N.D.Cal.: When TSA officer realized screen did not reveal explosives or a threat to security, he couldn’t search

TSA search of defendant’s bag at Oakland airport was not for explosives or other threat to airline security, and the motion to suppress is granted. The TSA officer’s report said that he concluded the dark mass on the screen was not an explosive before the search; he just didn’t know what it was. To be a valid administrative search, it has to be consistent with TSA’s mission; otherwise, it’s just a general search. United States v. Fulgham, 2012 U.S. Dist. LEXIS 93909 (N.D. Cal. July 5, 2012):

In McCarty, the Ninth Circuit recently explained the scope of a lawful airport administrative search. “[U]nder federal law, TSA agents could legally search [Defendant’s] entire bag for explosives or other safety hazards.” 648 F.3d at 831 (citing 49 U.S.C. § 44901; 49 C.F.R. § 1540.111(c)). “However, because warrantless, suspicionless administrative searches remain subject to the Fourth Amendment, 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.” Id. (internal quotations and citations omitted). See also United States v. Doe, 61 F.3d 107, 110 (1st Cir. 1995) (“lawful airline security searches of carry-on luggage may not be enlarged or tailored systemically to detect contraband (e.g., narcotics) unrelated to airline security”).

“In other words, an airport search remains a valid administrative search only so long as the scope of the administrative search exception is not exceeded; ‘once a search is conducted for a criminal investigatory purpose, it can no longer be justified under an administrative search rationale.'” McCarty, 648 F.3d at 831 (quoting United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1246 n.5 (9th Cir. 1989)). “Thus, because TSA screeners are limited to the single administrative goal of searching for possible safety threats related to explosives, the constitutional bounds of an airport administrative search require that the individual screener’s actions be no more intrusive than necessary to determine the existence or absence of explosives that could result in harm to the passengers and aircraft.” Id. at 831 (citing $124,570 U.S. Currency, 873 F.2d at 1245). However, the mere fact that an airport screening procedure reveals contraband other than weapons or explosives does not automatically “‘alter the essentially administrative nature of the screening process … or render the searches unconstitutional.'” United States v. Marquez, 410 F.3d 612, 617 (9th Cir. 2005) (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)).