the like. See http://www.tsa.gov/travelers/airtravel/prohibited/permitted-prohibited-items.shtm#9 (last visited October 28, 2011).

Administrative searches are exempt from the warrant and probable cause requirements if they are reasonable. Because these searches remain subject to the Fourth Amendment, however, a particular search is “constitutionally reasonable [only where] it ‘is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [and where] it is confined in good faith to that purpose.’” Aukai, 497 F.3d at 962 (quoting Davis, 482 F.2d at 913).2 To determine the reasonableness of an administrative airport search, this Court must balance an individual’s right to be free of intrusion with “society’s interest in safe air travel.” United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005).

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This Court concludes that the search procedures used in this case were neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons, explosives, or other prohibited items that might be carried on an airplane. After passing through a magnetometer, Rosales was directed to secondary screening under TSA rules because he was a traveling companion of Perez, who displayed a sufficient amount of suspicious behavior indicators to require a secondary inspection of him at the security checkpoint. TSA Officer Leonard testified that the secondary screening process begins once a person walks through the magnetometer and all their accessible property has been X-ray screened. If there are no specific target areas observed by the X-ray operator that the agents need to identify first, then “as behavior detection officers we collect all their accessible property, we ask for assistance from a checkpoint certified screening officer, another transportation security officer, to do a pat-down of their person to make sure that there is no artfully concealed items on them.”