How The TSA Legally Circumvents The Fourth Amendment

A constant complaint from those opposed to the Transportation Security Administration’s (TSA) new ‘enhanced’ pat down searches is that these pat downs violate a traveler’s Fourth Amendment rights.

For those unfamiliar with the Fourth Amendment to the United States Constitution it reads “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

While the new TSA enhanced pat downs may violate the Fourth Amendment on the surface, what most people are not aware of is that the 9th Circuit Court of the United States ruled on the search of passengers in airports back in 1973, which effectively suspends limited aspects of the Fourth Amendment while undergoing airport security screening.

In 1973 the 9th Circuit Court rules on U.S. vs Davis, 482 F.2d 893, 908, there are key pieces of wording that give the TSA its power to search essentially any way they choose to. The key wording in this ruling includes “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.”

U.S. vs Davis goes onto to state “[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.”

U.S. vs Davis was upheld by the 9th Circuit Court in 1986 in U.S. vs Pulido-Baquerizo, 800 F.2d 899, 901 with this ruling “To judge reasonableness, it is necessary to balance the right to be free of intrusion with society’s interest in safe air travel.”

These 9th Circuit Court ruling laid the path for the creation of Public Law 107-71, the Aviation Transportation and Security Act, which was virtually unopposed by legislators when it was it was signed into law on the 19th of November 2001 by President George W. Bush. This law laid the groundwork for the Transportation Security Administration and the evolution of its current security procedures.

These laws give the Department of Homeland Security (DHS) and Transportation Security Administration significant legal latitude to perform the searches utilizing their current procedures without fear of violating the Fourth Amendment.  Any attempt to oppose TSA searches citing the Fourth Amendment would be rebuffed unless done through the proper legal channels.

In order to create an effective change of the TSA’s policies, those who oppose current procedures should organize and file a legal action seeking to overturn or alter the U.S. vs David ruling by the 9th Circuit Court.

Presently the TSA has  what appears to be a “blank check” in writing out what is “no more intrusive or intensive than necessary” and what is “confined in good faith to that purpose.” With the latitude the agency has been granted … not only does a legal precedent need to be set that challenges U.S. vs Davis, but further oversight of the TSA needs to be created by the House & Senate committees responsible for overseeing and funding the agency.

A change needs to be made, a ground swell including both citizens and legislators must move in a single movement … but all of that is irrelevant without basing an argument on facts, opinions of qualified experts and an understanding of the laws that make this all possible.

Misinformed yelling does nothing to help bring about the change that is necessary.

Happy Flying!

Pingbacks

  1. […] 2. This is a violation of the Fourth Amendment to the U.S. Constitution. Courts have ruled that airports are a partial, special exception to the Bill of Rights (much like international borders).  These rulings have authorized airport security workers to conduct administrative searches.  This is a legally different standard than a search based on probable cause of wrongdoing.  These “conversations” with TSA agents wherein they solicit private information from you (presumably as a condition of flying) are beyond the scope of an administrative search.  For more of the specifics of the court rulings that have led to our current debacle of airport security, here’s some reading for you. […]

  2. […] balance the right to be free of intrusion with society’s interest in safe air travel.” How The TSA Legally Circumvents The Fourth Amendment – Flying With Fish No amount of Ronulan bullshit changes this. […]

  3. […] Administrative search doctrine goes all the way back to 1973: The key wording in this ruling includes “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.” […]

Comments

  1. Since when has Granny become a terrorist? I am a 58 year old white American grandmother. Was there any reasonable cause or justification for Logan TSA groping of me. I got both the porno scan and the pat down. They must have really liked my porno picture I guess. It was totally humiliating and disgusting. And the purpose was? How many 60 year old women terrorsits have there been on airplanes anyways? And yes, this was a very Nazi experience. I will not fly again as long as the TSA is there.

  2. Search: An examination of a man’s house, premises or person, for the purpose of discovering proof of his guilt in relation to some crime or misdemeanor of which be is accused.

