U.S. v. Mccarty

• Decision Date: 09 September 2011
• Docket Number: No. 09–10504.,09–10504.
• Citation: 2011 Daily Journal D.A.R. 11668,2011 Daily Journal D.A.R. 13772,648 F.3d 820,11 Cal. Daily Op. Serv. 9757
• Parties: UNITED STATES of America, Plaintiff–Appellant,v.Simon Jasper McCARTY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

648 F.3d 820

11 Cal. Daily Op. Serv. 9757

2011 Daily Journal D.A.R. 11,668

2011 Daily Journal D.A.R. 13,772

UNITED STATES of America, Plaintiff–Appellant,

v.Simon Jasper McCARTY, Defendant–Appellee.

No. 09–10504.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 14, 2010.Filed Aug. 3, 2011.As Amended September 9, 2011.

Vijay Shanker (argued) and David E. Hollar (briefed), United States Departmentof Justice, Washington, D.C., for the plaintiff-appellant.William A. Harrison (argued and briefed), Davies Pacific Center, Honolulu, HI, for the defendant-appellee.Appeal from the United States District Court for the District of Hawaii, J. Michael Seabright, District Judge, Presiding. D.C. No. 1:08–cr–00513–JMS–1.Before: MICHAEL DALY HAWKINS, M. MARGARET McKEOWN and JOHNNIE B. RAWLINSON, Circuit Judges.

ORDER

The government's Motion to Amend footnote 6 in the Opinion that is cited at 648 F.3d 820, 2011 WL 3319428 (9th Cir. August 3, 2011) is granted, but only for the limited purpose of amending the third sentence of footnote 6 to read: “On appeal, the government did not contend this search of the second bag was a lawful administrative search or contest suppression of any evidence found therein on a basis independent of its main arguement.”

No subsequent petitions for rehearing or rehearing en banc will be accepted for filing.

OPINION

HAWKINS, Senior Circuit Judge:

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 defendant Simon McCarty's (“McCarty”) checked luggage at Hilo International Airport. The government argues the evidence from McCarty's bag—which included, among other things, almost five dozen photographs of nude and partially nude minors,¹ 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 Transportation Security Administration (“TSA”) agents turned a routine administrative search for explosives into an unauthorized investigatory search for contraband. We have jurisdiction pursuant to 18 U.S.C. § 3731 and, for the following reasons, vacate the suppression order and remand to the district court for further proceedings.

Standard of Review

“A district court's conclusions of law regarding a motion to suppress are reviewed de novo.” United States v. Hammett, 236 F.3d 1054, 1057 (9th Cir.2001). Its factual findings are reviewed for clear error. United States v. Aukai, 497 F.3d 955, 958 (9th Cir.2007) (en banc). A finding of clear error requires “a definite and firm conviction that a mistake has been made. Thus, if the district court's findings are plausible in light of the record viewed in its entirety, the appellate court cannot reverse even if it is convinced it would have found differently.” Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir.2002) (internal citations and quotation marks omitted).

Facts & Proceedings Below

A. Facts1. Preliminary Facts

McCarty, a United Kingdom national, traveled to Hilo International Airport to board an intrastate flight bound for Honolulu on August 5, 2008. He checked two pieces of luggage for the flight: (1) a “Travel Pro” brand bag; and (2) a “Travel Zone” brand bag. The two bags were sent, as is customary for all checked passenger baggage, to the TSA screening area, where TSA screeners Dorinda Andrade (“Andrade”) and Jenny Moniz (“Moniz”) (who happens to be Andrade's daughter), were screening luggage for explosives using a CTX 5500 DS security x-ray machine (“CTX machine” or “CTX”). The Travel Zone bag passed through the machine without incident, but the CTX machine produced an alarm on the Travel Pro bag, signaling to Andrade that there was a dense item in the bag requiring further inspection. The inspection that followed is the subject of this appeal.

