ACLU Sues DHS Over Unlawful TSA Searches And Detention (STL $4,700 Incident)

[N965VJ]

Originally Posted by TSORon

<SNIP> http://jobview.usajobs.gov/getjob.as...&rc=2&TabNum=2

Thats the link to the official job description. Give it a read. Its more than just searching bags.

Originally Posted by USAJobs.gov

<SNIP> # Perform security screening:

* Of persons, including tasks such as: hand-wanding (which includes the requirement to reach and wand the individual from the floor to over head), pat-down searches, and monitoring walk-through metal detector screening equipment
* Of property, including the operation of x-ray machines to identify dangerous objects in baggage, cargo and on passengers; and preventing those objects from being transported onto aircraft

I don’t see anything thing there about looking for fake IDs, illegal aliens, and using the checkpoint as a dragnet for criminals that pose no threat to commercial aviation.

Originally Posted by USAJobs.gov

<SNIP> TSOs MUST be willing and able to:

* Communicate with the public, giving directions and responding to inquiries in a professional and courteous manner;

* Make effective decisions in both crisis and routine situations.

If this was focused on routinely, I would be much happier.

Originally Posted by TSORon

<SNIP> I get it that you don’t like the TSA. I feel sorry for you. You are one of an exceedingly tiny minority.

Do you read any of the comments on news items about the TSA? All yinz guys that think that TS&S is the only place on the planet where people are critical of the TSA are fooling yourselves.

[TSORon]

Originally Posted by N965VJ

I don’t see anything thing there about looking for fake IDs, illegal aliens, and using the checkpoint as a dragnet for criminals that pose no threat to commercial aviation.

Fake ID’s are an issue. Because if a fake is being used then (1) the person is a criminal, committing a crime right that second, (2) we don’t know who it is that’s flying, could be someone on the “No-Fly” list, and (3) If they are criminal enough to use a fake ID what says that they are not criminal enough to do something more serious?

If this was focused on routinely, I would be much happier.

You and me both.

Do you read any of the comments on news items about the TSA? All yinz guys that think that TS&S is the only place on the planet where people are critical of the TSA are fooling yourselves.

A bit of perspective might be in order here. What I was thinking is that the TSA screens more than 2,000,000 people every day. The 20 or so consistent posters here are certainly a small minority, tiny is a good term to use. As for the others out there, even if they were 100 times the number here, it would still be a tiny minority.

[LessO2]

Originally Posted by TSORon

A bit of perspective might be in order here. What I was thinking is that the TSA screens more than 2,000,000 people every day. The 20 or so consistent posters here are certainly a small minority, tiny is a good term to use. As for the others out there, even if they were 100 times the number here, it would still be a tiny minority.

You don't need to ask every single person about the TSA. When you see people regularly saying unkind things (and I mean both diplomatically and not-so diplomatically) about the TSA in story after story after story, there's a pattern.

News organizations and political campaigns regularly use about 1,000 people to poll the nation and see how a presidential election is doing. And they regularly get it right.

[Boggie Dog]

Originally Posted by TSORon

Fake ID’s are an issue. Because if a fake is being used then (1) the person is a criminal, committing a crime right that second, (2) we don’t know who it is that’s flying, could be someone on the “No-Fly” list, and (3) If they are criminal enough to use a fake ID what says that they are not criminal enough to do something more serious?

OK the person has a fake ID.

TSA screens this person for WEI and other prohibited items.

Once screened how does this person jeopardize airline safety?

[PTravel]

Originally Posted by Boggie Dog

Not sure I'm getting all the good out of your comments.

I don't think so either.

If asked, did you pack this bag, only allows for two answers, yes or no. Either could be used to futher a line of questions.

The question is related to scope of the administrative search. No further questions would be.

Do you intend to smoke pot in Amsterdam has the same two answers but in most cases an affirmative answer should be of no consequence since the questioner would probably not have jurisdiction. This is assuming no drugs in the bags.

Neither TSOs nor LEOs can ask this question as condition of clearing you to the secured area. No one in the U.S. can simply be stopped by LEO, much less a TSO, and asked, "Are you intending to commit a crime?"

The only issues I see is if the questions are used to find reason to investigatge something which could not have been known until the first question was asked.

