Well, well, well . . . what I've been saying right along. Here are some interesting excerpts (my highlighting):
During the course of her search, Stroud found between
fourteen and sixteen envelopes. As she found
them she placed the envelopes in a bin so she could
check them later. Stroud testified that she could tell
by the feel and size of the items that most of the envelopes
contained cash. According to Stroud a couple
of the envelopes were sealed but the rest were
not.FN1She looked into a few of the unsealed envelopes
and saw that they contained cash. She did not
open all of the cash envelopes, however, because she
could tell what was inside by touch. (5/13/2009 Hr'g
Tr. 66.)
FN1. Fofana claims that the envelopes were
all sealed.
According to Stroud, money is not a prohibited item
“but in large quantities it is suspicious.”(5/13/2009
Hr'g Tr. 58.) She testified that screeners were trained
to notify a supervisor if they found a large amount of
money, which she defined as $10,000 to $15,000.
Stroud explained that she understood that carrying a
large amount of money was suspicious because “[i]f
it wasn't for an illegal or fraudulent purpose, then of
course it would be in a bank or you could write a
check or use your bank card.”(5/13/2009 Hr'g Tr. 58-
59.) According to both Stroud and Mirow, the TSA's
SOP encourages screeners to report discoveries of
large amounts of cash to an appropriate law enforcement
contact. (5/13/2009 Hr'g Tr. 24-26, 59.)
*3 She also found an unsealed envelope that felt different
from the cash filled envelopes. That envelope
contained something hard and unbendable, but Stroud
could not tell what it was by touch. She looked inside
and found a passport. She found another rigid envelope,
which contained a second passport. Both passports
had Fofana's picture but different names. Based
on her training, she informed her lead screener about
the passports. After searching further, Stroud found a
third unsealed envelope that contained yet another
passport with Fofana's picture and a third name.
Stroud took the third passport to her lead screener.
Stroud testified that the passports were a cause for
concern “because it is our job to verify that the person
coming into the airport is who they say they
are.”(5/13/2009 Hr'g Tr. 69.) Stroud admitted that at
the time she found these envelopes, Fofana's bags had
already been through the x-ray machine and had been
checked for explosive residue. She testified that she
felt the envelopes “because it is our responsibility to
clear all personal items that a passenger carries.”(
5/13/2009 Hr'g Tr. 96-97.) She admitted, however,
that when she opened the envelopes she did not
believe that they contained weapons or explosives,
but instead was looking for contraband. (5/13/2009
Hr'g Tr. 97-99.) Stroud testified that money, passports,
and envelopes containing mail are not prohibited
items. (5/13/2009 Hr'g Tr. 99.)
. . .
On March 3, 2009 Fofana was indicted. Three counts
of the indictment relate to the passports seized after
the airport search. Counts 1-3 charge him with the
possession of three falsely made or forged passports
in violation of 17 U.S.C. § 1546(a). Count 4 charges
him with attempted bank fraud in violation of 18
U.S.C. § 1344. Count 5 charges him with using one
of the fake passports in connection with the attempted
bank fraud charged in Count 4, in violation
of 18 U.S.C. § 1028A(a)(1). Fofana moved to suppress
the evidence found in the search. The Government
opposes.
. . .
To determine the reasonableness of an administrative
airport search, the 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) (quoting United States v.
Pulido-Baquerizo, 800 F.2d 899, 901 (9th Cir.1986)).
Therefore, an airport security search is reasonable if:
(1) the search is “no more extensive or intensive than
necessary, in light of current technology, to detect the
presence of weapons or explosives;” (2) the search
“is confined in good faith to that purpose;” and (3) a
potential passenger may avoid the search by choosing
not to fly. Aukai, 497 F.3d at 962. The mere fact that
contraband other than weapons or explosives is found
during an airport screening search, however, does not
itself render the search unconstitutional. Marquez,
410 F.3d at 616.
. . .
Fofana does not challenge his selection for secondary
screening, but rather argues that the hand search of
his luggage went beyond the permissible scope of an
airport screening search because Agent Stroud had
already determined that he was not carrying weapons
or explosives when she decided to open the envelopes
containing the passports. He further argues that
his search exceeded the TSA's statutory mandate under
49 U.S.C. § 44902(a) and 49 C.F.R. 1540.111. He
reasons that under 49 U.S.C. § 44902(a) and 49
C.F.R. 1540.111, the TSA is only permitted to search
passengers and their belongings to detect dangerous
weapons, explosives, or other destructive substances.
He contends, therefore, that the TSA exceeded its
statutory authority by opening the envelopes after his
bags had been cleared of any suspicion that they contained
weapons, explosives, or prohibited items.
. . .
Contrary to the requirements of Edmund and
$124,570 U.S. Currency, Stroud testified that she
opened the envelopes to look for contraband evidencing
criminal wrongdoing, not to detect prohibited
items within the envelopes.
. . .
The evidence also established that before the envelopes
were opened, Fofana's bags had already been
thoroughly searched and that opening the envelopes
containing the passports did not serve safety-related
ends. By the time the envelopes were opened, the
bags had been examined through the x-ray machine,
tested for explosives residue, and emptied during a
thorough hand search by Stroud. Stroud had also already
manipulated the envelopes by hand, discovering
that they were thin and unbendable. Although
Mirow testified that a bulky “mass” of paper, such as
100 one-dollar bills or a book, would need to be investigated
to ensure that nothing dangerous was disguised
within the mass, his testimony suggests that
something as thin as a passport would not be bulky
enough to trigger that concern. (5/13/2009 Hr'g Tr.
40-42 (testifying that 5 bills would not be bulky
enough to require scrutiny).)
. . .
Quite simply the Government failed to produce
evidence from which this Court could conclude that
the search of Fofana's luggage was “no more extensive
or intensive than necessary, in light of current
technology, to detect the presence of weapons or explosives;”
or that the search was “confined in good
faith to that purpose.”FN4 Aukai, 497 F.3d at 962. As
the Government bears the burden of establishing that
a search was constitutional, that failure is outcome
determinative and the Court must grant Fofana's Motion
to Suppress.
. . .
The Court fully appreciates the “paramount importance”
of preventing air piracy and terrorist attacks
on airplanes and the central role that TSA screening
procedures play in ensuring passenger and aircraft
safety. See, e.g., Hartwell, 436 F.3d at 179 (collecting
cases). In light of recent history, it cannot be seriously
debated that the need for airport security
searches is “particularly acute.” Edmond, 531 U.S. at
47-48.
. . .
Nevertheless, the Court is equally aware of the importance
of the protection granted by the Fourth
Amendment and the fact that individuals have a privacy
interest in the contents of their luggage. United
States v. Place, 462 U.S. 696, 707 (1983) (“We have
affirmed that a person possesses a privacy interest in
the contents of personal luggage that is protected by
the Fourth Amendment.”). As the Supreme Court
recently stated, the “central concern underlying the
Fourth Amendment” was about “giving police officers
unbridled discretion to rummage at will among a
person's private effects.” Arizona v. Grant, 129 S.Ct.
1710, 1720 (2009). That concern is implicated if airport
checkpoint searches are permitted to balloon
from “narrowly defined searches for guns and explosives
... justified by the need for air traffic safety”
into “generalized law enforcement search[es] of all
passengers as a condition for boarding a commercial
aircraft.”See $124,570 U.S. Currency, 873 F.2d at
1243.In other words, the need for heightened security
does not render every conceivable checkpoint
search procedure constitutionally reasonable. Id.