An opinion of a federal magistrate shows that narcotics detection dogs at airport screening must be deployed before a seizure of a passenger’s carry-on luggage has become unlawful under the Fourth Amendment. The facts of the case also show something about how TSA and airport police hand off cases to each other during screening procedures. Conducting a dog sniff during an initial search of the luggage at an inspection table would have been legal under the magistrate's analysis, but detaining the luggage and the passenger in a separate screening room without probable cause or reasonable suspicion meant that the subsequent sniff by the drug dog was fruit of the poisonous tree and had to be thrown out. Would the result have been the same had a bomb dog been used instead of a drug dog? A Passenger with $90,000 in Cash. Johnny Chan was selected by an airline for heightened TSA screening on his boarding pass. Cosgrove was working at Security Checkpoint 5 at the Minneapolis/St. Paul International Airport on July 20, 2007. (The diagram from the airport's website shows the configuration of security checkpoints.) Chan’s belongings went through the X-ray machine and Chan walked through the metal detector. The X-ray operator told Cosgrove that there were three large opaque items in Chan’s bag. Chan was led to a screening table where he was frisked by Cosgrove in what the TSA calls a bulk item pat-down. Cosgrove searched Chan’s bag and discovered a black plastic garbage bag with three bundles of cash. Cosgrove asked Chan what the money was for and Chan said it was to buy copy equipment in Chicago. Cosgove called over his supervisor, Finch, because significant amounts of cash were considered unusual circumstances. So far, it appears there was nothing illegal about the procedures.
Finch told Cosgrove to return to his regular duties. Finch asked Chan what he was doing in Minneapolis. Chan said he had been looking at colleges with his daughter but according Finch was unable to name a single college they had visited. Another witness said that Chan had mentioned Concordia College and the court concluded that Chan’s answers had been adequate. Chan appeared nervous and was sweating during the questioning but the court apparently determined that this was not unusual under the circumstances.
Finch told Kohanek, the TSA supervisor on duty, about Chan, indicating he was not satisfied with Chan’s responses. Kohanek walked to Chan with two airport policemen. It was unclear who had called the airport police. Even thought the screening process was completed, Chan was escorted by the two officers into a private screening room, about 20 feet from the screening table. Chan was not told that he was free to leave. It was unclear if Chan’s boarding pass and ID had been returned to him. The magistrate found that the detention became illegal at this point. The purpose of the stop had been completed and the airport police “had neither probable cause nor even a reasonable articulable suspicion that the luggage contained contraband or evidence of a crime.” Chan had not been told he was free to leave and no reasonable person in his situation would have thought so. Arguably, however, Chan’s nervousness in the face of questioning and his inadequate answers, had the court accepted Finch’s version of events, could have justified further inquiry. Nervousness has been found by some courts to provide reasonable suspicion for additional detention during traffic stops and in other situations, allowing for a canine sniff.
Husby of the Airport Police Department spoke to Chan in the private security room until a K9 officer arrived with a dog. Chan was not asked if he would consent to having his luggage subjected to a dog sniff. Husby testified that it was normal procedure to have a narcotics dog smell large amounts of currency. The dog alerted to the cash and Chan was removed from the security checkpoint to the police operations center. (The dog’s alert was most likely to methyl benzoate, a substance in street cocaine. The canine evidence was not challenged by Chan and the reliability of the dog was not discussed in the opinion. Nor was it determined how long Chan had held the cash, which would be important in calculating whether the methyl benzoate got onto the cash while it was in Chan’s possession.) Chan was then told he was free to go but that his cash was being seized. By this time Chan had missed his flight to Chicago. Also about this time, Husby and other officers learned that Chan had an outstanding arrest warrant but the officers decided not to execute the warrant. The warrant was a felony arrest warrant for financial fraud.
