The Fourth Amendment and Airports (2016)

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31 heightened risk of attack.351 Similar to airports, she observed that the ferry operator did not need to demonstrate this special need by showing that there were threats to its facility. She noted, “[i]f the gov- ernment has determined that airports fall into a high-risk category and require special protection from terrorist attack, it does not matter whether a regional airport in a small city is perceived to be less susceptible to attack than an international airport in a major city.”352 She believed that the Coast Guard’s determination of the risk was entitled to deference353 and noted that the ferry operator had a legal duty to implement the security plan,354 but her decision did not rely on deference to the Coast Guard.355 She also noted that the court’s role was not to decide what techniques government should use or whether a security plan “was optimally effective, but whether it was reasonably so.”356 Judge Sotomayor concluded that the private oper- ator’s approved security plan appeared “reasonably calculated to serve its goal of deterring potential ter- rorists because ‘[i]t provides a gauntlet, random as it is, that persons bent on mischief must traverse.’”357 She observed that deterrence “need not be reduced to a quotient before a court may recognize a search pro- gram as effective.”358 Although the security plan “may not be maximally effective in preventing terrorist attacks…it is minimally intrusive, and we cannot say, particularly in light of the deference we owe to the Coast Guard, that it does not constitute a reasonable method of deterring the prohibited conduct.”359 Judge Sotomayor’s analysis in Cassidy provides insight into how a court might review the constitution- ality of administrative search actions taken by an air- port proprietor or an airport tenant when implementing a security plan. She applied the administrative search doctrine and made clear that airport search programs may have an even stronger justification. IV. LAW ENFORCEMENT ACTIONS BY PROPRIETORS Having the proper scope for an administrative action is important to establish lawfulness for both administrative and law enforcement actions. Some airport law enforcement actions respond to informa- tion that is discovered as part of an administrative screening search, but that discovery is illegal if the search exceeds its administrative limitations. In other instances, airport law enforcement actions do not interact with administrative searches. Officers may address a disturbance at a screening check- point, where TSA officials or others act as witnesses. They also may need to stop passengers or baggage for investigative work. This section reviews these airport law enforcement concerns. A. Law Enforcement Action on Administrative Discoveries As discussed supra in Sections I.C, I.D, and III.B, intrusions that are subject to the Fourth Amendment must be governed by justifiable stan- dards, and administrative and law enforcement actions rely on different Fourth Amendment justi- fications. Administrative actions use routine search procedures (pursued without individual- ized suspicion) that are justified by an important government purpose, such as screening all passen- gers for weapons, and all of the search actions taken must advance the important purpose. If a screening search is valid in all respects, “[t]he mere fact that a screening procedure ultimately reveals contraband other than weapons or explo- sives does not render it unreasonable, post facto… routine airport screening searches will lead to dis- covery of contraband and apprehension of law vio- lators.”360 Law enforcement action, however, must be governed by standards that can safeguard an individual who is suspected of wrongdoing. An administrative program does not address that cir- cumstance. Thus, a constitutional violation occurs if screening officials exceed their role or if law enforcement officers fail to establish a justification for their actions, and these violations can interfere with efforts to prosecute a criminal violation and create liability for a proprietor (as generally dis- cussed supra at Section I.I). For example, in United States v. McCarty,361 a court considered a case where TSA officials in part exceeded the scope of a proper administrative search, frustrating law enforcement action. In McCarty, pursuant to administrative policies a CTX (computer tomography x-ray) machine would alarm and stop automatically when detecting a dense 351 Id. at 82. 352 Id. at 83. 353 Id. at 84. 354 Id. 355 Id. at 85. 356 Id. 357 Id. at 86 (alteration in original) (quoting United States v. Green, 293 F.3d 855, 862 (5th Cir. 2002)). 358 Id. (citation omitted). 359 Id. at 86–87 (internal quotation marks omitted) (cita- tion omitted). 360 See United States v. Marquez, 410 F.3d 612, 617 (internal quotation marks omitted) (quoting United States v. Davis, 482 F.2d 893, 908 (1973)). 361 648 F.3d 820 (9th Cir. 2011).

32 object in a bag.362 An official then had to examine the object to ensure that it was not an explosive device, including “sheet explosives” that may be disguised as a piece of paper. The protocol required an official to thumb through papers and confirm that sheet explosives were not present, and under the protocol, a search did not conclude until the official had cleared the bag of the safety concerns identified by the CTX machine.363 Under this mandatory policy, the official’s “sole job is to clear bags of safety con- cerns relating to air travel.”364 If an official believed contraband was present, the official was required to call a law enforcement officer. “It is not the screen- er’s job to continue investigation of possible contra- band found in the course of an administrative safety inspection.”365 In this case, an envelope spilled some photo- graphs on the table as an official searched for the dark mass in a CTX image, and the official saw pic- tures of nude children.366 She then looked through other photographs in the envelope to clear its con- tents. After she was no longer concerned about explosives, she felt the children were not in a good situation and read a few lines of letters and newspa- per clippings in the envelope to make sure the pho- tos were contraband before calling her lead officer to report them.367 Two other officials then saw some of the pictures, letters, and articles, and the officials called a private security contractor, who called a law enforcement officer.368 The officer made an arrest for promotion of child abuse, and federal agents then obtained a search warrant for a laptop computer and discovered child pornography.369 The Ninth Circuit first noted that “the circum- stances under which a warrantless search not supported by probable cause may be considered reasonable under the Fourth Amendment are very limited,” and “airport screening searches… are constitutionally reasonable administrative searches because they are conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.”370 Consistent with Aukai, the court noted that because war- rantless, supicionless searches remain subject to the Fourth Amendment: [A] particular search is “constitutionally reasonable [only where] it is no more extensive nor intensive than necessary, in light of current technology, to detect the presence of weapons or explosives [and where] it is confined in good faith to that purpose.”…In other words, an airport search remains a valid administrative search only so long as the scope of the administrative search exception is not exceeded; “once a search is conducted for a criminal investigatory pur- pose, it can no longer be justified under an administrative search rationale.”371 The Ninth Circuit thus needed to determine whether this screening official’s actions had exceeded the proper scope of an administrative search, and it concluded that the official’s purpose for searching guided that determination. Under the Fourth Amendment, generally the “subjective motivations of the individual officer involved are irrelevant.”372 Administrative searches are not constitutional, however, “where the officer’s purpose is not to attend to the special needs or to the investigation for which the administrative inspection is justified.”373 As such, a court must examine whether the program- matic purpose was motivating the official.374 Elabo- rating on Aukai, the court determined: The search must still be “in furtherance” of the administra- tive goal, “no more extensive nor intensive that necessary, in the light of current technology…[and] confined in good faith to that purpose. So, as long as (1) the search was undertaken pursuant to a legitimate administrative search scheme; (2) the searcher’s actions are cabined to the scope of the permissible administrative search; and (3) there was no impermissible programmatic secondary motive for the search, the development of a second, subjective motive to verify the presence of contraband is irrelevant to the Fourth Amendment analysis.375 When considering an official’s purpose, the court believed that the official could possess a secondary motive “at least as long as she actually engaged in a search for explosives and her actions were no more intrusive than necessary to clear the bag of any safety concerns.”376 Her subjective intent “becomes as relevant as objective conduct only at the point at 362 Id. at 824. 363 Id. at 825. 364 Id. 365 Id. 366 Id. at 825–826. 367 Id. at 826. 368 Id. at 827. 369 Id. 370 Id. at 830–831 (internal quotation marks omitted) (citation omitted). 371 Id. at 831 (second and third alterations in origi- nal) (quoting United States v. Aukai, 497 F.3d 955, 962 (9th Cir. 2007) and United States v. $124,570 U.S. Cur- rency, 873 F.2d 1240, 1246 n.5 (9th Cir. 1989)). 372 Id. at 832. 373 Id. (internal quotation marks omitted) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)). 374 Id. at 833. 375 Id. at 834–835 (second alteration in original) (quot- ing United States v. Davis, 482 F.2d 893, 913 (1973) and City of Indianapolis v. Edmond, 531 U.S. 32, 45–46 (2000)). 376 Id. at 835.

