Thursday, December 15, 2011

No suppression for CP found during TSA search

In United States v. McCarty, the Hawaii federal district court reconsidered a child pornography case after it had been vacated and remanded from the Ninth Circuit. When the defendant's luggage was scanned at an airport, a mass was noticed around his laptop. Fearing explosives, the TSA employee opened the bag, pulled out an envelope of photos, and several photos fell out. By normal procedure, the agent must flip through the photos for explosives material. The photos ranged from newspaper clippings of children's underwear ads to images of nude children, 57 images total of minor children. None of the images were technically child pornography, but taken together, they looked far from innocent.

The Ninth Circuit had extensively analyzed the search under administrative search doctrine, noting that "[t]he TSA search scheme ... was focused solely on the discovery of threats to air travel safety," and "the scope of the permissible search ... was defined by the point at which the screener was convinced the bag posed no threat to airline safety." The court found that while the agent acted, in part, outside the scope of the administrative search (violating the defendant's Fourth Amendment rights), she never abandoned the search entirely. The decision was remanded for the trial court to decide whether probable cause existed for arrest and whether evidence suppression was needed.

On remand, the district court found that probable cause existed because of several of the images individually because of their explicit nature. Each "would be 'sufficient to warrant a prudent man to believe that [defendant] had committed'" an illegal act, and the collection further solidified that conclusion. Further, none of the evidence should be suppressed as the search was justified under the administrative search or inevitable discovery.

The original 2008 district court opinion is available here, the Ninth Circuit opinion here, and the new district court opinion is available at United States v. McCarty, 2011 U.S. Dist. LEXIS 143220 (D. Haw. 2011).

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