TSOs or LEOs who during the security inspection are limited by the scope of the administrative search to ascertaining whether or not passengers have explosives or weapons in their possession. TSOs may not investigate potential criminal wrong-doing under any circumstances. LEOs may do so if they have a reasonable suspicion.

Wouldn't the same issues about questions and searches be in play regardless if the screener is LEO or just TSA screener?

No. See above. This is the United States. Law enforcement cannot stop you at random and investigate whether you have committed an illegal act, except in very, very narrow and specific circumstances, e.g. a DUI checkpoint in which (1) advance notice has been provided of the nature and location of the stop, and (2) stopping motorists is on a true randomized basis. TSO, in any event, is not law enforcement. They are no different than clerks and have no police powers whatsoever. It is their attempt to bestow upon themselves quasi-police powers to which I object.

[DevilDog438]

Originally Posted by TSORon

Fake ID’s are an issue. Because if a fake is being used then (1) the person is a criminal, committing a crime right that second,

Determination of criminality associated with the use of a Fake ID is outside the purview of the TSA. In addition, the person would be more properly called an alleged criminal, since no conviction of wrongdoing has occurred for this usage of the ID at the time in hypothetical question.

(2) we don’t know who it is that’s flying,

So what? Air travel survived for decades without the government knowing who was on the aircraft.

could be someone on the “No-Fly” list,

Pardon me, but according to the press releases surrounding Secure Flight, this is no longer an issue. If they are on the "No Fly List," the airline won't be able to print the boarding pass until after the processes put in place as part of Secure Flight have been completed. IOW, if a pax has a boarding pass, then they have passed Secure Flight and are not on the uselessly asinine "No Fly List."

and (3) If they are criminal enough to use a fake ID what says that they are not criminal enough to do something more serious?

Once again, until one has been caught using a Fake ID for nefarious purposes, arrested by a LEO and convicted by a jury of one's peers, one has not met the common definition for being a criminal.

[Boggie Dog]

Originally Posted by PTravel

I don't think so either.

The question is related to scope of the administrative search. No further questions would be.

Neither TSOs nor LEOs can ask this question as condition of clearing you to the secured area. No one in the U.S. can simply be stopped by LEO, much less a TSO, and asked, "Are you intending to commit a crime?"

TSOs or LEOs who during the security inspection are limited by the scope of the administrative search to ascertaining whether or not passengers have explosives or weapons in their possession. TSOs may not investigate potential criminal wrong-doing under any circumstances. LEOs may do so if they have a reasonable suspicion.

No. See above. This is the United States. Law enforcement cannot stop you at random and investigate whether you have committed an illegal act, except in very, very narrow and specific circumstances, e.g. a DUI checkpoint in which (1) advance notice has been provided of the nature and location of the stop, and (2) stopping motorists is on a true randomized basis. TSO, in any event, is not law enforcement. They are no different than clerks and have no police powers whatsoever. It is their attempt to bestow upon themselves quasi-police powers to which I object.

Thanks for the discussion.

I appreciate your patience.

[doober]

Originally Posted by TSORon

A bit of perspective might be in order here. What I was thinking is that the TSA screens more than 2,000,000 people every day. The 20 or so consistent posters here are certainly a small minority, tiny is a good term to use. As for the others out there, even if they were 100 times the number here, it would still be a tiny minority.

For every hummingbird a birdwatcher sees, there are five more he/she doesn't see.

No, Ronnie, it's not just here. All you need to do is read the recent columns and their associated comments referenced here on TS/S to know that dissent is growing in both the US and abroad about the TSA's abuses.

[Boraxo]

I really don't want to get into tit for tat, but since that is your MO:

Originally Posted by PTravel

[TSO'] powers, with respect to passengers, are confined to the administrative search which has the limited purpose of assuring that passengers do not have weapons or explosives in their possession.

Statutory/judicial basis for that statement? [hint: none]

Originally Posted by PTravel

TSOs can ask whatever questions they want. So can you and so can I. They cannot, however, require answers to those questions as a condition of being allowed into the secure area.

