Florida Appeals Court Upholds Airport Search That Found Child Pornography

January 3, 2011 by David S. Seltzer

A recent ruling by a Florida court of appeal caught my attention because it’s relevant to my work as a south Florida cyber crime criminal defense lawyer. As the Associated Press reported, the First District Court of Appeal ruled Dec. 21 that evidence of child pornography possession could be used against James Linn Higerd, even though the evidence came from a search intended to find only things that might be dangerous on an airplane. The ruling (PDF) is the first of its kind in Florida and much of the nation, but courts in Hawaii and Ohio have found that such searches are unreasonable under the Constitution. Higerd pleaded no contest to 194 counts of possession of child pornography and is currently serving 2.5 years in prison, but reserved his right to file this appeal to the search.

Higerd was passing through Pensacola Regional Airport when his checked bag was selected for a physical search, although the X-ray scanner turned up nothing suspicious. The TSA agent searching it found physical photos that depicted child pornography, leading local law enforcement to search Higerd’s computer and find more. In his appeal, Higerd argued that the TSA’s physical search of the bag violated his Fourth Amendment right against unreasonable search and seizure. Because the TSA has the technology to look for contraband without opening bags, he argued, the search was not “minimally invasive” as required. The First District disagreed, saying the TSA agent was following TSA protocol for seeking out weapons and explosives. Unlike in the Ohio and Hawaii cases, the court said, the agent was not intentionally looking for evidence of any other type of crime.

The article quotes a travelers’ group that disagrees with this ruling, calling it “a continuing assault on the Fourth Amendment rights of travelers.” As a Miami cyber crime criminal defense attorney, I also have reservations about this ruling. The question is not whether the search of Higerd’s luggage violated TSA protocol; it’s better to ask whether TSA protocol violates the Fourth Amendment. I suspect the answer depends on whether explosives could reasonably be found in a sheaf of papers. The Fourth Amendment is not just window dressing; it provides the main bulwark against overreaching by law enforcement officers. In my work as a Fort Lauderdale cyber crime criminal defense lawyer, I’ve seen other cases where officers eager to find a crime overstep the bounds of privacy or reasonable suspicion. As more and more airport searches turn up evidence of crimes unrelated to terrorism, I hope most courts do not follow the First District’s example.

If you’re accused of any type of cyber crime in Florida, get in touch with Seltzer Law, P.A. as soon as possible. Lead attorney David Seltzer is a former cyber crime prosecutor with the Miami-Dade State’s Attorney’s office, so he understands the technology and the law. To learn more or set up a free, confidential case evaluation, call us anytime -- 24 hours a day and seven days a week -- at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message through our website.