Jim Porter: Can TSA airport security search for contraband?
TAHOE/TRUCKEE andamp;#8212; We have all been through airport security. With my knee replacement I get andamp;#8220;wandedandamp;#8221; every time with the full-on pat-down search. Getting to know the security guys up close and personal.What if the Transportation Security Administration (TSA) agents, while looking for weapons or explosives, discover pot or child pornography or some other contraband? Can you be arrested? In other countries you would be arrested on the spot, but in the U.S. we have the Fourth Amendment. Simon McCarty knows.TSA searchSimon McCarty, a United Kingdom national, checked two pieces of luggage at the Hilo International Airport bound for Honolulu. TSA agent Andrade was screening with the CTX x-ray machine when it automatically andamp;#8220;alarmed,andamp;#8221; showing what appeared to be a laptop computer with a dark mass around it. Andrade opened the bag and out spilled an open envelope with photos of nude children, which made her uncomfortable. She looked through some of the photos andamp;#8212; looking for flat explosives called andamp;#8220;sheet explosives,andamp;#8221; which can be disguised as a simple piece of paper, cardboard, a magazine or a laptop. TSA protocol requires her to do so.Ultimately TSA supervisors and Hawaii County Police officers examined the photos and McCarty was arrested, after which he incredulously waived his rights and allowed a thorough search. Bad decision. Long story short, the officers discovered hundreds of images of child pornography, including McCarty engaged in sexual activity with at least three different pre-pubescent boys. Ugly stuff.Scope of airport searchThe question of course became whether Andradeandamp;#8217;s search of McCartyandamp;#8217;s bag and envelope of photos was limited to looking for explosives and firearms. Did she go too far looking for child pornography in violation of the Fourth Amendment? I myself have wondered if TSA agents can look for drugs or arrest you if they inadvertently find drugs andamp;#8212; two separate questions. Not that I travel with a lot of drugs. Confidentially, I smoked marijuana once but didnandamp;#8217;t inhale. Donandamp;#8217;t tell Chief Sensley.The federal trial court found that Andrade went beyond a search for explosives and the pornography was suppressed. The Government lost and appealed.Legal analysis of airport searchesThe Court of Appeals noted the law surrounding airport searches: andamp;#8220;Searches now routine at airports and at entrances to courts are reasonable because they respond to a risk to public safety that is substantial and real.andamp;#8221; andamp;#8220;An airport 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 combined in good faith to that purpose.andamp;#8221; Because an andamp;#8220;Administrative search scheme invests the Government with the power to intrude into the privacy of ordinary citizens andamp;#8212; a power with vast potential for abuse andamp;#8212; courts must take care to ensure that an administrative search is not subverted into a general search for evidence of crime.andamp;#8221; In the case at hand, once Andrade was sufficiently certain there were no explosives or other safety hazards hidden in McCartyandamp;#8217;s bag, the administrative search was over andamp;#8212; nothing else was required to protect airport safety. The search must stop.RulingThe Court of Appeals ultimately ruled for the Government writing, andamp;#8220;Thus, the screenerandamp;#8217;s review of the photographs in the packet occurred within the scope of the ongoing lawful administrative search. As a result, her discovery of their (pornographic) nature coincided with her search for explosives. Accordingly, Andradeandamp;#8217;s viewing of the photographs from the envelope was justified by and part of the lawful administrative (explosives) search.andamp;#8221;The Court sent the case back to the trial court to determine which photos had been reviewed at the point Andrade no longer was looking for explosives but began searching for pornography, because as soon as her search for pornography (vs explosives) began, it was unlawful.If the evidence that Andrade the screener saw when she was still searching for explosives (but not any evidence beyond that point in time) was sufficient to andamp;#8220;warrant a prudent man in believing that the traveler had committed or was committing an offense,andamp;#8221; a crime, then there would be probable cause for arrest.SummaryI think the scope of an airport search can be summed up as follows: As long as the airport screener is looking for explosives and weapons, should they encounter drugs or some other contraband, and if what they find amounts to andamp;#8220;probable causeandamp;#8221; to suspect a crime has been committed, then an arrest can be made. Moreover, if the screener knows for certain that a particular box or container has no explosives or weapons, any further search, even one that reveals drugs, may be suppressed. Taking that further, I suppose if the screener sees marijuana in a clear baggie while properly searching for explosives or weapons, it probably constitutes probable cause for an arrest. Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He may be reached at firstname.lastname@example.org or at the firmandamp;#8217;s web site http://www.portersimon.com.