Statutory/judicial basis for that statement? [hint: none]

Originally Posted by PTravel

It has nothing to do with whether I like or don't like the questions. It is the Fifth Amendment that precludes requiring answers in the context of an administrative search. If you want to know what I like, I'd like to see airport security turned over to actual LEOs, i.e. those with police powers and the appropriate training, including education in the constitutional limits on police power. I have no problems with LEOs asking questions within the appropriate context, e.g. investigating when there is a reasonable suspicion, detaining when there is probable cause, etc. I have a big problem with someone who has no more legal authority or police powers than any other clerk in a government office taking it upon themselves to conduct unconstitutional and thereby unlawful "investigations."

The Fifth Amendment reads: "No person .... shall be compelled in any criminal case to be a witness against himself..." This provision has never been interpreted to say you are free to fly without answering questions. It just means you can't be compelled to answer LEO questions (and perhaps TSO questions to the extent they are considered LEOs). They can still detain or jail you pending trial if they have probably cause to believe you committed a crime.

Originally Posted by PTravel

Incorrect. Requiring me to answer questions as a condition of access to the secure area exceeds the scope of the limited administrative search for weapons and explosives. Either I have them or I don't. I can't be denied access for refusing to tell a TSO, for example, where I am going, why I am flying, what I do for a living, or why I'm wearing a green and purple t-shirt.

What is your statutory/legal basis for asserting that you can access a secure area if you pass your so-called limited administrative search? [Hint: None] Clearly you can be denied access if a TSO believes you are a threat to aviation security. The fact that someone does not have weapons or explosives is the basis for permitting most people to enter the secure area, but it is not the exclusive basis for denial. Just ask the folks on the no-fly list. If you approach the checkpoint and tell the TSO that you plan to hijack the plane, I guarantee you won't fly, even if they stip search you and find no weapons.

Originally Posted by PTravel

Incorrect. TSOs have no power to compel responses to "security questioning," nor do they have the right to summon a LEO because someone refused to answer a "security question." If the question is unrelated to the administrative search (and so far, the only one I've heard that is related is, "Is this your bag?"), they have no ability to condition entry to the secure area based on a refusal to respond.

Nonsense. TSOs or anyone else can summon LEOs for whatever reason they want. I can summon one right now. As noted above, we agree on whether you can refuse to answer a question (you can) and whether you can walk away before the LEO arrives (you can) but disagree on whether you can enter the secure area.

Originally Posted by PTravel

Really? What question could a TSO ask about a white powder that is related to the limited objectives of the administrative search, i.e. ensuring that a passenger is not carrying weapons or explosives? If a TSO thinks a white powder is an explosive or a weapon, there are no questions or answers that should be sufficient basis to clear the substance.

That's too easy: "What is this substance?"

If the answer is "powdered milk" and the passenger is lugging an infant I think that would be sufficient. But perhaps you think the TSO should do a chemical analysis.

Originally Posted by PTravel

TSOs aren't LEOs and are constitutionally precluded from evaluating the "totality of the circumstances" with respect to investigations. If a TSO discovers a Swiss Army knife in a passenger's bag, the passenger has a weapon in his possession and must be denied entry to the secure area. The TSO should also refer the matter to a LEO. The LEO will evaluate the "totality of the circumstances," as he now has not only a reasonable suspicion but also probable cause, and he will determine whether to detain and press charges.

Again you are confusing law enforcement with aviation security. The job of the TSO is to ensure safe air travel. The TSO can certainly evaluate the totality of the circumstances to determine whether a passenger can fly. Many time they find a swiss army knife or other potential weapon and the person is permitted to proceed (sans knife).

Originally Posted by PTravel

As the courts shall soon instruct, why someone is carrying something that is illegal and totally unrelated to the limited purposes of the administrative search is not, in any way, the business of a TSO.

My crystal ball isn't that good While I certainly hope the courts decide that it is improper to harass someone based solely on the fact that they are carrying $4700 and refuse to answer questions about it, I would bet the decision will be narrowly tailored and won't support your running theory that anyone who refuses to answer questions must be permitted to enter a secure area.

Originally Posted by PTravel

I always answer the question, "Do you want to fly today?" My answer is this: "Please call your supervisor, the FSC and GSD and we'll see if you want to be employed tomorrow." TSOs can not keep a passenger from flying (except through the No Fly list). They can only deny a passenger access to the secured area because they reasonably believe the passenger has in his possession weapons or explosives.

