Perhaps I don't read enough celebrity news....

After prior discussions of wacky searches by the TSA, I came across an interesting case - where a wacky search of a celebrity (of sorts) produced evidence of possession of illicit drugs:

They claimed to have discovered this contraband in the bottom of a bottle of Ibuprofen, still three quarters full of its original contents. This bottle had been discovered in the depths of my bag by an employee of Covenant Security, a subcontractor of the TSA, while she was searching it for explosives. They had opened my bag after detecting wires in one of its external pockets. The wires in question were part of my laser gloves, a bit of Burning Man finery, and were far removed from the Ibufrofen bottle in question. What they found in the bottom of that bottle was not an incidental discovery during the course of a mandated search for something else. They had dug deep and purposefully. This was no joint in the ashtray casually spotted by the officer while writing a speeding ticket. A closer analogy would be the joint discovered on the floorboards of your car after the officer removed its carpeting while writing a speeding ticket.

Let's start by conceding that in this day and age, taking contraband through security at a public airport is probably not wise. Perhaps particularly if you have a publicly known association with, say, the Grateful Dead. Perhaps, also, if you are catching a flight home from "Burning Man". But the issue should not be the wisdom of John Barlow's actions, but the legality of the TSA's actions. And, as Seth David Schoen outlines, the Federal Government and TSA are doing their best to avoid having that issue properly reviewed by a court - in the name, of course, of "national security".

The Federal government lawyer sat right behind the People's lawyer and objected every single time that the defense asked anything about screeners' training or procedures, or about statistics, history, trends, equipment, techniques, or anything substantive about the roles of different law enforcement agencies. And the judge essentially always granted the objections on "relevance" even when they were made on "privilege". For example, the defense asked things like whether x-ray machines beep and whether they have two-dimensional displays, and the United States objected. The United States does not want you to know whether x-ray machines beep, or whether they have two-dimensional displays.

Intermittently, I found this hilarious, because much of the alleged "SSI" could be discovered immediately by a passenger or a journalist. (I am still working on a piece that will describe vulnerabilities in vastly more detail than almost all of the information the United States objected to at the People v. Barlow hearing. I intend to describe not only the security procedures used by specific airports and airlines, but a good deal of detail about how they can be circumvented, in the hope of showing that many of these measures cause privacy harm for no benefit. All of those descriptions derive solely from my experiences as a passenger on a single recent commercial aviation trip. That does not prove that the government is legally wrong to say that people within the system are forbidden to talk about equivalent things, but it suggests that there's not much true security benefit at stake in forbidding them.)

Mr. Schoen recounts testimony by an expert describing that the TSA agent's search "shake, open and sniff" techniques which led to the discovery of the drugs, ostensibly on the basis that they might be an explosive, would have been both absurd and dangerous had she actually believed the pill bottle to contain an explosive. He also suggests that the judge was surprised that the defense was even bothering with such trivial issues as the constitutionality of the search:

The judge mentioned that the penalty Barlow would face, if convicted, would not be particularly severe, and seemed to express slightly obliquely the view that it would be in Barlow's best interest to plead guilty -- and that it was surprising that he hadn't done so, or would be surprising if he didn't do so. (I think there's also a class issue at work here. Most defendants can't afford to fight for principle and can at the very best afford to look out for themselves, not for the abstract rules by which the fourth amendment is brought to bear on a class of cases.)

The judge ultimately denied the suppression motion.