FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10504

Plaintiff-Appellant, D.C. No.

v. 1:08-cr-00513-  JMS-1 SIMON JASPER MCCARTY,

Defendant-Appellee. ORDER AND

AMENDED

OPINION 

Appeal from the United States District Court

for the District of Hawaii

J. Michael Seabright, District Judge, Presiding

Argued and Submitted

October 14, 2010—Honolulu, Hawaii

Filed August 3, 2011

Amended September 9, 2011

Before: Michael Daly Hawkins, M. Margaret McKeown and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Hawkins

17103
COUNSEL

Vijay Shanker (argued) and David E. Hollar (briefed), United

States Department of Justice, Washington, D.C., for the

plaintiff-appellant.

William A. Harrison (argued and briefed), Davies Pacific

Center, Honolulu, Hawaii, for the defendant-appellee.

ORDER

The government’s Motion to Amend footnote 6 in the

Opinion that is cited at 2011 WL 3319428 (9th Cir. August

3, 2011) is granted, but only for the limited purpose of

amending the third sentence of footnote 6 to read: “On appeal,

the government did not contend this search of the second bag

was a lawful administrative search or contest suppression of

any evidence found therein on a basis independent of its main

argument.”

No subsequent petitions for rehearing or rehearing en banc

will be accepted for filing. 

UNITED STATES v. MCCARTY 17107
OPINION

HAWKINS, Senior Circuit Judge:

The competing interests of personal privacy and the safety

of the traveling public are at the heart of this interlocutory

government appeal from the district court’s suppression of all

evidence obtained as a result of an airport search of defendant

Simon McCarty’s (“McCarty”) checked luggage at Hilo International Airport. The government argues the evidence from

McCarty’s bag—which included, among other things, almost

five dozen photographs of nude and partially nude minors,1

children’s underwear and pajama advertisements, and handwritten notes describing the molestation of children—was discovered during the course of a properly limited administrative

search, the search was therefore lawful, and McCarty’s subsequent warrantless arrest was supported by probable cause.

McCarty contends, and the district court agreed, that Transportation Security Administration (“TSA”) agents turned a

routine administrative search for explosives into an unauthorized investigatory search for contraband. We have jurisdiction pursuant to 18 U.S.C. § 3731 and, for the following

reasons, vacate the suppression order and remand to the district court for further proceedings.

STANDARD OF REVIEW

“A district court’s conclusions of law regarding a motion to

suppress are reviewed de novo.” United States v. Hammett,

236 F.3d 1054, 1057 (9th Cir. 2001). Its factual findings are

reviewed for clear error. United States v. Aukai, 497 F.3d 955,

958 (9th Cir. 2007) (en banc). A finding of clear error

requires “a definite and firm conviction that a mistake has

1Of the fifty-eight photographs discovered, fifty-seven were of minor

children in various states of undress. Eleven of the photographs depicted

fully nude children with exposed or partially covered genitals. United

States v. McCarty, 672 F. Supp. 2d 1085, 1092-1093 (D. Haw. 2009). 

17108 UNITED STATES v. MCCARTY
been made. Thus, if the district court’s findings are plausible

in light of the record viewed in its entirety, the appellate court

cannot reverse even if it is convinced it would have found differently.” Husain v. Olympic Airways, 316 F.3d 829, 835 (9th

Cir. 2002) (internal citations and quotation marks omitted).

FACTS & PROCEEDINGS BELOW

A. Facts

1. Preliminary Facts

McCarty, a United Kingdom national, traveled to Hilo

International Airport to board an intrastate flight bound for

Honolulu on August 5, 2008. He checked two pieces of luggage for the flight: (1) a “Travel Pro” brand bag; and (2) a

“Travel Zone” brand bag. The two bags were sent, as is customary for all checked passenger baggage, to the TSA screening area, where TSA screeners Dorinda Andrade (“Andrade”)

and Jenny Moniz (“Moniz”) (who happens to be Andrade’s

daughter), were screening luggage for explosives using a

CTX 5500 DS security x-ray machine (“CTX machine” or

“CTX”). The Travel Zone bag passed through the machine

without incident, but the CTX machine produced an alarm on

the Travel Pro bag, signaling to Andrade that there was a

dense item in the bag requiring further inspection. The inspection that followed is the subject of this appeal.

2. CTX Machines and TSA Screening Policies

TSA screens all luggage that goes onto a plane to ensure it

does not contain any explosive devices or other items that

would threaten the safety of the plane. One method of screening is through an x-ray device such as the CTX machine used

here, which can identify potential safety risks or dense items

in luggage that require further inspection. CTX machines

automatically stop the procession of bags through the screenUNITED STATES v. MCCARTY 17109
ing area when they “alarm”

2

 on a potential safety hazard in a

bag; TSA screeners do not have the discretion or ability to

stop the machines themselves. Patrick Collins (“Collins”), the

Deputy Assistant Federal Security Director for TSA in charge

of operations at three Maui County airports, testified regarding TSA procedures for searching checked luggage after the

CTX machine alerts on a particular bag. According to Collins,

when this occurs, the TSA screener is required to find and

examine the item identified by the machine to ensure it is not

an explosive device. For example, if the item is a laptop computer, the screener must physically remove the laptop from

the luggage and examine it for the presence of hidden explosives. A laptop may be used as a “decoy” or “distracter,”

meant to distract the screener from continuing to search the

bag for explosives. 

Additionally, thin, flat explosives called “sheet explosives”

may be disguised as a simple piece of paper or cardboard, and

may be hidden in just about anything, including a laptop,

book, magazine, deck of cards, or packet of photographs. Collins explained that where the CTX alarms on a dense mass

and the screener opens the bag to find a packet of photographs, the screener is required to leaf or thumb through the

stack of photographs until she is sure there are no sheet explosives. She would not be required to closely examine those

items (by, for example, reading the contents of a written document) unless she determined that they were “distracters.” 

Under TSA protocol, the search does not conclude until the

screener has cleared the bag of all safety concerns identified

by the CTX machine. According to Collins, “[t]he officer has

to be satisfied that there’s nothing else in that bag that could

have caused that alarm. And they take whatever procedure

2TSA personnel used the word “alarm” as a verb throughout their testimony, indicating that the CTX machine flagged the bag for further inspection. We adopt their usage of the word for the purposes of this Opinion,

and use it interchangeably with “alert.” 

