N.D.Ga.: TSA Air Marshal search of locked luggage for properly declared gun at request of ATF violated Fourth Amendment

Defendant was being investigated by the ATF. He was followed to the Atlanta airport, and he checked a gun through luggage with Spirit Airlines. The airline didn’t ask if the gun was unloaded, but, even if they did, they take a passenger’s denial at face valid. Defendant filled out all the proper paperwork to fly with a gun, and noted it was checked unloaded. TSA’s Air Marshals were called to deal with the situation. They decided to search the bag at the behest of the ATF officers there. The search of the bag was not a proper administrative search, and TSA has no criminal investigative purpose. Defendant’s bag had already been cleared by TSA on an x-ray inspection. United States v. Muhammad, 2013 U.S. Dist. LEXIS 5677 (N.D. Ga. January 14, 2013):

While airport and air travel safety is a major concern, the Court finds that the Government has not met its burden of showing a valid administrative search occurred. Based on the evidence presented, or lack thereof, the Court must agree with Muhammad that it appears the search of his luggage was not for an administrative purpose, but rather was for an investigatory purpose. This is not the type of case in which during the course of a search a “second, subjective motive” was developed. Instead, the desire to investigate Muhammad for alleged criminal conduct spurred and shaped the ensuing search, and the totality of the events and circumstances on December 23, 2010 undermine the Government’s argument to the contrary.

. . .

Instead, the search was spurred by Agent Southall’s involvement—again, an ATF agent who was only present at the airport to investigate a criminal suspect. 9 While Agent Southall’s own experience may have been that his own guns were physically checked when he declared them, this does not show that proper protocol was not followed with Muhammad’s bag and thus there was a need to perform the search at issue. Again, the search occurred after Muhammad’s bag had already been cleared by TSA screeners. McCarty, 648 F.3d at 835 (“[W]here an action is taken that cannot serve the administrative purpose—either because the threat necessitating the administrative search has been dismissed, or because the action is simply unrelated to the administrative goal—the action clearly exceeds the scope of the permissible search.”).

. . .

3. Investigation Shaped the Search

Third, while Air Marshal Barber testified that he conducted the search due to safety concerns, the oddities and occurrences on the date in question take this search out of the realm of a valid administrative search. For example, if the purpose of the search was really to allay safety concerns, Air Marshal Barber or other TSA agents could have stopped Muhammad at the oversized baggage checkpoint and had the weapons physically inspected then. Instead, all parties involved waited until after Muhammad left this screening area. The only reason the Court can see for why this “need” for an inspection of the declared gun was not brought to the screeners’ attention at the time Muhammad was present, was out of concern for damaging the underlying investigation.

R&R: United States v. Muhammad, 2012 U.S. Dist. LEXIS 184741 (N.D. Ga. October 16, 2012).