Posted on 11/25/2010 4:49:41 AM PST by Juan Medén
I'm curious to know why no one has brought a court challenge against the TSA pat-downs based on the fourth amendment prohibition of unreasonable serch and seizure. Here is Wikipedia's description of the current judicial understanding of unreasonable search:
"Under Terry v. Ohio 392 U.S. 1 (1968), law enforcement officers are permitted to conduct a limited warrantless search on a level of suspicion less than probable cause under certain circumstances. In Terry, the Supreme Court ruled that when a police officer witnesses "unusual conduct" that leads that officer to reasonably believe "that criminal activity may be afoot", that the suspicious person has a weapon and that the person is presently dangerous to the officer or others, the officer may conduct a "pat-down search" (or "frisk") to determine whether the person is carrying a weapon. To conduct a frisk, officers must be able to point to specific and articulatory facts which, taken together with rational inferences from those facts, reasonably warrant their actions. A vague hunch will not do. Such a search must be temporary and questioning must be limited to the purpose of the stop (e.g., officers who stop a person because they have reasonable suspicion to believe that the person was driving a stolen car, cannot, after confirming that it is not stolen, compel the person to answer questions about anything else, such as the possession of contraband)."
Why that doesn't apply to airport searches is beyond me. If the fourth amendment were applied as it ought to be, TSA officials would be forced to do their homework and PROFILE! Just a thought.
The same could be true of the body scanners.
One such exception is an administrative search-while “[a] search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing[,] where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable’....” United States v. Aukai, 497 F.3d 955, 958 (9th Cir.2007) (en banc) (citation and quotation signals omitted). Specifically, airport screening searches without a warrant generally “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)); United States v. Marquez, 410 F.3d 612, 616 (9th Cir.2005) (“Airport screenings of passengers and their baggage constitute administrative searches and are subject to the limitations of the Fourth Amendment.” (citation omitted)).
[5] [6] “A particular airport security screening search is constitutionally reasonable provided that it ‘is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [ ][and] that it is confined in good faith to that purpose.’*1096 ” Aukai, 497 F.3d at 962 (quoting Davis, 482 F.2d at 913); see also Marquez, 410 F.3d at 616 (stating that an airport screening is reasonable if “(1) it is no more extensive or intensive than necessary, in light of current technology, to detect weapons or explosives; (2) it is confined in good faith to that purpose; and (3) passengers may avoid the search by electing not to fly.” (quotation and citation signals omitted)). A search does not, however, require consent-“where an airport screening search is otherwise reasonable and conducted pursuant to statutory authority, 49 U.S.C. § 44901, all that is required is the passenger’s election to attempt entry into the secured area of an airport.” Aukai, 497 F.3d at 961 (footnote omitted).
By law, the TSA must search all checked baggage for explosives, see 49 U.S.C. § 44901, and the parties do not dispute that the TSA could search Defendant’s bags to ensure that they did not pose a safety risk to the plane. Rather, at issue is whether the government has carried its burden of proving that the search of the Travel Pro bag was for the purpose of detecting weapons or explosives and “confined in good faith” to that purpose. See Aukai, 497 F.3d at 962.
U.S. v. McCarty 672 F.Supp.2d 1085, 1095 -1096 (D.Hawai‘i,2009)
Probably because a TSA agent hasn’t been DECKED for touching “youknowwhat”
Anyone patting me like that had better be saying “you have the right to remain silent”... or.. the tag line says it all.
If I were to argue for TSA I’d concede that searching flight crew is a violation. They’re just going to their jobs when they board. But passengers can choose to travel some other way, so there’s an implied consent issue.
unreasonable is the keyword here.....and a nebulous word.
I suppose that if there was a ghost of a chance that a bomb could take down a jumbo jet full of people, the founding fathers may or may not have approved of a particular search method.
Thanks! That helps. I am wondering, then, at what point, the searches cross a line? It seems to me that the courts are going to have to say something on this or we will end up with cavity searches of three year olds.
The Federal government can only do this by declaring your desire to travel to be “probable cause”. There is no logical reason that they cannot create Interstate highway checkpoints, etc. under the same auspices.
Frankly, the Soviet internal visa system is starting to look like a less intrusive system. I'd rather hand over my papers than subject my wife and daughters to a full body search. Of course, they will be requiring papers and doing cavity searches before its over. The Red-Greenies must be peeing themselves with happiness over all of this.
This is the consequence of not owning up to the fact that the enemy IS ISLAM.