17110 UNITED STATES v. MCCARTY
they have to to find that.” In some cases, this may require

going as far as removing the lining of the bag to ensure that

no possible explosives remain. Adherence to the protocol is

mandatory, not discretionary, although the determination of

whether any further safety concerns exist after a preliminary

search is committed to the discretion of the screener. The

screener is to end the search once she is satisfied that she has

followed the protocol and removed all safety concerns. 

TSA screeners do not have any training in identifying contraband, and they are not directed by any policy to perform

searches for contraband. The screener’s sole job is to clear

bags of safety concerns relating to air travel. However, if, in

the course of searching for explosives, a screener finds an

item she believes to be contraband, she is required by TSA

Operations Directive OD-400-54-2 to call a law enforcement

officer.3It is not the screener’s job to continue investigation

of possible contraband found in the course of an administrative safety inspection. 

3. The Search

The CTX alerted on McCarty’s Travel Pro bag at 10:13

a.m., flagging as a possible safety concern what appeared to

be a laptop with a dark mass around it.4 Andrade could not tell

what the dark mass was by looking at the CTX image, so she

released the bag from the machine and placed it on a search

table for manual inspection. 

Based on the weight of the bag, Andrade determined that

3The item need not actually be contraband; Collins testified that screeners are required under the TSA policy to notify a law enforcement officer

and turn the item over for further action if they simply “feel it possibly

could be contraband.” McCarty does not challenge the TSA policy on this

matter. 

4When a CTX alerts, it identifies possible safety threats by placing a red

box on the screen, framing the possible problem item. 

UNITED STATES v. MCCARTY 17111
the laptop was in the top pocket. She unzipped the pocket

halfway and pulled out the laptop with one hand. As she did

so, another bag passed through the CTX machine, and

Andrade turned her head to watch the machine’s screen while

that bag passed through. When she turned back to the table,

she noticed that an envelope had also slid out of the bag with

the laptop, spilling some of the envelope’s contents. Andrade

testified that “a couple of pictures” were “laid open on the

table,” although she clarified that by “a couple” she meant

that more than ten photographs were visible. The precise

arrangement of the photographs on the table is unclear. 

Andrade took approximately one minute to clear the laptop

pursuant to TSA protocol before turning to the photographs

and other spilled items. She noted that, after searching the laptop, she needed to find the dark mass shown in the CTX

image, which she believed could be the photographs on the

table. Andrade could not “precisely say what photographs”

were immediately visible when they first spilled out, but she

did remember seeing photos of nude children, including one

of a boy on a bed with his eyes closed.5 She inspected the

photographs that had spilled out of the envelope onto the

table. She then proceeded to look through less than half of the

photographs from the envelope, specifically because she

needed to clear the contents of the envelope of any safety hazards that might be hidden between the photos. She stopped

short of looking through every photograph in the envelope

once she was satisfied there were no safety issues, and

because she did not want to see any more of the photographs.

Then, although she was no longer concerned about explosives

and felt that the “pictures that [she] saw [were] enough to

make [her] determine that the children weren’t in a good situation,” Andrade proceeded to read a few lines of the letters in

the envelope to “determine what the pictures were all about”

and to “make sure” that the photographs were contraband

5

It was unclear whether Andrade saw this photograph initially or

whether she saw it later on in the course of her search. 

17112 UNITED STATES v. MCCARTY
before she called her lead officer to report them. She also

viewed the advertisements and two newspaper article clippings discussing minors engaging in sexual activity with

adults and other minors. 

At some point during this inspection, Andrade said out

loud, “what the heck is this?” Moniz, who was also present

in the room, came over to see what caused Andrade’s reaction. She helped Andrade pick up the contents of the envelope, and her initial impression upon seeing the visible photos

was that there was something “wrong.” Moniz testified that

while the two were collecting the photos that spilled out of the

envelope, “at that point we saw something that was improper,

we did look through the rest of them, and then we stopped.”

During this process, she saw newspaper articles, some children’s underwear advertisements, and a letter. Moniz read a

few lines of the letter and showed Andrade the underwear ads.

Moniz specifically testified to seeing photographs of a nude

boy in a pond setting and another of a boy laying on a bed

with his eyes “squinted shut to hold it shut like he was very

uncomfortable,” but she could not recall whether these photographs were among the first she saw before she and Andrade

looked through the contents of the envelope. Although Moniz

recalled seeing “a lot” of images that looked “improper” to

her, she could not identify exactly which of the fifty-eight

photographs she saw.6

Tracy Kitamura (“Kitamura”), the lead on-site TSA

screener, was already in the room when Andrade and Moniz

6At the direction of the TSA supervisor, Moniz also performed a full

search for explosives on McCarty’s other bag, which had already cleared

the TSA safety inspection and which had not produced any alarm upon

passing through the CTX machine. During the course of that search,

Moniz flipped through the pages of a journal in the second bag, and read

one page that caught her attention. On appeal, the government did not contend this search of the second bag was a lawful administrative search or

contest suppression of any evidence found therein on a basis independent

of its main argument. 

UNITED STATES v. MCCARTY 17113
were looking through the contents of the envelope. Andrade

called him over, although it is somewhat unclear whether she

did so before or after she and Moniz proceeded to look

through the non-photographic items in the envelope, and

whether Kitamura was already heading over to the table after

hearing Andrade’s exclamation. Kitamura briefly leafed

through the photographs that were on the table and immediately felt sick to his stomach because “[t]he photos were very

disturbing initially.” He did not read the letters. The first photos he saw were of nude children, and he also saw photos of

partially clad children. He then immediately called in the Hilo

TSA Supervisor, Stephanie Kamohai (“Kamohai”). Kamohai

shuffled through the contents of the envelope, including the

photographs and newspaper clippings, without reading or

closely examining them. She read three or four lines of the

letter. Within fifteen seconds of viewing the items, Kamohai

decided to call a law enforcement officer based solely on the

photographs she had seen. 

Just before 10:20 a.m., less than seven minutes after the

CTX alarmed on McCarty’s bag, Kamohai called Rodney

Aurello (“Aurello”), a private security contractor working

with the Hawaii Department of Transportation, who was

assigned to Hilo airport. Aurello thumbed through the photographs. He testified that, based on his background working in

the “juvenile age section,” he “thought it was kind of suspicious that [McCarty] would have all of these photographs,

especially of the nude minors,” and immediately decided to

call his supervisor to suggest calling the police. 

Two Hawaii County Police Department officers, including

Detective Norbert Serrao (“Serrao”), responded less than

twenty minutes later. Serrao spent two to three minutes examining the photographs, but did not read all the articles or the

letters. Based on what he saw, Serrao decided to arrest

McCarty for promotion of child abuse in violation of Hawaii

Revised Statutes § 707-752. 

