Reader Mail : Why Are TSA Searches Legal?

It’s been a while since I’ve dug into reader mail … but an email yesterday caught my eye.  Michael Rogers, from New York, asks, “Is there a legal case for the TSA to go through every item in my bag? Last week in Detroit I had every item in my bag inspected, why are TSA searches legal without a warrant and without screeners being law enforcement?

Michael, there are a number of reasons why airport security screeners around the world have the power to inspect every item in a travelers bag. To go into the intricate details of each search type, their legal arguments and the legal debate that is ensuing at this time would require a number of legal minds to write their opinions, many of which conflict …

… however the simple answer is this …  In the United States Transportation Security Administration (TSA) Transportation Security Officers (TSO), and private firms that handle airport security under the authority of the TSA, have the ability to search travelers as “Administrative Searches.”

By definition an Administrative Search is a search carried out under a regulatory or statutory scheme. Administrative searches are carried out to enforce compliance with regulations or laws pertaining to health, safety, or security.

In 1967 the United State Supreme Court heard Camara v. Municipal Court, 387 U.S. 523 and made the following ruling: A reasonable administrative search may be conducted upon a showing of probable cause which is less stringent than that required for a search incident to a criminal investigation.

The TSA’s basis is that the need to inspect all passengers and their belonging is that ‘probable cause’ and the U.S. Government has upheld that the TSA is within the spirit of the law when it comes to conducting Administrative Searches.

The real challenge for the TSA and Administrative Searches comes when screeners find criminal items, such as narcotics, given the 1988 case People vs Madison, 520 N.E.2d 374, which ruled:  The government may not use an administrative inspection scheme as a pretext to search for evidence of criminal violations.

The TSA has stepped outside its legal authority a number of times while both detecting items that are illegal, but not a threat to aviation security and that required extraordinary measures to reveal, and in other cases … such as questioning a woman traveling with sequential checks worth thousands of dollars, while traveling on business.

But as for you having the contents of your bag unloaded and individually inspected … as irritating as that can be, and I’ve had it happen to me a few times … the TSA has the legal authority as they are carrying out Administrative Searches for the purposes of safety and no security.

Hope that answered your question.

Happy Flying!

Comments

  1. If the law allows this then as Dickens says in Oliver Twist “… the law is an ass.”

    Courts that uphold this kind of cr*p are contributing to the destruction of the United States as a free country. Given this kind of reasoning there is no limit to the things the government can force upon its subjects. Welcome to what used to be a free country.

  2. Steve,

    Do you REALLY believe that “the TSA has the legal authority as they are carrying out Administrative Searches for the purposes of safety and no security.” is constitutional?

    Oddly enough, they seem to be doing most pat downs of old women in wheelchairs and women in general and even kids who are SUPPOSED to be exempt from it. Sure some men, but they aren’t complaining as loudly, as they have less private areas to be concerned with, and aren’t carrying breast milk. Patting down kids the way they are is CONDONING molestation on them WITH your permission, imo. I think they have gone WAAAY overboard. We are the ONLY country in the WORLD that requires travelers to remove shoes. Taking nail clippers away from our soldiers returning home, WITH THEIR unloaded guns is beyond STUPID too, but has happened in IN.

    TSA is currently doing searches in an unconstitutional manner. They should identify travelers who are more suspicious and engage in those that seem to have a reason to be looked over twice more. There is no reason that 100% of travelers need to be treated like criminals to catch less than 1% of the bad guys.

    JMO.
    Donna

  3. Key word is “reasonable”. This is the same word as in the fourth amendment. Seeing a naked X-ray picture of me, or giving me a grope involving my personal areas is not reasonable, and will get you thrown in jail in any other setting.

  4. Donna,

    The searches discussed in this post are regarding bag searches. The question was asked regarding the contents of the bag and that is what I addressed. Airport security all over the world all check point screeners to empty and inspect the contents of a bag. What is happening in regard to bag searches is the same as you’ll encounter in the United Kingdom, Japan, Hong Kong, Canada, France, Italy, Bahrain, etc etc.

    Happy Flying!

    -Fish

  5. Scruffy,

    As I mention in my reply to Donna a moment ago …The question was asked was regarding TSA carry on bag searches and that is what I addressed. Every commercial airport in the world, with flights of more than 9 passengers, all allow for airport security screeners to empty and inspect the contents of a bag. You’ll encounter the same authorization to inspect carry on bag contents in the United Kingdom, Japan, Hong Kong, Canada, France, Italy, Bahrain, etc.

    Happy Flying!

    -Fish

  6. Donna,
    As Fish said, it is not just in the US. On my way to Singapore, the authorities in Hong Kong did a hand search of my bag on the jetway getting on the flight to Singapore.

    Scruffy,
    Airports are unlike any other setting in the world. Saying “BOMB!” in an airport will garner a far different response than saying “BOMB!” in a city park. There are very few places where you need to go through a metal detector and put your bags through an xray machine to get in.

    Flying is a privilege, not a right, you have to give up some rights if you want to fly. I am waiting and hoping to get a body scan, but of the 15-20 times I have been through security this year, I have never been selected, although the person ahead of, or behind me has been selected like half of those times.

  7. I don’t feel safer giving up rights. now I am not only frightened of the terrorists but also of my own government. when we as a nation wake up to reality of what we have allowed to happen it will be to late to stop them. my children are growing up thinking it is normal for the government to search there person or belongings without due cause. I am not a criminal. neither are most Americans. Kris is willing to give up rights to fly. well what other rights of mine are you willing to give up so you can feel safer. you want to see my bank records to see if I have given money to terrorists? would you like to listen to my phone conversations too or maybe read my mail? this is what the patriot act and the tsa act will lead to. all in the name of safety. the terrorists have won. we are scared out of our minds.

  8. I was groped this week by TSA. Now I know how the Jews felt in Nazi Germany. I will never walk through their scanner machines with my hands up like a criminal. We have only seen the beginning. Imagine the unimagineable. And be prepared. Protect your children, and don’t ever let them lay down to the gov’t.

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