TSA having seen cash, it was still legally in “plain view” even though it had been returned to defendant in the airport and was zipped up in his bag. United States v. Rosales, 2011 U.S. Dist. LEXIS 143264 (D. Minn. December 13, 2011):
As noted, the Court has already held that the TSA agent’s search of Rosales’s bag was lawful. Thus, the TSA agent was lawfully in a position to see the cash. As Rosales points out, though, the TSA agent did not seize the cash. Instead, the TSA agent returned Rosales’s property to him and let him go on his way. Rosales’s cash was later seized by airport police (not the TSA) only after Rosales voluntarily agreed to return to the screening area and speak with airport police officers (who had been told by the TSA that Rosales was carrying a large amount of cash, see Docket No. 329 at 4-5, 65-66, 68).
Nevertheless, the Court finds that the seizure was proper under the plain-view doctrine. The Supreme Court has upheld a search under analogous circumstances, explaining that “absent a substantial likelihood that the contents have been changed, there is no legitimate expectation of privacy in the contents of a container previously opened under lawful authority.” Illinois v. Andreas, 463 U.S. 765, 773, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983); see also United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 87-88 (2d Cir. 2002) (Sotomayor, J.) (holding that a police officer’s opening of a briefcase that had just been searched by airport security did not constitute an additional “search” within the meaning of the Fourth Amendment); United States v. $145,850 U.S. Currency, No. 10-71, 2010 U.S. Dist. LEXIS 77686, 2010 WL 3063814, at *6 n.2 (E.D. Va. July 30, 2010) (“That Arrington zipped up his suitcase and began to exit the airport is immaterial to whether the plain view justification for seizure continued to apply.”). In other words, after a container has been lawfully searched and its contents lawfully viewed in the course of that search, those contents are deemed to remain in plain view (even if they are put back in the container and carried off) up until the point that it becomes substantially likely that the contents of the container have changed. Cf. Andreas, 463 U.S. at 771-72 (“once a container has been found to a certainty to contain illicit drugs, the contraband becomes like objects physically within the plain view of the police, and the claim to privacy is lost” (footnote omitted)).
In this case, there is no substantial likelihood that the contents of Rosales’s bag changed between the time that the TSA agent allowed Rosales to leave the screening area and the time that airport police seized the cash. Although the record does not definitively establish the amount of time that passed between Rosales leaving and returning to the screening area, it appears to have been a matter of minutes; moreover, Rosales was nearby and apparently visible to TSA agents the entire time. See Docket No. 329 at 42, 48-49, 53-55; cf. Andreas, 463 U.S. at 767-68, 772-73 (holding that there was no substantial likelihood that the contents of a shipping container changed during the 30 to 45 minutes that it was in an apartment and out of the officers’ sight). In addition, given that Rosales was at the airport the entire time, it is reasonable to believe that he maintained his possessions in the bag in which he had packed them. Without any substantial likelihood that the contents of Rosales’s bag changed, therefore, the cash is treated as though it remained in plain view — as though Rosales had held it in an outstretched hand at all times, including while talking with airport police.
This entry was posted in Uncategorized. Bookmark the permalink.
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