17114 UNITED STATES v. MCCARTY
After McCarty’s arrest, Detective John Ancheta

(“Ancheta”) interviewed him at the Hilo Police Department.

Ancheta explained that, based on his discussions with other

officers, he believed he had enough evidence to arrest

McCarty for possession of child pornography. He then asked

McCarty for consent to search his luggage. Ancheta explained

McCarty’s options, including the right to refuse consent to the

search. McCarty initialed and signed a consent form for the

search. Ancheta also read McCarty his Miranda rights, which

McCarty waived by initialing a fully completed Advice of

Rights form stating that he understood the rights he was read,

that he did not want a lawyer, and that he would like to speak

with Detective Ancheta about what had happened. After

waiving these rights, McCarty was interviewed and admitted

to having unnatural feelings about children for some time, but

denied ever acting on those feelings. 

McCarty was arrested two days later on a federal complaint. Federal agents obtained a search warrant for McCarty’s laptop computer, on which they discovered hundreds of

images and at least 200 video clips of child pornography.

Sixty of these video clips depicted McCarty engaged in sexual

activity with at least three different prepubescent boys.

B. Procedural History

A grand jury returned a 10-count second superseding

indictment against McCarty on January 21, 2009. The indictment alleged: two counts of transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1); two counts of

possession of child pornography in violation of 18 U.S.C.

§ 2252A(a)(5)(B); and six counts relating to coercing minors

to engage in sexually explicit conduct outside the United

States for the purpose of producing a visual depiction of that

conduct, and transporting those visual depictions to the

United States, in violation of 18 U.S.C. § 2251(c)(1)(B).

McCarty filed a motion to suppress all evidence obtained as

a result of the airport search of his checked luggage. 

UNITED STATES v. MCCARTY 17115
After briefing and a suppression hearing, the district court

granted McCarty’s motion and ordered all evidence seized as

a result of the airport search of his luggage suppressed.

McCarty, 672 F. Supp. 2d at 1090. The court ultimately found

that “Andrade’s search of the Travel Pro bag went beyond the

scope of an airport administrative search for weapons and/or

explosives and that her vague and contradictory testimony

regarding what items she found during her administrative

search are insufficient to support probable cause [to arrest

McCarty].” Id. at 1095.7 Concluding McCarty had therefore

been arrested without probable cause, the district court determined that any evidence obtained during the subsequent consent and warrant-based searches was fruit of the poisonous

tree. Id. at 1103-04.

In reaching these conclusions, the district court described

the sequence of events, noting with particular frustration that

Andrade’s testimony was confusing and contradictory at several points,8

 including as to the exact chronology of events,

7The parties agreed that McCarty’s arrest would have been valid only

if the administrative search produced probable cause to believe he had violated Haw. Rev. Stat. § 707-752. McCarty, 672 F. Supp. 2d at 1095. 

8Andrade’s testimony as to her perceptions and impressions of the photographs and other items certainly was confusing and somewhat contradictory, evidencing that Andrade did not subjectively think she had enough

evidence of contraband to call law enforcement until she had seen more

than just the first few photographs. She testified that she did not know

something was wrong when she saw just the first nude photographs, District Court Docket (“DCD”) #57 at 63, but after seeing the initial photographs that spilled out of the bag, “the pictures that [she] saw [were]

enough to make [her] determine that the children weren’t in a good situation,” id. at 62. She “felt some concern” immediately after seeing nude

photographs, id. at 70, and “felt that the children were in a harmful way”

after leafing through the photos in the envelope, but she read through

some of the letters because she “felt that [she] needed to see more than

what [she] saw before [she] called [her] lead,” id. at 62. She also said that

she was alarmed “as soon as [she and Moniz] saw the pictures,” and that

is why she called Kitamura, id. at 75, yet she finally decided that there was

something wrong only after taking “everything combined together,”

including the non-photographic items from the envelope. Id. at 76-77. 

17116 UNITED STATES v. MCCARTY
which photographs she had seen, and whether she or Moniz

touched any of the items that had spilled onto the table before

the lead officer was called. Id. at 1092-95. The court stated

that it could not discern exactly what Andrade and Moniz

inspected, or when they inspected it. Id. at 1093. 

Acknowledging that TSA screeners could legally search the

bag for evidence of explosives, and that Andrade had begun

her search with this permissible search intent in mind, the district court began its legal analysis by noting that “Andrade’s

inadvertent discovery of some of the photographs did not of

itself extend the search beyond its valid purpose.” Id. at 1096

(citing United States v. Marquez, 410 F.3d 612, 617 (9th Cir.

2005) (“The mere fact that a screening procedure ultimately

reveals contraband other than weapons or explosives does not

render it unreasonable, post facto.”)). Nonetheless, it then

stated,

[t]he court cannot conclude . . . that the search of the

Travel Pro bag was limited to ensuring that it did not

pose a safety risk. Rather, the testimony evidences

that the TSA employees, at some point, clearly

exceeded the scope of their administrative search

and began to search for evidence of child pornography. 

Id. Accordingly, the district court found that the government

had not carried its burden of proving that the search had been

“confined in good faith” to the purpose of detecting explosives. See id. at 1096-99 (citing Aukai, 497 F.3d at 962).

The district court explained that, “based on [Andrade’s]

demeanor and testimony provided, the court easily concludes

that she was not credible.” Id. at 1096. It clarified that it was

not suggesting that Andrade had perjured herself, but merely

that she could not clearly recall what had happened with sufficient clarity. Id. at 1096 n.7. The court based its credibility

determination on inconsistencies in Andrade’s testimony,

UNITED STATES v. MCCARTY 17117
placing emphasis on Andrade’s statements that her focus was

solely on the safety of the children when she read the content

of articles and letters from the envelope. Id. at 1096-97. 

Based on these statements, its assessment of Andrade’s

credibility, and testimony of other witnesses, the court “specifically [found] that Andrade searched the photographs in the

envelope not for sheet explosives but for evidence of child

pornography.” Id. at 1097 n.8; see also id. at 1098 n.9 (finding that TSA screeners did not leaf through photographs for

evidence of sheet explosives, “but instead inspected them for

their content”). 

Having so found, the district court stated that even if

Andrade had continued her inspection for the dual purposes

of detecting explosives and determining whether the photos

were contraband—which it did not believe was the case—the

secondary purpose unrelated to administrative safety concerns

would have invalidated the otherwise permissible search

because the TSA screeners “had discretion in deciding how

closely to look at the photographs and indeed, rather than

‘leaf’ through them for sheet explosives, inspected them

solely to determine whether the children were in harm’s way.”

