Thursday, December 23, 2010

Court Upholds TSA Search That Discovers Child Pornography

There is a vigorous debate about the effectiveness of TSA procedures in combating terrorism. But it looks like the TSA is at least pretty good at catching child pornography. (And child pornographers are probably one of the few groups less sympathetic than terrorists!)

I previously wrote about the admissibility of evidence found by the TSA during airport searches. At the time, I wrote that the government can use evidence found by TSA employees without violating the Fourth amendment so long as the TSA employees are detecting possible terrorism and not trying to detect other crimes. My starting point was a Hawaii child pornography decision.

A recent Florida state court reached the same conclusion. The case is Higerd v. State of Florida. Thanks to for the initial link.

In this case, the defendant was trying to fly from Florida to Colorado. The TSA officer swabbed the back for explosives, and also opened an accordion-type folder found in the suitcase and swabbed it. Later, following TSA protocol, the bag was selected randomly for a further physical search. During the random search, a TSA officer flipped through the papers in the accordion folder. This was, according to the TSA agent, pursuant to "TSA protocol." The TSA officer discovered incriminating photographs. Law enforcement was contacted and, after a warrant was obtained, child pornography was discovered.

The court reviewed the TSA protocol and determined that it "was no more intrusive or extensive than necessary." The court explained:

TSA's protocol required officers to physically open a certain number of randomly selected bags, swab the inner contents, and test the swabs in one of the explosive detection machines. The TSA officer's testimony was that she discovered several photographs while thumbing through a large file. TSA's protocol reveals that the TSA officer had the discretion to flip through the papers found in Appellant's bag while conducting the open bag search in lieu of swabbing every piece of paper. Thus, without more evidence proving that such a search was unnecessary given the current technology, we hold that the search was no more extensive or intrusive than necessary in light of current technology.

The court believed that, unlike in the Hawaii case, the TSA officer did not go beyond a search for weapons or explosives.

The challenge from these cases is that the record is incomplete. We know that the TSA has a protocol to conduct searches of papers. What we don't know – and maybe can't for national security reasons – is whether this protocol is reasonable based on the possible threat posed. We also don't know whether how much discretion is given to TSA officers by the protocol and whether the exercise of that discretion was reasonable.

As a prosecutor, I was always frustrated with police officers who would answer a question about why something was done with, "because we can," or "because we have a policy." (Example: "Why did you order the defendant out of the car?" Answer: "Because a Supreme Court decision says I can.") This is because most law enforcement policies and protocols give substantial discretion to the officers, and why that discretion was exercised in a certain way is often important. (Better answer: "Because I saw him reach into the glove box as I pulled him over and then he started at me as I approached, so I was concerned he had a weapon.")

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