These doctrines dictate a critical examination of each element of the airport security program to make certain that neither the passenger's right to travel nor his right to personal privacy is burdened beyond the clear necessities of current circumstances.

As we have seen, however, the need for some limitations upon these rights is clear. In light of that need, a screening of passengers and of the articles that will be accessible to them in flight does not exceed constitutional limitations provided that the screening process is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives, that it is confined in good faith to that purpose, and that potential passengers may avoid the search by electing not to fly.

Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless. A particular airport security screening search is constitutionally reasonable provided that it "is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [][and] that it is confined in good faith to that purpose." Davis, 482 F.2d at 913.

Warrantless and suspicionless airport screening searches are administrative searches and, therefore, exempt from the warrant requirement and constitutionally permissible if they are reasonable. … This is so because they are conducted as part of a general regulatory scheme to prevent passengers from carrying weapons or explosives onto airplanes rather than as part of a criminal investigation to obtain evidence of criminal activity. …

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." … 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. …

The TSA is statutorily charged with developing and executing airport screening search procedures. … More generally, the TSA is responsible for creating "regulations to protect passengers and property on an aircraft ... against an act of criminal violence or aircraft piracy." … [I]ndividuals may not carry a "weapon, explosive, or incendiary" onto an airplane. [The TSA must] prohibit commercial airlines from transporting "a passenger who does not consent to a search under … establishing whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance." Pursuant to its mandate, the TSA has established a "prohibited items list" which is posted on-line and sets forth what items may not be carried aboard aircraft. … The prohibited list includes a number of small items such as razors, matchbooks, and blasting caps. …

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 … . He reasons that …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.

The Government counters that Stroud's search was reasonable because she could not tell what was in the envelopes. The Government reasons that the envelopes could have contained razor blades that were too small to have been detected by the x-ray machine, plastic knives, or other small items which could pose a threat to an airplane and its passengers. Accordingly, the Government argues that it was necessary to open the envelopes to ensure that Fofana's bags did not contain prohibited items.

The case law dealing with airport checkpoint searches teaches that a checkpoint search tainted by "general law enforcement objectives" such as uncovering contraband evidencing general criminal activity is improper. See, e.g., United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1244 (9th Cir.1989); Marquez, 410 F.3d at 617 (approving airport screening search where "nothing in the record indicat[ed] that [the searching agent] was looking for drugs or criminal evidence"); Pulido-Baquerizo, 800 F.2d at 902 (holding that the visual inspection and hand search of a passenger's luggage was constitutional where it was "used for the purpose of detecting weapons or explosives and not in order to uncover other types of contraband"); United States v. Epperson, 454 F.2d 769, 771 (4th Cir.1972) (holding that searches "for the sole purpose of discovering weapons and preventing air piracy and not for the purpose of discovering weapons and pre-criminal events" was constitutionally permissible). That conclusion is further supported by the Supreme Court's repeated instruction that administrative searches may not be justified by a desire to detect "evidence of ordinary criminal wrongdoing." … . Therefore, to the extent that airport administrative searches are used for purposes other than screening luggage and passengers for weapons or explosives, they fall outside the rationale by which they have been approved as an exception to the warrant requirement, and the evidence obtained during such a search should be excluded. …

… [T]he Ninth Circuit invalidated an airport screening search as constitutionally unreasonable because it was motivated by the screening agent's desire to detect and report U.S. customs violations pursuant to a reporting policy, rather than to uncover weapons or explosives. … The court found that the screening agency had a policy of "encouraging agents to report the presence of `drugs and U.S. currency' to the U.S. Customs and Port police" and cooperating with them to detect and report such items. … In fact, screening agents received a $250 reward for doing so. … Pursuant to that policy, the screening agents notified a customs official about the defendant after finding a very large quantity of cash in the defendant's bag, detaining the defendant, and asking him about his travel destination. … The customs official notified a Drug Enforcement Administration agent and the defendant was subsequently searched by DEA agents. A civil forfeiture action was filed as a result of the DEA search. …

The court concluded that the search preformed by the screening agents could not be justified as an administrative search. … The court reasoned that "[h]aving found no weapons or explosives in [the defendant's] bag [the screening agent's] legitimate interest in [the defendant's] identity was at an end; there was no further safety-related justification for detaining [the defendant] and prying into his affairs." … The court concluded that the searching agent was motivated by a desire to help law enforcement authorities and obtain a reward. … As such, the reporting policy had "effectively transform[ed] a limited check for weapons and explosives into a general search for evidence of crime." …

