Posted on 11/22/2010 7:51:15 AM PST by jmaroneps37
The 1968 U.S. Supreme Court decision Terry v Ohio should put an end to the outrageous behavior of our TSA agents. The Terry case provided guidelines for police to “stop and frisk” those they deemed to have just committed a crime, are committing a crime or are about to commit a crime.
Nevertheless, the Court tempered this new authority with a requirement that the police also have “reasonable suspicion” to justify such actions.
The basic elements of Terry v Ohio are that a Cleveland Police Detective ( Martin J. McFadden) who was patrolling in plainclothes, observed three men loitering in the vicinity of a jewelry store. Relying on the experience and intuition he developed over his 38 years as a police officer, McFadden determined that the trio was preparing to rob the store so he stopped them and frisked them. The search revealed that two of the men were armed with handguns. McFadden placed all three under arrest. Until “Terry” police were empowered to stop and search suspects only after a crime had been committed.
All were found guilty, but they appealed their convictions up to the U.S. Supreme Court. After almost five years of legal maneuvering their convictions were upheld as justifiable based on McFadden’s established knowledge and experience regarding the identification of criminals even before they had committed their crime.
The Terry decision was not a complete “green light” for those in law enforcement to violate the 4th amendment with total impunity. As agents of government, Police officers must determine the existence of “reasonable suspicion” about the criminal nature of the person[s] being observed.
Such “reasonable suspicions” must be based on ““specific and articulable facts.” Agents of the government may not act on a hunch.This is the salient point..
More…
(Excerpt) Read more at coachisright.com ...
The TSA agents will give refusing to be scanned as their reason for suspicion.
I note that some folks have said that TSA can search people who voluntarily buy tickets and show up at airports, expecting to fly somewhere. The search is something that is now part of the deal, and if you don't want the search, then you can rent a car -- it's your choice.
I think that little rationalization falls apart when the TSA imposes an $11,000 fine on people who try to leave the area rather than go through the search. Suddenly, it's not so voluntary. Suddenly, renting a car instead of flying isn't really such an option for you. Now, the government will search you or fine you -- your choices are suddenly very limited.
It all seems very unConstitutional to me.
If you rent a car rather than fly you must be trying to hide something and are evading security. So we will fine you $11,000 and search you anyway.
There is a huge difference........ no search no fly.
You consented to be patted by consent when you purchased a ticket to fly.
Np pattee, no flyee
Reasonable suspicion is wanting to fly.
You know what? Reading the excerpt of this spawned a HUGE epiphany in my brain....
The DHS is SUING ARIZONA because, as the LIBERALS argue, the new law allows police to ask for IDENTIFICATION!
But, on the flip-side the DHS is DEFENDING the new TSA body scanner or pat-down choice at airports.
I think this little fact needs to go viral!
Illegal Immigrants cannot be asked to show identification, but AMERICAN CITIZENS CAN BE COMPLETELY UNLAWFULLY SEARCHED!!!
After you OPT OUT, ask that your witness be a CERTIFIED LAW ENFORCEMENT OFFICER, who is the only one authorized to do a "terry pat". TSA is just a federal employee, same as a custodian at the Pentagon. They are a private citizen, representing the government, in violating your 4th Amendment protections.
I feel very much like a second class citizen in this country. The government here hates me -- probably because I was born here and have been a productive worker for over 30 years. I think people like me annoy them.
I don’t think you can argue Terry here. In that case, the police stopped and frisked folks loitering on a street corner.
Airport, school and court security is an entirely different animal. They are “screening” everyone to stop folks from carrying contraband items into an airport or a court under the guise of public safety. A reasonableness standard will apply to the search, which will balance the fourth amendment vs. public safety.
Are the scatter X-Ray machines “reasonable.” Like it or not, they most probably are.
Is the pat down search “reasonable?” That may be a more difficult and troubling question of law.
Remember when these judges rule on airports, they’re also are going to rule about their own courthouses. They’ll want to protect their own arses.
The perfunctory compliance of bureaucrats and uniformed officers is part of the formula that was The Final Solution. Those who DID object and resist saved lives. Those Germans who drove the trains, who keep the lists, who rounded up Jews ... it was just their duty. They were just doing their job. Who could object to that?
No job is worth this. The TSA workers themselves have a solemn duty to resist this. They can use passive, sand in the shoe techniques, and keep their jobs if they have jobs not on the screening line — but they can not do these gropings, nor force families apart or force people into the scanners. Such actions are crimes against humanity.
If ordered to do so, they must resign right there.
Taking a fellow human’s dignity by means of indecent searches and forcing them into embarrassing behavior is why everyone was upset about shameful behavior of US soldiers at Abu Ghraib in the sexual degradations they forced upon prisoners. As it was there, it is here. A crime against humanity.
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“Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”
Ben Franklin
It’s one of those little inconveniences you have to put up with by virtue of being an American citizen, while your government is protecting Mexican drug dealers and Middle Eastern terrorists.
At the airport, you give implied consent to be searched by entering the TSA "search" line.
I'm not saying that the search is reasonable, only that you've given your consent by going there.
I often carry a concealed firearm while in the airport on business or when picking up/dropping off relatives. Since I don't get into line, I'm not subject to the jurisdiction of the TSA insofar as their "voluntary" search. They have no inherent "right" to search me outside the confines of their designated search area.
Bit by bit, the government is trying to convince us all to just "follow orders". The TSA is part of this, but of course its all so much bigger than that.
But America will resist far more effectively than Germany ever did.
Complete BS. But hey, you read that on some guy's blog, so it must be true, right?
There's ample statutory and case law to support the TSA. While the TSA might be idiotic and/or offensive, they're within their legal right. Terry applies to police actions, searches & seizures where the police can prosecute you for anything that they find may be illegal. The TSA is exercising an administrative search (People v. Madison, 520 N.E.2d 374 (1988). Such a search is limited in specific scope, and location where it may be conducted. Apples and Oranges
Also See: United States w. Davis, 482 F.2d 893, 908 (9th Cir. 1973)., as one example
For example, if the TSA finds on your person things that they are expressly authorized to look for (per statute) like weapons, explosives other hazardous contraband, then you can be arrested and prosecuted. If, OTOH, they found counterfeit money, or drugs, that might not hold up in Court, or so held a Federal District judge last year in OH, when he dismissed a case against a man who was arrested at a TSA checkpoint for carrying fake passports. That defendant's name was Fofana (I think) and the Judge was Algenon L. Marbley in Southern District of Ohio. I'm not sure what the final disposition in that case was, or if it's still ongoing.
There are similar cases working themselves through the federal judiciary, but none have yet been heard by the Supreme Court. Until it is, the law will remain a bit unsettled. But, one thing is certain, Terry doesn't apply - not even close.
"Coach" Collins should stick to coaching, and leave the legal analysis to someone else.
Consider this: 1) the government, not the contract partner, is doing the search via the TSA. The private, commercial business is not doing the search, even though you made a contract and (presumably) consented to the search via your contract with a private party.
2) the government regulates highways, as it does air travel. Could the government reasonably set up check points along the highways, and perform sobriety checks? vehicle searches? body scans and strip searches? and require 100% of all persons in cars to be stripped searched?
Is air travel somehow, inherently, more special than any other form of transportation?
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