Case: 09-3668 Document: 00615597899 Filed: 07/08/2009 Page: 1

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

United States of America,
Plaintiff-Appellant,
v. Sixth Circuit No. 09-3668
Fode Amadou Fofana,
Defendant-Appellee.

Plaintiff-Appellant’s Motion to Dismiss Appeal

Pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, Plaintiff-Appellant United States of America moves the Court to dismiss the above-captioned appeal.

Respectfully submitted,

GREGORY G. LOCKHART
United States Attorney

/s/
DANIEL A. BROWN (0023147)
Assistant United States Attorney
Attorney for Plaintiff
303 Marconi Boulevard
Suite 200
Columbus, Ohio 43215
(614) 469-5715
Fax: (614) 469-5653
Dan.Brown @usdoj.gov

Case: 09-3668 Document: 00615598513 Filed: 07/09/2009 Page: 1

Case No. 09-3668

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

ORDER

UNITED STATES OF AMERICA,
Plaintiff - Appellant
v.
FODE AMADOU FOFANA,
Defendant - Appellee


Upon consideration of the appellant's motion to voluntarily dismiss the appeal herein pursuant to Rule 42(b), Federal Rules of Appellate Procedure,

It is ORDERED that the motion is GRANTED and the appeal is dismissed.


ENTERED PURSUANT TO RULE 45(a),
RULES OF THE SIXTH CIRCUIT

/s/
Leonard Green, Clerk

Issued: July 09, 2009

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.