2. CTX Machines and TSA Screening Policies

TSA screens all luggage that goes onto a plane to ensure it does not contain any explosive devices or other items that would threaten the safety of the plane. One method of screening is through an x-ray device such as the CTX machine used here, which can identify potential safety risks or dense items in luggage that require further inspection. CTX machines automatically stop the procession of bags through the screening area when they “alarm” ² on a potential safety hazard in a bag; TSA screeners do not have the discretion or ability to stop the machines themselves. Patrick Collins (“Collins”), the Deputy Assistant Federal Security Director for TSA in charge of operations at three Maui County airports, testified regarding TSA procedures for searching checked luggage after the CTX machine alerts on a particular bag. According to Collins, when this occurs, the TSA screener is required to find and examine the item identified by the machine to ensure it is not an explosive device. For example, if the item is a laptop computer, the screener must physically remove the laptop from the luggage and examine it for the presence of hidden explosives. A laptop may be used as a “decoy” or “distracter,” meant to distract the screener from continuing to search the bag for explosives.

Additionally, thin, flat explosives called “sheet explosives” may be disguised as a simple piece of paper or cardboard, and may be hidden in just about anything, including a laptop, book, magazine, deck of cards, or packet of photographs. Collins explained that where the CTX alarms on a dense mass and the screener opens the bag to find a packet of photographs, the screener is required to leaf or thumb through the stack of photographs until she is sure there are no sheet explosives. She would not be required to closely examine those items (by, for example, reading the contents of a written document) unless she determined that they were “distracters.”

Under TSA protocol, the search does not conclude until the screener has cleared the bag of all safety concerns identified by the CTX machine. According to Collins, “[t]he officer has to be satisfied that there's nothing else in that bag that could have caused that alarm. And they take whatever procedure they have to to find that.” In some cases, this may require going as far as removing the lining of the bag to ensure that no possible explosives remain. Adherence to the protocol is mandatory, not discretionary, although the determination of whether any further safety concerns exist after a preliminary search is committed to the discretion of the screener. The screener is to end the search once she is satisfied that she has followed the protocol and removed all safety concerns.

TSA screeners do not have any training in identifying contraband, and they are not directed by any policy to perform searches for contraband. The screener's sole job is to clear bags of safety concerns relating to air travel. However, if, in the course of searching for explosives, a screener finds an item she believes to be contraband, she is required by TSA Operations Directive OD–400–54–2 to call a law enforcement officer.³ It is not the screener's job to continue investigation of possible contraband found in the course of an administrative safety inspection.

3. The Search

The CTX alerted on McCarty's Travel Pro bag at 10:13 a.m., flagging as a possible safety concern what appeared to be a laptop with a dark mass around it.⁴ Andrade could not tell what the dark mass was by looking at the CTX image, so she released the bag from the machine and placed it on a search table for manual inspection.

Based on the weight of the bag, Andrade determined that the laptop was in the top pocket. She unzipped the pocket halfway and pulled out the laptop with one hand. As she did so, another bag passed through the CTX machine, and Andrade turned her head to watch the machine's screen while that bag passed through. When she turned back to the table, she noticed that an envelope had also slid out of the bag with the laptop, spilling some of the envelope's contents. Andrade testified that “a couple of pictures” were “laid open on the table,” although she clarified that by “a couple” she meant that more than ten photographs were visible. The precise arrangement of the photographs on the table is unclear.

Andrade took approximately one minute to clear the laptop pursuant to TSA protocol before turning to the photographs and other spilled items. She noted that, after searching the laptop, she needed to find the dark mass shown in the CTX image, which she believed could be the photographs on the table. Andrade could not “precisely say what photographs” were immediately visible when they first spilled out, but she did remember seeing photos of nude children, including one of a boy on a bed with his eyes closed.⁵ She inspected the photographs that had spilled out of the envelope onto the table. She then proceeded to look through less than half of the photographs from the envelope, specifically because she needed to clear the contents of the envelope of any safety hazards that might be hidden between the photos. She stopped short of looking through every photograph in the envelope once she was satisfied there were no safety issues, and because she did not want to see any more of the photographs. Then, although she was no longer concerned about explosives and felt that the “pictures that [she] saw [were] enough to make [her] determine that the children weren't in a good situation,” Andrade proceeded to read a few lines of the letters in the envelope to “determine what the pictures were all about” and to “make sure” that the photographs were contraband before she called her lead officer to report them. She...