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The Fourth Amendment protects us from law enforcement rummaging through our homes, cars, and personal belongings.  However, rummaging through our luggage is practically expected at most airports these days.  Increased security hasn’t stopped one individual from bringing child pornography into an airport. In Higerd v. State (Case No.: 1D09-4028, decided December 21, 2010) the First District Court of Appeals held that if the Travel Safety Administration discovers contraband in your checked luggage, the illegal items are admissible in a criminal case against you.

It’s called an administrative search – and it’s not a new concept.  Many other agencies such as the Florida Fish & Wildlife Commission or the Department of Agriculture conduct administrative searches all the time.  However, the First District Court of Appeals calls this case an “issue of first impression” since no Florida court has ever decided that Fourth Amendment rights take a back seat in an airport.  The First DCA approaches this case with caution, but seems to deliver a fairly well-reasoned opinion.

The crux of the Court’s holding is that the TSA officer who searched Higer’s possessions did so in good faith – she was looking for explosives or weapons, not child pornography.  Because she did not have the intent to find other contraband that is outside the TSA’s procedures to look for, she did not violate the constitution.

Higer argued that the search itself was unnecessarily intrusive because the TSA has technology that can achieve the goal of scanning for explosives or weapons without actually opening a suitcase.  Therefore, because less intrusive means are available, the TSA violated his right to be free from unreasonable search and seizure.  The First DCA responded by deferring to the trial judge’s review of TSA procedures and simply finding the procedures reasonable.   The procedures only authorize searches done for the purpose of finding weapons or explosives.  If she was looking for explosives or weapons, then the search did not violate the Fourth Amendment.

While I don’t disagree with the Court classifying this search as “administrative,” I do harbor concerns about any principle that rests on a government agent’s “good faith.”  If there is one thing I have observed in my twenty-seven years of practice, it is that officers of the law are people… just like everyone else.  Sometimes they engage in courses of conduct with anything but “good faith” on their minds.  Sometimes they lie.  Under the First DCA’s holding, any TSA agent can justify any search of luggage as long as they claim to be looking for weapons or explosives regardless of whether or not they actually were.

If you are facing prosecution for a criminal act and feel that your rights have been violated, you need an experienced criminal defense attorney on your side.  Visit my website at or call me at (904)350-9333 for a free consultation.

~Robert Shafer

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