Simple. When you submit to it you waive your protection. Just like social security and your driver license. What will they do when some fanatic Muslim blows himself up in the line? Although they may not need to Terrorize us anymore, we are doing a good job of it ourselves.
Define a new term of art "administrative search" and with it hollow out the natural right of free passage, unobstructed by authority. What can not be construed as a "part of a general regulatory scheme in furtherance of an administrative purpose"? Nothing! This permits ANY sort of search by a mere hand wave -- "some possible danger".
However, as John Tyner has found out, if you refuse both you just cant simply walk out of the airport either, they detain you.
This whole thing is just not right.
Thanks for posting this....been my question for a long time. If you are driving your car down the road, they cannot search it “without reasonable cause” - or your permission if they don’t have reasonable cause.
Proven in court many times.
Why doesn’t that apply here? If I give no cause to indicate I am a terrorist, they have no right to search my person.
My question is: WHY HAS NO ONE PURSUED THIS OR CHALLENGED IT IN COURT!!!??????
That Judge Napolitano says it is under the protection of the 4th, SOMEONE needs to challenge it!
Actually, this whole scanner/grope thing may turn out to be one of the best things to happen to the US since it is forcing the issue of ‘profiling’ out in the open.
Back during the first Gulf War the big security thing was checking your bomb, er, uh, I mean bag at the curb. They weren't inspecting the bags at the curb, just checking them in. They didn't want people bringing their bags inside the terminal. Carry-on bombs, er, uh, I mean bags were okay, though. So, what was the first thing that happened when you checked your bag at the curb? They put it on a conveyor belt which took the bags inside the terminal! That made about as much sense then as strip searching 5 year old girls does now, while allowing young Muslim men stroll right on through without any additional screening......
It is well established that searches conducted as part of a general regulatory scheme, done in furtherance of administrative goals rather than to secure evidence of a crime, may be permissible under the Fourth Amendment without a particularized showing of probable cause. See United States v. Davis, 482 F.2d 893, 908 (9th Cir.1973). Limited administrative searches may be conducted at the border, see, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), in airports, see Davis, 482 F.2d at 893, and in state courthouses, see McMorris v. Alioto, 567 F.2d 897 (9th Cir.1978).
[3] Because these searches require no warrant or particularized suspicion, an administrative search scheme invests the Government with the power to intrude into the privacy of ordinary citizens. This power carries with it a vast potential for abuse. See United States v. Soyland, 3 F.3d 1312, 1316 (9th Cir.1993) (Kozinski, J., dissenting). Therefore, courts must take care to ensure that an administrative search is not subverted into a general search for evidence of crime. See Davis, 482 F.2d at 909.
[4] [5] [6] While administrative searches are an exception to the Fourth Amendment’s warrant requirement, they are not an exception to the Fourth Amendment’s standard of reasonableness. See id. at 910. Because of the potential for abuse, courts have exercised care to see that these searches are not unduly extended. See McMorris, 567 F.2d at 899. Courts apply a balancing test to determine whether an administrative search meets the Fourth Amendment’s reasonableness requirement. Under this test, courts balance the need to search against the invasion which the search entails. See Camara v. Municipal Court, 387 U.S. 523, 536-37, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). “To meet the test of reasonableness, an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.” Davis, 482 F.2d at 910.
[7] Further, an administrative search scheme has long term implications. Therefore, in determining whether the scheme is valid, the Court should consider the entire class of searches permissible under the scheme, rather than focusing on the facts of the case before it. See *968 United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1244 (9th Cir.1989) ( “ $124,570 ”). The scheme is only valid if “the search serves a narrow but compelling administrative objective,” and “the intrusion is as ‘limited .... as is consistent with satisfaction of the administrative need that justifies [it].’ ” Id. at 1244-45 (quoting Davis, 482 F.2d at 910).
U.S. v. Bulacan 156 F.3d 963, 967 -968 (C.A.9 (Hawai‘i),1998)
The probable cause search done by law enforcement officers can be done without consent.
An administrative search is done with consent. When entering a court building, people give their consent to the search as a condition of entry. “if you want to enter this building, then you must submit to this search which insures that you haven’t got a gun”.
Some nightclubs do this with metal detectors at the entrance.
The devil is in the details though isn’t it?
You have it backwards. They would no longer allow you the convenience of checking your bag at the curb. You had to stay with your bag. They did not want terrorists just driving up and dropping off a bomb in a bag.
My guess would be, that everyone who has made the most tentative initial steps to do so, has been put on notice that it would be financially and professionally disastrous.
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