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United States of America v. David Fulgham


July 5, 2012


The opinion of the court was delivered by: Claudia Wilken United States District Judge


United States District Court For the Northern District of California

Defendant David Fulgham moves to suppress all evidence obtained as a result of the warrantless search of his luggage and its contents on October 22, 2010, and post-arrest statements he 13 made to law enforcement officers. Plaintiff United States of 14 America opposes the motion. Having considered the papers and 15 evidence presented by the parties and their oral arguments at the 16 hearings, the Court GRANTS Defendant's motion. 17


On October 22, 2010, Steve Arreguin, a supervising officer 19 with the Transportation Security Administration (TSA), was 20 informed that TSA Officers Michael Cole and Robert Johnson had 21 identified a suspicious bag in the TSA baggage screening room at 22 the Oakland Airport. Arreguin Decl. ¶ 3. Officer Arreguin went 23 to the baggage screening room and met Officers Cole and Johnson. 24

Id. at ¶ 4. They told Officer Arreguin that "they had identified 25 a suspicious bag and that an X-ray of the bag revealed a solid 26 mass which resembled explosives." Id. Officer Johnson removed 27 two DVD player boxes from the bag and handed them to Officer 28 Arreguin. Id. at ¶ 5. Officer Arreguin removed one of the DVD players from its box and looked inside of it through slots on the 2 back of the player. Id. Officer Arreguin saw "small circular 3 objects." Id. Officer Arreguin then had the DVD player 4 rescreened with the X-ray machine, which "confirmed that the DVD 5 player contained a solid mass with small shapes in the sizes of 6 pills." Id. at ¶ 6. He subsequently called Alameda County Deputy 7 Sheriff Robert Covington, who was assigned to work at the Oakland 8 Airport at the time. Id.; Docket No. 21, June 15, 2012 9

Evidentiary Hearing Transcript (Transcript) 16:14-17:25. 10 Deputy Covington arrived at the bag screening area at about 5:25 p.m. and met with Officer Arreguin, who related the prior events to him. Covington Incident Report, at DF00009. Deputy 13 Covington viewed an X-ray of the DVD player and saw "a solid mass 14 of tiny cylindrical shapes" inside of it. Id. He requested that 15 the DVD boxes and players be re-screened again using the X-ray 16 machine. Id.*fn1 He again "could clearly see a solid mass of tiny 17 cylindrical shapes in both DVD boxes and inside both DVD players." 18

Id. He also saw that "the DVD players did not contain any 19 internal electrical components that should be inside a functional 20 DVD player." Covington Decl. ¶ 5. 21

Deputy Covington wrote in his incident report that the shapes 22 he saw on the X-ray were "consistent with the size and shape of 23 multiple pills." Covington Incident Report, at DF00009. He also 24 clearly stated, "From my training and experience, I recognized 2 that the solid mass was not an explosive but possibly some type of 3 contraband being concealed." Id. 4

In contrast, in his declaration, Deputy Covington stated, "Based on the x-ray, I did not believe the solid mass was an 6 explosive but could not draw a definitive conclusion." Covington 7 Decl. ¶ 5. He testified at the evidentiary hearing that he did 8 not recognize at the time of the incident that the shapes were 9 consistent with pills and added that detail when he wrote his 10 report later on. Transcript, at 11:7-19. He also did not recall if Officer Arreguin told him that the shapes were consistent with pills. Id. at 22:15-19. In his declaration, in contrast to his 13 earlier investigative report, he stated, "I concluded that I 14 needed to conduct a physical inspection of the inside of the DVD 15 players to ensure that the concealed contraband did not pose a 16 threat to airline safety." Covington Decl. ¶ 5. Deputy Covington 17 testified that, based on the X-ray, he "had no idea" what was 18 inside of the DVD players and that he "did not recognize it to be 19 an explosive from anything" that he previously seen, but that he 20 "had not ruled out that it could be an explosive" at that point. 21

Transcript, at 7:7-8:3; 11:24-12:2. Deputy Covington further 22 testified that, in his training and experience, he had never 23 encountered objects in the shape of pills that were consistent 24 with an explosive or that turned out to be an explosive, but that 25 "explosives and the ability to carry out explosives are 26 consistently are [sic] changing." Id. at 8:19-21, 15:3-7. He 27 gave as examples "previous cases of someone trying to deliver 28 explosives in their shoes" and "through your undergarments or 2 underwear." Id. at 8:23-9:1. 3

After the further X-rays were completed, Deputy Covington "looked in the vents of the DVD player and saw a mass of circular 5 objects." Covington Decl. ¶ 5. He "unscrewed the top of the DVD 6 player and found four heat-sealed, clear, medium sized plastic 7 bags each filled with a mass of circular objects," which were 8 "consistent with the shapes of pills." Covington Incident Report, 9 at DF00009. "Based on the size, shape, color and packaging of the 10 pills," he "believed them to possibly be Ecstasy, a controlled substance." Id. Deputy Covington then "took possession of the pills in order to test them for being a controlled substance." 13

