two court cases in the past month question whether TSA searches—which the agency says have broadened to allow screeners to use more judgment—have been going too far.
A federal judge in June threw out seizure of three fake passports from a traveler, saying that TSA screeners violated his Fourth Amendment rights against unreasonable search and seizure. Congress authorizes TSA to search travelers for weapons and explosives; beyond that, the agency is overstepping its bounds, U.S. District Court Judge Algenon L. Marbley said.
In the case, a man named Fode Amadou Fofana used a valid driver’s license with his real name at a Columbus, Ohio, TSA checkpoint. Because he had purchased his ticket for a flight at the airport just before departure, he was flagged for secondary screening. He didn’t set off metal detectors and TSA’s X-ray equipment didn’t see anything suspicious, according to court testimony. The bags were swabbed for explosive residue and did not trigger any alarms. TSA agents opened the bags and searched inside because he was selected for extra screening.
According to the judge’s ruling, the TSA agent involved testified that she had been instructed to search for suspicious items beyond weapons and explosives and 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.”
The agent found envelopes with cash, which she considered suspicious. Three other envelopes had something more rigid than dollar bills. She testified she didn’t believe there were weapons inside, but opened them looking for “contraband” and found three fake passports.
Limiting Searches
Judge Marbley said the TSA had no authority to open the envelopes. In his ruling, he said prior cases clearly established that airport security searches should be aimed only at detecting weapons or explosives.
“A checkpoint search tainted by ‘general law enforcement objectives’ such as uncovering contraband evidencing general criminal activity is improper,” the judge wrote.