Feds Can Use TSA-Seized Kiddie Porn to Prosecute

(CN) - A suspected pedophile facing child-abuse charges cannot exclude evidence that was brought to light by airport security workers during a routine check of his luggage, the 9th Circuit ruled.

Simon McCarty, a citizen of the United Kingdom, faces several felony charges in Hawaii stemming from the discovery of "almost five dozen photographs of nude and partially nude minors, children's underwear and pajama advertisements, and handwritten notes describing the molestation of children" in his luggage by Transportation Security Administration agents at Hilo International Airport on the Big Island, according to the ruling. During a subsequent search of McCarty's laptop, investigators found "hundreds of images and at least 200 video clips of child pornography," and videos of "McCarty engaged in sexual activity with at least three different prepubescent boys."

McCarty left Hilo for Honolulu in the summer of 2008 when a screening machine alerted agents to conduct a deeper search of one bag containing an unknown dense object. As a TSA screener went through the bag, an envelope fell out, spilling a few of the illicit photographs. After discovering more photos, children's underwear ads and the other items, TSA supervisors called the police, who arrested McCarty two days later on a federal complaint.

McCarty moved to suppress the evidence found in his bags, arguing that the TSA agent had gone beyond the limited scope of an administrative search. U.S. District Judge J. Michael Seabright agreed. He ruled that the screener had illegally expanded the search and that, as a result, McCarty had been arrested and searched further without probable cause.

The federal appeals panel in Honolulu unanimously reversed on Wednesday, vacating the lower court's suppression order and remanding the case.

A three-judge panel determined that the TSA screener had properly searched the bag for explosives, citing testimony in which the agent "was consistently clear and emphatic that when she looked through the photographs in the envelope, she was still acting to ensure that there were no sheet explosives hidden inside."

"Thus, the screener's review of the photographs in the packet occurred within the scope of the ongoing lawful administrative search," Judge Michael Hawkins wrote for the panel. "As a result, her discovery of their nature coincided with her search for explosives, rather than followed the formation of an independent and exclusive intent to search for contraband."

Hawkins added that the lawful administrative search justified and required the screener's viewing of the photographs from the envelope. "Even the development of a secondary desire to confirm that the photographs evidenced contraband did not invalidate that search," he wrote.

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