    When you are searched, they are looking for proof of your guilt, not your innocence.

    Reasonable: In the law of Negligence, the reasonable person standard is the standard of care that a reasonably prudent person would observe under a given set of circumstances.

    Unreasonable: Not determined by reason; capricious; arbitrary; irrational. 1.having or showing little sense or judgment; not rational
    2.excessive; immoderate; exorbitant

    The constitution does not mention administrative searches. It only mentions unreasonable searches. What is an unreasonable search?

    “An examaination of a man’s person for the purpose of discovering proof of guilt in an excessive, immoderate or exorbitant manner.”

    When the rights of someone else are intentionally or maliciously infringed upon, such conduct demonstrates bad faith.

  3. You are all not thinking about this in the right light. Why do we have these searches? It is to keep the passengers on the plane safe. If it were not for these searches you could get blown out of the sky. Over 3500 dangerous contraband are found in these searches each year. That is 3500 planes with over 150 people on each. So deal with the search it is better than Thousands of people getting killed by stupid people.

  4. It is obvious to all but the most blindly indictrinated statist zealots that TSA’s genital/anal groping “patdowns” blow the Fourth amendment to hell and back.

    Offering air passengers the alternative “choice” of enduring a scan that not one medical expert who holds an M.D. degree has said is 100% safe is NOT a passable option. Neither is telling Americans to take the bus. Apparently “The Government” hasn’t heard the news that no buses go from the U.S. to Europe, Asia, Micronesia or Australia.

    The supposed”law” that Bush 43 signed that allows these outrages do the same. Article VI of the Constitution establishes the Constitution and Bill of Rights as the supreme law of the land in America. Article VI goes even further, mandating that every law and judicial ruling must be in accordance with the Constitution – if any law or judicial ruling contradicts any provision of the Constitution ,it is null and void from square one.

    16 American jurisprudence verifies this fact:

    “The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be in agreement… No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”
    -16 American Jurisprudence 2d, Sec 177 late 2d, Sec 256

    TSA’s insidious and outrageous “pat downs” – along with the supposed “law” allowing them and the 9th CC’s statist rulings all contradict the Constitution and are therefore null and void. It’s high time “The Government” and the American people stop pretending otherwise.

  5. I have to agree with some of the respondents. This article appears to contain one or more fundamental failures of logic.

    First off, as the law itself as quoted says, it is necessary to balance the interests of the public versus the intention to keep flying safe. It is arguable — and I so argue — that TSA’s procedures do not reflect such balance, and go far beyond any reasonable intent to “keep flying safe”.

    Second, our right to travel *IS* in fact codified in U.S. law, even if not in the Constitution. In fact it predates the Constitution, and goes back to English common law (which is also incorporated into law in most states).

    But more specifically, in Shapiro v Thompson, 394 U.S. 618 (1969), Justice Stewart noted in concurring opinion that “IT IS A RIGHT BROADLY ASSERTABLE AGAINST PRIVATE INTERFERENCE AS WELL AS GOVERNMENT ACTION. LIKE THE RIGHT OF ASSOCIATION … IT IS A VIRTUALLY UNCONDITIONAL PERSONAL RIGHT, GUARANTEED BY THE CONSTITUTION TO US ALL.” [emphasis mine] The Articles of Confederation also had an explicit right to travel; it is now thought that the right is so fundamental that the Framers may have thought it unnecessary to include it in the Constitution or the Bill of Rights.

    So regardless of the 9th Circuit’s ruling, the argument that the government has authority to interfere with citizens’ travel (intra- or interstate, anyway), is false to begin with… the Supreme Court has already ruled so: we have a “virtually unconditional” right to travel. The airlines, as private providers of transportation, are certainly free to implement whatever reasonable restrictions they like on the services they sell. The government, however, has no legal authority to interfere.

