Saturday, August 06, 2011

Case o' The Week: A "Sheet Explosive" for the Fourth Amendment - McCarty and Airport Searches

Combine airport searches and child pornography, and you've got a recipe for another erosion of Fourth Amendment protections against warrantless searches. See, e.g., blog on United States v. Arnold, available here.

The latest example of this trend reverses suppression of child porn evidence, (allegedly) found as part of an administrative TSA search -- and does so despite damning credibility findings by the district court against the TSA screener. United States v. McCarty, 2011 WL 3319428 (Aug. 3, 2011), decision available here.

Players: Decision by Judge Hawkins.

Facts: At Hawaiian airports Transportation Security Administration (“TSA”) machines alert on bags with dense items, which are then further screened. Id. at *1. Among other things, TSA screeners search for “sheet” explosives – thin bombs that can be hidden in a pack of photographs. Id. Screeners must flip through packs of photos to check for sheet explosives. Id. Mandatory protocol requires a screener to search until safety concerns are satisfied. Id. Nothing in the policy directs a search for contraband. Id.

In this case, Simon McCarty checked bags at the Hilo International Airport (for a domestic flight). Id. at *1. When McCarty’s bag triggered a machine alert, a screener thumbed through photos of nude children within. Concerned, she read material in the bag describing sex with minors and then alerted supervisors. Id. Continued investigation revealed child porn (some of which featured McCarty). Id. at *3.

McCarty was charged with federal child sex crimes. After an evidentiary hearing, [courageous] District Judge John Michael Seabright (above left) found the TSA screener not credible and suppressed all evidence. Id. at *6. Judge Seabright determined that the screener had improperly intended to search for porn - not explosives. Id. at *5-*6.

Issue(s): “The competing interests of personal privacy and the safety of the traveling public are at the heart of this interlocutory government appeal from the district court’s suppression of all evidence obtained as a result of an airport search of . . . McCarty’s checked luggage . . . . The government argues the evidence from McCarty’s bag - which included, among other things, almost five dozen photographs of nude and partially nude minors, children’s underwear and pajama advertisements, and handwritten notes describing the molestation of children – was discovered during the course of a properly limited administrative search, the search was therefore lawful, and McCarty’s subsequent warrantless arrest was supported by probable cause. McCarty contends, and the district court agreed, that . . . [TSA] agents turned a routine administrative search for explosives into an unauthorized investigatory search for contraband.” Id. at *1 (footnote omitted).

Held: “[A]s long as

(1) the search was undertaken pursuant to a legitimate administrative search scheme;

(2) the searcher’s actions are cabined to the scope of the permissible administrative search; and

(3) there was no impermissible programmatic secondary motive for the search,

the development of a second, subjective motive to verify the presence of contraband is irrelevant to the Fourth Amendment analysis . . . . The subjective intent of the individual officer in such a search thus becomes as relevant as objective conduct only at the point at which the search ceases legitimately to be for the valid administrative purpose, as that is the point after which the administrative exception can no longer justify continuation of the warrantless search.”
Id. at *11.

“The order suppressing the evidence obtained as a result of the airport screening and the follow-on consent- and warrant-based searches . . . is vacated, and the case remanded . . . for further proceedings consistent with this Opinion.” Id. at *15.

Of Note: McCarty ain’t a defense win. It is not, however, a complete rout. The decision very much does not hold that any airport search is exempt from the protections of Fourth. Indeed, Judge Hawkins goes to considerable effort to explain when the "purpose" of a search policy is relevant for the Fourth Amendment inquiry, and refuses to give a blank check to the TSA to search for contraband and bombs during its bag screenings. Notably, the Court remands for further findings on which of the materials were properly within the scope of an administrative search. Id.

McCarty is a long and complex opinion that demands a full and detailed read – be wary of AUSAs overstating the decision's holding after just skimming headnotes.

How to Use: A district judge’s credibility findings after an evidentiary hearing are owed huge deference on appeal. It is remarkable, therefore, for the Ninth to find that the district court erred in its findings that the TSA screener wasn’t credible. Id. *13. To salvage this witness the Court parses stages of the agent’s testimony, concedes much of it was contradictory, but redeems her with a detailed defense of one corner of her story. Id. at *13-*14.

Export McCarty’s hyper-technical attack of a DJ’s credibility findings into the (much more common) setting of challenging a cop’s testimony on appeal – sauce for the goose is, after all, sauce for the gander.

For Further Reading: Judge Seabright, who bravely suppressed all evidence in this terrifically unsympathetic child porn case, is a W. Bush appointee and a former AUSA. See article here.

(Always foolish to judge a judge by his cover . . .).

Image of the Honorable John Michael Seabright from

Image of goose and gander sauce from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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