RichardKenner

I find the speculation about whether this case will or will not be appealed interesting, but am surprised that nobody ever checked! The Opinion on the Motion to Suppress was filed on June 2. A "Notice of Appeal" was filed with the Sixth Circuit just two days later, June 4. So it has already been appealed. Everybody needs to understand that it isn't DHS or TSA that's appealing, but rather the prosecutor of the case.

The appeal is case 09-3668 and the deadline for the appeal brief is August 3, 2009.

DevilDog438

Anyone have a link to the text of the Notice of Appeal? I don't know what they contain, but would be interested in reading it, if there is anything substantive. I understand that the Briefs for each side will contain more information.

RichardKenner

NOAs aren't substantive: just a statement of what ruling is being appealed. If you're still curious, I put it here.

DevilDog438

Thanks, have never read one of them before. Was not sure if it had to state the reason for the appeal, or if that is more properly done in the Brief.

jkhuggins

Are you sure? Last time I checked, each time I buy a plane ticket, I end up having to pay some sort of security tax which, one way or another, gets used to pay for TSA to do its work. Sounds like I'm paying TSA for services rendered, which makes me a customer. (Indirectly, to be sure.)

Look, in an ideal world, TSA would be providing a service to passengers: making sure that weapons, explosives, and incendiaries don't make their way onto an airplane. That's a good thing.

Of course, we don't live in an ideal world. TSA, by its own admission, has work to do in improving in its performance of its primary mission ... and it gets distracted by secondary missions.

But everyone at work knows that I'm an idealist.

Trollkiller

Relax, that stirring was the millions of Clear customers suddenly crying out.

Trollkiller

I don't think it has made it to my normal sources yet. Thanks for the info.

RadioGirl

No surprise. DHS and TSA have never been appealing. Quite the opposite, in fact.

"... and suddenly being silenced." *slinks off in geeky shame.*

HSVTSO Dean

That's why I eat the peppers.

Trollkiller

Dang it Dean, I was all snuggled up in bed when it hit me.

The fact the SOP requires that you report to a LEO illegal drugs or the famed $10k+ pushes the search into an unconstitutional area.

Follow my logic here. You (TSOs) are trained to look for weapons, explosives and incendiaries. If at any point in your training you are taught what an illegal object or substance looks like or what a suspicious object or substance looks like, your search is now beyond the administrative search.

As an example take a baggie of a green leafy substance you find in a bag. Without personal knowledge or training, you have no reason to believe it is an illegal substance. Sticking with your narrow administrative search you know it is not a weapon, explosive or incendiary and therefore not a threat to aviation safety or security.

If you are trained that a bag of a green leafy substance is suspicious and a LEO involvement is required, you have been enlisted to use your permissible administrative search to look for common criminal activity. As we have seen in a bunch of court rulings that is not allowed.

Are you trained on what constitutes a "suspicious" object or substance?

RichardKenner

Note that PACER accounts are free, though they charge $0.08 per page of material that you view.

Spiff

Iranian students circa 1979?

RichardKenner

First of all, I thought that Dean said that only the latter of these two is in the SOP. Secondly, I'm not sure I'd agree that merely the requirement to report is what crosses the consitutional line. Let's assume that a bag check occurs for a legitimate reason and as soon as the TSO opens the bag, they see child pornography. I think everybody would agree that reporting such is constitutional and the fact that the SOP might require such a reporting doesn't change that.

According to the opinion in this case, the TSO was supposed to be "alert for anything that might be unlawful for him to possess". This is where it crosses the line because "being alert for" something is equivalent to looking for it and everybody agrees that administrative searches are unconstitutional if they are being used for "general law enforcement purposes".

Yes, but I think that's a somewhat different case. Here we have an object that's clearly illegal on sight (a passport with another name) that was discovered in a way that was argued went beyond the bounds of a permissable administrative search. In your hypothetical, we have an object that was clearly permissibly noticed, but which isn't clearly illegal.

The analogy here (and I don't know the answer) is this: I'm walking down the street and there's this guy in front of me with a backpack. He bends down and I see a part of this bag of a "green leafy substance" peek out. There's a police officer nearby and I tell him what I saw. Does that give the LEO probable cause to stop the person and inspect the backpack? If it does, then the TSO should be able to do the same, but if it doesn't, then the TSO shouldn't.

doober

One of our contributing screeners, and it could have been Dean himself, said that TSOs are giving NO training in identifying drugs. (At least I think it was here but maybe it could have been at PV. )

Flaflyer

You have hit the issue. ^ It depends on the intent of the SOP. When TSO finds that 1/2 oz. baggie of a green leafy substance and determines it is not a weapon, explosive or incendiary, and therefore not a threat to aviation safety, the SOP should say (have the intent) to the TSO "At this point, assume the best case, either this is oregano cuz the pax is going to a cooking competition, or if it is a popular recreational herb, assume he comes from a state where he could get a prescription for this, thus it is not ilegal. Screening is over, pax is safe to leave the checkpoint and fly."

The current SOP says (has the intent) "When you seen an unknown green leafy material, ASSUME THE WORST CASE. Assume it is a drug, not cooking supplies, even though you have no training in telling the difference. Assume it is recreational herb, and assume the pax does not have a prescription, thus assume he is a criminal. Call the cops to begin a criminal investigation. Make a spot on your uniform for your new flair reward for making the Big Catch™ at the next Weekly Bling Award Ceremony."

I listened to the whole STL tape. It struck me, and I am surprised no lawyers here pointed it out, that the main interrogator is the airport LEO. Cops perform criminal investigations. If the pax was not under criminal investigation, he would not be talking to a cop or having his warrants run. Thus under the 5th Amendment and Miranda he can and should STFU until he talks to a lawyer. It is beyond administrative at the point he is detained and questioned by any LEO.

I also read the whole 8 pages of Fofana (thanks link poster) and recommend everyone do so. It is fascinating. I get the feeling the judge is reaming the TSA from start to finish. Plus TSA ticked off the judge. The TSA quoted their standard "Our SOPs are SSI" and the judge said "fine, I'll look at them in secret, in-camera ex parte, give them to me." Quote: "The Government did not do so."

TSA had the attitude "We can share our SSI SOP with every Grade A Screener like HSVTSO Dean , but we cannot/willnot show them to a sitting Federal Judge." I know enough to realize you don't win cases by ticking off the judge by telling him his security rating is not higher than a Grade A Screener and he is not allowed to see SSI documents. I hope the appeals court insists on using the SSIs as part of their examination of the case. I'm guessing they will not help the Government win their side.