    It (the government) may, if it has compelling interest, make reasonable and Constitutional checks for criminals passing through (which would require probable cause, not mere suspicion), and arrest those who are breaking the law. But it has no authority to implement mandatory x-rays or patdowns without probable cause, or to turn away travelers who do not comply with any demands it chooses to make.

  6. It boils down to this; if you’re ‘asked’ to subject to additional screenings, you can ‘refuse’ and will most likely be denied boarding. Simple, right? But the TSA goes on to state the 9th court’s ruling empowers them to insist one complete the enhanced screening despite being denied boarding. Using your refusal to relinquish your 4th amendment rights as probable cause because you do not voluntarily give them up is forcing compliance through coercion by intimidation and threat of arrest and/or fine. This now becomes ‘unreasonable’ search and seizure of one’s person and belongings and is, on it’s face, blatantly unconstitutional, and the TSA knows this but uses the ignorance and apathy of everyone to their advantage. People need to wise up and speak up.

  7. This is a pretty stale thread, but I felt I had to make the point that just because something is legal as defined by congress or the courts, does not mean it is legal in the US. The constitution is the highest law of the land, and I would believe that the bill of rights is not the font of my rights, but rather that it merely codified them. I had those rights before the bill was written to limit federal powers (leaving aside any issues with states). In a similar manner, one’s right to be free of unreasonable searches is intrinsically one’s own, to be abrogated only under worthy circumstances. Merely flying is not one such circumstance, that is to say, to suspect everyone is a terrorist is unreasonable with no attempt to use one’s history of actions, travel patterns, background, etc. Congress or the courts currently have indirectly allowed for the act to be “legal” but there is still room to say it is not, for certainly violates one’s dignity and may have violated the constitution.

  8. Stale but still relevant. I recently flew out of Salt Lake CIty where the TSA has instituted 100% body scans or, if you opt out, groping pat downs. It was the first time in my life that I’ve been subjected to such a violation perpetrated. by my goverment. I’ve sent a note of to the TSA complaining and told them to count me as a U.S. citizen that is against this procedure and have letters on the way to my rep, Senator a the President.

    As long as I am groped I will continue to send out messages to these government entities in the hopes that someone will wake up.

  9. I cannot wait to see the youtube video of you getting fingerfucked by the TSA like the real victims have had to deal with.
    You are quoting the 9th Circuit Court of the United States as if they are the U.S. Supreme court.
    And even the supreme court has been wrong before (Dred Scott v. Sandford ring a bell?)
    I’m sorry, but you sound like one of the “useful idiots”

  10. Since the SCOTUS rulings appear to be focused on aircraft security, does this mean that mandatory VIPR searches of rail and bus passengers and their bags clearly violate 4th amendment?

  11. An old thread, but… to those comments that claim that there is no fundamental right to airline travel, that is basically a policy the TSA made up relatively recently. Until the past few years (even quite a few years after 2001), you could board a plane on a *domestic* flight without an ID. Yes, it’s a secret they didn’t want you to know, but you could. Why? Because of the right to free travel that has been upheld in a number of court cases. The idea that the government could restrict your travel because they didn’t have appropriate ID was considered ludicrous (and illegal). Look it up.

    The search question is more complicated, but the TSA searches fail even if you deny the right to free travel, because they are now considered administrative searches and thus cannot be refused. In other words, you do not have to consent to them — they can do them anyway, even if they plan to refuse you boarding.

    The consent exception is separate from the administrative exception to the 4th amendment. Before 2001, if you refused to be searched, you would just be denied boarding. If you refused an escalated search, you would just be denied boarding. Unless they had real probable cause on you, you could simply leave.

    That is no longer the case. Once you enter the security zone, TSA can now search you — you have no option to simply say, “I don’t consent to the search” (once they tell you what it is or try to escalate it) and leave. Notice how family and friends were excluded post-2001 from the gate area? Why? Because they would have no good cause to be able to require them to be searched rather than simply allowed to leave.

    Quite frankly, the searches do not depend on consent. They assert that if you are present in a certain place in the U.S., you can be searched — your rights be damned. It has nothing to do with travel.

