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. […] 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. 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.

  2. 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.

  3. 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

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

  5. 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!!!!!!

  6. 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

  7. 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.

  8. 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.

  9. 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.

  10. 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

  11. 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!

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

  13. 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.

  14. “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! 🙂

  15. 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.

  16. 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.

  17. 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.

  18. 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

  19. 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?

  20. 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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