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!



  1. Slightly confused here, but let’s see.

    Are you saying that even though it would appear that the TSA screening procedures violate the 4th Amendment, US v. Davis gives the TSA the latitude to screen as is deemed appropriate?

    Just wanted to make sure I understood everything that was going on. 🙂

  2. You shill for the TSA, why do you always defend them, are you on their payroll?
    Oh wait, you are just stating facts, unlike the 98% of people who read this, I acknowledge that you are merely stating reality.

  3. I have to say that even as a recent follower of your blog, and completely failing when it comes to understanding the political side or legal side of arguments, I find your articles well-written and easy to understand. A lot of other similar blogs tend to have a lot of legalese (or complete absence of it) and a lack of objectivity and empathy. You manage to do all these. I can see that you thoroughly research your statements and present it all in a balanced way to inform and empower, rather than ‘write to incite’. I look forward to continue reading as all of this unfolds. Thanks for writing!

  4. Fish, just because the 9th Circuit ruled that 1973 airport screening procedures were legal administrative searches does not mean that the TSA is not currently violating the Fourth Amendment.

    In Aukai, the Ninth Circuit stated TSA screening procedures are “well-tailored to protect personal privacy escalating in invasiveness only after a lower level of screening disclosed a reason to conduct a more probing search.” (United States v. Aukai, 497 F.3d 955 (2007))

    Employing AIT as a primary screening mechanism hardly seems to comport to that ruling.

  5. @Matthew – well said.

    Have everyone go through the metal detector, and then the nude-o-scope or pat-down if and only if they set off the metal detector or otherwise need additional screening.

    @Fish – whatever happened to those ‘puff of air’ sniffer things?

    Seems the threat isn’t metal objects so much – box cutters, knife, screw drivers – now that the cockpit is secure.

    Seems the threat is explosives, which a pat-down seems difficult to detect but something the ‘sniffer’ might catch.

  6. How many bomb sniffing dogs could the TSA have on the job for the cost of one full body scanner? A few dogs sniffing everyone in line seems more secure than a handful of randomly selectees getting zappped and gropped.

  7. Presumably I have a right to fly. Is there any way I can fly without involving the TSA? Probably not. Therefore the argument that I have a choice not to fly is an argument saying I have no right to fly and therefore no right to travel.

  8. Basically:

    Because of an earlier ruling, TSA officials have discretion to interpret when a search is “no more intrusive or intensive than necessary” and, therefore, will not take your complaints that they are violating the 4th amendment seriously, unless and until a further court ruling explicitly actually defines “no more intrusive or intensive than necessary.”

    Hopefully, someone with time and money will file suit, or a legal advocacy organization will help file a class action suit for a mass of complaints. Or both.

  9. Passengers have options when they go through screening at airports. 4 out 5 people are in favor of the AIT machine. People tend to forget that terrorizm is not oly overseas but here on american soil. The patdowns are nessary. The AIT machine are also. People forget that the Oaklahoma Fedaral building was blown up by an american and not some body from an arab counrty. The amtrax killer was an american. The uninabomber was an american. so when you go through the airport remember that some of the biggest terrorist threats in america came from americans and not some one overseas. TSA is here for the people. They are not here to affend anybody or to grope or look at your naked body. TSA is only doing its job to protect the traveling public from terrorism at home or abroad.

  10. Matthew,

    I make no conclusion of the validity of the law. I am not an attorney nor do I present myself as an attorney. I base what you consider to be my ‘conclusion’ on the opinions of consulting with attorneys that specialize in government affairs and Constitutional law.

    While there are new cases coming before the courts, the U.S. Government cities both U.S. vs Davis and the ASTA as the allowance for latitude for the TSA’s policy and procedures. If you challenge the validity of the laws cities by the Department of Homeland Security please take it up with the courts … because the ONLY way this gets changed is through the courts and legislation.

    Later in the week I intend to write a follow up to this post that discusses how the TSA has extended its latitude beyond the spirit of the law.

    Happy Flying!