Id. 14

Deputy Covington learned that the bag belonged to a passenger 15 named Andres Torres III, who was scheduled to fly from Oakland to 16 Denver. Covington Decl. ¶ 7. Deputy Covington directed Southwest 17 Airlines to page Torres and ask him to return to the security 18 checkpoint for a lost item. Id. 19

After Torres came to the security checkpoint, Deputy Covington asked him if he had checked any luggage. Id. at ¶ 8. 21

Torres stated that he checked a tan bag containing various items, 22 including "two DVD boxes that have DVD players." Id. Deputy 23 Covington placed Torres under arrest. Id. Two other officers 24 arrived at about 5:56 p.m. Covington Incident Report, at DF00010. 25

Deputy Covington then turned Torres over to one of the other 26 officers to be transported to a local jail. Id. 27

At the jail, Torres's real name was determined to be David Fulgham. Mora Incident Report, at DF00013. At approximately 7:53 p.m., Detectives Mora and Ortiz interviewed Fulgham, and he made 2 incriminating statements. Id. 3


"The Fourth Amendment protects against unreasonable searches 5 and seizures of people and their effects." United States v. 6 McCarty, 648 F.3d 820, 830 (9th Cir. 2011). "A search or seizure 7 is ordinarily unreasonable in the absence of individualized 8 suspicion of wrongdoing," except in "only limited circumstances in 9 which the usual rule does not apply." United States v. Aukai, 497 10 F.3d 955, 958 (9th Cir. 2007) (quoting City of Indianapolis v. 11 Edmond, 531 U.S. 32, 37 (2000)). The Ninth Circuit has recognized that, generally, airport screening searches, which are not based 13 on individualized suspicion, "are constitutionally reasonable 14 administrative searches because they are 'conducted as part of a 15 general regulatory scheme in furtherance of an administrative 16 purpose, namely, to prevent the carrying of weapons or explosives 17 aboard aircraft, and thereby to prevent hijackings.'" Aukai, 497 18 F.3d at 960 (quoting United States v. Davis, 482 F.2d 893, 908 19 (9th Cir. 1973). 20

In McCarty, the Ninth Circuit recently explained the scope of 21 a lawful airport administrative search. "[U]nder federal law, TSA 22 agents could legally search [Defendant's] entire bag for 23 explosives or other safety hazards." 648 F.3d at 831 (citing 49 24 25 26 27 28 U.S.C. § 44901; 49 C.F.R. § 1540.111(c)).*fn2 "However, because 2 warrantless, suspicionless administrative searches remain subject 3 to the Fourth Amendment, a particular search is constitutionally 4 reasonable only where it is no more extensive nor intensive than 5 necessary, in the light of current technology, to detect the 6 presence of weapons or explosives and where it is confined in good 7 faith to that purpose." Id. (internal quotations and citations 8 omitted). See also United States v. Doe, 61 F.3d 107, 110 (1st 9 Cir. 1995) ("lawful airline security searches of carry-on luggage 10 may not be enlarged or tailored systemically to detect contraband (e.g., narcotics) unrelated to airline security"). 12

"In other words, an airport search remains a valid 13 administrative search only so long as the scope of the 14 administrative search exception is not exceeded; 'once a search is 15 conducted for a criminal investigatory purpose, it can no longer 16 be justified under an administrative search rationale.'" McCarty, 17 648 F.3d at 831 (quoting United States v. $124,570 U.S. Currency, 18 873 F.2d 1240, 1246 n.5 (9th Cir. 1989)). "Thus, because TSA 19 screeners are limited to the single administrative goal of 20 searching for possible safety threats related to explosives, the 21 constitutional bounds of an airport administrative search require 22 that the individual screener's actions be no more intrusive than 2 necessary to determine the existence or absence of explosives that 3 could result in harm to the passengers and aircraft." Id. at 831 4 (citing $124,570 U.S. Currency, 873 F.2d at 1245). However, the 5 mere fact that an airport screening procedure reveals contraband 6 other than weapons or explosives does not automatically "'alter 7 the essentially administrative nature of the screening process 8 . . . or render the searches unconstitutional.'" United States v. 9 Marquez, 410 F.3d 612, 617 (9th Cir. 2005) (quoting United States 10 v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)).