Id. at 1097-98 (citing United States v. Bulacan, 156 F.3d 963,

969 (9th Cir. 1998), for the proposition that an impermissible

search motive invalidates an otherwise lawful administrative

search). However, the court ultimately clarified that it did not

believe the extended search was one of dual purpose, but

rather one where the administrative search was wholly superseded by the investigative search for evidence of child pornography. Id. at 1098 n.9.

The court then specifically rejected the government’s argument that the search conducted was proper regardless of

motive because Andrade was required by the TSA protocol to

leaf or thumb through the photographs to search for sheet

explosives, reiterating its finding that Andrade and Moniz “in17118 UNITED STATES v. MCCARTY
spected the content of additional photographs for the purpose

of determining their criminal nature.” Id. at 1098.

Turning to the question of probable cause for the warrantless arrest, the district court found that because Andrade’s testimony had not clarified exactly which photos she had seen

while she was still searching for explosives, the government

failed to prove that Andrade had discovered evidence supporting probable cause to arrest McCarty during the lawful portion of the search. Id. at 1099-1102. In so finding, the court

emphasized that at least three of the fifty-seven photographs

of children were clearly not child pornography, and since neither Andrade nor Moniz could identify exactly which of the

photographs she saw when the envelope first spilled onto the

table9 (which the court had apparently concluded was the end

point for the lawful administrative search), it could not determine that either screener had seen any photos giving rise to

probable cause during the lawful administrative search. Id. at

1100-02.10 Specifically, the court held that

without knowing which photographs of nude children Andrade saw, the probable cause determination

cannot be supported unless all of these photographs

constitute child pornography—if only some of the

photographs of nude children are child pornography,

the court has no way of knowing whether Andrade

initially saw those photographs as opposed to the

photographs that are not child pornography.

Id. at 1100. 

9The court stated, “even if the court credits Andrade’s testimony that

she initially saw photographs of nude children (which the court does not),”

such testimony could not, on its own, establish probable cause. Id. at 1100.

10The court did not, however, make any determination as to whether any

of the remaining photographs constituted child pornography or could have

provided probable cause to believe they were child pornography. 

UNITED STATES v. MCCARTY 17119
The court also held that the lack of specificity in Andrade’s

testimony meant that the government could not establish the

“immediately apparent” incriminating nature of the photographs, and thus the plain view doctrine could not apply. Id.

at 1098-99. It then found that the exception for good faith

mistakes outlined in Herring v. United States, 555 U.S. 135

(2009), did not apply to bar suppression in this case. McCarty,

672 F. Supp. 2d at 1102-03.11

Lastly, the district court held that, assuming McCarty’s

consent to search of his luggage at the police station was voluntary, the government could not prove the consent was

purged of the primary taint of the original unlawful search,

and suppression could not be avoided. See id. at 1103-04.12

The government appealed.

DISCUSSION

A. Scope of the Lawful Administrative Search

[1] The Fourth Amendment protects against unreasonable

searches and seizures of people and their effects. U.S. Const.

amend. IV. Searches and seizures are “ ‘ordinarily unreasonable in the absence of individualized suspicion of wrongdoing,’ ” Aukai, 497 F.3d at 958 (quoting City of Indianapolis

v. Edmond, 531 U.S. 32, 37 (2000)), and the circumstances

under which a warrantless search not supported by probable

cause may be considered reasonable under the Fourth Amendment are very limited, see id.; United States v. Caseres, 533

F.3d 1064, 1070 (9th Cir. 2008) (citing Katz v. United States,

389 U.S. 347, 357 (1967)). 

11The government did not challenge the district court’s ruling on the

Herring exception on appeal, so we do not review it here. 

12The government also did not dispute this ruling, so the issue of the

effect of McCarty’s consent to search at the police station is likewise not

before us. 

17120 UNITED STATES v. MCCARTY
[2] Blanket suspicionless searches “calibrated to [a] risk

may rank as ‘reasonable.’ ” Aukai, 497 F.3d at 958 (internal

quotation marks omitted) (quoting Chandler v. Miller, 520

U.S. 305, 323 (1997)). For example, if properly limited,

“searches now routine at airports and at entrances to courts,”

are reasonable because they respond to a “ ‘risk to public

safety [that] is substantial and real.’ ” Id. (quoting Chandler,

520 U.S. at 323). Generally, “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.’ ” Id. at 960 (quoting

United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)).13

[3] Here, the parties agree that, under federal law, TSA

agents could legally search McCarty’s entire bag for explosives or other safety hazards. See 49 U.S.C. § 44901; cf. 49

C.F.R. § 1540.111(c) (prohibiting passengers from placing

unauthorized explosives, firearms, and incendiary devices in

their checked baggage). However, because warrantless, suspicionless administrative 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 the light of current technology, to detect the

presence of weapons or explosives [and where] it is confined

in good faith to that purpose.’ ” Aukai, 497 F.3d at 962 (quoting Davis, 482 F.2d at 913). 

[4] 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 purpose, it can no lon13Aukai cautions that “[t]he Supreme Court has not specifically held that

airport screening searches are constitutionally reasonable administrative

searches,” but rather has suggested that they qualify as such. 497 F.3d at

959 n.2 (collecting cases). 

UNITED STATES v. MCCARTY 17121
ger be justified under an administrative search rationale.”

United States v. $124,570 U.S. Currency, 873 F.2d 1240,

1246 n.5 (9th Cir. 1989). Thus, because TSA screeners are

limited to the single administrative goal of searching for possible safety threats related to explosives, the constitutional

bounds of an airport administrative search require that the

individual screener’s actions be no more intrusive than necessary to determine the existence or absence of explosives that

could result in harm to the passengers and aircraft. See id. at

1245.14

1. Import of Search Intent

On appeal, McCarty contends the district court was correct

in finding that Andrade developed a subjective “impermissible motive” to search for contraband that extended the warrantless search beyond the constitutional bounds of the valid

administrative search, essentially transforming what began as

a lawful administrative search into an independent investigation for evidence of child pornography. As such, McCarty

argues that Andrade’s subjective motivation was the invalidating factor that caused her actions to exceed the scope of

the lawful administrative search. The government counters

that where the overarching search scheme involves only a single, constitutionally-valid programmatic motive, the subjective intentions of the individual agent acting without broad

discretion in carrying out the search are wholly irrelevant.

