Higerd v. State Of Fla.
| Decision Date | 21 December 2010 |
| Docket Number | CASE NO. 1D09-4028 |
| Parties | JAMES LINN HIGERD, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
An appeal from the Circuit Court for Escambia County. Nickolas P. Geeker, Judge.
Michelle P. Smith of the Law Office of Michelle P. Smith, P.A., Orlando; John P. Rutkowski, Atlanta, for Appellant.
Bill McCollum, Attorney General, Tallahassee; Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
This is a case of first impression regarding the validity of the search of checked airline luggage. Appellant pled nolo contendre to 194 counts of possession of child pornography, reserving his right to appeal the trial court's denial of two motions to suppress. We affirm without comment the denial of Appellant's motion to compel discovery, which was not preserved for appellatereview. We also affirm the denial of Appellant's motion to suppress evidence found during an administrative search, and write to explain why the denial was not an abuse of discretion. Because we affirm the denial of the motion to suppress the evidence found during the search, we also affirm the denial of the motion to suppress statements made by Appellant during custodial interrogation.
Appellant arrived at the Pensacola Regional Airport for a flight to Colorado, checked in at the airline ticket kiosk, and registered one suitcase. He received a luggage tag and receipt and proceeded to a Transportation Security Administration (TSA) checkpoint for checked baggage. Appellant's checked suitcase was swabbed by a TSA officer. Appellant testified the officer also opened an accordion-type folder found in the suitcase and swabbed it. The swab was then tested for trace amounts of explosives using an Explosive Detection System (EDS). Appellant's bag was cleared, the officer handed him his boarding pass, and Appellant proceeded to the personal security checkpoint. Appellant did not set off the magnetometer, and his carry-on luggage did not arouse suspicion when xrayed. Appellant proceeded to the terminal to await his flight.
Unbeknownst to Appellant, his checked suitcase was opened and physically searched by a TSA officer. The officer testified that TSA protocol required her to physically examine the inner contents of a preselected and random number ofchecked baggage. During the search, the TSA officer took out the accordion folder and opened it, removed the papers and flipped through them. The officer testified that TSA protocol required her to "thumb through" any thick stack of papers she found to search for potentially dangerous materials. She then discovered approximately 10 photographs, prompting her to contact a supervisor. An airport police officer arrived and was informed that the file contained child pornography.
Airport police contacted local law enforcement, and Appellant was detained. A detective applied for and received a warrant to search Appellant's computer, camera, picture card, burned compact discs, flash drives, external hard drive, and briefcases, all of which were found in Appellant's checked suitcase. Additional flash drives were later found when the detective separated Appellant's personal property from the evidence, and an additional warrant was obtained to search those drives. Based on the evidence discovered during the searches, Appellant was charged with 196 counts of possessing child pornography.
Appellant moved to suppress all evidence seized from his suitcase, alleging the physical search of his checked baggage outside his presence violated the Fourth Amendment of the United States Constitution. Specifically, Appellant alleged the search was not minimally intrusive because available technology in use at the airport provided TSA a means to search his unopened baggage for dangerous contraband without searching the bag's contents. The trial court denied the motionto compel, but granted an in camera review to determine whether TSA's standard operating procedures were relevant. Pursuant to its review, the court denied the motion to suppress, finding TSA's procedures and administrative search did not violate Appellant's Fourth Amendment rights. Appellant was adjudicated guilty after pleading nolo contendre and sentenced to 30 months in prison.
The standard of review on a motion to suppress is a mixed question of fact and law. Butler v. State, 706 So. 2d 100, 101 (Fla. 1st DCA 1998). In reviewing a trial court's factual findings, this court looks to whether competent, substantial evidence supports the trial court's findings. This court reviews the trial court's application of the law de novo. Id.