  11. That ruling only applies to the geographic area of the 9th Circuit Court… Period. The 5th Circuit could apply something else, and I think they just might if enough suits are filed.

  12. Without getting into more recent rulings, and as a non-lawyer, I would simply point out Ninth Circuit rulings are only binding in the Ninth Circuit. Even if the Ninth Circuit did say that TSA can do what it’s doing (and it’s not clear to me that they have), there are 12 other circuits where the courts might not agree that what TSA is doing is okay.

  13. The 9th Circuit Court of appeals cannot suspend the Constitution for any reason. NOTHING can suspend the Highest law in the Land. Not a Court, not the Congress, not the president. Every last one of those maggots have sworn to uphold and DEFEND IT. If they don’t they need to be removed as the Traitors they are. Here’s one for you TSA employees. REFUSE TO DO THE JOB. You are not made innocent by the statement “I was only following orders”. You ARE as guilty as Himmler and Goebbels and any other fascist thug if you continue to refuse to uphold the rights that our Constitution has set in stone. When you go offline tonite after reading this it might not be a bad idea to take stock of the government that employs you. Following orders is no defense.

  14. I think this part of the ruling is interesting: “confined in good faith”

    I’d say that if TSA openly admits that the screenings don’t work, then they are no longer conducting them in good faith.

  15. Oh, and let us not forget this part… “and passengers may avoid the search by electing not to fly.”

    Electing not to fly does NOT allow you to avoid the search, as we recently found out.

    Apparently they decided THAT PART of the ruling can be forgotten about.. but not the part about how it doesn’t violate the fourth amendment.

  16. Andy,
    The 9th circuit didn’t “suspend” the 4th amendment, from what I understand they ruled that the searches aren’t unreasonable. And the President can suspend it via marshal law.
    good on you for realizing the unfortunate reality of the world we live in. I don’t think pat downs are necessary, as long as body scans are mandatory, but as long as their is an opt out pat downs are a necessity.

  17. Is it true TSA was professionaly trained to do pat downs? Who is providing professional training for sexual molestation and groping of children at the TSA? What are their credentials? How many years experience does the trainer have and what are his more notable accomplishments ?
    How long does it take to make a TSA new hire into a professional child molester under this training course?
    How are less enthusiastic molestors weeded out?

    TSA ppl who hate doing pat downs, protest with us and call out sick on the 24th

  18. Like many others, I must travel on business. I also am a bit shocked to believe that I must subject myself to being groped to do so. As with most things that are done by the government, this was not well thought out, even if it was legally allowed. Why is it that every passenger needs to be groped, scrotum squeezed, and breasts fondled? The outrage needs to be elevated to make the legal basis reflective of traveler rights. But who in congress will listen or even act? After all, it is necessary to protect the public, blah blah. Maybe these events will encourage some of my clients to accept video conferencing and other remote work. It will cost less and then I will not have to endure humiliation just to go to work.

  19. First, misinformed yelling, if enough people yell, will result in a change. The senate will fire John Pistole. Obama will lose his job. People will be replaced. The political system rarely works in this country, but it does work if enough people complain.

    Second, the legal precedent very clearly does give additional rights to the TSA as far as adminstrative searches, but it also clearly states the need to balance individual rights with the risks. I think what many have pointed out is that the TSA is not effectively making that balance.

    Third, except in the case of prisoners or actual suspects in a crime, there is no legal precedent for touching genitals.

    You are right though, every single person who is subject to an illegal search by the TSA should immediately file a civil suit against the TSA, and pursue criminal charges as well.

  20. I agree that one should read the details of US vs Aukai. One of the reasons Aukai lost that case is precisely because he was not subject immediately to an invasive “pat down” but rather a wanding and a refusal to remove items from his pocket, which justified the more invasive pat. The language of this decision suggests that had Aukai been subject to an immediate physical search, this would have violated his fourth amendment rights.

  21. For everyone calling Fish a shill for the TSA, did you forget he was detained by them last week? Or that they sent federal agents to his house a year ago? How quickly you forget.