Accordingly, the government argues, because the TSA agents

14Of course, longstanding precedent allows a screener to call law

enforcement if she inadvertently discovers a possibly contraband item in

the course of performing her safety check, so long as the scope of the

search remains properly cabined to the extent of the lawful administrative

search. $124,570 U.S. Currency, 873 F.2d at 1249 n.7. We have “refuse[d]

to impose an unworkable and unreasonable constraint” on government

agents engaged in good faith administrative searches “by requiring that

they avert their eyes from obvious unlawfulness.” United States v. Seljan,

547 F.3d 993, 1005 (9th Cir. 2008) (en banc) (treating customs official

searches). 

17122 UNITED STATES v. MCCARTY
here could have viewed any item in McCarty’s bag while

screening for explosives as part of their administrative search

and there was no additional programmatic motive, any subtle

shifts in the individual minds of the TSA screeners had “no

constitutional significance,” the search was not extended

beyond its permissible scope, and all of the items viewed during the search should have been admitted. 

In the mine run of Fourth Amendment cases where at least

some quantum of suspicion is involved, the reasonableness

inquiry we conduct is largely an objective one, and the subjective motivations of the individual officer involved are irrelevant in determining whether the circumstances objectively

justified the action taken or the intrusion occasioned. See Ashcroft v. Al-Kidd, 563 U.S. ___, 131 S. Ct. 2074, 2080 (2011).

There are “[t]wo ‘limited exception[s]’ to this rule [for]

special-needs and administrative-search cases, where ‘actual

motivations’ do matter.” Id. (quoting United States v. Knights,

534 U.S. 112, 122 (2001)). In these cases, the special or

administrative need typically dispenses with the Fourth

Amendment requirement of a warrant or probable cause for

the search. Id. at 2081. 

However, the exemption from the warrant and probable

cause requirements in these types of warrantless, suspicionless searches “do[es] not apply where the officer’s purpose is

not to attend to the special needs or to the investigation for

which the administrative inspection is justified.” Id. (citing

Whren v. United States, 517 U.S. 806, 811-12 (1996)). 

[5] Thus, some inquiry into the actual motivations behind

an administrative search is permitted to guard against wholly

pretextual intrusions into the public’s reasonable expectations

of privacy. See Edmond, 531 U.S. at 46-47; United States v.

Hellman, 556 F.2d 442, 444 (9th Cir. 1977) (inventory of

defendant’s car was not validated by administrative search

rationale where department had no standard policy of inventorying impounded cars, it was clear that the search was actuUNITED STATES v. MCCARTY 17123
ally conducted for “an investigatory police motive,” and

officer testified that he instigated the impound specifically to

“justify an investigatory search”); see also Bulacan, 156 F.3d

at 967 (because an “administrative search scheme invests the

Government with the power to intrude into the privacy of

ordinary citizens”—a power with “vast potential for abuse”—

“courts must take care to ensure that an administrative search

is not subverted into a general search for evidence of crime.”

(citations omitted)).15

[6] Nevertheless, where—as here—the search is “ ‘undertaken pursuant to a general scheme without individualized

suspicion,’ ” Al-Kidd, 131 S. Ct. at 2081 (quoting Edmond,

531 U.S. at 45-46), consideration of the government actor’s

actual motivation has been limited to an inquiry into the programmatic purposes motivating the search, see Edmond, 531

U.S. at 47; accord Al-Kidd, 131 S. Ct. at 2081. The Supreme

Court has cautioned that this inquiry “is not an invitation to

probe the minds of individual officers acting at the scene.”

Edmond, 531 U.S. at 48 (emphasis added) (citing generally

Whren, 517 U.S. 806).

Accordingly, this court has held that where a warrantless

search is conducted pursuant to a lawful administrative

scheme with a constitutionally permissible motivation, “the

subjective motive of the individual conducting the search will

not invalidate the search.” See Bulacan, 156 F.3d at 966-67

(citing United States v. Bowhay, 992 F.2d 229, 231 (9th Cir.

1993)). See also United States v. Tsai, 282 F.3d 690, 695-96

(9th Cir. 2002) (applicability of the exception to the probable

cause requirement “turns more on examination of the search’s

15Cf. Al-Kidd, 131 S. Ct. at 2082 (describing administrative searches as

“less protective” than searches pursuant to warrants); Whren, 517 U.S. at

811-12 (“the exemption from the need for probable cause (and warrant),

which is accorded to searches made for the purpose of inventory or administrative regulation, is not accorded to searches that are not made for those

purposes”). 

17124 UNITED STATES v. MCCARTY
scope than on an inquiry into the searcher’s motivation”). In

Bowhay, a police officer searched an arrestee’s bag pursuant

to a standard inventory search policy that required inventory

of all evidence brought to the police station. 992 F.2d at 230.

We held that the fact that the officer had an unlawful secondary search purpose in mind when he searched the bag—

hoping to find contraband inside—did not invalidate the otherwise lawful administrative inventory search because the

searching officer’s actions would have been the same regardless of his “true” motivation. Id. at 231. 

Similarly, Bulacan examined the effect of an unlawful secondary purpose—the goal of searching for narcotics—on an

otherwise valid administrative search, where the officers performed administrative searches of all entrants to a federal

building. 156 F.3d at 965. The agents were required, pursuant

to a federal regulation and instruction, to search the bags of

all entrants for both safety hazards and vice items such as narcotics, alcohol, or gambling materials. Id. at 965-66. However, unlike in Bowhay, the officers had unfettered discretion

in determining which bags or containers to search, based on

their own individual judgment. Id. at 966. We held that, where

the officer had “broad discretion as to the parameters of the

search,” the addition of the programmatic motive to search for

narcotics, which was not legitimately related to the constitutional administrative search for safety purposes, led to the

impermissible extension of the scope of the search, “regardless of whether the items searched could have been subject to

a valid administrative search.” Id. at 970. 

Central to Bulacan’s holding was that the search scheme

itself imposed an additional, impermissible motive unrelated

to administrative purposes, such that individual officers, in

exercising the broad discretion granted them, could conduct

more extensive searches based on the secondary law

enforcement-related motive. See id. at 971, 973 (“[W]hen an

administrative search scheme encompasses both a permissible

and an impermissible purpose, and when the officer conductUNITED STATES v. MCCARTY 17125
ing the search has broad discretion in carrying out the search,

that search does not meet the Fourth Amendment’s reasonableness requirements.”). We were concerned that the secondary motive explicit in the search scheme would necessarily

infect the primary search motive, altering the scope of the

search. Id. at 971.

