U.S. v. Fofana

• Decision Date: 02 June 2009
• Docket Number: Case No. 2:09-CR-49.
• Citation: 620 F.Supp.2d 857
• Parties: UNITED STATES of America, Plaintiff, v. Fode Amadou FOFANA, Defendant.
• Court: U.S. District Court — Southern District of Ohio

620 F.Supp.2d 857

UNITED STATES of America, Plaintiff, v. Fode Amadou FOFANA, Defendant.

Case No. 2:09-CR-49.

United States District Court, S.D. Ohio, Eastern Division.

June 2, 2009.

Daniel Allen Brown, United States Attorney's Office, Columbus, OH, for Plaintiff.

Brian C. DiFranco, DiFranco Law Office, Columbus, OH, for Defendant.

OPINION & ORDER

ALGENON L. MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on Defendant Fode Fofana's ("Fofana") Motion to Suppress Physical Evidence (doc. no. 15). Fofana alleges that the evidence in question was obtained as the result of an airport checkpoint search at the Port Columbus International Airport that violated his right to be free from unreasonable searches and seizures under the Fourth Amendment of the United States Constitution. For the reasons set forth herein, this Court GRANTS the Defendant's Motion.

II. FACTS

The Court held a suppression hearing on May 13, 2009. At the hearing the Court heard the testimony of Transportation Security Administration ("TSA") Agents Mirow and Stroud who participated in Fofana's search. The Court also viewed the video surveillance tapes of the search. Fofana and Perry Doran, the Assistant Federal Security Director for Law Enforcement at Port Columbus Airport, did not testify at the hearing but submitted affidavit testimony.

On January 31, 2009, Fofana arrived at the Port Columbus International Airport and bought a ticket for a domestic Delta Airlines flight. His boarding pass was "flagged" by the airline, identifying him as a "Selectee" for secondary screening. The Selectee designation is made by the airline pursuant to Security Directives issued by the Transportation Security Administration ("TSA"). A Selectee is subjected to a thorough secondary search at the security checkpoint in addition to the general metal detector walkthrough and x-ray of baggage.

A passenger may be flagged as a Selectee for several reasons. Possible reasons include the passenger's inclusion on the FBI's Terrorist Screening Center list of people with possible links to terrorism or the passenger's selection based on a "Computer Assisted Passenger Prescreening System," which selects individuals for enhanced screening based on travel characteristics identified by the TSA as indicating potential security risks. The record is silent on why Fofana's ticket was flagged for secondary screening.

After getting his boarding pass, Fofana proceeded to the security checkpoint. At the checkpoint, Fofana presented a valid state driver's license in the name of Fode Fofana. The TSA agent who reviewed Fofana's boarding pass noted that he was a Selectee for secondary screening. Agent Tarah Stroud ("Stroud") put Fofana's bags on the scanner belt and directed Fofana to remove all of his belongings from his pockets and put them on the belt. (5/13/2009 Hr'g Tr. 49-50.) Fofana walked through the metal detector without setting off the alarm.

On the other side of the metal detector, TSA Agent Gregory Mirow ("Mirow"), the checkpoint supervisor, searched Fofana with a handheld magnetic wand. After that, he patted Fofana down with his hands and felt bulky items in his front pockets. Mirow asked Fofana to remove the items from his pockets one at a time and saw that the bulky items were wads of money. Mirow instructed Fofana to fan the money out so he could ensure that there was nothing hidden inside. Fofana did so and Mirow told him to put the money back in his pockets. Mirow then escorted Fofana to the secured area of the checkpoint where he could wait to collect his baggage and could watch it being searched.

While Fofana was being patted down, Stroud ran his bags through the x-ray belt. The bags did not alarm. Because Fofana had been selected for secondary screening, his bags were also subject to a thorough hand search, which Stroud performed. She swabbed the bags and their contents for explosive traces and looked for items on the "prohibited items" list, such as guns or knives. During the search, she emptied the bags of their contents.

Stroud explained that, because Fofana was a Selectee, she was required to search for "anything that might compromise the safety of an airplane, its crew and the traveling public." (5/13/2009 Hr'g Tr. 78.) She claims she was also responsible for taking "notice of anything that might suggest that Fofana could have been someone other than the person he claimed to be, such as identification documents or credit cards bearing a different name." (Stroud Aff. ¶ 3; 5/13/2009 Hr'g Tr. 78.) She states that she was also supposed to be "alert for anything that might be unlawful for him to possess, such as credit cards belonging to other people, illegal drugs, or counterfeit money" and to report any possibly illegal items to her supervisor, who would contact a law enforcement officer. (Stroud Aff. ¶ 3; 5/13/2009 Hr'g Tr. 78.)