  22. David,

    It is not that people forget that I have been detained by the State Police at the request of the TSA … or that they may be unaware that last December the TSA sent two Federal Agents to my house three times in two days to hand me a subpoena that was ruled to be outside their jurisdiction … it is that my coverage of the TSA is even handed.

    The one thing I see most is that people are frustrated and many are frustrated that I choose to not be emotional in my coverage of the TSA. There are many sides to these stories and tensions run high on every side. I prefer to equate things to real equations not inflammatory comments that are easy but wrong.

    For those who think I am a TSA apologist or a TSA shill, they clearly do not read Flying With Fish. They miss all the coverage I have put into making researched comments that pick apart the TSA. Yes, I have praised the TSA when they deserved praise, I have debunked myths using research and fact because myths do nothing to further bringing about change … most important I have brought to light opinions from those within the TSA and DHS who believe the TSA needs change.

    It is easy to stand outside the walls and say what needs to be changed, but I find it more effective to have insights from those inside the agency that not only needs change, but can point out how the agency needs to change. These may not be the most popular “sound bites” but I think it increases the potential for change through intelligent conversation.

    Happy Flying!


  23. What I would like to know, is actual statistics… how many actual terrorists have been detained due to a TSA employee? I suspect it is not due to heightened security measures at all. A point in fact – the ONLY time there has been ANY change throughout our history is when the American PEOPLE have instituted that change. NOT a politician. This is the first time I have read your blog, thank you for sharing. I am appalled at the lengths we are willing to subject ourselves, while still being concerned with national security. I am very thankful to be an American and am glad to live here, but there needs to be somthing done – or next thing you know you’ll be walking naked through security.

  24. What is it with this $11,000 fine if you decide to walk away once you see that they really are fondling gentiles?

  25. One last comment and I will go do something productive. Why is it that attorneys have made millions representing people who were tapped on their butts or had the genitals fondled by Catholic priests, with little evidence. Yet TSO’s can do the same to young boys and girls and be called heros? How sick! Can you imagine the emotional scars of that 3 year girl will have after having that TSO stick her hand up her dress and do whatever? I agree that maybe a class action suit should be started.

  26. “ light of current technology..”

    It’s not 1973 anymore. Time to send it back to the Supreme Court. They’re violating our Constitutional right.

    Intrusive/Extensive by showing a virtually naked photo of myself to a government employee as a condition of the search.

    Intrusive/Extensive by putting their hands on myself and my young children’s private parts because I opt out of a screening method I find an invasion of my privacy (which IS new technology).

    Not to mention the lack of proper testing on the equipment, the money trail leading back to a former government official..

    The TSA Screening process reaks of Constitutional Violation! Send it back to the Supreme Court!

  27. Kris and Chief,
    There has not been a fatal explosive on a plane in the U.S. since 1962. That was long before the increased security measures after Sept. 2001. Not a fatal hijacking worldwide since 2001. The unibomber and Oklahoma city bombing have nothing to do with the TSA. If you want to get into car bombs (since those are more common), then I guess you support stopping every driver for scanning and enhanced pat-downs. The airport has been safe since before scanners. You are more likely to die from pilot error or mechanical failure. If you want to make flying safer, start there. It will save many more lives than the TSA. The only unfortunate reality of the world we live in now is that anyone is willing to give in to those that hate our freedoms. They asked for your freedom and you gave it to them on a silver platter. You let fear of a highly unlikely way to die control you and gave up your dignity.

    There are more recent rulings from the Supreme Court which support that reasonable suspicion is necessary in order to search a person’s body in this manner.

  28. “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,…”

    I’ve been asking people for a long time: “Why d’ya think they call ’em ‘opinions’, dummy?

    IOW: you’ve changed the subject. You’re not talking about the Fourth Amendment. You’re talking about a court decision. That’s a big difference.

  29. I have to believe the supreme court reviewed the pat downs we received in the 70’s NOT what the TSA/SS are doing today.

  30. It seems that any rationalization would be good enough for you to have the TSA, or whomever, under the color of ‘authority’ probulate you, up to, and possibly even including, cavity searches.