Likewise, in $124,570 U.S. Currency, we held an airport

search of a passenger’s baggage, pursuant to an established

policy providing a $250 reward for screeners reporting discovery of large sums of U.S. currency, could not be upheld as

a valid administrative search because the policy injected into

the administrative search scheme—at the programmatic level

—an impermissible secondary purpose, and screeners with

broad discretion to decide what bags to search necessarily

could not separate the permissible from the impermissible

motive. 873 F.2d at 1245-47 & n.3; see also id. at 1246 (noting that “the policy of ‘work[ing] hand-in-hand with U.S.

Customs and Port Police regarding the detection and reporting

of drugs and U.S. currency’ will very likely influence [transportation security] officers to conduct more searches, and

more intrusive searches, than if they focus on air safety alone”

(first alteration in original)).16

16Although $124,570 U.S. Currency involved an airport search, similar

to this one, in which a bag was flagged as having an unidentifiable dense

mass by an X-ray machine, we did not premise our holding on the subjective intent of the officer. Rather, we found that the impermissible search

scheme, combined with broad discretion in which containers to search,

invalidated the simultaneous lawful administrative search from the outset.

See 873 F.2d at 1247. We emphasized that 

[n]othing we say today precludes [transportation security] officers from reporting information pertaining to criminal activity, as

would any citizen. We see the matter as materially different

where the communication is undertaken pursuant to an established relationship, fostered by official policy, even more so

where the communication is nurtured by payment of monetary

rewards. The line we draw is a fine one but, we believe, one that

has constitutional significance. 

Id. at 1247 n.7 (emphasis added).

17126 UNITED STATES v. MCCARTY
In determining that Andrade’s subjective intent to search

for child pornography would have invalidated an otherwise

lawful search if the search was one of dual purposes, the district court emphasized that Andrade had broad discretion,

similar to the discretion afforded officers in Bulacan, in how

deeply she searched McCarty’s bag. McCarty, 672 F. Supp.

2d at 1098. This was error resulting from conflation of the

applicable law. That the TSA screener here might have had

discretion as broad as the screener in $124,570 U.S. Currency

or Bulacan is immaterial to our analysis because, unlike Bulacan and $124,570 U.S. Currency, it is undisputed that here

there was no programmatic secondary purpose—Andrade did

not receive any reward for finding contraband, and searching

for evidence of a crime was not part of her assigned duties.

The TSA search scheme under which she operated was

focused solely on the discovery of threats to air travel safety.

Thus, the inquiries into discretion and search intent outlined

in Bulacan and $124,570 U.S. Currency are simply inapplicable here because the “purpose inquiry in [the context of intrusions undertaken pursuant to a general scheme without

individualized suspicion] is to be conducted only at the programmatic level and is not an invitation to probe the minds of

individual officers acting at the scene.” Edmond, 531 U.S. at

45-46. 

Of course, to say that we conduct the Fourth Amendment

inquiry “only at the programmatic level” is not to say that a

lawful administrative search intent, engaged at the inception

of the search but later abandoned, provides carte blanche to

the searching officers to snoop to their hearts’ content without

regard to the scope of their actions. The search must still be

“in furtherance” of the administrative goal, Davis, 482 F.2d

at 908, “no more extensive nor intensive than necessary, in

the light of current technology, to detect the presence of

weapons or explosives[,] . . . [and] confined in good faith to

that purpose,” id. at 913. 

[7] So, as long as (1) the search was undertaken pursuant

to a legitimate administrative search scheme; (2) the searchUNITED STATES v. MCCARTY 17127
er’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.

See id.; Edmond, 531 U.S. at 45-46; Aukai, 497 F.3d at 962;

Bulacan, 156 F.3d at 967-68; Bowhay, 992 F.2d at 231. Thus,

the presence here of a secondary desire to confirm that the

items searched might be contraband could not, in and of itself,

invalidate the initially constitutional administrative search

Andrade conducted, 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.

See Bowhay, 992 F.2d at 231 (“When the police conduct

would have been the same regardless of the officer’s subjective state of mind, no purpose is served by attempting to tease

out the officer’s ‘true’ motivation.” (citing Horton v. California, 496 U.S. 128 (1990))). The subjective intent of the individual officer in such a search thus becomes as relevant as

objective conduct only at the point at which the search ceases

legitimately to be for the valid administrative purpose, as that

is the point after which the administrative exception can no

longer justify continuation of the warrantless search. 

2. Defining Search Scope

The crux of the issue, then, involves two related questions:

(1) when did Andrade’s administrative search for explosives

truly end, and become a wholly independent search for evidence of child pornography?; and (2) which of Andrade’s

actions exceeded the scope of the administrative search by

becoming “more extensive [or] intensive than necessary, in

the light of current technology, to detect the presence of

weapons or explosives”? Davis, 482 F.2d at 913. 

In a typical case, lines of permissibly cabined and impermissibly extended search actions are easy to identify—in

Aukai, for instance, we noted that a TSA screening of airline

17128 UNITED STATES v. MCCARTY
passengers and their carry-on luggage was appropriately limited where TSA screeners escalated the invasiveness of their

search after each level of screening produced a reason to

search more closely. 497 F.3d at 962. We reasoned that taking

such a stairstep approach—first wanding a passenger after a

magnetometer alerted to the presence of metal on the passenger’s body, then asking the passenger to remove items from

his pocket, and ultimately only feeling the outside of the passenger’s pocket after the passenger failed to remove all of the

contents upon request—was both minimally intrusive and

respectful of personal privacy. Each level of increased invasiveness in the search was necessary and tailored to dispel the

safety concerns presented. See id. 

[8] By contrast, where an action is taken that cannot serve

the administrative purpose—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 permissible

search. Cf. United States v. Miles, 247 F.3d 1009, 1014-15

(9th Cir. 2001) (police officer exceeded scope of permissible

Terry frisk where he continued to manipulate a box in a

defendant’s pocket after having concluded that the box could

not possibly be a weapon, as “[h]e had no cause to shake or

manipulate the tiny box on the pretext that he was still looking for a weapon”); United States v. $557,933.89, 287 F.3d

66, 82 (2d Cir. 2002) (suggesting that airport security personnel would exceed permissible search scope if they “looked

into areas or opened packages which could not possibly contain weapons or explosives”). 

