Playing "Fun with TSA" -- anyone can do it

How would I know what those people knew? I can only read the court decision. And from what I read, the TSO didn't understand SOP, and stated her opinion that she believed she was no longer looking for WEIs, but for contraband. And the judge did not have access to SOP so had to render his decision based upon what witness said.

What? TSA choose not to settle and go to court. They argued in court that the actions of the TSO were proper.

You are saying that the actions of the TSO violated SOP.

So you are saying the TSA went to court, argued the actions of the TSO was proper, all the while knowing the actions of the TSO violated TSA SOP.

Amazing...

Way to twist things! Big thumbs up to you

her actions in searching the luggage was proper. Her belief for why she did so was not.

You can't be serious. You cannot separate her actions from her motives in searching the bag.

TSA wrote and implemented a policy that characterized $10,000 cash as contraband and if found during screening had to be reported.

If that is the quality of TSA's legal checks then it is little wonder that TSA has the issues it does.

Actually the court ruled her actions were improper when she opened the envelope.

The court concluded that the search preformed by the screening agents could not be
justified as an administrative search

and

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

But way to twist things. Thumbs down to you.

Why not? She didn't chose to search the bag, she was directed by SOP to search that persons luggage. Or explain to me why I am wrong?

Or I'll give you a personal example of what I mean:

some weeks ago I was on x-ray. I saw something in a bag, but was nit sure what it was. It looked odd. I called another TSO to conduct the search. But when he saw the image he told me it was nothing and to
let the bag go.

However, SOP states the person on x-ray decides if the bag has to be searched, so I insist that the bag be checked.

At this point you now have a TSO searching someones bag, and the TSO does not believe there is a WEI in the bag. This is a clear example of separating the actions of a particular TSO and their "motive"/belief (you use the word motive, I use the word belief).

As it turns out what I saw was a knife.

Please explain to me why the person should have been able to pass without their bag being checked because one TSO though it was clear?

The court ruled based on her testimony, not SOP. And her belief was incorrect.

Or please quote for me in the decision where the judge cites SOP? Thanks.

Are you saying that SOP controls TSO actions? that there is NEVER any discretion employed by the TSO?

I don't see that it matters whether the TSO doing the search personally believes there's WEI in the bag. What's relevant is whether they are searching for WEI or not. In the case you cite, they are, because you believed (correctly, as it turned out) that it was there. It's like if I call a friend who's house I just left and ask him to look for my sunglasses. He may say "I'm sure I saw them in your hand when you walked out" and not believe they're there, but if he humors me and looks for them, he's nevertheless still looking for sunglasses.

In Fofana, the TSO testified she was not searching for WEI: in other words, not only didn't she believe it was there, she wasn't looking for it. That's the difference.

The interesting thing in Fofana, in my opinion, is that the way the decision was written, it seemed to hinge almost entirely on the testimony of the TSO. If she'd said "I hadn't decided that the bag didn't have WEI", would the search have been permissible? That would have been a much harder case because the relevant standard isn't clear.

I don't think whether the TSO followed the SOP or not is relevant in cases such as this (meaning the fact that the court didn't have access to it didn't matter) because the fact they were following the SOP doesn't matter if the effect was to exceed the boundary of an administrative search (i.e., some part of the SOP may be unconstitutional). I think it's an interesting question what the variant of the "reasonable person" standard would be here. Maybe something like "whether a reasonable person with knowlege of the security issues used to generate the SOP would think that WEI might be encountered doing the seach in question".

No, I'm not saying that at all.

But at certain times SOP does dictate the actions of a TSO. For example, a passenger designated as a selectee, the SSSS marked on their BP, SOP dictates that all of the passengers bags must be hand searched regardless of what was seen or not seen on x-ray.

But you are correct, at many times the TSO makes the decision regarding what to do. And that, btw, is also SOP.

You have it partially correct.

In fofana the passenger was designated as a selectee, and per SOP EVERYTHING that passenger has on them must be searched for WEI. This is NOT a searched conducted because a TSO feels a prohibited item may be there. This is search conducted because of the recognition that TSA recognizes that nothing is perfect and WEI may pass through the x-ray undetected. So SOP dictates a through hand search of all selectees property to specifically look for WEI, as in fofana was done in fofana.

And as you stated, it does not matter what the TSO believes (as she stated she did not believe there were any WEI present, so she said she was looking for contraband). Her opinion was not relevant to why this search was taking place. But the judge had only the statements to go on, and not SOP, so I understand why the decision was rendered.

And I can tell you this: not one thing has had to be changed or re-written regarding selected searches because of this ruling. It is still conducted to find WEIs.

Edit: and I agree with you on another matter - the decision was based almost entirely on what the TSO said. If she has said she opened the envelope to look for WEI (such as an improvised det, which is easily hid in an envelope), I believe the decision would have been in TSAs favor.

I seriously doubt the court would have given the TSA carte blanche to open an envelope simply because the TSO said he/she was searching for WEI. If the TSO in Fofana had said that was the case, my guess is the court would have run the TSO through the ringer asking if every test conceivable was done before the envelope was opened.

If all the tests had been done and nothing alarmed on that envelope, I am certain the judge would have asked why the envelope then had to be opened. If the TSO said, "that is SOP as we are looking for WEI such as an improvised det" I doubt the ruling would have been rendered any differently.

Did I say or suggest the judge would give the TSO "carte blanche" to conduct searches for WEI? No I didn't (however, I actually think they would, as our courts have held that random searches conducted by TSOs are legal (assuming they are looking for WEI)).

The search conducted in fofana was a selectee search, conducted after the passenger had sent his luggage through x-ray. And so far the courts have upheld these searches in court, even if nothing was observed by the x-ray TSO.

So now you are saying she was following SOP?


And that argument was rejected by the court

Losing this case was 100% the fault of the TSA and the DOJ prosecuters. The screener admitted she wasn't looking for prohibited items. She stated (remarkably truthfully) that she knew there weren't prohibited items in the envelope and that she was looking for "contraband." You can bet that this is the last time that the TSA will allow a screener to testify in any court.

Concerning the bolded item, any federal judge, by virtue of their appointment and confirmation, can have access to any level of classified information necessary to adjudicate a case. (I've done this with TS/SCI information.) The judge reviews the materials in camera with both attorneys present, who must be individually cleared. Your sacred SOP isn't even classified. So, there was simply no excuse (other than organizational arrogance) why the TSA didn't disclose whatever SSI was necessary in order to prove their case.

Fortunately, the American People capitalized on TSA arrogance --this time.

At last we have one thing we can all agree on. The screener made a big mistake by actually telling the truth. Had she lied and said that she was looking for WEI the outcome may well have been different. Instead, she said what everyone who travels frequently already knows -- much of the "screening" is not related to searches for WEI at all but rather is either: 1) a search "contraband" letting a Barney Fife wannabee make the "big score", or 2) a way to retaliate against passengers who do not show the proper docility.

Fixed it for you.