I applaud you for asserting your right to be free of TSA harassment, but the TSO can certainly deny you access if you are a threat to aviation security.

Originally Posted by PTravel

My contention is that there are NO questions, the answers to which would be relevant to the limited purposes of the administrative search. If you or Bart think that there are, I'd be very interested to know what they might be.

This is the crux of our disagreement - I don't believe you have any controlling authority for your statement that the TSO may only ask questions directly relating to the administrative search. If you examine the TSA enabiling legislation you'll see that the TSA has broad powers relating to aviation security - for an overview check the TSA website "What we do"
http://www.tsa.gov/what_we_do/layers/index.shtm which includes:

We use layers of security to ensure the security of the traveling public and the Nation's transportation system. Because of their visibility to the public, we are most associated with the airport checkpoints that our Transportation Security Officers operate. These checkpoints, however, constitute only one security layer of the many in place to protect aviation. Others include intelligence gathering and analysis, checking passenger manifests against watch lists, random canine team searches at airports, federal air marshals, federal flight deck officers and more security measures both visible and invisible to the public.

[PTravel]

[quote=Boraxo;12046476]I really don't want to get into tit for tat, but since that is your MO:{/quote]My MO is to respond to each of your assertions. It's called, "having a discussion."

Statutory/judicial basis for that statement? [hint: none]

Read the Fifth Amendment, the Fofana case, and every other case that has examined the limits of TSA power.

Statutory/judicial basis for that statement? [hint: none]

Read the Fifth Amendment, and every case that has examined admissions against interest and self-incrimination.

The Fifth Amendment reads: "No person .... shall be compelled in any criminal case to be a witness against himself..." This provision has never been interpreted to say you are free to fly without answering questions.

Nor has any case ever interpreted it to mean that you can't fly without answering questions.

It just means you can't be compelled to answer LEO questions (and perhaps TSO questions to the extent they are considered LEOs).

It means you can't be compelled to answer any questions put to you by the state that would result in self-incrimination.

They can still detain or jail you pending trial if they have probably cause to believe you committed a crime.

Wrong. They can stop you if they have a reasonable suspicion and ask you questions. They can then make a decision, based on articulable facts, whether probable cause exists to arrest you. That's LEOs. TSOs have no powers to stop, arrest or detain.

What is your statutory/legal basis for asserting that you can access a secure area if you pass your so-called limited administrative search? [Hint: None]

Read Fofana.

Clearly you can be denied access if a TSO believes you are a threat to aviation security.

Based on what? "He looked shifty to me"? 'Fraid not. You've believed the hype about BDOs. I guarantee you that, in every situation in which BDOs have "apprehended" someone, it's because the person stupidly responded to BDO questions.

The fact that someone does not have weapons or explosives is the basis for permitting most people to enter the secure area, but it is not the exclusive basis for denial.

That makes no sense.

Just ask the folks on the no-fly list.

Ooops. You're correct. You can be denied access if you are on the no-fly list.

If you approach the checkpoint and tell the TSO that you plan to hijack the plane, I guarantee you won't fly, even if they stip search you and find no weapons.

And if you approach the checkpoint and the TSO says, "do you plan to hijack the plane," and you refuse to answer, denying entrance to the secure area after passing the administrative search would be unconstitutional.

Nonsense. TSOs or anyone else can summon LEOs for whatever reason they want. I can summon one right now.

Of course you can. However, it is the LEO, and not you, who must determine whether there is a reasonable suspicion or probable cause for stopping, interrogating and/or detaining. And you may not detain anyone while you summon the LEO.

As noted above, we agree on whether you can refuse to answer a question (you can) and whether you can walk away before the LEO arrives (you can) but disagree on whether you can enter the secure area.

My opinion only goes to the legality and constitutionality of denying entrance. TSA does what it wants. At least until someone sues and the courts shove it back into line.

That's too easy: "What is this substance?"

If the answer is "powdered milk" and the passenger is lugging an infant I think that would be sufficient. But perhaps you think the TSO should do a chemical analysis.