[9] Here, the scope of the permissible search—mandated

by the TSA protocol—was defined by the point at which the

screener was convinced the bag posed no threat to airline

safety. Once 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. As the district

UNITED STATES v. MCCARTY 17129
court correctly reasoned, any search actions taken thereafter

would impermissibly extend the scope of the search beyond

what was necessary, because they could not possibly meet the

requirement that the screener’s actions be “ ‘strictly tied to

and justified by the circumstances which rendered [the

search’s] initiation permissible.’ ” Davis, 482 F.2d at 911 n.49

(internal quotation marks omitted) (quoting Terry v. Ohio,

392 U.S. 1, 19 (1968)); see also Aukai, 497 F.3d at 962. 

[10] Andrade conceded that, at the point when she read the

content of the letters and looked at the newspaper articles and

advertisements, she was no longer searching for explosives.

Rather, at that point, she had abandoned the search for safety

hazards and was reviewing the items to confirm her feeling

that the photographs were contraband evidencing children in

harm’s way. DCD #57 at 81-85. These actions were indisputably part of an effort to verify the presence of child pornography. Thus, the actions taken in this portion of the search

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. See Davis, 482

F.2d at 913. 

But the district court found that other portions of Andrade’s

search exceeded the scope of the lawful administrative search

as well. Based on Andrade’s “testimony and lack of credibility, the court specifically [found] that [she] searched the photographs in the envelope not for sheet explosives but for

evidence of child pornography.” McCarty, 672 F. Supp. 2d at

1097 n.8. It thus cabined the extent of the lawful search to just

the first few photographs that spilled onto the search table,

and found that the photographs and other items in the envelope had only been discovered as a result of an “overbroad

investigation into the criminal nature of the photographs.” See

id. at 1099. 

We are mindful that factual findings of this type are entitled

to great deference and should be reversed only where a thor17130 UNITED STATES v. MCCARTY
ough reading of the record leads us to the “definite and firm

conviction that a mistake has been made.” Husain, 316 F.3d

at 835 (internal quotation marks omitted). Nonetheless, we

can find no support in the record for the district court’s conclusion that Andrade searched the photographs in the envelope for evidence of child pornography. 

At one point in its decision, the district court asserted that

Andrade had conceded that she was reviewing the contents of

the envelope—including the photographs therein—solely out

of concern for the children depicted. McCarty, 672 F. Supp.

2d at 1094 (referencing DCD #57 at 81-83). It is upon this

statement that the district court based its factual finding that

Andrade was not searching for sheet explosives when she

looked through the photographs in the envelope. Id. at 1097-

98. However, a review of the transcript reveals that Andrade’s

concession was limited to a statement that when she read lines

from the newspaper clippings and the letters—which occurred

after she had inspected the initially spilled photographs and a

small portion of the photographs in the envelope—her reading

was focused on determining whether the children had been

harmed. DCD #57 at 61-62, 81-82. Andrade did not at any

point state that she had abandoned her primary search for aircraft safety hazards at the time she viewed the photographs in

the envelope. 

The district court also stated that “Andrade testified that

she went through some of the photographs on the table

because she ‘felt that the children were in a harmful way’ and

‘needed to see more before I called my lead.’ ” McCarty, 672

F. Supp. 2d at 1097 (citing DCD #57 at 61-62). The record

contradicts this conclusion. Although the long question posed

to Andrade before she made those statements did reference

her perusal of the photographs as part of a chronology of her

actions, the part of the question soliciting an answer did not;

it merely asked Andrade “why did you go through those testimonies?” DCD #57 at 61-62 (referring to Andrade’s having

UNITED STATES v. MCCARTY 17131
read a few lines of the letters).17 Andrade went on to clearly

and repeatedly testify that she viewed the photographs in the

envelope for the purpose of investigating the “possible massive dark area” on which the CTX machine alarmed, and to

determine if any sheet explosives were hidden therein. See

DCD #57 at 63 (“I needed to go through the envelope itself

because of the possible massive dark area.”); 76 (correcting

defense counsel when he suggested that she began looking

through the materials in the envelope to see what the contents

were about: “Not check exactly what it was. I needed to finish

my check as far as the massive dark area.”); 86 (noting that,

after looking at the photographs that spilled onto the table but

before looking at the newspaper clippings or letter, she “went

into the envelope to see if there was anything hidden in the

envelope”); 89 (noting that she could not determine that there

was no safety concern, with respect to explosives, just by

pulling the photographs out of the envelope; she had to do a

physical search of the items); 95 (correcting defense counsel’s

assertion that at the point she pulled the photographs out of

the envelope, she was no longer concerned with the safety of

the dense mass identified by the scanner: “I still was.”). 

Indeed, defense counsel asked Andrade repeatedly whether

she was still searching for explosives and other safety con17The complete inquiry reads as follows: 

Q: So procedurally I want to go through what happened at that

point when you decided to go through these items. 

Okay. When you went through the items, you looked at you

said less than half the photographs, there was these other items

that you testified to, these ads, newspaper clippings, and letters,

why did you go through those testimonies? 

A: Because I felt the children were in a harmful way. 

THE COURT: I’m sorry, I did not understand your answer. 

THE WITNESS: I felt that I needed to see more than what I saw

before I called my lead. 

DCD #57 at 61-62. 

17132 UNITED STATES v. MCCARTY
cerns when she read materials from the envelope, and

Andrade confirmed on each occasion that she was concerned

only about the children in the photos at that point. Id. at 83-

85 (confirming four times that at the time she began to read

the other items in the envelope—including the newspaper

articles and the letters—she was no longer concerned with

safety but needed to know what the nude pictures were

about). However, when defense counsel asserted that Andrade

had searched all of the items in the envelope for the purpose

of determining what the nude photographs were about,

Andrade corrected him, stating “No . . . I need to determine

if there was anything hidden in the pictures — rest of the pictures in the envelope . . . . Because of the massed area. I

needed to continue my search.” Id. at 85.18

[11] However unclear Andrade’s testimony was on other

points—exactly which images she saw, how many photographs spilled onto the table, and whether she touched or did

not touch the photographs on the table before calling the lead

officer—she was consistently clear and emphatic that when

she looked through the photographs in the envelope, she was

still acting to ensure that there were no sheet explosives hidden inside. No testimony in the record contradicted hers on

this point. Further, this search intent was consistent with the

TSA protocol requiring Andrade to thumb through the photographs in order to clear the bag. The district court’s factual

conclusion on this point is without support in the record, and

must be vacated.19

18Indeed, the prosecutor objected to defense counsel’s question on this

point as misstating Andrade’s testimony; the district court overruled the

objection. DCD #57 at 85. 

19That the TSA screener did not flip through the entire stack of photographs before calling her supervisor does not undermine our conclusion.