  12. Bob,

    You can still fly in the United States without an ID. I have written about it, the TSA doesn’t like it to be known, but you certainly pass through security without an ID.

    Happy Flying!

    -Fish

  13. I thought that only CONGRESS can make laws. The Judicial Branch was made the weakest branch on purpose, because lawyers aren’t in touch with the “people”, our elected Congress. Benjamin Rush wrote about this extensively, even prior to him writing the constitution. When did the Judicial branch become allowed to make law? But then agan, congressmen and senators only worked 1 month out of the year because they were statesmen, it wasn’t a full time job.

  14. andy, georgia,,,, if we continue to be sheep, then we will be lead to the slaughter,,, wonder if a petition on the ballot to procecute those who violate the constitution, even as ( it is just my job ) employees as traitors .
    and to all those who like security over freedom,, go to a country that pratices such,, don t push your sheep on free americans

  15. The truth is that the TSA is routinely violating the terms of an Administrative Search. Specifically, when the concept of an Administrative Search was created by the U.S. Supreme Court (Camara v. Municipal Court, 387 U.S. 523 (1967)), the court stated that the reasonableness of the search can only be determined by “balancing the need to search against the invasion which the search entails”. Further, in People v. Madison, 520 N.E.2d 374 (1988), it was held (albeit by the Illinois Supreme Court) that the government may not use an administrative inspection scheme as a pretext to search for evidence of criminal violations.

    To the first, as a professional aviator, I can assure everyone that there are significant holes in the security infrastructure that TSA knows about (I’ve reported several, and never had any fixxed.) Clearly, if the back door is unlocked, putting bars over the windows would be excessive.

    As for the second part, TSA has made a habit of turning people over to police for “suspicious” behavior, such as carrying a large amount of cash on a domestic flight. As there is no limit or reporting requirement on carrying cash domestically, each of these cases clearly shows an intent to abuse.

    Taken together, TSA is systematically violating the Fourth Ammendment, and the theory on which Administrative Searches are based. Consequently, I believe that a well argued challenge should be successful in, at least, placing restrictions on their behavior. The trick is financing the challenge.

    I do agree with the author in that change needs to happen, and, “Misinformed yelling does nothing to help bring about the change that is necessary.”

  16. Since tax payer dollars funded the bailout of numerous airlines, I would say that flying is a right, not a privilege. If your dollars funded it, it means you have part ownership, duh! Whoever came up with this misnomer needs to be reminded of the fact that the tax payers bailed out the airlines. Let’s see here folks, can you think of other corporations that were bailed out by your tax dollars and try to figure out what your privileges and rights are??? Hello??? Is this thing on??????????

  17. I didn’t read the entire article… Nor did I read most of the comments… However no amount of legal jibber-jabber can change the fact that the Constitution specifically states that legislation which contradicts the Bill of Rights is NULL AND VOID. An amendment is the ONLY way to change the Constitution….

    So, as far as this American is concerned, screw your Supreme court cases. Screw “exigent circumstances”, and screw the concept of “safety before liberty”.

    The Constitution is the supreme law of the land, and what the TSA does is totally and completely illegal according to the 4th amendment. A government worker CANNOT search your belongings or person on private property. PERIOD. End of story.

    You want to end the controversy? Use PRIVATE security. Then you can grope people as much as you want. But as long as airports are FORCED to use GOVERNMENT employees to sexually assault, search, grope and detain American citizens on private property as a prerequisite to travel, they are breaking the law, and people that allow it are cowards. It’s that simple.

    I’ll even go as far as saying that parents who allow their children to be molested by these gestapo are worthless, spineless human beings who are unfit to procreate in a “free” (yeah right) country.

    I won’t fly until TSA is done away with. And if I’m forced to fly, I’ll be arrested and file a lawsuit before I allow a TSA nazi to lay their hands on me.

    That’s America.

  18. You CANNOT suspend a Constitutional Amendment without an act of Congress and State Ratification. These courts are illegally doing this.

