New 9th Circuit Decision on Screening
 

The 9th Circuit (Federal Court of Appeals) issued a new decision yesterday regarding the allowable scobe of TSA screening for contraband unrelated to safety. I am surprised that no one has commented yet. (I haven't read it yet and I will return to post more details later.)

UPDATE - Those who are interested in the scope of the administrative search, as understood by courts, will want to read U.S. v. McCarty. (The 9th Circuit website has pdf of opinions - no registration.) I only read the first few pages so far. It identifies (by name/number) the DHS procedure which requires TSA agents to report anything they find, that they think might be contraband, to a LEO. (The opinion describes the procedure as mandatory even if the screener isn't sure that it is actually contraband.) This case arose from a motion to suppress evidence (child porn) which was found in Hilo, HI during a baggage inspection. The Court explained that the luggage "alarmed" for having a "dense" item. The opinion says that the TSA agents are told that explosives can be packaged as "sheets" that are thin enough that if they find a pile of papers then must shuffle through the papers enough to figure out whether there are sheets of explosives. [I am just reporting what the decision says - don't ask me whether this sounds like B.S. in the absence of a power source and/or a triggering device.] So, they were shuffling through the papers in the suitcase and they found pictures which they felt might be contraband, so it was reported to a LEO. The District Court (trial court) had granted the motion to suppress the evidence, saying that it was outside the bounds of the administrative search for explosives. As I noted, the 9th Circuit panel disagreed and reversed.

Fantastic! please do let us know what you find out.

on the other hand, I'm not to sure how this would impact most of us, who don't carry contraband, but who always carry "resistance".

So, on a quick read of your summary, isn't this negative for personal rights?

It was a checked luggage inspection following an alert by the CTX scanner.

Summarizing, the Court held that the inspection of the bag to clear the alert was permissible, but once the screener exceeded the scope of clearing the alert, evidence found thereafter was inadmissible.

Looking through photographs in order to clear an alert due to "dense" material, even though the content of the photos is observed, is permissible to ensure there were no "sheet explosives" within the photographs.

Here, the TSA clearly exceeded the bounds of an administrative inspection, but only materials found after the bounds were passed are inadmissible. Anything found before that line was crossed are still admissible as evidence.

After reading the order, all I can say is wow. Without being a lawyer, what I took away from this is that all a TSA employee has to say is that they were still conducting their administrative search to clear the bag and everything is admissable :(

While I personally think that this creep should be put under the jail until he rots, I have to say that I think the 9th Court is wrong in reversing this one.

Wirelessly posted (BlackBerry8830/4.5.0.138 Profile/MIDP-2.0 Configuration/CLDC-1.1 VendorID/105)

I can't read it on my BB right now, but I wonder if his lawyer ever challenged the claim of paper-thin sheet explosives.

Not that broad. The claim they were still clearing the bag, particularly since the CTX targets a specific part of the bag for the alert, has to be credible.

I agree that the 9th Circuit went a bit too far in questioning the District Court judge's factual findings; however, they did send it back to the judge to reevaluate in light of the 9th Circuit's decision.

Not in this decision.

Here are my problems:

The court should have struck down this directive as a violation of the administrative search - this clearly morphs an administrative search into a criminal one, often without the knowledge or consent of the searchee and should be un-Constitutional.

It's clear from this section that her search was not based on seeing a 'dark mass' on the screen, but rather a desire to further explore the photos and other bag content based on the photos that spilled out that she could she - therefore those photos triggered a deliberate fishing expedition. The court was WRONG to not see this clearly and rule to block this evidence.

Again, clear evidence in support of my immediate previous statement that the screener engaged in a fishing expedition to determine whether or not the photos *should* be reported - this clearly exceeded the scope of the administrative search.

I hope the case is appealed - the court was totally wrong here.

I concur. This is a very bad decision for individual rights.

It appears to be. The decision draws a distinction between "programmatic" intent and screener's intent. It seems to suggest that, as long as the intent of the program falls within the constitutionally valid ambit of an administrative search, e.g. preventing WEI, the screener's intent in going further is irrelevant. However, the decision then goes on to examine the screener's intent in the specific instance. The net result would appear to be some very disturbing dicta, along with the 9th Circuit finding what is, for all intents an purposes, an abuse of judicial discretion on the part of the lower court judge for finding the screener not credible.

However, this decision still is confined to the question of finding contraband during the course of an administrative search and the contraband in question here was child pornography. There has always been a judicial gloss involving subjective morality applied to a variety of decisions and this case is probably an example of it. I'm not too concerned. I far more interested in the cases that challenge the AIT and the grope.

I agree.

I have to disagree - the courts need to step up and draw a clear and solid line between an administrative search and a criminal one and remove this ambiguous cross-over nonsense.

As part of our 4th and 5th Amendment rights, we must be able to defend ourselves from criminal searches by requiring a warrant or establishing a high-water mark for what constitutes probable cause. When one consents to an administrative search, that water mark must be raised far and above what would normally be applied to a chance encounter with the police as the person is voluntarily submitting themselves for examination under one set of rules - the state cannot enjoy the free privilege of a criminal search based on the fruits of an administrative search.

Either all criminal searches must be banned outright (except when the fruits of the admin search are directly germane to the criminal search, i.e. guns, bombs at the airport, etc), or the person must be given the unrestricted right to bar the criminal search - i.e. the cop must ask permission to examine the bag, and the person has the right to say no, thus barring the police from further examination unless they get a warrant - *and* the results of the admin search cannot be used as a basis for probable cause to support the warrant, essentially eliminating the chance of a criminal search if the person refuses the police request.

This should be cut and dry.

It is impossible to conclude anything by this appeals court decision because it was simply remanded back to the district court to re-decide based on the guidelines outlined by the appeals court. The district court could very easily come to the same conclusion they had previously (i.e. that the evidence that led to the arrest was impermissible because it was the "fruit of the poisoned tree").