Similarly, the evidence in this case shows that the extent of the search went beyond the permissible purpose of detecting weapons and explosives and was instead motivated by a desire to uncover contraband evidencing ordinary criminal wrongdoing. From their testimony at the suppression hearing it appeared that both Mirow and Stroud considered Fofana to be suspicious based on the fact that he was carrying a large amount of cash, but that the "suspicion" was not based on a concern that he was a security risk. Instead, they were concerned that he must have possessed the cash for illegal or fraudulent purposes. … Mirow and Stroud testified that the TSA had a policy of directing its agents to report large quantities of cash to other law enforcement agencies. … Mirow also testified that … he would inquire about a passenger's destination if he saw that the passenger was carrying a large amount of cash, presumably to aid customs officials in detaining passengers when they are reported as potential customs law violators. …

…

Mirow testified that TSA agents "always look through all paper that comes through" including paper contained in books wallets or "any containment-type device." … That evidence, however, was contradicted by Stroud who testified that she did not look through all of the envelopes filled with cash because she could feel that there was paper money inside. …

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 … (testifying that 5 bills would not be bulky enough to require scrutiny). …

The Government argues that Stroud's subjective intent is irrelevant because, in the context of administrative searches, the purpose driving the search is assessed at the programmatic level. … But, the Government failed to establish through evidence that opening the envelopes containing the passports was necessary to serve the programmatic purpose of an airport screening search, i.e., to unearth weapons or explosives. As already explained, the bulk of the evidence presented suggests that it was not. While it is conceivable that, as the Government argues, an envelope containing a passport-sized item might need to be opened, despite the use of other screening technologies, to detect a small prohibited item hidden inside, the Government has not supported that argument with evidence. For example, the TSA did not present, or submit for in camera review, SOPs or other regulations stating that all items, including non-bulky business-sized envelopes, must be opened as part of a secondary screening to ensure that there are no prohibited items are contained within. It is equally conceivable to the Court that a combination of x-ray screening and external manipulation would be sufficient to exclude the presence of weapons or explosives in the envelopes Fofana was carrying. In fact, Stroud testified to that effect. …

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." 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.

In ruling on Fofana's motion, this Court is cognizant of the weighty concerns on both sides of the matter. 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. … In light of recent history, it cannot be seriously debated that the need for airport security searches is "particularly acute." … In recognition of the vital need for passenger security, courts have upheld a wide variety of checkpoint search procedures against Fourth Amendment challenges. See, e.g., Marquez, 410 F.3d at 614 (approving random, suspicionless selection of defendant for secondary screening procedure, which included a wanding with a handheld magnetometer); Gilmore v. Gonzales, 435 F.3d 1125, 1129, 1138 (9th Cir. 2006) (upholding TSA identification policy that required defendant to present identification or be subject to a more extensive search procedure that included a handheld magnetometer scan, patdown search, shoe removal, and a CAT-scan and hand search of his baggage).

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." … 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." … In other words, the need for heightened security does not render every conceivable checkpoint search procedure constitutionally reasonable. Id.

In reaching this conclusion, the Court in no way suggests that secondary screening of passengers, including a hand search of the passenger's luggage cannot be justified as administrative searches that serve the purpose of detecting weapons and explosives in some, or even most, cases. Furthermore, the Court recognizes that contraband discovered in the course of an otherwise constitutionally reasonable airport search may be reported to law enforcement officials. Marquez, 410 F.3d at 616; United States v. $557,933.89, More or Less in U.S. Funds, 287 F.3d 66, 81-83 (2d Cir.2002) (finding airport search that was properly limited in scope to the detection of weapons was not invalidated merely because searching agent discovered money orders evidencing other wrongdoing); $124,570 U.S. Currency, 873 F.2d at 1247 n. 7 (noting that airport checkpoint agents are not prohibited from "reporting information pertaining to criminal activity, as would any citizen"). The Court merely holds that where, as here, the evidence demonstrates that the intrusiveness of a passenger's search was ramped-up based on a desire to detect evidence of ordinary criminal wrongdoing, after the presence of weapons and explosives had been ruled out, the search can no longer be justified under the administrative search doctrine and suppression is appropriate. …