  19. Just two points here. The constitution is the highest law of the land. You don’t get to legally “circumvent” the highest law of the land. You want to change the constitution–there is a process for that. Second the searches that were considered administrative and “reasonable” in the 1970’s are the not searches that are going on today. A strip search/pat downs of the nature that are going on today are both invasive and beyond what is needed to ensure the saftey of passengers. I highly doubt the court of 1973 would find grasping women’s breasts and men’s scrotums–not to mention children’s bodies reasonable.

  20. The latest abuse is now happening on roadways, trains and waterways, your reference to the 9th circuit although timely back when is now shown to be totally out of date and irrelevant, the TSA believes they have the right to patrol all transportation systems and they never stop at securing air travel but will arrest anyone for any law they can – how is that pursuit to the 9th circuits rulings ?

  21. It’s so easy to make it ok for all you people who think you get “groped” by TSA.

    Don’t fly, you bumbling, complaining, no brain _______! Who did you lose in 911? Noone I bet!
    Go stand a post at a security checkpoint that attempts to keep people safe, then you tell me what we should do to keep people from taking explosives and weapons on airplanes. You don’t agree with the security? Take your chances driving! Anyone of you who thinks TSA people grab people’s private parts are ignorant and uneducated. Sorry to break the news to you, when you go to the airport you make the choice to be screened, if you get screenws, you get to fly. Flying is not a right, flying is a privelage. Get over yourselves, noone wants to touch you.

  22. Okay, let’s think of this? Let’s just say the TSA is disbanded and all that. Airports return to privatized screening. Blah blah blah. All is good right? Well, first of, Federal law requires that job openings must be offered to current TSA employees first. Second, the new screening company also has to follow the same rules as TSA did (TSA is under DHS. TSA rules are DHS rules, and you must follow Federal law). Finally, the technology would still be there. Body scanners and stuff. The threat is still out there. The hiring process is one of, if not THE most difficult processes my friend has ever done (he’s a Supervisor for TSO’s). It took him over a year from application to coming on board. Or would you rather want registered sex offenders, rapist, criminals. The TSA conducts MANY background checks, from working with the FBI to calling high school principal offices, several medical/drug tests, a panel interview, and much much more. Another TSO I know lost his job after one DUI, and was never busted for anything before, even a speeding ticket. Even if we get rid of the TSA, someone else will take over. The threat will never go away. Am I in favor of the new pat downs? No, not really. But I am also against those who slander employees for doing their jobs and making outrageous claims against them. The bottom line is, there will always be a threat, and there will always be someone trying to hurt the United States. My two cents.

  23. Interesting — How to beat the TSA: Threaten to sue under lawsuit 42 U.S.C. 1983- Lt. Col. Craig Roberts

  24. Why doesn’t someone sue the court for the ruling that violated the constitution. In essence, is it legal for a court to dismiss part of the constitution at any time for any reason the court sees fit? The constitution has definitions for when they can violate it for searches approved by the court (judge), but can the court itself have the right to side step a constitutional law entirely and then delegate that authority to another entity besides the court.

  25. I know this thread is stale, but to those who state that flying is not a right, I must counter that it is indeed a right granted by 49 USC § 40103.

  26. What most people fail to realize is that MOST airports, regional or international, are PRIVATE PROPERTY. The TSA has Absolutely no connection with Airports. Airports agree to have TSA agents on property conducting these searches and providing security. If they really wanted to do away with the TSA and hire their own Private security companies they very well could. It would cost airports more money than Im sure they would want to spend. Instead they have free security provided by uncle Sam and it allows UNIFORMITY among all the airports in the country. TSA is not responsible for the idiots that are in other countries that come here unfortunately. But it is their job to stop them before they proceed onto AMERICAN Soil. Does the TSA violate your personal space at times? Yes. But remember, its the Airports themselves that agree to have the TSA there in the first place. People forget that Terrorism has many faces, many ages and many religions. They use and exploit children overseas for terrorists plots. Its only a matter of time before someone starts doing it here. I would hate to see my child subjected to a search of that magnitude, but it only takes one child strapped to a bomb to make us realize that it can happen. We are so fortunate that we have yet to see our children be used as human weapons.

