Posted on 11/25/2010 4:49:41 AM PST by Juan Medén
I'm curious to know why no one has brought a court challenge against the TSA pat-downs based on the fourth amendment prohibition of unreasonable serch and seizure. Here is Wikipedia's description of the current judicial understanding of unreasonable search:
"Under Terry v. Ohio 392 U.S. 1 (1968), law enforcement officers are permitted to conduct a limited warrantless search on a level of suspicion less than probable cause under certain circumstances. In Terry, the Supreme Court ruled that when a police officer witnesses "unusual conduct" that leads that officer to reasonably believe "that criminal activity may be afoot", that the suspicious person has a weapon and that the person is presently dangerous to the officer or others, the officer may conduct a "pat-down search" (or "frisk") to determine whether the person is carrying a weapon. To conduct a frisk, officers must be able to point to specific and articulatory facts which, taken together with rational inferences from those facts, reasonably warrant their actions. A vague hunch will not do. Such a search must be temporary and questioning must be limited to the purpose of the stop (e.g., officers who stop a person because they have reasonable suspicion to believe that the person was driving a stolen car, cannot, after confirming that it is not stolen, compel the person to answer questions about anything else, such as the possession of contraband)."
Why that doesn't apply to airport searches is beyond me. If the fourth amendment were applied as it ought to be, TSA officials would be forced to do their homework and PROFILE! Just a thought.
Find a student and good luck.
Ah.. very true, but one must also consider the history of the 4th Amendment. Why does it exist? Why did our founders deem it necessary to “spell it out?”
Visit the history of “writ of assistance.”
Some notorious examples of illegal contracts: a contract to kill someones wife, a contract to defraud.
A contract to engage is adultery is illegal as is a bigamist’s contracts.
You can not legally consent to indecent touching.
You do not know law.
Don’t think EBH that I agree with the portions of the opinions that I posted. Notice my lack of defense of the holdings. I was just answering questions, which seems to be lost on a few who have posted to this thread.
When I have time, I will refresh myself on the writ of assistance. Thanks.
My clients and associates would differ with you.
Shamans get paid too, as do faith healers. That would be the equivalent, I think.
Oh, you’re one of those...
Same reason the metal detectors weren’t. You volunteer for them by flying. If you don’t want to go through airport security, whatever for it takes, all you have to do is not fly commercially, if you chose to fly one of the conditions are that you have to go through airport security.
Let me point out something to your readers, a little law 101 if you will.
The cases you cited are only binding in the districts and at the levels of the courts which ruled on them. Although they are considered precedent, other courts of the same level may ignore them if they believe them not to be properly decided. It has happened before, most famously recently concerning gun control where the District appeals courts were not consistent in their rulings and the nation ended up with polarly different precedents on its hands.
Of course that caused SCOTUS to step in with Heller v. DC, and follow up with MacDonald v. Chicago.
Sorry fifthguild, this post is meant as a comment on Juan Med’s posts.
1. The Federal Government claims all rights to the sky.
2. It is a somewhat (but not as strong as I would like) precedent that the public has the right to use a public right of way in the manner it has been adopted to. (I have had some sucess with this in California Superior Courts).
3. Consequently since airtravel is the manner adopted for using the sky the public has a right to travel that way with the expectation of not being searched to do it. Now where I run off point is the business traveler who is using the right of way for commerce. BTW it occurs to me that you might be successful making the argument that the feds have no jurisdiction over itraState flights only interstate flights.
One could argue that when you buy a ticket and enter into the security area you are compromising your rights voluntarily. The problem is how the TSA and DHS are pushing it to the next level. Once a citizen or legal resident is confronted with the reality of a scan or pat down, they should retain their right to refuse both and to leave the airport without recrimination. No fines or punishment.
Unless there is other evidence of suspected criminal activity the state has no right to force someone into a search or arrest. The passenger should always have the right to just not fly and leave.
If the TSA wants to flag the person for an FBI follow up to see if there is any connection to terrorists that might be legitimate if there is genuine suspicion of the person. But there should not be a retaliation for refusal to submit to a search. And refusal to be searched should not be considered reasonable grounds for suspected criminal activity.
When the system of law has come to this degraded state, where ornate magical forms empty of grounded content are required, and attempts to reground the law to Natural Law are penalized, rejected and those espousing that aggressively pounded down — the law process becomes shamanism. You are a great lawyer of this era, I would assume.
Isn’t WestLaw amazing? A shaman pulls detailed and lengthly incantations from it, and thrills the assembled with his huge fancy headdress, facepaint and shaking hollow gourds, and yet no cargo plane will ever land on that mock airfield, despite all the years and years of preparation and communal effort in this ritual.
In 1769, at the height of his popularity and influence, [James] Otis was pulled from the public stage. He had infuriated a Boston custom-house official with a vicious newspaper attack; the official beat Otis on his head with a cane. For the remainder of his life, Otis was subject to long bouts of mental instability. He was unable to participate in public affairs and spent most of his time wandering through the streets of Boston, enduring the taunts of a populace that had quickly forgotten his contributions. Otis was struck and killed by lightning in May 1783.James Otis, from Travel and History website made possible by Online Highways of Florence Oregon.
I can’t imagine the founding fathers approving of gropes without probable cause. This is about expanding the powers of the police state, let’s not be idiots about it.
I will pose this question to all who have no problem with the TSA procedures:
If the Times Square bomber had successful, would you be okay with TSA officers pulling people out of their cars at roadblocks and doing the same thing they are doing now (for example, setting up mobile scanners and giving enhanced pat-downs)? And fining citizens $11,000 or arresting them for non-compliance?
If you answer yes, you are a sheep ready for shearing.
interesting thing is, they still don’t check anything leaving. You can come and go as you please. So, if you are inclined to bomb the airport, when you get to the airport, enter via baggage claims and leave your bomb\bag on a carousal or unclaimed baggage or etc....
IMO- It crosses a line when a person is forced to submit while partaking of his/her personal business or pleasure. It crosses the line when people perceive that the government is granting itself draconian "rights" over our bodies that would land a normal person in jail. We aren't asked to give up those 4th Amendment rights, we are told that we gave them up. We are forced to submit to the backscatter machine or face humiliation by undergoing a hands on search for the simple act of purchasing an airline ticket. We are again forced to comply with the procedure or face threats of an $11,000 fine. To make matters worse, the political elite exempt themselves from these same demeaning actions.
It stinks of absolute control of the population by the few. If Boehner would go through the machines, or better yet, if obama would submit himself and his family to these demeaning public pat-down procedures on every trip, the vast majority would probably calm down.
“But passengers can choose to travel some other way, so there’s an implied consent issue.”
Choosing a mode of transportation does not imply consent. What is your argument for consent going to be when TSA adds screening to trains, boats and buses? Not all people can afford private jets or cars. You could make an argument for a class distinction for those on welfare or below a certain income standard.
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