"I'm sorry, but I'm not answering any of your questions." And TSOs DO perform a chemical analysis: they swab the package and test for explosives. And if it clears, it is none of the TSO's business whether it contains an illegal substance or not. He can call over a LEO if he's suspicious, but no one has to stand around and wait.

Again you are confusing law enforcement with aviation security.

No. You are treating aviation security as if it was some kind of exception to the Constitution. It is not.

The job of the TSO is to ensure safe air travel.

Sure, but only within the limits afforded him by the Constitution. It's not an absolute license that permits him to do whatever he wants to ensure safe air travel.

The TSO can certainly evaluate the totality of the circumstances to determine whether a passenger can fly.

You think? A TSO cannot deny me access to the secure area if I've passed the checkpoint inspection and he doesn't like my attitude as evidence by, for example, refusing to answer any of his questions.

Many time they find a swiss army knife or other potential weapon and the person is permitted to proceed (sans knife).

Then they are exercising a discretion that may or may not be available to them. However, what they may not do is clear me through the checkpoint and, finding no weapons or explosives, deny me access to the secured area.

[quote]My crystal ball isn't that good [/qu8ote]I've studied law. Mine is probably a little better than yours.

While I certainly hope the courts decide that it is improper to harass someone based solely on the fact that they are carrying $4700 and refuse to answer questions about it, I would bet the decision will be narrowly tailored and won't support your running theory that anyone who refuses to answer questions must be permitted to enter a secure area.

We'll see.

I applaud you for asserting your right to be free of TSA harassment, but the TSO can certainly deny you access if you are a threat to aviation security.

And, if I am not on the no-fly list, and don't have weapons or explosives, I am not a threat to aviation.

This is the crux of our disagreement - I don't believe you have any controlling authority for your statement that the TSO may only ask questions directly relating to the administrative search.

Read Fofana.

If you examine the TSA enabiling legislation you'll see that the TSA has broad powers relating to aviation security - for an overview check the TSA website "What we do"
http://www.tsa.gov/what_we_do/layers/index.shtm which includes:

We use layers of security to ensure the security of the traveling public and the Nation's transportation system. Because of their visibility to the public, we are most associated with the airport checkpoints that our Transportation Security Officers operate. These checkpoints, however, constitute only one security layer of the many in place to protect aviation. Others include intelligence gathering and analysis, checking passenger manifests against watch lists, random canine team searches at airports, federal air marshals, federal flight deck officers and more security measures both visible and invisible to the public.

I couldn't care less what it says on the TSA website. The TSA website is not the law and it's not remotely accurate. Congress has enabled TSA to ensure the safety of aviation. That is not grant of a Constitutional waiver or exception to TSA.

Gotta run.

[n4zhg]

Originally Posted by halls120

LOL, the problem with most all of your posts is your habit of calling people who don't agree with you ignorant.

Do you really think this habit helps your arguments?

I call this the "Jane, you ignorant slut" defense. And no, it doesn't.

[Superguy]

Originally Posted by TSORon

Define your version of mission creep.

Wikipedia has a pretty good definition of it.

Just because you say its mission creep does not make it so.

And just because you say it isn't doesn't mean it isn't.

Mission creep happens everywhere in the federal gov't. Give an inch, take a mile until the courts slap it down.

I'll tell you what. Please tell me how enforcing immigration, drug laws, etc, that falls outside of TSA's scope ISN'T mission creep?

You have several problems, none of which I choose to address. You have once again obviously chosen to ignore the point and rationalize your response as addressing my post. As long as you continue to do this you have no hope of understanding.

Translation: you don't have a counterargument and are dodging the discussion.

You made the assertion that "Occuptation X doesn't just do Y." I rebutted it. If you disagree, that's fine, but being condescending and saying nothing isn't a good counterargument, or even one at all for that matter.

I get it that you don’t like the TSA. I feel sorry for you. You are one of an exceedingly tiny minority.

Do you think FT is the only place where people read about TSA? Read the news about TSA. There's been a trend lately where there's been significantly less people saying "rah rah TSA." Read the comments on those articles. If you think it's just a few people saying that TSA sucks, you're sorely mistaken.