33 which the search ceases legitimately to be for the valid administrative purpose, as that is the point after which the administrative exception can no lon- ger justify continuation of the warrantless search.”377 The court concluded that “where an action is taken that cannot serve the administrative pur- pose—either because the threat necessitating the administrative search has been dismissed, or because the action is simply unrelated to the administrative goal—the action clearly exceeds the scope of the per- missible search.”378 In this case, “the scope of the per- missible search—mandated by the TSA protocol—was defined by the point at which the screener was con- vinced the bag posed no threat to airline safety.”379 The court observed that objectively, “[o]nce Andrade was sufficiently certain that there were no explosives or other safety hazards hidden inside McCarty’s bag, the administrative search was over—nothing else was required to detect threats to aircraft safety.”380 At that point, the official’s legitimate search for the programmatic purpose ended and it became an inde- pendent search for evidence of a crime. The court then considered the evidence in the record of the case concerning the screening official’s purpose for searching as her search progressed. The official had testified that “when she read the content of the letters and looked at the newspaper articles and advertisements, she was no longer searching for explosives…[but] was reviewing the items to con- firm her feeling that the photographs were contra- band.”381 Based on this evidence, the court determined that her actions at that point “clearly fell outside the permissible scope of the lawful administrative search and violated McCarty’s Fourth Amendment rights because they were more extensive and intrusive than necessary to detect air travel safety concerns.”382 Before reaching that point, however, the official saw some pictures of children in the envelope while she was still conducting her search to investigate the “possible massive dark area” that had caused the CTX machine to alarm and “to determine if any sheet explosives were hid- den therein.”383 This “search intent was consistent with the TSA protocol requiring Andrade to thumb through the photographs in order to clear the bag.”384 The court determined that to show probable cause to arrest McCarty, the government had to show that at the moment of the arrest, “the officers had an objectively reasonable belief that McCarty commit- ted a crime, based on the totality of the relevant cir- cumstances” (the facts and circumstances known to them and of which they had reasonably trustworthy information).385 The screening official’s testimony, however, had been unclear on some points. The court thus remanded so the district court could determine two questions. First, “what materi- als may be considered in determining whether prob- able cause existed to arrest,” since “the fruits of an unlawful search cannot provide probable cause for an arrest, and it is clear some portion of this search was unlawful.”386 The court concluded, however, that “all of the photographs viewed by the screeners as part of the lawful search for explosives must be con- sidered in reaching a probable cause determina- tion.”387 The textual materials and “photographs not viewed by the screeners may be considered only if they do not constitute fruit of the poisonous tree.”388 Second, the district court had to determine whether the evidence that could be used in the case was “suf- ficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.”389 The government did not need to prove that the “arresting officers knew McCarty had com- mitted a crime, but only that the officer’s belief that McCarty committed crimes related to child pornog- raphy was an objectively reasonably one.”390 In United States v. Fofana,391 a federal district court considered another instance in which screen- ing officials exceeded the proper scope of an admin- istrative search and affected subsequent law enforcement action. In this case, a passenger was 377 Id. The Ninth Circuit has also noted that an adminis- trative search cannot be undertaken with a programmatic “dual objective” that includes a law enforcement goal. In United States v. $124,570 U.S. Currency, 873 F.2d 1240 (9th Cir. 1989), a private company’s airport screening program offered screeners a financial bonus to report violations of law. The court found that “the decision to open a partic- ular briefcase may be motivated by the desire to comply with the…[screening company’s] cooperation policy” and screeners “may choose to open packages more often, hop- ing to improve their chances of earning a reward.” Id. at 1245. This would “very likely influence FTS officers to con- duct more searches, and more intrusive searches, than if they focus on air safety alone.” Id. at 1246. 378 McCarty, 648 F.3d at 835. 379 Id. at 836. 380 Id. 381 Id. at 836. 382 Id. 383 Id. at 837. 384 Id. at 838. 385 Id. at 839. The court did not require the government to prove that any or all of the photographs actually exhib- ited child pornography. Id. 386 Id. (citation omitted). 387 Id. 388 Id. 389 Id. at 840 (internal quotation marks omitted) (cita- tion omitted). 390 Id. 391 620 F. Supp. 2d 857 (S.D. Ohio 2009).

34 selected for secondary screening, and a screening official found a large amount of cash on the passen- ger.392 Testimony established that screeners were required to look for anything that might compro- mise air safety, including information suggesting a false identity, and to report any unlawful posses- sions to law enforcement.393 The screening official discovered numerous envelopes while searching the passenger’s bag, and when she opened some of them she saw large amounts of cash. She also looked in other envelopes and discovered passports with the passenger’s picture under different names. She tes- tified that “when she opened the envelopes she did not believe that they contained weapons or explo- sives, but instead was looking for contraband.”394 Another official learned that she had found the passports and contacted law enforcement officers.395 The court considered the permissible scope of this search and noted that “a checkpoint search tainted by ‘general law enforcement objectives’ such as uncovering contraband evidencing general criminal activity is improper.”396 It found that con- clusion “is further supported by the Supreme Court’s repeated instruction that administrative searches may not be justified by a desire to detect ‘evidence of ordinary criminal wrongdoing.’”397 Therefore, “to the extent that airport administra- tive searches are used for purposes other than screening luggage and passengers for weapons or explosives, they fall outside the rationale by which they have been approved as an exception to the warrant requirement, and the evidence obtained during such a search should be excluded.”398 The court then determined that “the evidence in this case shows that the extent of the search went beyond the permissible purpose of detecting weap- ons and explosives and was instead motivated by a desire to uncover contraband evidencing ordinary criminal wrongdoing.”399 It based that conclusion on the screening officials’ testimony that she was concerned about illegal activity, not a security risk.400 The official had not opened all of the enve- lopes because she could feel that some of them con- tained cash, and she had already x-rayed and thoroughly searched the bags, so opening the envelopes “did not serve safety-related ends.”401 The court also determined that: [T]he Government failed to establish through evidence that opening the envelopes containing the passports was neces- sary to serve the programmatic purpose of an airport screening search, i.e., to unearth weapons or explosives. … For example, the TSA did not present, or submit for in cam- era review, SOPs or other regulations stating that all items, including non-bulky business-sized envelopes, must be opened as part of a secondary screening to ensure that there are no prohibited items are [sic] contained within.402 The court recognized “that contraband discov- ered in the course of an otherwise constitutionally reasonable airport search may be reported to law enforcement officials.”403 In this case, however, it held that “the evidence demonstrates that the intru- siveness of a passenger’s search was ramped-up based on a desire to detect evidence of ordinary criminal wrongdoing, after the presence of weapons and explosives had been ruled out,” and as such the search could “no longer be justified under the admin- istrative search doctrine and suppression [of the evi- dence unlawfully discovered] is appropriate.”404 When the proper scope of an administrative search is exceeded, information is not discovered lawfully and constitutional violations will affect a prosecu- tion and a proprietor’s potential liability. In United States v. Massi,405 the Fifth Circuit determined that although an administrative search was proper, officers could not justify a lengthy deten- tion after the search and had unconstitutionally seized a pilot. In this case, the law enforcement offi- cers took both the administrative and the law enforcement actions. Two airport police officers responded to a request to conduct a regulatory ramp check of a suspicious aircraft.406 In the course of the ramp check, Homeland Security agents arrived and observed a suspicious box on the plane, but the pilot would not grant access to the aircraft.407 After 90 392 Id. at 859. 393 Id. at 859–860. 394 Id. at 860–861. 395 Id. at 861. 396 Id. at 863. 397 Id. (citing City of Indianapolis v. Edmond, 531 U.S. 32, 37–42 (2000)). 398 Id. 399 Id. 400 Id. at 864. 401 Id. 402 Id. at 865. 403 Id. at 866. 404 Id. 405 761 F.3d 512 (5th Cir. 2014). 406 Id. at 518. The request came from the Air Marine Operations Center (AMOC), which monitors all air traf- fic in the United States. Under FAA regulations, a ramp check requires the officers to ask for consent to search a plane, ask for identification for all on board, and check FAA records with AMOC’s guidance. AMOC’s suspicions were based on the plane’s unusual stops, the pilot’s past conviction for drug trafficking, and the passenger’s recent entry into the United States. The airport police officers conducted the ramp check, which included examining the airplane’s exterior, a canine sniff of the plane and luggage removed from the plane, and observing a cardboard box inside the plane. 407 Id. at 519.