In McCarty, the Ninth Circuit considered a situation in which a TSA screener saw that an X-ray device flagged "as a possible 13 safety concern what appeared to be a laptop with a dark mass 14 around it." 648 F.3d at 825. When the TSA screener removed the 15 laptop from the bag, an envelope slid out of the bag as well, 16 spilling out some of the pictures that were inside. Id. at 825-17 26. She noted that the pictures could have been the dark mass on 18 the X-ray image. Id. at 826. When an X-ray device flags "a dense 19 mass and the screener opens the bag to find a packet of 20 photographs, the screener is required to leaf or thumb through the 21 stack of photographs until she is sure there are no sheet 22 explosives," which are "thin, flat explosives" that "may be 23 disguised as a simple piece of paper or cardboard." Id. at 825. 24

The screener searched through about half of the pictures, which 25 were almost all images of minor children nude or in various states 26 of undress, to ensure there were no safety concerns. Id. at 826. 27

Then, although she was no longer concerned about explosives, the 28 screener read a few lines of letters in the envelope to "'determine what the pictures were all about' and to 'make sure' 2 that the photographs were contraband" before reporting them to her 3 supervisor. Id. She also viewed newspaper clippings contained in 4 the envelope, which discussed minors engaging in sexual activity, 5 and advertised children's underwear and pajamas. Id. at 823, 826. 6

In reversing the district court's decision to suppress the 7 photographs, the Ninth Circuit held that, for an administrative 8 search undertaken pursuant to a general scheme without 9 individualized suspicion, "as long as (1) the search was 10 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 13 impermissible programmatic secondary motive for the search, the 14 development of a second, subjective motive to verify the presence 15 of contraband is irrelevant to the Fourth Amendment analysis." 16

Id. at 834-35. Thus, because the screener reviewed the 17 photographs while searching for explosives, even if the screener 18 developed a secondary desire to investigate whether they were 19 contraband, her review of the photographs themselves was part of a 20 lawful administrative search. Id. at 838. However, because she 21 had already "abandoned the search for safety hazards" by the time 22 she viewed the letters, advertisements and newspaper articles, 23 those search actions "clearly fell outside the permissible scope 24 of the lawful administrative search and violated McCarty's Fourth 25

Amendment rights because they were more extensive and intrusive 26 than necessary to detect air travel safety concerns." Id. at 836. 27

Here, Deputy Covington's incident report, completed three 28 days after the search, clearly states that he concluded that "the solid mass was not an explosive" after viewing the X-rays and 2 before he looked into the vents of the DVD player and unscrewed 3 the top of the DVD player. Covington Incident Report, at DF00009. 4

The Court concludes that Deputy Covington's later testimony and 5 declaration, given more than a year and a half after the incident 6 for the purposes of the instant motion, which contradict the 7 report he wrote only shortly after the events actually took place, 8 less accurately described his state of mind at the relevant time. 9

Deputy Covington provided no explanation of why he would have 10 written this in his incident report if it were not true, and testified only that he "meant to say" that "I did not recognize it to be an explosive from anything that I had seen before," but that 13 "at that point, I had not ruled out that it could be an 14 explosive." However, this can be not reconciled with his clear 15 statement in the report that, based on his "training and 16 experience," he "recognized that the solid mass was not an 17 explosive." Transcript, at 7:12-8:3. He did not state that it 18 was probably not an explosive or that it was not an explosive that 19 he recognized. If Deputy Covington believed that the mass could 20 have been an explosive at that point, he would not have said 21 otherwise in his report. 22

The other circumstances further support the Court's finding.

During the evidentiary hearing, Deputy Covington repudiated his 24 description in the incident report of the "solid mass of tiny 25 cylindrical shapes" that he saw on the X-ray images as "consistent 26 with the size and shape of multiple pills," stating that he had 27 not recognized the "tiny cylindrical shapes" to be consistent with 28 pills until later on. Id. at 11:7-19. Deputy Covington also testified that the solid mass may have been an explosive with 2 which he was unfamiliar, yet he opened up the DVD player without 3 taking any safety precautions or utilizing the bomb-sniffing dog 4 that he testified was at the screening area. 5

Because Deputy Covington had already concluded that the dark 6 mass was not a safety hazard before he opened the top of the DVD 7 player, that search fell outside the permissible scope of the 8 lawful administrative search and violated Defendant's Fourth 9 Amendment rights. 10

The Court finds that suppression of the evidence found as a result of this search is warranted. The government does not argue that any exception to the suppression rule applies. Further, 13 exclusion would result in deterrence of deliberate, reckless, or 14 grossly negligent conduct. See Herring v. United States, 555 U.S. 15 135, 144 (2009). Deputy Covington made a clear error in 16 continuing to search Defendant's possessions without securing a 17 warrant, after he had concluded that the luggage did not contain 18 explosives that would jeopardize air travel safety. Exclusion 19 would deter other officers from engaging in the same conduct. 20

The government concedes that Defendant's post-arrest 21 statements were the fruit of the search of the DVD players and 22 that the Court's suppression of evidence found as a result of that 23 search "would also apply to the defendant's post-arrest 24 statements." Docket No. 22, 2. 25


For the reasons set forth above, the Court GRANTS Defendant's 27 motion to suppress evidence obtained as a result of the 28 warrantless search of his luggage and its contents and his post-2 arrest statements (Docket No. 15). 3


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