Answer me this: if TSA is so well loved, why is it just above the IRS, the most despised federal agency, in favorable views?

The name is Ron. YOU may call me “Officer” if you cant handle the name. This is the last time I will ask this of you, then you end up on the “plonk” list right next to the “dog faced boy”.

Ooo ... a threat to be put on ignore. Wow, I'm scared.

I'm not calling you officer. A screener is no more an officer than a line cook is a chef. "Screener" will be the best you get.

Super

[Superguy]

Originally Posted by n4zhg

I call this the "Jane, you ignorant slut" defense. And no, it doesn't.

The only difference here is that it was funny when Dan Aykroyd said it. It's extremely sad when a government employee uses at justification for his actions.

[Boraxo]

Originally Posted by PTravel

Read the Fifth Amendment, the Fofana case, and every other case that has examined the limits of TSA power.

As I noted above the Fifth Amendment is irrelevant to aviation security (except in so far as it addresses whether you can be required to incriminate yourself). Similarly, Fofana addresses the Fourth Amendment issue in the context of a motion to suppress evidence found during a TSA search. The court determined that the evidence should be excluded because the TSO admitted that the administrative search was conducted for the purpose of discovering contraband (in this case illegal passports) not for security. Again, no relevance to aviation security, in fact Fofana specifically stated: In recognition of the vital need for passenger security, courts have upheld a wide variety of checkpoint search procedures against Fourth Amendment challenges. See, e.g., Marquez, 410 F.3d at 614 (approving random, suspicionless selection of defendant for secondary screening procedure, which included a wanding with a handheld magnetometer); Gilmore v. Gonzales, 435 F.3d 1125, 1129, 1138 (9th
Cir. 2006) (upholding TSA identification policy that required defendant to present identification or be subject to a more extensive search procedure that included a handheld magnetometer scan, patdown search, shoe removal, and a CAT-scan and hand search of his baggage).

As Fofana also notes, The TSA is statutorily charged with developing and executing airport screening search procedures. 49 U.S.C. § 44901(a). That's a pretty broad mandate which is not limited to xrays and hand searches.

You seem to think the constitution provides you with a right to travel by commerical aviation. It does not. See Gilmore v. Gonzales Gilmore does not possess a fundamental right to travel by airplane even though it is the most convenient mode of travel for him. The opinion continues (referring to its prior decision in U.S. v. Davis: In Davis ... we held that airport screening searches of potential passengers and their immediate possessions for weapons and explosives is reasonable so long as each potential passenger maintains the right to leave the airport instead of submitting to the search. Id. at 912. In so holding, we considered several airport screening procedures, including behavioral profiling, magnetometer screening, identification check, and physical search of the passenger's person and carry-on baggage. Id. at 900. We see little difference between the search measures discussed in Davis and those that comprise the "selectee" search option of the passenger identification policy at hand. Additionally, Gilmore was free to decline both options and use a different mode of transportation. In sum, by requiring Gilmore to comply with the identification policy, Defendants did not violate his right to travel.


Let me know when you find some authority for your assertions regarding the limitations on the TSA's ability to ask questions (at a checkpoint or elsewhere in the airport) to protect aviation security.

In the absence of that, I stand by my position and we can agree to disagree.

[ND Sol]

Originally Posted by Boraxo

Statutory/judicial basis for that statement? [hint: none]

Statutory/judicial basis for that statement? [hint: none]

What is your statutory/legal basis for asserting that you can access a secure area if you pass your so-called limited administrative search? [Hint: None] Clearly you can be denied access if a TSO believes you are a threat to aviation security.

49 C.F.R. Part 1540 will show you the legal basis with respect to passengers entering the sterile area. Pay particular attention to the definitions of "screening function" and "sterile area" in 1540.1 when reviewing 1540.105 and 107.

The definition of sterile area sets forth the specifics for those systems, measures and procedures that are used, which is the screening of persons and property. How is that screening accomplished – through the screening function, which is defined as “inspection of individuals and property for weapons, explosives, and incendiaries.” That is the TSA's limit until the CFR is changed.

Now don't do a Francine on me and say that we need to look at the definition of "screening" through Google. Not necessary as it is already in the CFR. (But that is the way that Francine got her nickname.)