35 minutes, another Homeland Security agent arrived and gathered information so that he could corrobo- rate what the officers knew, prepare an affidavit, obtain approval from the U.S. Attorney’s Office, and properly obtain a search warrant for the aircraft. This took an additional 4.5 hours, and the officers and agents did not allow the plane’s occupants to leave during that time.408 The parties to the case all agreed that the initial, regulatory ramp check (an administrative search) was not a detention and was properly conducted, but “no specific occurrence demark[ed] when the activi- ties relating to the ramp check ended and a broader investigation commenced.”409 The court noted that “both the scope and length of the officer’s [law enforcement] investigation [needed] to be reasonable in light of the facts articulated as having created the reasonable suspicion of criminal activity.”410 The reg- ulatory “obligation to submit to a ramp check allowed the airplane and Massi to be held at the airport ini- tially”; then the “suspicion of a drug crime, either having been committed or still ongoing, was not dis- pelled and permitted the encounter to continue beyond the temporal confines of the ramp check.”411 The court was concerned, however, that detaining the plane’s occupants during the prolonged process had “morphed into a de facto arrest.”412 The court then considered at what point an arrest may have occurred. A person is arrested if “in view of all the circumstances surrounding the incident, a rea- sonable person would have believed that he was not free to leave,”413 and in this case the plane’s occupants “were told by law enforcement officers that they were not free to leave” throughout the process.414 The court determined that all administrative and investigative search actions had been completed by the time the final officer arrived, and at that time “no violation of Massi’s Fourth Amendment rights had occurred.”415 The detention had continued, however, while the offi- cers and agents sought a search warrant.416 A “Terry detention ‘must be temporary and last no longer than is necessary to effectuate the purpose of the stop, unless further reasonable suspicion, supported by articulable facts, emerges.’”417 The court deter- mined that in this case, the delay that accompanied the process caused an initial investigatory stop to morph “from a Terry detention into a de facto arrest” that required probable cause, since the “men were detained well beyond the time for the ramp check and Terry investigation.”418 The Fifth Circuit observed that a de facto arrest must be supported by probable cause.419 It noted that “probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers. We weigh not individ- ual layers but the laminated total.”420 In this case, the de facto arrest was based entirely on matters that the two agencies discovered before seeking a search warrant.421 The court thus considered “whether such evidence constituted probable cause to arrest Massi and keep him at the airport in excess of four more hours” and concluded that it was insufficient:422 While we do not require new facts be developed in order to transform reasonable suspicion into probable cause, we do require that “the totality of facts and circumstances within a police officer’s knowledge at the moment of arrest are suf- ficient for a reasonable person to conclude that the suspect had committed, or was in the process of committing, an offense. There needed to be probable cause to believe that Massi was guilty of a drug-related offense, but we conclude 408 Id. 409 Id. at 521. 410 Id. at 521–522 (citation omitted). 411 Id. at 522. 412 Id. 413 Id. (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). 414 Id. 415 Id. at 523. 416 Id. See also United States v. Foreste, 780 F.3d 518 (2d Cir. 2015) (determining that if two agencies conduct an investigative stop successively based on the same rea- sonable suspicion, and the second investigation is aware of the first, the duration and scope of these investigations must be both individually and collectively reasonable under the Fourth Amendment). 417 Massi,761 F.3d at 523 (quoting United States v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004)). 418 Id. 419 Id. at 524. 420 Id. (citation omitted). The Supreme Court has deter- mined that “where law enforcement authorities are coop- erating in an investigation…the knowledge of one is presumed shared by all.” Illinois v. Andreas, 463 U.S. 765, 772 n.5 (1983) (officers did not need a warrant to open a package where a Customs agent had already lawfully opened a package under the Fourth Amendment’s border search exception and discovered drugs concealed in it). Some courts have questioned whether there must be com- munication between the officers to support this presump- tion. See Bailey v. Newland, 263 F.3d 1022 (9th Cir. 2001) (discussing circuit positions). The Supreme Court also noted that “once police are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is lost.” Andreas, 463 U.S. at 771. For more informa- tion concerning the border search exception, see United States v. Ramsey, 431 U.S. 606, 616 (1977) (considering a search of international mail made at the border); Almeida- Sanchez v. United States, 413 U.S. 266, 274–275 (1973) (observing that airports where aircraft arrive after a non- stop flight from a foreign destination are “functional equivalents” of a border). 421 Massi,761 F.3d at 524. 422 Id.