  27. Cory,

    You are technically correct and incorrect. PL 107.71 states airports may choose to use private aviation security services, however they must apply for this via the TSA. The TSA has time and time again refused to allow any new airports top opt out of using the TSA. I have written about this quite a few times.

    While some airports are private property, their security must adhere to federal requirements for commercial flights to operate.

    Happy Flying!

    -Fish

  28. There’s your mistake right there Steven: Where does a circuit court get the authority to “suspend” aspects of the Constitution?

  29. Hmmm

    No where in the Constitution is ANY COURT OR GOVERNMENT ENTITY ALLOWED TO OVERRULE THE CONSTITUTION!!!!!!!!!!!! THAT 1973 RULING IS A DIRECT VIOLATION OF THE CONSTITUTION AND THE 4TH AMENDMENT. AS SUCH THIS RULING ILLEGAL ON ITS FACE AND IS THEREFORE NOT LEGALLY BINDING ON THE CITIZENS OF THE UNITED STATES. WAKE UP PEOPLE IT IS OUR COUNTRY NOT THE GOVERMENTS!!!!!!

  30. This is what the TSA is up against. So what do they do? TSA Chief Says Al Qaida has Altered Underwear Bomb Formula By: Kimberly Dozier, AP Intelligence Writer in the HS Today report

  31. I recognize no law or entity that goes against the Constitution as it was written. The 9th circus has been overturned than any court or whore in the land.Congress has been taken over by likes of people that would be at home in a septic tank.(Shit also floats as well as cream). If we demand that those in government who are suppose to work for us WE THE PEOPLE abide by the Constitution we are lost.

  32. People are willing to trade their safety for a few minutes of not having to “suspend” their rights?

    I mean I get it that the security check point is violating your 4th amendment, its unconstitutional, but personal safety feels far more important than personal privacy.

    Someone has said in the comments that, and I’m not entirely sure if its accurate, 3500 dangerous contraband are being found each year. I would also like to point out one aspect of these security check points is to also deter anyone THINKING of bring dangerous contraband.

    Now lets say that there where enough misinformed yelling that gets the TSA removed. We are not only allowing that 3500 each year, but we are now inviting those who didn’t attempt to do the same. That could increases 3500 be maybe 2x or x3. Who knows? Which also increase the chance of any of you catching a ride with a gun or even a bomb.

    Come on people, lets get our priorities straight, because you constitutional right ain’t gonna do you any good if you’re dead.

  33. The unwarranted touching of your genitals during a search would be sexual battery. When forced to submit to this travesty it would be wise to apprise the TSA, recorded and with local LEOs in attendance, that doing so without your consent would result in a stopping the frisk rather abruptly with force. I’m quite sure the TSA will then just ask the LEOs to escort you out of the area and you can find another way to your destination.

  34. As a passenger, and Cuban-American, I been unjustly placed on the “Black List” of TSA and every time I travel a full cavity search is performed which clearly constitutes my 4th amendment violation and my civil liberty rights. Their profiling should be geared toward the right suspected culture, NOT the US citizens…its plain mental retardation for a democratic nation to be employing dictatorial rules and having TSA employees participate in their fascist methodologies of search procedures. These sadistic implementations of searches are illegal, regardless of how much you sugar coated!!!!!! The application of an illegal law, doesn’t NOT make it right, it just demonstrates how far the new dictatorship of Congress is willing to go to alter the human rights of people!!! Presently there is NO differences between the USA, Cuba, China, Iran and other dictatorial nations in their fascist doctrines of illegal searches.
    God Save Us All!!
    Charles Del Campo
    Paranormalpsy@aol.com

  35. Hey! Why does your link to the U.S v. Davis link redirect me to a completely unrelated court case?! I’m trying to do research here, and I can’t find this case ANYWHERE on the web!