Perry Doran, the Assistant Federal Security Director for Law Enforcement at Port Columbus Airport, corroborated Stroud's description of TSA search procedures. According to Doran's affidavit, "[p]ositively identifying passengers is an important tool in TSA's multi-layered approach to security." (Doran Aff. ¶ 1.) He further explained that "when a passenger is selected for additional screening-as was the case with Mr. Fofana-[TSA agents] look not only for prohibited items, but other items that might be relevant to security" such as "other forms of ID that might be within the passenger's luggage or other items ... which might call into question the identity the passenger has asserted." (Doran Aff. ¶ 13.)

During the course of her search, Stroud found between fourteen and sixteen envelopes. As she found them she placed the envelopes in a bin so she could check them later. Stroud testified that she could tell by the feel and size of the items that most of the envelopes contained cash. According to Stroud a couple of the envelopes were sealed but the rest were not.¹ She looked into a few of the unsealed envelopes and saw that they contained cash. She did not open all of the cash envelopes, however, because she could tell what was inside by touch. (5/13/2009 Hr'g Tr. 66.)

According to Stroud, money is not a prohibited item "but in large quantities it is suspicious." (5/13/2009 Hr'g Tr. 58.) She testified that screeners were trained to notify a supervisor if they found a large amount of money, which she defined as $10,000 to $15,000. Stroud explained that she understood that carrying a large amount of money was suspicious because "[i]f it wasn't for an illegal or fraudulent purpose, then of course it would be in a bank or you could write a check or use your bank card." (5/13/2009 Hr'g Tr. 58-59.) According to both Stroud and Mirow, the TSA's SOP encourages screeners to report discoveries of large amounts of cash to an appropriate law enforcement contact. (5/13/2009 Hr'g Tr. 24-26, 59.)

She also found an unsealed envelope that felt different from the cash filled envelopes. That envelope contained something hard and unbendable, but Stroud could not tell what it was by touch. She looked inside and found a passport. She found another rigid envelope, which contained a second passport. Both passports had Fofana's picture but different names. Based on her training, she informed her lead screener about the passports. After searching further, Stroud found a third unsealed envelope that contained yet another passport with Fofana's picture and a third name. Stroud took the third passport to her lead screener.

Stroud testified that the passports were a cause for concern "because it is our job to verify that the person coming into the airport is who they say they are." (5/13/2009 Hr'g Tr. 69.) Stroud admitted that at the time she found these envelopes, Fofana's bags had already been through the x-ray machine and had been checked for explosive residue. She testified that she felt the envelopes "because it is our responsibility to clear all personal items that a passenger carries." (5/13/2009 Hr'g Tr. 96-97.) She admitted, however, that when she opened the envelopes she did not believe that they contained weapons or explosives, but instead was looking for contraband. (5/13/2009 Hr'g Tr. 97-99.) Stroud testified that money, passports, and envelopes containing mail are not prohibited items. (5/13/2009 Hr'g Tr. 99.)

When Agent Mirow learned that the passports had been found, he contacted law enforcement officers who came to the checkpoint. Mirow testified that he did so based on a written protocol which instructed agents to contact law enforcement officers, security managers and other officials "to let them know there may be some cause for concern over the true identity of a passenger presenting himself to fly out." (5/13/2009 Hr'g Tr. 29-20.) Fofana was subsequently arrested.

On March 3, 2009 Fofana was indicted. Three counts of the indictment relate to the passports seized after the airport search. Counts 1-3 charge him with the possession of three falsely made or forged passports in violation of 18 U.S.C. § 1546(a). Count 4 charges him with attempted bank fraud in violation of 18 U.S.C. § 1344. Count 5 charges him with using one of the fake passports in connection with the attempted bank fraud charged in Count 4, in violation of 18 U.S.C. § 1028A(a)(1). Fofana moved to suppress the evidence found in the search. The Government opposes.

III. LAW & ANALYSIS

Under the Fourth Amendment, searches "conducted without a warrant issued upon probable cause [are] per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (internal quotation marks omitted); see also Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The Government bears the burden of proving that a warrantless search was conducted pursuant to an established exception to the Fourth Amendment warrant requirement....