Posted on 04/03/2010 1:09:28 AM PDT by ATX 1985
I am no Ron Paul nut case, but I do come across a bunch of people that believe the TSA running checkpoints is un-Constitutional under the 4th amendment. Even if I could be convinced that is the case, I certainly wouldn't want to do away with airport security. Is there any case where the government should do something un-Constitutional without the Supreme Court stepping? Is airport screening that case or would it be considered reasonable search and seizure?
I am not a legal expert but I sometimes play one on the Internet.
No one forces a person to fly on a plane and when you buy a ticket you agree to the terms of the airline company.
I agree, I am all against random checkpoints, but airport screenings should be expected.
I think someone should start a company selling privacy underwear for international travel. These would be radio-opaque undergarments, perhaps featuring smiley faces, “eat my shorts,” or one-fingered salutes that would show up on scans.
That same company should also come out with some ‘attachments’ for the less endowed among us that may be a little camera shy. LOL
Here is an interesting read that ruled an airport screening Constitutional. The ruling was after 9/11 so now instead of “implied consent” when you walk into a restricted area, the court rule that airports are now “highly regulated industry.”
Defendant went into the security line at the Honolulu airport, but it was noted on his boarding pass that he presented “No ID” to get through security. He was accordingly selected for secondary screening, although he was protesting that his flight was about to leave, which it was. A handheld wand went off on a front pants pocket three times, and he protested that he had nothing in his pocket. The TSA officer used the back of his hand to feel what might be setting off the alarm on the wand, and something was in there but he could not tell what it was. Defendant at that point asked to leave the airport because he changed his mind about flying. The TSA officer told him to empty his pockets, and a meth pipe was found in the front pocket. A further search of his person revealed meth. The Ninth Circuit held that airport searches no longer are dependent upon implied consent; they are now administrative searches because flying on an airplane in a post-9/11 world is now the same as a “highly regulated industry.” Any “implied consent,” thus, cannot be revoked once the passenger elects to enter the secure area. Such searches, however, are not limitless; they are limited by their justification: screening for terrorists. This search was reasonable under the circumstances.
United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc):
We have held that airport screening searches, like the one at issue here, 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.” United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973); see also United States v. Hartwell, 436 F.3d 174, 178 (3d Cir.), cert. denied, 127 S. Ct. 111 (2006); Marquez, 410 F.3d at 616. Our case law, however, has erroneously suggested that the reasonableness of airport screening searches is dependent upon consent, either ongoing consent or irrevocable implied consent.
The constitutionality of an airport screening search, however, does not depend on consent, see Biswell, 406 U.S. at 315, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks. Likewise, given that consent is not required, it makes little sense to predicate the reasonableness of an administrative airport screening search on an irrevocable implied consent theory. Rather, 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. See Biswell, 406 U.S. at 315; 49 C.F.R. § 1540.107. Under current TSA regulations and procedures, that election occurs when a prospective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine. The record establishes that Aukai elected to attempt entry into the posted secured area of Honolulu International Airport when he walked through the magnetometer, thereby subjecting himself to the airport screening process.
To the extent our cases have predicated the reasonableness of an airport screening search upon either ongoing consent or irrevocable implied consent, they are overruled.
IV.
Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless. 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.” Davis, 482 F.2d at 913. We conclude that the airport screening search of Aukai satisfied these requirements.
The search procedures used in this case were neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives. After passing through a magnetometer, Aukai was directed to secondary screening because his boarding pass was marked “No ID.” Aukai then underwent a standard “wanding procedure.” When the wand alarm sounded as the wand passed over Aukai’s front right pants pocket, TSA Officer Misajon did not reach into Aukai’s pocket or feel the outside of Aukai’s pocket. Rather, Misajon asked Aukai if he had something in his pocket. When Aukai denied that there was anything in his pocket, Misajon repeated the wanding procedure. Only after the wand alarm again sounded and Aukai again denied having anything in his pocket did Misajon employ a more intrusive search procedure by feeling the outside of Aukai’s pocket and determining that there was something in there.
The US Border Patrol has checkpoints where they search cars. I was stopped at one 104 miles east of El Paso Texas in Interstate 10 a week ago. I was frisked for weapons & had to remain out of sight of my car. I was told to leave my keys in the car. After about 5 min. they let me leave. They had search dogs. The agent said they were looking for contraband, mainly drugs & people.
Wow, how did I forget the checkpoints 100 miles from the border after all my trips between Central Texas and The Valley?
That is an even better question. I can imagine how there is implied consent or that airports are highly regulated industry, but how is a checkpoint Constitutional? Wouldn’t the founding father’s have found that abhorrent? How could we have a checkpoint when we already woefully control our borders, that is the worst part about it. We should have our borders under control so that the secondary checkpoint isn’t as necessary.
I went through one on my bicycle. They just waved me through.
I wanted to at least say something like, “No hablo Español” or shout “Tengo un bomba!” and then point to my tire pump.
In the real world of 4th Amendment searches, such searches require probable cause of a crime being committed.
Any stop and search w/o probable cause is unconstitutional. Yet, we have many approved types of such breaches.
I do not fly commercially. Period.
“No one forces a person to fly on a plane and when you buy a ticket you agree to the terms of the airline company.”
It’s the U.S. Government doing the screening, not the airlines.
Would you rather fall 30,000 feet from the sky? If I felt my rights were infringed on, I wouldn’t fly.
I went through one on my bicycle. They just waved me through.
What?! Airport Security? ... :-)
I am not a legal expert but I sometimes play one on the Internet.
Did you stay at the Holiday Inn Express last night? :-)
Don't like the searches, don't fly.
Does that work for being taxed on CO2, too ... ?
If you don't like being taxed on CO2, stop breathing!
LOL ...
Which part of the notion "law" is giving you trouble?
Which part of the notion "law" is giving you trouble?
I don't have trouble with the law, I was just wondering if you had trouble with "breathing" given the "rationale" that you seem to like ... LOL ...
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