9th Circuit Court of Appeals vacates suppression of evidence in Hilo child porn case

Discussion in 'Aviation Passenger Security in the USA' started by Mike, Aug 3, 2011.

  1. Mike

    Mike Founding Member Coach

    The 9th Circuit Court of Appeals has vacated the District Court's suppression of evidence in the child pornography case of Simon McCarty on the grounds that TSA screeners exceeded the scope of an administrative search.

    The full text of the Court of Appeals's opinion is here: http://www.ca9.uscourts.gov/datastore/opinions/2011/08/03/09-10504.pdf

    I'm still reading (it's about 30 pages) but have seen nothing to be too concerned about so far. The decision does contain some interesting discussion of TSA search protocols.
     
  2. Mike

    Mike Founding Member Coach

    Having read through the entire opinon, I suspect that the defense will appeal further, although the opinion does order the district court to revaluate the question of suppression of evidence in light of the appellate court's order, meaning that the evidence could still be supressed.

    The Court of Appeals decision seems to revolve around two key issues:

    What this overlooks is that the TSA screeners also searched (after the discovery of pornography in the 1st suitcase, which had alarmed the CTX) McCarty's second suitcase which did NOT alarm the CTX. The evidence from this search was suppressed, and the government did not appeal its suppression. However, since it was not appealled, it rates little more than a footnote in this decision. What the appellate court seems to be concluding is that the screeners' motivations were pure with regard to the 1st suitcase (believing the they were continuing to search it solely for explosives after finding the child pornography) while ignoring that the uncontested fact they had searched the second suitcase because of the child pornography that they had found in the first suitcase.
     
  3. Cartoon Peril

    Cartoon Peril Original Member

    Well, here's the deal. The "sheet explosive" is just a crock. What they have to do to justify pawing through stuff is define "threats to aircraft" down to the smallest possible item, so they can look anywhere they want, maybe even jam their hands up skirts or riffle your hair. (If you are a young attractive female, or a child, they "make it better" by telling you how pretty your hair is.) Now, if this were a genuine search for an explosive, do you think it would be done by a untrained nitwit in a public place surrounded by people? But it doesn't take much to lay this on the courts and they'll go along pretty much with whatever BS the government serves up to them, 'specially if you gotta rather unsavory defendant.
     
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  4. Mike

    Mike Founding Member Coach

    However, whether or not the screeners are actually competent to detect sheet explosives is completely separate from the legal issues discussed in the option.
     
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  5. Cartoon Peril

    Cartoon Peril Original Member

    Oh certainly, that is because the court record cannot actually look to the real world, which is that actual explosive detection would never be done in this fashion. This is the limit of law -- it sees what is in the record, and that often has little to do with reality.
     
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  6. RB

    RB Founding Member

    Would have liked to be able to ask the screener if they had ever seen sheet explosives.
     
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  7. Bart

    Bart Original Member

    From a checked baggage screening perspective, this is a very tricky line. When the CTX machine alarms on an object, it is reacting to an object with physical properties that fall within a certain category associated with explosives. In this case, it alarmed on an object that had a sheet-like characteristic. The proper procedure is to inspect ONLY the alarmed item. In other words, CTX operators do not routinely inspect everything that appears to have sheet-like characteristics. The sheet-like item has to have alarmed the CTX machine in order to get physically inspected.

    It is not unusual for sheet-like items to alarm the CTX. Typically, common paper products such as regular bond paper will not alarm; however, some items such as papers with a glossy finish will alarm. If I read the case summary correctly, the items that alarmed were a laptop computer and an envelope located in the same compartment as a laptop computer. The CTX operator followed correct procedure by clearing the laptop with ETD technology and clearing the envelope and its contents with a physical inspection. When it comes to written material or photographs, the task it to make sure that the contents of the envelope are not explosive components. The task is NOT to read written material or to look at photographs. While looking at the photographs cannot be avoided during a physical inspection, there's a difference between a cursory glance looking for any characteristics that may indicate that they are not what they appear to be and studying each photograph. However, what happened here is that the contents of the envelope spilled out onto a table, making the nature of the photographs pretty obvious even by casual glance.

    So at this point, the TSO had successfully determined that there were no explosives in the bag. Because the photographs were of what appeared to be under-aged children possibly victims of child pornography, under TSA policy and federal directives, the TSO was obligated to report this finding to her supervisor. Here's where I agree that the supervisor stepped over the line of an administrative search and exceeded her authority: she decided to take a closer look at the photographs in the bag that alarmed the CTX and the owner's other bag that successfully cleared CTX screening. What the supervisor should have done was stop any further screening of the bag AFTER it was determined that there were no explosive components inside of the bag and notify the LEO for the alleged child pornography.

    What further complicates what may seem like a straight-forward procedure is the dynamics between TSA and LEOs at various airports. At some airports, LEOs won't take any action unless the evidence is strong, and at other airports, LEOs will take it from there and pursue the matter. This is a very tricky situation: trying to obtain as much information as possible before notifying the LEO without crossing the line between an administrative search and Fourth Amendment protected criminal search.

    When officers ask me for guidance, I tell them to ask themselves one simple question: "what am I looking for?" If it's an item listed in the TSA prohibited items list, then they're ok. If it's not, then they need to stop and ask their supervisor for guidance.
     
  8. rockon

    rockon Original Member

    Thanks for a detailed explanation.

    Not to go OT, but I want to comment on the lines above.

    If TSA could train TSOs to follow that one simple process (and if their supervisors/managers would support them in doing so), I think it would make a huge difference.

    Seems to me that if a TSO doesn't know/is unsure, the best solution for everyone would be to escalate and get an answer. Seems like an opportunity for painless, on-the-spot continuing education (for pax and TSO), good PR, and a step towards a level of consistency that TSA might be willing to allow (yes, you really can bring tent poles on the plane if they are small aluminum backpacker tent poles or no, Play-doh really is not allowed).
     
  9. Mike

    Mike Founding Member Coach

    Good summary of the appellate decision in the Simon McCarty case ...

    Sierra Sun: Jim Porter: Can TSA airport security search for contraband?

    The author is a local attorney, so I'm guessing the article was written for PR purposes.
     
  10. JoeBas

    JoeBas Original Member

    Doesn't really matter...

    1) Put on gloves.
    2) Handle everything
    3) Test Gloves.

    A trained chimp could do it.
     
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  11. Cartoon Peril

    Cartoon Peril Original Member

    If that were so, then nothing could be immune from inspection. Maybe nothing is.
     
  12. JoeBas

    JoeBas Original Member

    I know this sounds dumb, but anything you submit for inspection is liable to be inspected.
     
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  13. Cartoon Peril

    Cartoon Peril Original Member

    Well, yes and no. The search must be only for weapons and explosives. If you accept the idea that "sheet explosives" are really what is being sought, then all paper items I suppose become subject to inspection. Of course, the actual search protocol must specify that and it can't be something that was dreamed up later.
     
  14. JoeBas

    JoeBas Original Member

    Let me say it one more time.

    Anything you submit for inspection is liable to be inspected.

    Constitutional or no, legal or no, doesn't matter. Not to them.
     
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  15. Cartoon Peril

    Cartoon Peril Original Member

    Right, my mistake, I was thinking "lawful inspection". ;-)
     

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