D. Hawaii: TSA cannot search based on child porn content
U.S. v. McCarty, No. CRIM 08-00513 JMS, 2009 WL 3923097 (D. Hawii, Nov. 17, 2009)
TSA cannot conduct searches based on content.
The Transportation Security Administration (TSA) discovered “photographs of naked prepubescent children” in UK national Simon Jasper McCarty’s luggage. Following subsequent investigation, McCarty has been charged in the U.S. District Court for the District of Hawaii with transportation and possession of child pornography, and of “coercing a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct.” McCarty moved to “suppress all evidence obtained as a result of the search of his luggage at the Hilo International Airport [because] . . . the TSA performed an overbroad search of his luggage and there was no probable cause supporting the arrest. The district court granted his motion.
According to the court, the TSA officer (“Andrade”) who performed the initial search “went beyond the scope of an airport administrative search for weapons and/or explosives” by shifting the focus of her search from airport security to potential harm to the children in the photographs [to the question "So everything was focused on the children at that point?" Andrade responded in the affirmative], which, according to Andrade, had fallen out of an envelope in McCarty’s laptop case. In other words, Andrade and TSA impermissibly focused on the content of pictures rather than, for example, on whether the contained “sheet explosives” (a permissible search). Therefore, the search had ceased to be a “lawful administrative search” limited to ensuring that the contents of the bag did not pose a safety risk and instead became “an overbroad investigation into the criminal nature of the photographs.”
Moreover, the court ruled that the gov’t had not established probable cause for the arrest:
The court cannot determine from either Andrade or Moniz’ testimony what materials they saw during the course of a lawful administrative search. Andrade provided conflicting testimony regarding what photographs she initially saw and eventually admitted that she could not identify what images were initially visible . . .
[Further] without knowing which photographs of nude children Andrade saw, the probable cause determination cannot be supported unless all of these photographs constitute child pornography — if only some of the photographs of nude children are child pornography, the court has no way of knowing whether Andrade initially saw those photographs as opposed to the photographs that are not child pornography.
COMMENTS
