The Florida First District Court of Appeals on Tuesday, December 21, 2010 gave us some insight as to their interpretation of the Transportation Security Administration’s (TSA) authority to search our luggage at airports in Florida. (Higerd v. State, 1st District. Case No. 1D09-4028. December 21, 2010). The First District Court of Appeals reviews trial court decisions from Pensacola, including, but not limited to, Escambia, Santa Rosa, Okaloosa and Walton counties. This is a case of “first impression” in Florida meaning that the issue in this case had not been decided by any appellate court in Florida including the Florida Supreme Court. Unlike many issues that arise in the search and seizure context under the Fourth Amendment even the United States Supreme Court has not directly ruled on reasonableness of domestic airport checkpoint searches. See United States v. Fofana, 620 F. Supp. 2d 857, 861-62 n.2 (S.D. Ohio 2009).
Mr. Higerd had checked a suitcase which contained an expanding type folder that contained ten photographs of alleged child pornography at Pensacola Regional Airport. After he had checked his luggage at the ticket counter, he passed through the personal security checkpoints with his carry-ons, including his laptop, and walked to the gate where his flight was departing. Unbeknownst to him, TSA, in accordance with federal TSA policy and procedure, preselects a random number of checked bags they must search for firearms or explosives. (There are several other issues analyzed in this case that are too detailed to include in this brief article).
Mr. Higerd’s bag was the next randomly selected bag and as a TSA officer was required to thumb through the contents of the accordion-type file folder found in Appellant’s bag under TSA protocol. She testified she was merely running the swab through the papers in the folder when she came upon ten photos depicting child pornography. She immediately stopped the search and contacted a supervisor. “The mere fact that a screening procedure ultimately reveals contraband other than weapons or explosives does not render it unreasonable, post facto.” United States v. Marquez, 410 F.3d 612, 617 (9th Cir. 2005).”
Unlike the officers in Fofana and McCarty, the TSA officer’s testimony here did not hint that she was intentionally looking for evidence of criminal behavior” the First District Court of Appeals stated. A TSA agent can NOT randomly go looking for evidence of criminal behavior; however, while looking for evidence of explosives or firearms in good faith, if they should see evidence of a crime they seize it and subsequently arrest the owner of the bad that contained the contraband. (In good faith means that they are not merely looking for evidence of crime; their search authority is limited to looking for explosives and firearms).
TSA’s policy allows agents to search luggage for explosives and firearms. In Florida, our supreme court has held that Florida courts must first look to decisions of other Florida courts for guidance in how to decide issues in a case; if no Florida case is of assistance, then federal court case law must be reviewed. If no federal courts have analyzed the issue, then Florida courts must look to other State’s appellate cases for guidance.
In this particular case, once TSA found the child pornography contraband, they went to the gate where Mr. Higerd was located and held him while applying for a search warrant to search his laptop and other carry on luggage he had checked through security. Ultimately they discovered 194 photographs of child pornography.
The First District Court of Appeals upheld the trial court’s denial of Mr. Higerd’s motion to suppress. Mr. Higerd received a 30 month state prison sentence.