We find it troubling that the district court treated the fact that the search

was not completed as a strong indicator that Andrade’s testimony was not

credible. See McCarty, 672 F. Supp. 2d at 1098. A review of the testimony

presented shows that only a few short minutes passed between the time the

UNITED STATES v. MCCARTY 17133
[12] Thus, the screener’s review of the photographs in the

packet occurred within the scope of the ongoing lawful

administrative search. As a result, her discovery of their

nature coincided with her search for explosives, rather than

followed the formation of an independent and exclusive intent

to search for contraband. Accordingly, Andrade’s viewing of

the photographs from the envelope was justified by and part

of the lawful administrative search, see Aukai, 497 F.3d at

962, and—as we clarified above—even the development of a

secondary desire to confirm that the photographs evidenced

contraband did not invalidate that search, see Bowhay, 992

F.2d at 231.

B. Probable Cause and Suppression

After reaching its conclusion that Andrade’s search of the

photographs quickly went beyond the bounds of a proper

administrative search, the district court considered whether

the photographs lawfully seen by the screeners provided probable cause to arrest McCarty. It answered that question by

attempting to determine whether the lawfully-viewed photographs constituted child pornography. This approach was

erroneous.

[13] To show that the police had probable cause to arrest

McCarty, the government is required to prove only that “ ‘at

CTX machine alarmed on the bag and the time law enforcement was called, DCD #57 at 201, and the TSA lead officer was already in the room

when Andrade began the lawful search. Given the timeframe within which

the events occurred, we are unsurprised that the TSA screener did not

complete the thumb through before her lead came over to see what possible contraband had been found, and we think this fact should not subvert

the notion that a complete—or at least further—protocol search would

have been required to dispel any safety concerns after viewing the initial

photographs. Supporting our reasoning is the fact that although Andrade

did not finish clearing the bag of safety concerns herself before calling the

lead, TSA Supervisor Kamohai did so. Id. at 95.

17134 UNITED STATES v. MCCARTY
the moment of arrest the facts and circumstances within the

knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a

prudent man in believing that the petitioner had committed or

was committing an offense.’ ” United States v. Jensen, 425

F.3d 698, 704 (9th Cir. 2005) (quoting United States v. Bernard, 623 F.2d 551, 559 (9th Cir. 1980)). Under this objective

standard, the government need not “show[ ] that the

officer[s’] belief is more likely true than false,” United States

v. Brobst, 558 F.3d 982, 997 (9th Cir. 2009), and need not

demonstrate “probable cause for every element of the

offense,” Blankenhorn v. City of Orange, 485 F.3d 463, 472

(9th Cir. 2007) (internal quotation marks omitted). Instead,

the government must show that the officers had an objectively

reasonable belief that McCarty committed a crime, based on

the totality of the relevant circumstances. See Luchtel v.

Hagemann, 623 F.3d 975, 979 (9th Cir. 2010). Accordingly,

the government is not required to prove that all or any of the

photographs actually exhibited child pornography in order to

establish probable cause for McCarty’s arrest.20

[14] On remand, the district court’s probable cause determination should proceed in two steps. First, the court should

decide what materials may be considered in determining

whether probable cause existed to arrest McCarty. As Jensen

20Cf. United States v. Hill, 459 F.3d 966, 972-73 & n.9 (9th Cir. 2006)

(while a single photo of a naked child in a bathtub would not suffice to

establish probable cause for a search warrant, a detailed description of two

photographs of semi-nude girls revealing their breasts and pubic areas,

which could have been meant to “ ‘arouse or satisfy the sexual cravings

of a voyeur,’ ” produced probable cause to believe that evidence of child

pornography would be found on the defendant’s computer, even if the

defendant could negate their contraband nature at trial (quoting United

States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987))); United States

v. Moore, 215 F.3d 681, 686-87 (7th Cir. 2000) (finding that photos of

nude children, including some depicting nude boys in nature scenes that

were not necessarily sexually suggestive and some depicting nude girls in

sexually suggestive poses, produced probable cause to effect a warrantless

arrest for possession of child pornography). 

UNITED STATES v. MCCARTY 17135
illustrates, courts generally consider the information known to

the arresting officers at the time of the arrest. Here, Serrao

testified that he had viewed all of the photographs in McCarty’s envelope and perhaps also some of the textual materials

before making the arrest. 

The general rule must, however, be narrowed here, because

the fruits of an unlawful search cannot provide probable cause

for an arrest, see Johnson v. United States, 333 U.S. 10, 16-17

(1948), and it is clear some portion of this search was unlawful. Although—consistent with our enumeration of the

search’s lawful scope—all of the photographs viewed by the

screeners as part of the lawful search for explosives must be

considered in reaching a probable cause determination, the

textual materials seen by the screeners may only be considered if the government demonstrates that suppression is an

inappropriate remedy. Similarly, the photographs not viewed

by the screeners may be considered only if they do not constitute fruit of the poisonous tree. See, e.g., United States v.

Davis, 332 F.3d 1163, 1171 (9th Cir. 2003) (listing the independent source, inevitable discovery, and attenuated basis

exceptions to the rule that evidence discovered as a result of

an illegal search must be excluded).21

Once the district court determines which evidence may be

considered as part of the probable cause determination, it

must determine whether that evidence was “sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Jensen, 425 F.3d at

21Although the government raised an inevitable discovery-type theory

in its opposition to McCarty’s motions to suppress all evidence, see DCD

#61 at 12-13 (contending that the TSA officers would inevitably have discovered the entire contents of the envelope, including all of the photographs, had they not stopped the administrative search before completion

in order to call law enforcement), the district court did not consider this

theory in its order granting McCarty’s motion to suppress. We express no

opinion as to the merits of this argument, but note that the district court

may wish to consider it on remand. 

17136 UNITED STATES v. MCCARTY
704. Again, we stress that, to meet this standard, the government does not need to prove that the arresting officers knew

McCarty had committed a crime, but only that the officers’

belief that McCarty committed crimes related to child pornography was an objectively reasonable one.

[15] Finally, the district court held that suppression was an

appropriate remedy for the screeners’ overbroad search.

Because this conclusion rested on the district court’s erroneous finding that the screeners searched McCarty’s photographs for evidence of child pornography, we vacate this

holding and remand for the district court to reconsider

whether suppression is appropriate in light of our conclusions

here.

CONCLUSION

The order suppressing the evidence obtained as a result of

the airport screening and the follow-on consent- and warrantbased searches of McCarty’s computer and other materials is

vacated, and the case remanded to the district court for further

proceedings consistent with this Opinion. 

VACATED and REMANDED.

UNITED STATES v. MCCARTY 17137