Airport Searches and the TSA

An interesting case from UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION, USA v. FODE AMADOU FOFANA, decided 2 Jun 2009, which held that the defendant could suppress the presentation of the forged passports he was carrying through security because the search was only reasonable to find "weapons, explosives, or prohibited items". Contraband or other generally illegal items are not reasonable targets for a TSA search.

Fofana does not challenge his selection for secondary screening, but rather argues that the hand search of his luggage went beyond the permissible scope of an airport screening search because Agent Stroud had already determined that he was not carrying weapons or explosives when she decided to open the envelopes containing the passports. He further argues that his search exceeded the TSA's statutory mandate under 49 U.S.C. § 44902(a) and 49 C.F.R. 1540.111. He reasons that under 49 U.S.C. § 44902(a) and 49 C.F.R. 1540.111, [*13] the TSA is only permitted to search passengers and their belongings to detect dangerous weapons, explosives, or other destructive substances. He contends, therefore, that the TSA exceeded its statutory authority by opening the envelopes after his bags had been cleared of any suspicion that they contained weapons, explosives, or prohibited items.

For the reasons explained above, the Court GRANTS Defendant's Motion to Suppress. Any evidence that was seized or subsequently obtained as a result of Fofana's unlawful search, including the three passports, will be suppressed.

The key part of the reasoning seems to be that the forged passports were found in a search which commenced after Fofana had been cleared (by X-ray, wand, and explosives swabbing) of having any "weapons, explosives, or prohibited items". A subsequent search for further items is, according to Judge Marbley, an unlawful search on the part of the TSA.