Court says TSA engaged in unlawful search. (Fofana)
This one is brand new so it may be hard to find the ruling on the net. I have placed the ruling on my server. PDF warning
Teaser for you. This matter is before the Court on Defendant Fode Fofana's (“Fofana”) Motion to Suppress Physical Evidence (doc. no. 15). Fofana alleges that the evi-dence in question was obtained as the result of an airport checkpoint search at the Port Columbus Inter-national Airport that violated his right to be free from unreasonable searches and seizures under the Fourth Amendment of the United States Constitution. For the reasons set forth herein, this Court GRANTS the Defendant's Motion. |
Cool. I can't wait to read more. ^
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While I am not bananas for Fofana the person, the court ruling linking the activities of the TSA with the Fourth Amendment has got to be good news.
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Originally Posted by Trollkiller
(Post 11950549)
This one is brand new so it may be hard to find the ruling on the net. I have placed the ruling on my server. PDF warning
Teaser for you. TK, does that pretty much sum it up? |
Originally Posted by AngryMiller
(Post 11950667)
Interesting. Do your job searching for weapons, incendiary devices and explosives. Don't go on a fishing expedition for illegal items. If you stumble across something in the open then report it.
TK, does that pretty much sum it up? |
Originally Posted by Trollkiller
(Post 11950697)
Pretty much. I feel a bit sorry for the screener, as they seem to have been working within their training and the SOP.
^^^^ |
Originally Posted by Trollkiller
(Post 11950549)
This one is brand new so it may be hard to find the ruling on the net. I have placed the ruling on my server. PDF warning
Teaser for you. It's interesting to note: the Judge is NOT saying the TSO cannot report suspicious discoveries to an LEO (just like an ordinary citizen would)...but rather, as part of the procedure, if the goal of airport screening is to prevent weapons, etc from making on the airplane, once the TSO determines an item is NOT a weapon or a threat to safety, they cannot expand the search to "make sure" or by looking for contraband. (Because, contraband is not a weapon and while it MIGHT be illegal, it's not a threat to flight safety). I should clarify, the order doesn't really say the TSA CAN'T search for contraband, but the results of that search aren't going to be acceptable for evidence in a charge for something else (in this case, fake passports). So they might as well just not do it. |
Originally Posted by AngryMiller
(Post 11950667)
Interesting. Do your job searching for weapons, incendiary devices and explosives. Don't go on a fishing expedition for illegal items. If you stumble across something in the open then report it.
TK, does that pretty much sum it up? In short, the TSAer, Stroud, said she was looking for contraband, evidence of criminal wrongdoing, not to detect prohibited items with the envelopes (full of money). She also testified that she didn't think there was a weapon in the envelopes because it went through the x-ray machine (whereas The Government said it's possible). Page 5 has the meat of why the motion was granted. |
Originally Posted by LessO2
(Post 11950822)
The Tipping Point was the contradicting testimony from The Government, and the individual TSAer.
In short, the TSAer, Stroud, said she was looking for contraband, evidence of criminal wrongdoing, not to detect prohibited items with the envelopes (full of money). She also testified that she didn't think there was a weapon in the envelopes because it went through the x-ray machine (whereas The Government said it's possible). Page 5 has the meat of why the motion was granted. Waiting for some TSOs to comment on this as well. |
Originally Posted by Brewfangrb
(Post 11950739)
It's interesting to note: the Judge is NOT saying the TSO cannot report suspicious discoveries to an LEO (just like an ordinary citizen would)...
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Excellent find!
The cracks are beginning to appear in the "It's OK for us to search for contraband, along with determining you're not carrying anything that's a threat to a commercial aircraft." mantra. I see the court could not resist sniping at the government's shifting defense of its fishing expedition; (emphasis mine, but I imagine a disbelieving smirk) "The Government suggested in its initial briefing that opening the envelopes was reasonable because TSA needs to accurately identify passengers and, therefore, searching for evidence of a passenger's identity serves a security purpose. (Doc. No. 17, Mem.Contra.3.) The Government appears to have abandoned this novel argument in its post-suppression hearing briefs, which instead claim that opening the envelopes was necessary to detect weapons or explosives." Perhaps the best in class Googling lawyers could not follow the links to complete the basis for this position. I also enjoyed "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." Balanced somewhat by; "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." Interface with some of these "officers" and some of the silliness imposed by higher levels, twice a week, and the unintended humor in that statement quickly becomes apparent. Also interesting that TSA would not allow the court to see TSA proclaimed SSI, probably because that would create a clear, written policy trail from administrative search to airport fishing expedition. The razor blade gambit has surfaced around here a couple of times recently. Apparently everything needs to be inspected closely because it may contain a razor blade which went through the X-ray edge-wise, and so could not be detected by anything other than rifling though posessions. :rolleyes: Apparently the logic needs to be better laid out than it was in this case for that claim to stand. |
Originally Posted by NY-FLA
(Post 11950912)
The razor blade gambit has surfaced around here a couple of times recently. Apparently everything needs to be inspected closely because it may contain a razor blade which went through the X-ray edge-wise, and so could not be detected by anything other than rifling though posessions. :rolleyes: Apparently the logic needs to be better laid out than it was in this case for that claim to stand.
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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. |
Originally Posted by NY-FLA
(Post 11950912)
Excellent find!
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I have the feeling that this ruling will cause sweeping changes in the way the TSO witnesses are coached.
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