36 that “[i]nformant’s tips, like all other clues and evi- dence coming to a policeman on the scene may vary greatly in their value and reliability.”429 As officers assess informant information, the Supreme Court has “consistently recognized the value of corrobora- tion of details of an informant’s tip by independent police work.”430 It noted that there must be a “sub- stantial basis for crediting the hearsay presented” in an affidavit that relies on hearsay to obtain a war- rant, and “even in making a warrantless arrest an officer ‘may rely upon information received through an informant, rather than upon his direct observa- tions, so long as the informant’s statement is reason- ably corroborated by other matters within the officer’s knowledge.’”431 For a law enforcement action to be valid, an officer’s assessment of probable cause involving informant information must rely on “‘cor- roboration through other sources of information [that] reduced the chances of a reckless or prevari- cating tale,’ thus providing a substantial basis for crediting the hearsay.”432 that until the midnight search, all the officers had were sus- picions. We conclude that Massi was subject to an unconsti- tutional seizure at the airport.423 The court then considered whether to suppress the evidence obtained pursuant to the search war- rant or, under the good faith exception to the exclu- sionary rule, “permit the admissibility of evidence over a possible taint caused by an earlier-in-time detention in violation of the Fourth Amendment that would otherwise warrant exclusion as fruit of the poisonous tree.”424 The Fifth Circuit noted precedent from other circuits determining that the good faith exception could overcome a taint from prior uncon- stitutional conduct that was not the basis for issuing the warrant.425 It also noted that the issue important to this analysis was the officer’s “awareness at the time of presenting the affidavit that the conduct vio- lated constitutional rights that would affect the application of the good faith exception.”426 In this par- ticular case, the court determined that an objectively reasonable officer would have believed in the validity of the agents’ investigative conduct as he prepared the affidavit to obtain a warrant and that there was no basis for determining a lack of good faith.427 This particular unlawful detention essentially was not material to obtaining the search warrant that pro- duced the evidence of unlawful activity, and thus it had no effect in a prosecution setting. B. Disturbances at Screening Checkpoints Some calls requesting law enforcement assis- tance at a screening checkpoint do not involve infor- mation discovered during an administrative search. When law enforcement officers are called to respond to a disturbance at the screening checkpoint, they are addressing conduct witnessed by TSA officials rather than evidence uncovered during an adminis- trative search action. In general, when officers rely on a witness’s infor- mation they must consider the “informant’s ‘verac- ity,’ ‘reliability’ and ‘basis of knowledge’” when determining “whether there is ‘probable cause’” to believe that “contraband or evidence is located in a particular place” under a “totality-of-the-circum- stances approach.”428 This assessment recognizes 423 Id. 424 Id. at 525. 425 Id. at 527. 426 Id. at 528. 427 Id. at 529–532. 428 Illinois v. Gates, 462 U.S. 213, 230 (1983) (determin- ing that the reliability or unreliability of an informant’s information must be assessed under the totality of the cir- cumstances). In Gates, an officer received an anonymous letter claiming that a man would fly to Florida after his wife drove there on a specific date, and that the two would then load the car with drugs and drive back. The Court believed that the officer had sufficiently corroborated the information in the letter when the officer confirmed that the man had a driver’s license; found a recent address for the man; determined that the man had made travel plans to fly to a city in Florida near that date; another agency surveilled the flight and observed the man boarding; the man was observed going to a hotel room where his wife was staying; the man and his wife left the hotel in a car registered to the man; and the man and his wife arrived back in their home city after an appropriate driving time. Id. at 225–226. 429 Id. at 232. 430 Id. at 241. See also Draper v. United States, 358 U.S. 307, 313 (1959) (police officers must corroborate informant information when forming a basis for probable cause). In Draper, an informant claimed a man would arrive by train on one of 2 days with heroin, and the informant described the man, his clothing, and his manner of walking. On one of the stated dates, an officer observed a man fully match- ing that description exiting the train, and the Court found that the arresting officer “had personally verified every facet of information given him” by the informant “except whether petitioner…had the three ounces of heroin on his person or in his bag.” See Gates, 462 U.S. at 242–243 (describing Draper). The Court believed that “with every other bit of Hereford’s [the informant’s] information being thus personally verified, [the officer] had ‘reason- able ground’ to believe that the remaining unverified bit of Hereford’s information—that Draper would have the heroin with him—was likewise true.” Id. at 243. 431 Gates, 462 U.S. at 242 (quoting Jones v. United States, 362 U.S. 257, 269 (1960)). 432 Id. at 244–245 (quoting Jones, 362 U.S. at 269). See also Florida v. Harris, 133 S. Ct. 1050, 1056 (2013) (quot- ing with approval from Gates that when assessing the trustworthiness of an informant’s tip, deficiencies “may be compensated for, in determining the overall reliability of a tip, by a strong showing as to…other indicia of reliability”); Alabama v. White, 496 U.S. 325 (1990) (considering corrob- oration of informant information consistent with Gates).

37 Supreme Court has determined that “law enforce- ment officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions.”437 Nor would “the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.”438 The person approached “need not answer any questions put to him; indeed, he may decline to listen to the questions at all and may go on his way.”439 A person, however, “may not be detained even momentarily without reasonable, objective grounds for doing so, and his refusal to listen or answer does not, without more, furnish those grounds.”440 The courts build on these general principles when considering how law enforcement officers may stop passengers at airports. The Supreme Court consid- ered some basic principles concerning voluntary airport stops and detentions in United States v. Mendenhall.441 In Mendenhall, federal agents approached a woman in an airport concourse who was in civilian clothing and not displaying weapons. They then identified themselves and asked to see her identification and ticket.442 She produced the information and answered questions about why she was traveling under a false name.443 The agents returned her ticket and driver’s license and asked her to accompany them to an office, which she did. At the office, the agent asked if she would allow a search of her person and bag and informed her that she could decline. She agreed and confirmed her con- sent to another agent.444 She then handed packages of heroin to an agent and was arrested.445 The Court first noted that “not every encounter between a police officer and a citizen is an intrusion requiring an objective justification.”446 It noted: [A] person is “seized” only when, by means of physical force or show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary If a proprietor’s officers do not corroborate infor- mation that they receive from another agency, a court may find that the officers did not have a suffi- cient basis to establish probable cause for their actions. For example, in Tobey v. Jones,433 the Fourth Circuit concluded that a passenger’s behavior (removing his shirt to display the text of the Fourth Amendment on his chest) was “bizarre,” but “bizarre behavior alone cannot be enough to effectuate an arrest. If…[officers] caused Mr. Tobey’s arrest solely due to his ‘bizarre’ behavior…[they] cannot be said to have acted reasonably.”434 The court also determined that “bizarre does not equal disruptive.…Appellants seem to think that removing clothing is per se dis- ruptive. We beg to differ.”435 The court did not discuss any actions that the officers took to corroborate claims of disruptive behavior. Under these facts, the court determined that the passenger had stated a claim for First Amendment retaliation that would survive a motion to dismiss. In addition, because the TSA and airport police acted “in close concert,” the court allowed this claim to move forward against both of the agencies and their employees.436 C. The Basis for an Airport Stop Police investigative work at an airport relies on the same core concepts for interacting with the public that police agencies rely on elsewhere. In general, the 433 706 F.3d 379 (4th Cir. 2013). 434 Id. at 388 (determining for purposes of a motion to dismiss that Mr. Tobey’s complaint asserted a plausible First Amendment retaliation claim for an arrest motivat- ed by his speech). See also Hebshi v. United States, 12 F. Supp. 3d 1036, 1050 (E.D. Mich. 2014) (determining for purposes of a motion to dismiss that a prolonged detention and searches by officers were unjustified once it was clear that there were no emergency conditions); Mocek v. City of Albuquerque, 3 F. Supp. 3d 1002 (D. N.M. 2014) (consider- ing whether a passenger’s actions had disrupted screen- ing and created a reasonable suspicion of criminal activi- ty; the court also noted that TSA officials are charged with assessing threats, making their information more weighty than that of a 911 caller, but did not discuss corroborating actions by officers and noted that video evidence contra- dicted some statements in the case). 435 Tobey, 706 F.3d at 388. 436 Id. at 386. The court found that the passenger’s First Amendment rights were clearly established in the law at the time of the incident—“it is crystal clear that the First Amendment protects peaceful nondisruptive speech in an airport, and that such speech cannot be suppressed solely because the government disagrees with it.” Id. at 391. It also found that the passenger had alleged he was arrested without probable cause, impacting another clearly estab- lished right, and that his “rights at the time of his arrest were clearly established by decades-old precedent.” Id. at 393. It thus affirmed the district court’s denial of a quali- fied immunity-based motion to dismiss the passenger’s First Amendment claim. Id. at 394. 437 See Florida v. Royer, 460 U.S. 491, 497 (1983) (review- ing general investigative principles while determining that a police encounter was not voluntary). 438 Id. 439 Id. at 498. See also Kentucky v. King, 563 U.S. 452 (2011) (quoting Royer, 460 U.S. at 497–498). 440 Royer, 460 U.S. at 498. 441 446 U.S. 544 (1980). 442 Id. at 547–548. 443 Id. at 548. 444 Id. 445 Id. at 549. 446 Id. at 553.

