Tampa Criminal Law News
Child Pornography Revealed by Administrative Search Conducted in AirportApril 26, 2011
The First District Court of Appeals upheld the validity of administrative searches as long as Airport Security follows certain procedures in conducting their search.
In Higerd v. State the defendant’s bags were screened for trace amounts of explosives. No explosives were found and he was permitted to the terminal to await his flight. Pursuant to airport protocol set out by the Transportation Security Administration (TSA) a security officer opened and physically searched his suitcase. TSA protocol requires that a certain number of random and preselected bags be searched. The defendant’s bag revealed 196 images of child pornography contained in an accordion file. The defendant was arrested and filed a motion to suppress the evidence claiming the search conducted by the TSA was unconstitutional and in violation of the 4th amendment.
The standard of review on a motion to suppress is a mixed question of law and fact. The appellant court need only confirm that the trial court’s ruling was based on competent, substantial evidence to affirm the ruling. Administrative searches in airports have been recognized as an exception to the Fourth Amendment pursuant to federal law. United State v. Aukai, 497 F.3d 955, 959 (9th Cir.2007). However, this case is an issue of first impression in our Florida Courts (whether a purely administrative, physical search of checked luggage violates the Fourth Amendment). The Florida Supreme court did rule in 1980 that a person boarding an airplane could be searched without probable cause if there was a potential threat to air commerce.
A number of factors must be considered before determining whether an “airport security search” is reasonable: (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.”
In this case, the Court ruled that the TSA officials followed all the proper protocol. There was one very questionable conclusion made by the Court. According to the 1st DCA 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. In other words, TSA officer had authority to leaf though photographs when searching for sheet explosives. This ruling sparks questions about what sort of search the 1st DCA would find unreasonable. What was it about this defendant that gave the TSA authorities reason to believe that he was carrying sheet explosives? The facts indicate that his bags were already screened for trace amounts of explosives and the bags cleared. Was this a fishing expedition? If they can go through documents in an accordion folder, it appears that TSA officials can search any part of any bag for any reason.
