Why We Do What We Do: When Security Officers Find Illegal Items at the Checkpoint

A number of readers have raised questions about TSA's legal authority to make a referral to other law enforcement entities when evidence of a crime unrelated to aviation security is discovered during the screening process. This post explains that Transportation Security Officers (TSOs) are required to make such referrals. TSO referrals have led to the arrest and/or conviction of individuals for serious crimes such as illegally possessing narcotic drugs, transporting child pornography, and bulk cash smuggling.

As you know, the job of our security officers is to screen passengers and their belongings for weapons, explosives, and other prohibited items that pose a risk to transportation security. In the course of performing that responsibility, security officers sometimes come across illegal items that are not directly related to transportation security. For instance, last month in Guam, TSOs screening checked baggage discovered almost $900,000 in U.S. currency along with an undisclosed amount of crystal methamphetamine. Although anyone in the United States is free to travel with currency, the failure to make a currency report to Customs and Border Protection when leaving the country with more than $10,000 in cash is a violation of federal criminal law. 31 U.S.C. §§ 5316 and 5322. Attempting to smuggle bulk cash out of the country also violates 31 U.S.C. § 5332, a felony that carries a possible prison term of up to 5 years.

As a component of the Department of Homeland Security, TSA's standard operating procedures require Transportation Security Officers to report evidence of potential crimes to the appropriate local, state or federal law enforcement authorities. When a TSO opens a bag and discovers a large stash of ecstasy or obvious child pornography, he or she is not permitted to close the bag and turn a blind eye to these serious offenses. Instead, a TSO is required to call for law enforcement support. It is up to the responding law enforcement authorities—not our TSOs—to decide whether an arrest is warranted.

TSA's practice of referring evidence of criminality to other law enforcement entities is not only good public policy, it is fully supported by the court decisions. The courts have recognized that illegal items found during a warrantless “special needs” or administrative search, such as the search of an airline passeger's luggage for weapons or explosives, may be turned over to the police. See, for example, United States v. $557,993.89, More or Less, in U.S. Funds (pdf), 287 F.3d 66, 81-83 (2d Cir. 2002) (plain-view seizure of large number of money orders valid because airport security screeners permitted to search briefcase for weapons were not required to ignore evidence of crimes).

This case and others apply the principle of the plain-view doctrine, which allows a police officer to seize an unlawful item that he discovers in plain view, even if he comes across the item while carrying out unrelated duties. For instance, police who enter a residence in response to a call for medical assistance may seize contraband they see in plain view. See, for example, United States v. Quezada, 446 F.3d 1005, 1008 (8th Cir. 2006) (seizure of shotgun in plain view valid because officer entered apartment with reasonable belief that someone was inside but unable to answer).

The incidental discovery of illegal items in the screening of carry-on bags, is not, as one post suggested, akin to forcing a motorist to open his trunk at a sobriety checkpoint. Police officers conducting field sobriety tests at a vehicular checkpoint have no need to look in the trunk of a car to determine if the driver is impaired. By contrast, TSA screeners need to inspect every carry-on bag for weapons, explosives, and other prohibited items that pose a risk to transportation security. To do so, they must examine all compartments of the bag that are capable of concealing such items. If their task causes them to discover evidence of crime, they must ensure a prompt law enforcement referral.