This is an issue of first impression; our independent research has not revealed any case directly deciding whether a purely administrative, physical search of checked luggage violates the Fourth Amendment. See United States v. Fofana, 620 F. Supp. 2d 857, 861-62 n.2 (S.D. Ohio 2009) (); cf.United States v. McCarty, 672 F. Supp. 2d 1085, 1091 (D. Hawaii 2009) (). Florida courts are required to interpret search and seizure issues in conformity with the Fourth Amendment of the United States Constitution, as interpreted by the United States Supreme Court. See art. I, § 12, Fla. Const.
Without precedent from the United States Supreme Court, we look to state and federal decisions for guidance. See Soca v. State, 673 So. 2d 24, 26 (Fla. 1996) (); see generally Jones v. State, 459 So. 2d 1068, 1072 (Fla. 2d DCA 1984) ().
In general, a warrantless search is per se unreasonable unless the search or seizure falls into one of the well established exceptions to the warrant requirement. Jones v. State, 648 So. 2d 669, 674 (Fla. 1994). The government bears the burden of proving that a warrantless search was conducted pursuant to an established exception. United States v. Oliver, 686 F.2d 356, 371 (6th Cir. 1982).
Administrative searches in airports are an established exception. See United States v. Aukai, 497 F.3d 955, 959 (9th Cir. 2007) () (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)). In 1980, the Florida Supreme Court held that a personattempting to board an airplane may be searched without probable cause within the security area of an airport as long as the search is reasonable and conducted solely for the purpose of discovering an immediate threat to air commerce. Shapiro v. State, 390 So. 2d 344, 350 (Fla. 1980).
Consent is not required to conduct an airport screen search, if the search is otherwise reasonable and conducted pursuant to statutory authority. McCarty, 672 F. Supp. 2d at 1096. "To determine the reasonableness of an administrative airport search, the Court must balance an individual's right to be free of intrusion with 'society's interest in safe air travel.'" Fofana, 620 F. Supp. 2d at 862 (quoting United States v. Pulido-Baquerizo, 800 F.2d 899, 901 (9th Cir. 1986)). But, "the need for heightened security does not render every conceivable checkpoint search procedure constitutionally reasonable." Id. at 866. Accordingly, "an airport security search is reasonable if: (1) the search is 'no more extensive or intensive than necessary, in light of current technology, to detect the presence of weapons or explosives;' (2) the search 'is confined in good faith to that purpose;' and (3) a potential passenger may avoid the search by choosing not to fly." Id. (quoting United States v. Aukai, 497 F.3d 955, 962 (9th Cir. 2007) (en banc)).
We first address whether the search in this case was unnecessarily extensive or intrusive, in light of the available technology. All cargo transported on a passenger aircraft must be screened. 49 U.S.C.A. § 44901(g)(1). Screening isfurther defined to include physical searches when combined with manifest verification. U.S.C.A. § 44901(g)(5). All checked baggage must be screened by an EDS machine. U.S.C.A. § 44901(d)(1)(A). Until an airport possesses an EDS machine, TSA officers are permitted to use other alternative screening methods, including manual searches. U.S.C.A. § 44901(e)(2). The statute does not foreclose the possibility using an EDS machine in conjunction with physical searches to meet the mandate that all bags must be screened. Seeid.
The trial court's order denying Appellant's motion to suppress reveals that the airport possessed not only an EDS, but also an Explosive Trace Device System (ETDS). The trial court determined, after reviewing TSA's protocol in camera, that the physical search of Appellant's checked suitcase did not violate 49 U.S.C.A. § 44901 and was no more intrusive or extensive than necessary. Our independent review of the protocol leads us to the same conclusion.
TSA's protocol required officers to physically open a certain number of randomly selected bags, swab the inner contents, and test the swabs in one of the explosive detection machines. The TSA officer's testimony was that she discovered several photographs while thumbing through a large file. TSA's protocol reveals that the TSA officer had the discretion to flip through the papers found in Appellant's bag while conducting the open bag search in lieu...
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