38 the search of the respondent’s person was not pre- ceded by an impermissible seizure of her person, it cannot be contended that her apparent consent to the subsequent search was infected by an unlawful detention.”456 The Court also did not find the consent to be invalid for any other reason.457 The evidence sustained the trial court’s view that the consent was given “freely and voluntarily.”458 Some cases focus on whether an officer has rea- sonable suspicion that justifies detaining a passen- ger at an airport. For example, in Reid v. Georgia,459 the Supreme Court considered whether an officer had reasonable suspicion to justify stopping two men carrying identical shoulder bags whom he observed deplaning from an early morning flight. One man occasionally looked back in the direction of the other as they walked through the concourse, and then the two met in the lobby, spoke briefly, and left together.460 The officer caught up with them and asked to see their ticket stubs and identification, which revealed that the tickets were purchased together and that the men had stayed in Fort Lauderdale only 1 day. The men appeared nervous, and the officer then asked if they would agree to return to the terminal and consent to a search of their persons and bags. The officer testified that they gave consent, but as they reentered the terminal, one man began to run. When the officer recovered the man’s bag, it was found to contain cocaine.461 The officer based his sus- picions justifying this stop on the observation of characteristics from a Drug Enforcement Adminis- tration “drug courier profile.”462 and oppressive interference by enforcement officials with the privacy and personal security of individuals.”447 The Court then explained factors to consider when determining whether a seizure has occurred: A person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circum- stances that might indicate a seizure, even where the per- son did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that com- pliance with the officer’s request might be compelled.448 On the facts of this case, the Court determined that no seizure occurred, and the woman acted volun- tarily.449 The agents approached her initially in a pub- lic concourse, wore no uniforms, displayed no weapons, and did not summon the woman but approached and identified themselves. “Such conduct without more, did not amount to an intrusion upon any constitu- tionally protected interest.”450 Nothing suggested that the passenger “had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way,” even though she was not expressly told that she could decline to cooperate.451 In general, the Supreme Court does not require the government to “prove that a defendant consenting to a search knew that he had the right to withhold his consent.”452 The Court does, however, take that factor into account when “determining whether or not a consent was ‘voluntary.’”453 The Court in Mendenhall then considered whether the woman had voluntarily accompanied the agents to the office. The Court noted that whether her consent to accompany them “was in fact voluntary or was the product of duress or coercion, express or implied, is to be determined by the total- ity of all the circumstances.”454 It observed that the evidence showed she had simply been asked to accompany the agents, and they had returned her ticket and identification. On these facts, the Court believed that “the totality of the evidence in this case was plainly adequate to support the District Court’s finding that the respondent voluntarily con- sented to accompany the officers.”455 Thus, “[b]ecause 447 Id. at 553–554 (quoting United States v. Martinez- Fuerte, 428 U.S. 543, 554 (1976)). 448 Id. at 554. 449 Id. at 555. 450 Id. 451 Id. 452 See Florida v. Rodriguez, 469 U.S. 1, 6 (1984). 453 Id. at 7. 454 Mendenhall, 446 U.S. at 557. 455 Id. at 558. 456 Id. 457 Id. 458 Id. at 559–560. See also Ohio v. Robinette, 519 U.S. 33 (1996) (“[t]he Fourth Amendment test for a valid consent to search is that the consent be voluntary, and ‘[v]oluntari- ness is a question of fact to be determined from all the cir- cumstances,’” id. at 40 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248–249 (1973)). Courts have also considered whether a passenger voluntarily abandoned a bag. The First Circuit noted it is “well established that one who abandons or disclaims ownership of an item forfeits any claim of priva- cy in its contents, and that as to that person the police may search the item without a warrant.” See United States v. De Los Santos Ferrer, 999 F.2d 7, 9 (1st Cir. 1993) (upholding a search where there was no evidence of coercively oppressive police conduct at the outset of an airport stop). The Fifth Circuit determined that by abandoning a bag a passenger lacked standing to challenge it, but the abandonment “must be truly voluntary and not merely the product of police mis- conduct.” See United States v. Roman, 849 F.2d 920, 923 (5th Cir. 1988) (determining that assumed police misconduct was too tenuous to be the cause of abandoning a bag). 459 448 U.S. 438 (1980). 460 Id. at 439. 461 Id. 462 Id. at 440.

39 and statements after spotting the officers aroused justifiable suspicion, and it noted that one officer had specialized training in narcotics surveillance and apprehension.473 It also considered the fact that the “[r]espondent ‘was approached in a major international airport where, due in part to extensive antihijacking surveillance and equipment, reasonable privacy expec- tations are of slightly lesser magnitude.’”474 When determining which facts will support rea- sonable suspicion, the Supreme Court looks at the collective facts known to the officers. In United States v. Sokolow,475 agents considered a number of facts when deciding that they had reasonable suspicion to stop a passenger, including purchasing a ticket with cash, carrying a large amount of cash, traveling under an alias, briefly staying in Miami, appearing nervous, and not checking any luggage.476 The Court deter- mined that “[a]ny one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion.”477 The Court noted that “innocent behavior will frequently provide the basis for a showing of probable cause,” and that “[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.”478 It believed “[t]hat principle applies equally well to the reasonable suspicion inquiry.”479 The Court did not believe that its analysis should change because the agent in this case considered the passenger’s behavior to be consistent with a drug courier profile. It determined that “[a] court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors lead- ing to that conclusion, but the fact that these factors may be set forth in a ‘profile’ does not somehow detract from their evidentiary significance as seen by a trained agent.”480 The Court also determined The Court concluded “that the agent could not as a matter of law, have reasonably suspected the peti- tioner of criminal activity on the basis of these observed circumstances.”463 Only the fact that one man looked back at the other related to their par- ticular conduct, and the “other circumstances describe a very large category of presumably inno- cent travelers, who would be subject to virtually ran- dom seizures were the Court to conclude that as little foundation as there was in this case could jus- tify a seizure.”464 Nor could the Court agree that the men’s manner of walking “reasonably could have led the agent to suspect them of wrongdoing.”465 The agent’s belief that the men were trying to conceal the fact that they were traveling together “was more an ‘inchoate and unparticularized suspicion or “hunch,”’ than a fair inference in light of his experi- ence.”466 The Court thus determined that the agent had not “lawfully seized the petitioner when he approached him outside the airline terminal.”467 The Supreme Court has noted that the context of an airport is one element to be considered when determining whether officers have a reasonable sus- picion to stop a passenger. In Florida v. Rodriguez,468 officers saw men behaving in an unusual manner at a ticket counter. Shortly afterwards, when the men spotted the officers, they quickly turned and con- versed, made comments such as “Let’s get out of here,” and one made running motions and uttered a vulgar exclamation.469 An officer showed his badge and asked to talk with one of the men, who agreed, and the officers then asked for identification and an airline ticket. The men produced cash tickets and misidentified themselves, and when officers asked for consent to search their bags, the men provided a key, and the officers found cocaine.470 The Court determined that “[t]he initial contact between the officers and respondent, where they sim- ply asked if he would step aside and talk with them, was clearly the sort of consensual encounter that implicates no Fourth Amendment interest.”471 It then determined, however, that even assuming a Fourth Amendment seizure subsequently occurred, “we hold that any such seizure was justified by ‘articulable sus- picion.’”472 The Court believed that the men’s actions 473 Id. 474 Id. (quoting Florida v. Royer, 460 U.S. 491, 515 (1983)). 475 490 U.S. 1 (1989). 476 Id. at 3. 477 Id. at 9. 478 Id. at 10 (alteration in original) (quoting Illinois v. Gates, 462 U.S. 213, 243–244 n.13 (1983)). 479 Id. 480 Id. See also United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (refusing to adopt the concept that race was relevant to investigating drug trafficking at an airport); Shqeirat v. United States Airways Group, Inc., 645 F. Supp. 2d 765 (D. Minn. 2009) (considering claims that race was a factor in an airport arrest under the Equal Protection clause); Hebshi v. United States, 12 F. Supp. 3d 1036 (E.D. Mich. 2014) (considering claims that race was a factor in an airport detention under the Equal Protection clause). 463 Id. at 441. 464 Id. 465 Id. 466 Id. (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). 467 Id. 468 469 U.S. 1 (1984). 469 Id. at 3–4. 470 Id. at 4. 471 Id. at 5–6. 472 Id. at 6.