    Is that too much, or an I merely overreacting?

  31. They have no more right to search you than a police officer who is only given the lattitude of a terry pat down. The measures are a result of something that didn’t even happen in the US. The so called “underwear bomber” boarded a plane abroad because he would not have made it through TSA proceedures as they stood.

    Additionally, Instead of feeling up me, my wife and my children. The TSA should increase the deployment of Behavior Detection officers (some of whom i know first hand and are extremely effective). It seems to work pretty well for Israel

  32. @Shaffer brought up something I had not considered. What is acceptable form of pat down for police officers? Wouldn’t TSA be expected to adhere to those standards? I understand that search requirements are different for those going into jail or prison.

  33. One way to avoid the TSA security measures is to fly in a private plane or jet. Oh, but wait, only the wealthy elites can do that….

  34. @Nolan Eakins
    Nobody has the RIGHT to fly. Thats like saying you have a RIGHT to drive. Both are privlidges. What other rights do you have that you pay for? Getting on a plane is a service provided to you by that airline. You are required to go through security which is part of their procedures. You dont have the RIGHT to bypass security because of your alleged right to fly. The searching of passengers is not UNREASONABLE which the 4th ammendment protects. You know in advance that when you purchase a ticket you will go through this screening. Your purchase of this ticket with this knowledge is your basic acceptence of this practice.

  35. @French
    Officers are held to a different precedent then TSA agents are. Beyond the Terry Pat Down, officers have to demonstrate probable cause or obtain a warrant to perform a search of a person’s property unless an arrest is made. TSA is obviously void of that requirement as they are permitted to search your bags, your shoes, etc. So are you then saying they are violating your 4th ammendment rights by searching your bags, while having you empty your pockets and taking off your shoes? Are police officers allowed to come up to you and have you empty your pockets and allow them to search your luggage, your shoes, with out a warrant? If so, then why are you ok with that if you are in protection of your 4th ammendment rights? Have you ever gone to a concert? They will have signs that clearly state that all bags are subject to search. Is this a violation of your 4th ammendment rights? What about when you’re videotaped without your permission while shopping? Is this a violation of your privacy as well? The point is that everyone is informed of what searches are being conducted prior to the search occurring. Everyone has the ability to leave, without being searched or not be in a particular area where searches are being conducted. You make the cognitive decision to make yourself available for this search but then want to complain its violating your rights. I find that hilarious.

  36. US vs Davis says TSA is allowed to do administrative searches. Does it say they do not have to provide a search warrant, or is it just implied that they don’t have to provide a search warrant. It seems that US vs Davis allows TSA to define what an administrative search is, but wondering if it addresses the search warrant. Anyone know?

  37. I imagine that in the 1970s, there may have been some debate regarding so called “administrative searches leading to further circumvention of the 4th and 5th amendments to the U.S. Constitution”. At the time, objections were probably swept under the rug. Today, the very fact that our leadership, both the Congress and two seated U.S. Presidents, are simply looking the other way, and allowing X-Ray and Pat down searches without probable cause and without warrant – only proves that the Terrorists WIN. Slowly, steadily, FEARFUL and STUPID politicians are allowing the erosion of our Constitutional RIGHTS – and before it is all done – we may be getting pat down as we try and enter or leave our grocery stores or our banks.

    I’ve seen the videos of TSA strip searching an 8-year old boy, and patting down a 3-year old child, and feeling up women and men alike. Clearly the absurd has taken over in DHS – these idiots don’t realize they are playing right into the terrorists hands.

  38. I have been unemployed for 6 months, and I have a job interview in another city requiring me to fly. Their travel agent called me up to arrange transport. On a whim, I asked if I could take a train. TSA somehow doesn’t think trains are all that important. She called up HR. HR called me up in a panic, telling me that if they hire me, my job will require a LOT of travel, and is this going to be a problem? It took me 5 minutes to convince her it was not a problem even though, really, yeah, it is. So in essence, I do not have the ability to “not fly”. I have the ability to be jobless, if I chose to not fly. This is great!

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