The government contended that Chan voluntarily consented to the investigation into the facts surrounding the cash, but the court held that “any reasonable traveler in Mr. Chan’s circumstances would have perceived that he was not free to leave from the moment he and his luggage were seized by TSA Officer Cosgrove, until he was released after the APD refused to return his money to him after the dog sniff.” The magistrate concluded that the $90,000 seized from Chan was the fruit of an unlawful seizure of his luggage and an unlawful detention and the money had to be suppressed. Specifically, the luggage was unlawfully seized when the airport police took possession of it with neither probable cause nor reasonable suspicion. The magistrate stated:
"At the moment of seizure, the police knew only that Mr. Chan had $90,000 in U.S. Currency, that he made no effort to conceal, and that he was transporting to Chicago. Mr. Chan knew the amount of money and answered the officer's questions about what he intended to do with it. Until the dog alerted to the money, the police had found no drug related evidence on Chan's person, or in his luggage. While the police later learned that Mr. Chan had a criminal history, they did not know that until after the dog sniff…. Neither the TSA, nor the police officers were able to articulate a basis for believing the money carried by Mr. Chan was drug related. Their respective descriptions of why they continued to investigate the money rise no higher than the level of a 'hunch', which is insufficient to warrant an investigatory seizure of Mr. Chan's luggage."
The magistrate said that even assuming there was reasonable suspicion allowing continued detention, the length of the detention here exceeded Constitutional bounds of a permissible search and seizure. Had the police executed the outstanding warrant as soon as they knew of it, this might have provided a lawful basis to seize the cash incident to the arrest. U.S. v. $90,000 in United States Currency, 2009 WL 6327469 (D.Minn. 2009).
A Slightly Different Scenario. Let me change a few facts and discuss whether the result should be the same. Instead of financial fraud, suppose that the officials discover that the warrant was issued by a foreign country and may have involved providing financial support for terrorists. Also suppose that instead of a drug dog, the dog was a bomb dog and alerted to the cash. Some explosives contain highly volatile chemicals that could adhere to currency. (Admittedly, terrorists could more easily separate those handling explosives from those handling cash than is generally the case with cocaine on currency, where the currency is often received from cocaine users. I could get around such an objection by just stating that the dog alerted to a suitcase, rather than cash in it.)
It is obvious that the full body scans that are now so riling the air travel public would not be tolerated were their objective to find drugs. The threats of explosives on passengers or in luggage or cargo are so horrifying as to change the boundaries of police behavior, and I suspect, judicial perspectives. Chief Justice Warren, more than forty years ago in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), put the “threat of physical harm” to the officer involved and potentially others in the balance for determining whether the officer’s actions in a stop were reasonable. If the federal district court had found that the passenger’s nervousness justified detention for the sniff, then the seizure might have been approved. Would the court have favored the version of events argued by the government if the situation had involved possible terrorism? This would not result in a change of the letter of the law, but rather in a court’s tendencies in dealing with the facts of a case. Yet change it would be.
At Berkeley I took a seminar from the great scholar of ancient law, Professor David Daube. In one class Daube asked us why so many of the great works of Roman law dated not from the height of the Roman Empire, but rather from well into its decline. Was there something about legal reasoning that allowed it to flourish as a civilization neared its end? I don’t remember that Professor Daube really answered his question. It was more to make us think but this was decades before terrorism became part of daily life and fear. Now it strikes me that as a society becomes more paranoid when the enemy gets closer, the interpretation of rights is going to change in a reflexive effort to deal with the threat, particularly if the threat is invisible. It may be cloaked as a return to an ancient austerity, from a time when a different enemy was at the gates. Although I cannot say exactly how it will happen, it is obvious to me that cases involving terrorism are becoming a mechanism for restricting freedoms we Americans hold so dear.
For security reasons, some cases are deflected from public exposure in various ways. A case like my hypothetical, for instance, might have been dealt with by putting a homing device in the cash to follow the passenger’s subsequent movements, rather than an arrest. There would have been no case. Unfortunately, we live in interesting times.
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