40 “scope of the detention must be carefully tailored to its underlying justification,” and that the stop may “last no longer than is necessary to effectuate th[at] purpose.”490 In addition, the statements “given dur- ing a period of illegal detention are inadmissible even though voluntarily given if they are the prod- uct of the illegal detention and not the result of an independent act of free will,” but if a police encoun- ter was permissible, the passenger’s voluntary con- sent would legalize a search of his bags.491 The Court then considered whether “confinement” in the office in this case “went beyond the limited restraint of a Terry investigative stop, and Royer’s consent was thus tainted by the illegality, a conclusion that required reversal in the absence of probable cause to arrest.”492 The Court believed that the officers could ask the man for his ticket and driver’s license: [B]ut when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way that he was free to depart, Royer was effectively seized for the purposes of the Fourth Amendment. These circumstance surely amount to a show of official authority such that “a reasonable person would have believed he was not free to leave.”493 The Court believed that the man’s behavior ini- tially provided officers with “adequate grounds for suspecting Royer of carrying drugs and for tempo- rarily detaining him and his luggage while they attempted to verify or dispel their suspicions in a manner that did not exceed the limits of an investi- gative detention.”494 If the man had voluntarily con- sented to a search of his bags while he was justifiably detained on reasonable suspicion, “the products of the search would be admissible against him,” but at the time of his consent, “the detention to which he was then subjected was a more serious intrusion on his personal liberty than is allowable on mere suspi- cion of criminal activity.”495 At that time, “[a]s a prac- tical matter, Royer was under arrest.”496 In this case, “the officers’ conduct was more intru- sive than necessary to effectuate an investigative detention otherwise authorized by the Terry line of cases.”497 The Court noted that the officers could have returned the man’s ticket and driver’s license that “[t]he reasonableness of the officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.”481 It then held that on these facts the agents had a reasonable basis to suspect that the passenger was transport- ing illegal drugs.482 In Florida v. Royer,483 the Supreme Court dis- cussed actions that exceeded the limits of reasonable suspicion for an investigatory stop at an airport. The officers in Royer asked to talk with a man and to see his ticket and driver’s license. The man agreed and produced them.484 His ticket showed that he was traveling under a false identity, and he was nervous. The officers then did not return the man’s ticket and license and asked him to accompany them to an office. The man said nothing but went with them. Once there, the officers retrieved the man’s checked luggage without the man’s consent or agreement, and they asked if he would consent to a search of his bags. The man produced a key without comment, which unlocked one bag, and he told the officers to go ahead and pry open the other.485 The officers found marijuana in both bags and arrested the man.486 The Court noted that “in the absence of probable cause and exigent circumstances, the validity of the search depended on Royer’s purported consent… [and] the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given.”487 The Court reviewed past cases determining that the Fourth Amendment does not prevent officers from approaching and ask- ing people if they will answer questions, and that it also allows some seizures of a person “if there is articulable suspicion that a person has committed or is about to commit a crime.”488 It noted, however, that this authority for seizures is limited. The police may not “seek to verify their suspicions by means that approach the conditions of arrest,” and a “rea- sonable suspicion of crime is insufficient to justify custodial interrogation even though the interroga- tion is investigative.”489 The Court noted that the 481 Rodriguez at 11. 482 Id. 483 460 U.S. 491 (1983). 484 Id. at 494. 485 Id. at 494. 486 Id. at 495. 487 Id. at 497. 488 Id. at 498. 489 Id. at 499. See also Kaupp v. Texas, 538 U.S. 626 (2003) (the police may not seek to verify mere suspicions by means that approach the conditions of arrest); Tobey v. Jones, 706 F.3d 379, 388 (4th Cir. 2013) (for purposes of a motion to dis- miss, the complaint asserted a plausible First Amendment retaliation claim for an arrest at an airport screening check- point motivated by speech and without probable cause). 490 Royer, 460 U.S. at 500. See also Rodriguez v. United States, 135 S. Ct. 1609 (2015) (quoting Royer, 460 U.S. at 500). 491 Royer, 460 U.S. at 501. 492 Id. 493 Id. at 501–502 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). 494 Id. at 502. 495 Id. 496 Id. at 503. 497 Id. at 504.

