TALLAHASSEE, Fla. -- Evidence of crime not related to travel hazards that airport screeners stumble upon while inspecting luggage for weapons and explosives can be used against travelers in criminal proceedings, a Florida appeal court ruled Tuesday.
A three-judge panel said its unanimous decision involving child pornography found during a search at Pensacola Regional Airport is the first of its kind, noting the U.S. Supreme Court has not yet ruled on the issue.
The Florida decision is a setback for air passengers, said Charlie Leocha, director of the Consumer Travel Alliance, an advocacy group based in Springfield, Va., that also has opposed whole-body scanners.
"It's a continuing assault on the Fourth Amendment rights of travelers," Leocha said.
Federal courts in Ohio and Hawaii have suppressed evidence in two similar searches, ruling they violated the Fourth Amendment's ban on unreasonable searches and seizures.
Florida's 1st District Court of Appeal, though, said there's a key difference between those two cases and the Pensacola search. A Transportation Security Agency agent testified that she examined James Linn Higerd's checked luggage only for explosives and weapons in Pensacola when she discovered pornographic pictures.
In the other cases, agents crossed the line by ceasing to look for travel hazards and purposely refocused their searches on child pornography in one instance and cash in the other.
"We hold that the TSA agent was not engaged in 'general law enforcement objectives' when she discovered the child pornography," District Judge Bradford L. Thomas wrote.
The bag already had been screened by machine without turning up anything suspicious but also was selected for a random physical inspection outside Higerd's presence.
Higerd's lawyer did not immediately return calls seeking comment.
Sandi Copes, a spokeswoman for Attorney General Bill McCollum, said he respects the court's ruling.
The TSA agent reported her discovery to local police. Officers detained Higerd, who had been bound for Colorado, and obtained search warrants that turned up more child pornography on his computer and other electronics in his luggage.
Higerd pleaded no contest to 194 counts of possessing child pornography but reserved his right to appeal Circuit Judge Nickolas Geeker's denial of his motion to suppress the evidence. Geeker sentenced Higerd to 2 1/2 years in prison.
District Judge Charles Kahn Jr. concurred with Thomas' opinion while Judge William Van Nortwick concurred in the result but not the reasoning.