  36. Nevermind. I finally found the quoted parts. I still have trouble finding this on the web though. Why?

  37. It’s not a constitutional issue because airlines are private corporations who set the security screening requirements for their passengers. The 9th circus court decision is moot. When you agree to fly as a passenger on Brand X airline, you agree to the fine print of their security requirements. You willfully and intentionally enter the security checkpoint for the purpose of their administrative search. It is not like the search and seizure of a law enforcement officer by any stretch of the imagination. Screeners are not police officers.

  38. “Misinformed yelling does nothing to help bring about the change that is necessary”

    Ain’t that the truth. Love the simplicity of your statement; nicely said. :) Excellent post too. Clear, concise, properly linked, where appropriate and most importantly – factual.

    Thank you for your writing! :)

  39. So if I’m understanding this correctly, under U.S. v Davis, the TSA has no jurisdiction over drugs? In other words, they cannot search for marijuana? Just curious.

  40. An example of a “general regulatory scheme” or administrative search is a DUI/DWI checkpoint that many localities undertake. The purpose must be to ensure road safety and not merely to use it as a way to get around finding ordinary criminal wrongdoing. Towns must usually give notice that they are doing checkpoints, must be conducted neutrally, and the scope and discretion of officers must be limited to ensure they don’t go beyond a level of intrusiveness that a warrant is designed for.

    In essence, the 9th Circuit said that airport security was similar. In these instances, you do not need to have a warrant because the scheme is not, in the abstract, directed toward a specific individual as long as the entire scheme itself is conducted in a “neutral” way. Neutrality can mean searching every 5th bag/car. This must be justified by a substantial administrative purpose in a usually highly regulated industry (in this case, air security/safety). I think the government would argue that intrusiveness of optional body scanners or pat downs is warranted by concurrent advances in weapons technology or methods. In addition, once the TSA believe they have found something suspicious, this arguably gives them reasonable suspicion or maybe probable cause to search further. The reason the courts defer to law enforcement here is because they feel the public need outweighs individual privacy interests. Like it or not, most or all of our individual rights are subject to these public pressures.

    That’s not to say I’m agreeing or disagreeing with any comments made here, or what the courts have said. I just wanted to expound more on what the law generally is in regard to the 4th Amendment. In my humble opinion, most of the problems we see with the TSA come from officers who are acting beyond the discretion given to them by law. The problem with security measures is that the federal government often throws money into technology and manpower without adequately monitoring or training officers. Without a rein on discretion, TSA can get away with many searches that are pushing the boundaries of intrusiveness allowed by the Constitution or are without real suspicion. Thus, it’s good that individuals are challenging the circumstances they were in. It might lead to the courts finally defining the legal terms to fit into our contemporary problems.

  41. Rena, the TSA does not search for drugs. If drugs are found when doing a search TSA does not take them from you, you are free to pass through the check point. However, LEOs will be informed and it is up to them as to how they will proceed from there.

  42. Jay,

    You are incorrect. Should the TSA find narcotics in your bag during passenger screening you will be held for questioning by law enforcement. You are not free to pass.

    Happy Flying!

    -Fish

  43. If I’m Military (I am) and I’m traveling on orders (witch I do fro time to time) doesn’t that negate the whole “you can choose not to fly” bit. In that case I literally can’t choose not to fly. How would the logical legal argument proceed from there?

  44. More IEDs have been detonated by terrorists on the streets of Boston than on US-originating airplanes. Therefore, would the 4th amendment also not apply if the Boston PD or FBI established a routine practice of searching everyone who passes by checkpoints on the streets of Boston or other major cities. After all, one does not have to take advantage of the privilege of walking down a public sidewalk. In fact, since the sidewalk is governmental property, it is more justifiable to search people for entering this government property that to search those wishing to enter an airplane owned by a private corporation.

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