41 The court concluded that a court should closely scrutinize the totality of the circumstances of an air- port stop and if they reveal that coercion was pres- ent, a “court must hold that a reasonable person would believe that his freedom had been limited.”509 It noted some “specific factors that have arisen in the past on which a court should place great weight… in a[n airport] stop.”510 It noted concerns for coercive factors such as “blocking an individual’s path” or otherwise “preventing his progress”; “implicit con- straints” on freedom such as “retaining an individu- al’s ticket for more than a minimal amount of time or by taking a ticket over to a ticket counter”; state- ments implying that an “investigation has focused on a specific individual,” which could induce a rea- sonable person to believe failure to cooperate would lead to detention; or stating that “an innocent per- son would cooperate with police” or implying “failure to respond is an indication of guilt.”511 The Sixth Cir- cuit believed: The more intrusive on an individual’s freedom complying with a request would be, the greater should be the skepti- cism with which a court treats assertions that an individual consented to a request. A court, therefore, should analyze with care evidence of consent to a search or to a request to accompany an agent to an office.512 The court also noted that airport cases often lacked evidence of informing individuals that they were free to refuse consent, free to contact a lawyer, or free not to go to the airport office, practices that “in many instances assuage the fear of a court that an individual was intimidated into consent to a search.”513 It stated: We do not wish to shackle police absolutely to a rigid and awkward rule requiring them to inform individuals that they are free not not [sic] accompany police to an office, but we do believe that only exceptionally clear evidence of consent should overcome a presumption that a person requested to accompany an agent to an office no longer would feel free to leave. Such a request combines a sub- stantial intrusion on an individual’s freedom, a marked increase in the coercive nature of the environment in which the individual will be responding to police, and substantial psychological coercion from the intimation that there is strong suspicion that an individual is involved in a criminal act. Silently following an officer would rarely constitute sufficient evidence of consent under almost any circumstances.514 The Sixth Circuit determined that being required to walk to a nearby airport office is an intrusion and informed him that he was free to go, and no facts indicated that the officers needed to move the encounter to an interrogation room.498 The Court also questioned whether searching the bags could have been handled “in a more expeditious way,” such as through “the use of trained dogs.”499 Such a pro- cess would have “freed Royer in short order…[or] resulted in his justifiable arrest on probable cause.”500 The Court emphasized that there is not “a litmus-paper test for distinguishing a consensual encounter from a seizure or for determining when a seizure exceeds the bound of an investigative stop” during airport encounters because circumstances can vary, but in this case it believed “the limits of a Terry-stop had been exceeded.”501 A year prior to the Supreme Court’s decision in Royer, the Sixth Circuit in United States v. Berry502 determined that additional interests are involved when officers ask a person to accompany them to an airport office. It determined that “airport stops of individuals by police, if of extremely restricted scope and conducted in a completely non-coercive manner, do not invoke the Fourth Amendment.”503 It observed, however, that courts must be especially protective of Fourth Amendment rights in the context of an airport stop.504 It noted that “the very nature of such stops may render them intimidating” because of the “ner- vousness that air flight often engenders,” the “need quickly to make connections,” the “mere surprise from being accosted in a crowded airport concourse,” and the “pressure to cooperate” to avoid an “untoward scene before crowds of people.”505 These factors make it “easy for implicit threats or subtle coercion to exert tremendous pressure on an individual to acquiesce in the officer’s wishes,” and “acquiescence cannot, of course, substitute for free consent.”506 The court also believed that airport stops make judicial fact-finding more difficult, since they require “distinguishing nuances of tone and language…that are subject to easy distortion or poor recall by parties and that hence might allow covert coercion easily to escape a casual review by a court.”507 “Minor gradations in the degree of coercion” might “tip the balance against the government’s interests and hence be a seizure.”508 498 Id. at 504–505. 499 Id. at 505. 500 Id. at 506. 501 Id. at 506–507. 502 670 F.2d 583 (5th Cir. 1982). 503 Id. at 594. 504 Id. at 596. 505 Id. 506 Id. 507 Id. 508 Id. at 596–597. 509 Id. at 597. 510 Id. 511 Id. 512 Id. 513 Id. at 598. 514 Id.

42 A variety of airport-specific factors thus affect whether an airport law enforcement officer has a basis to detain a passenger. D. Stopping Baggage and Effects The Supreme Court focused on the proper scope of an investigatory stop involving baggage at an air- port in United States v. Place.524 In Place, officers approached a man as he proceeded to the gate for his flight in Miami and asked for his ticket and iden- tification.525 The man complied and consented to a search of his bags, but the flight was about to depart so the officers decided not to search. As he left, the man commented that he had recognized the officers were police, and the officers looked at the address tags on his bags and noted discrepancies in the addresses. The officers then investigated and found that neither address existed and that the man’s phone number belonged to a different address. They contacted agents in New York with this information, and the agents met the man at the gate and noted suspicious behavior. They approached the man, and he stated that he knew they were cops.526 The agents then told the man that they believed he was carrying narcotics and asked to search his bags, but the man refused.527 So the agents told the man they were going to take his bags to a judge to try to obtain a search warrant and that the man could accompany them. The man declined, but he obtained a phone number for the agents. The agents then took the bags from one New York airport to another, where they subjected the bags to a sniff test by a trained drug detection dog, and the dog reacted to one bag. This process took 90 minutes from the time the agents seized the bags. Because it was late on a Friday, they retained the bags until Monday morning and then obtained a search warrant and discovered cocaine.528 The Court first noted that a seizure of personal property is “per se unreasonable” without a warrant based on probable cause, but where officers believe a container holds contraband or evidence of a crime, officers may seize it pending issuance of the warrant “if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.”529 It then noted that seizing property based on reasonable suspicion rests on a bal- ancing of interests—such seizures are valid if the “nature and extent of the detention are minimally “sufficiently great that it is tantamount to an arrest.”515 The court noted: Requiring an individual to accompany police to an office indicates a detention for a time period longer than that per- mitted in a seizure; cuts the individual off from the outside world, without indication of when he might be allowed to leave; places him in unfamiliar surroundings; may subject him to increased implicit police pressure; and leaves him without third parties to confirm his story of events that may have occurred, should his story differ from that of police. Such a detention, if not by consent—and, as we noted ear- lier, courts should scrutinize exceptionally closely whether consent in fact was voluntary in such situations—we believe is only constitutional if accompanied by probable cause.516 The Sixth Circuit also noted that not only must the initial intrusion be based on a reasonable suspi- cion, “[t]he scope of the search must be strictly tied to and justified by the circumstances which ren- dered its initiation permissible.”517 It determined: In the context of airport stops, we can discern no justification tying the rationale for initiating the stop to the expanded scope of forced detention in a private office. The limited interrogation permissible during a seizure can be conducted as well in an airport concourse as in an office, as can a request for consent to search. In order to expand the scope of an intrusion to include bringing an individual involuntarily from an airport concourse to an office, an officer must therefore have probable cause.518 Despite voicing these concerns for asking a pas- senger to go to an airport office, in this case the Sixth Circuit determined that a passenger had voluntarily consented to a search of his bags in an office.519 The court believed that “there were substantial inter- vening circumstances” between the request to go to the office and a consent to search baggage.520 In this case, two passengers were told they were “free to refuse consent to a search and that they could con- sult with an attorney,” although the court did not find this factor determinative.521 The court found it critical that the passengers “were allowed to consult with each other,” and that the officer “invited them to use a telephone” when one “indicated that she might want to contact an attorney.”522 In addition, the court believed probable cause at least arguably did exist that would justify the detention.523 515 Id. at 602. 516 Id. 517 Id. (alteration in original) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)). 518 Id. at 602–603. 519 Id. at 605. 520 Id. at 605. 521 Id. 522 Id. 523 See id. The Sixth Circuit also determined that where a passenger misrepresented identity, it was a “critical con- sideration” in determining whether an officer had reason- able suspicion because the passenger “was deliberately and clearly attempting to mislead a law enforcement offi- cer.” Id. at 603–604. 524 462 U.S. 696 (1983). 525 Id. at 698. 526 Id. 527 Id. at 699. 528 Id. 529 Id. at 701.

43 possession, the police conduct intrudes on both the suspect’s possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary.”536 Such a seizure disrupts the person’s travel plans, and thus “when the police seize luggage from the suspect’s custody, we think the limitations applicable to investi- gative detentions of the person should define the per- missible scope of an investigative detention of the person’s luggage on less than probable cause.”537 The Court then found that in this case, the “length of the detention of respondent’s luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause.”538 The Court considered both the length of the detention and “whether the police diligently pursued their investigation.”539 The officers had known when the man was scheduled to arrive and they had “ample time to arrange for their additional investigation” at the destination airport to minimize the intrusion, but they did not.540 Thus, the Court determined that “although we decline to adopt any outside time limit for a permissible Terry stop, we have never approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case.”541 It stated: Although the 90-minute detention of respondent’s luggage is sufficient to render the seizure unreasonable, the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion. In short, we hold that the detention of respondent’s luggage in this case went beyond the narrow authority possessed by police to detain briefly lug- gage reasonably suspected to contain narcotics.542 intrusive of the individual’s Fourth Amendment inter- ests,” and the “opposing law enforcement interests can support a seizure based on less than probable cause.”530 The Court determined that “[b]ecause of the inherently transient nature of drug courier activity at airports, allowing police to make brief investiga- tive stops of persons at airports on reasonable suspi- cion of drug-trafficking substantially enhances the likelihood that police will be able to prevent the flow of narcotics into distribution channels.”531 Balancing that strong government interest against the intru- sion’s impact on a traveler, the Court concluded that: [W]hen an officer’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would per- mit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.532 The Court further noted it had “affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment.”533 It determined, however, that a canine sniff by a well-trained narcotics detection dog is not a search because it does not require opening the lug- gage and it exposes only contraband, not noncontra- band items that would otherwise remain hidden from public view. As such, it provides limited information in a limited manner without subjecting the bag owner to embarrassment or inconvenience.534 The Court then observed that the “manner in which the seizure…[was] conducted is, of course, as vital a part of the inquiry as whether [it was] war- ranted at all.”535 The Court concluded that when detaining luggage “within the traveler’s immediate 530 Id. at 703. 531 Id. at 704. 532 Id. at 706. 533 Id. at 707. 534 Id. See also Illinois v. Caballes, 543 U.S. 405 (2005) (use of a trained narcotics dog does not implicate legitimate privacy interests because it can only detect contraband); Rodriguez v. United States, 135 S. Ct. 1609 (2015) (a dog sniff that extends the time required for a traffic stop must be independently supported by individualized suspicion); Florida v. Harris, 133 S. Ct. 1050 (2013) (probable cause for a dog sniff requires showing facts that would make a reason- ably prudent person think that a search would reveal con- traband or evidence of a crime); United States v. Avery, 137 F.3d 343 (6th Cir. 1997) (an airport passenger was not seized when officers arranged for a dog to sniff his bag within 25 minutes, and when the sniff did not resolve suspicions, the passenger could stay or leave and have the bag returned); United States v. Puglisi, 723 F.2d 779 (11th Cir. 1984) (a dog sniff that required 120 minutes unreasonably delayed an airport passenger and separated him from his bag when less intrusive means could have been used, such as allowing the bag to proceed to another airport for a dog sniff there). 535 Place, 462 U.S. at 707–708 (alternations in original) (quoting Terry v. Ohio, 392 U.S. 1, 28 (1968)). 536 Id. at 708. 537 Id. at 708–709. 538 Id. at 709. 539 Id. 540 Id. 541 Id. at 709–710. 542 Id. at 710. See also United States v. Respress, 9 F.3d 483 (6th Cir. 1993) (seizing a bag at an airport after the passenger refused consent to search and then departed was justified under the facts of the case to prevent the disappearance of evidence so officers could obtain a search warrant). The courts also may consider seizing currency to be different than seizing luggage, especially when it is carried on the person. The Sixth Circuit observed: “privacy interests in luggage are of a different order than the pri- vacy interests in personal effects carried on the person. …[t]hus, a greater expectation of privacy exists in items carried on one’s person. Probable cause is required to justify the seizure of such items.” United States v. Fifty- Three Thousand Eighty-Two Dollars in U.S. Currency, $53,082.00, 985 F.2d 245, 249 (6th Cir. 1993) (officers seized currency without reasonable suspicion or prob- able cause when passengers disclosed they were carrying $45,000 in their socks, and the officers told the passengers that they would subject the currency to a dog sniff).

44 Fourth Amendment does not prohibit governmental use of the now-nonprivate information.”552 Then the Court determined that even if the powder had not been in “plain view” when the agent arrived, “there was a virtual certainty that nothing else of signifi- cance was in the package.”553 As such, the scope of the agent’s search would not exceed the scope of the search by the private employees. The agent also could “utilize the Federal Express employees’ testi- mony concerning the contents of the package.”554 The agent thus did not infringe on the package own- er’s privacy to “reexamine the contents of the open package.”555 The package owner: [C]ould have no privacy interest in the contents of the package, since it remained unsealed and since the Federal Express employees had just examined the package and had, of their own accord, invited the federal agent to their offices for the express purpose of viewing its contents. The agent’s viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment.556 The Court also determined that “[w]hile the agents’ assertion of dominion and control over the package and its contents did constitute a ‘seizure,’ that seizure was not unreasonable.”557 Where there is probable cause to believe a container contains contraband, “[s]uch containers may be seized, at least temporarily, without a warrant.”558 Finally, the Court determined that although the agents’ chemical field test exceeded the scope of the private search and was an additional intrusion, “[a] chemical test that merely discloses whether or not a particular substance is cocaine does not compro- mise any legitimate interest in privacy.”559 Like a sniff by a trained narcotics dog, it can only reveal contraband.560 The Court also determined that destroying some of the powder for testing was rea- sonable because of substantial law enforcement interests that justified the procedure compared to a de minimis loss of property that was contraband.561 Under these circumstances, “the safeguards of a In United States v. Jacobsen,543 the Supreme Court considered the effect of law enforcement detaining a package after a private party had intruded into the package. In Jacobson, a private freight carrier’s employees damaged a package and then observed a white powdery substance within eight layers of wrappings.544 They opened the pack- age to examine its contents in accordance with a written company policy regarding insurance claims. Then they put the bag of powder back in the box and called a federal agent. When the agent arrived, he removed the contents of the box, saw the powder, removed a trace of the powder for testing, and deter- mined that the powder was cocaine.545 Other agents arrived and retested the powder, and they then obtained a warrant for the address on the package and made arrests.546 The Court noted that it has “consistently con- strued this [the Fourth Amendment’s] protection as proscribing only governmental action; it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmen- tal official.’”547 It determined that this parcel “was unquestionably an ‘effect’ within the meaning of the Fourth Amendment.”548 However, “the fact that agents of the private carrier independently opened the package and made an examination that might have been impermissible for a government agent cannot render otherwise reasonable official con- duct unreasonable.”549 The Court thus determined that the “initial invasions of respondents’ package were occasioned by private action” and “did not vio- late the Fourth Amendment because of their pri- vate character.”550 The Court then determined that the “additional invasions of respondents’ privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search.”551 First, it noted that the government may use information that is revealed by a private party: “Once frustration of the original expectation of privacy occurs, the 543 466 U.S. 109 (1984). 544 Id. at 111. 545 Id. at 111–112. 546 Id. at 112. 547 Id. at 113 (quoting Walter v. United States, 447 U.S. 649, 662 (1980)). 548 Id. at 114. 549 Id. at 114–115. 550 Id. at 115. 551 Id. 552 Id. at 117. 553 Id. at 119. 554 Id. 555 Id. 556 Id. 557 Id. at 120–121. 558 Id. at 121–122. 559 Id. at 123. 560 Id. at 123–124. See also Illinois v. Caballes, 543 U.S. 405 (2005) (use of a trained narcotics dog during a lawful traffic stop does not implicate legitimate privacy interests because it can only detect contraband). 561 Jacobsen, 466 U.S. at 125.