Originally Posted by
PTravel
They can't. That's exactly my point. Their jobs are premised on unconstitutional conduct.
A TSO should be well-trained enough to differentiate a battery pack from an explosive. However, that's not to what I was referring. Arguably, such a question would be within the constitutional scope of an administrative search.
What the TSO can not do is say, "So, where are you headed today? Why are you traveling? Where are you coming from? Is this a business trip or pleasure? Who is your employer? Are you now or have you ever been a member of the Communist Party?" Such questions are outside the scope of the administrative search and you are not compelled to answer such questions.
To be clear, I have two specific constitutional objections to current TSA procedures:
1. Use of BDOs which, as I've explained above, I believe is unconstitutional.
2. Gate searches which, as currently implemented, I believe are unconstitutional because (a) they exceed the scope of the limited administrative search, and (b) the method of "random selection" is, in fact, not random and therefore violative of the standards set for this form of administrative search.
I do believe, based on existing case law, that the "standard" WTMD checkpoint procedure of boarding pass and ID examination, passing through the WTMD, screening by wand (and, to a far more limited extent that is currently practiced, by hand), x-ray and subsequent discretionary hand search of carry-ons, is constitutional).
I'm certainly not going nit-pick over a TSO who, in an effort to clear me to the sterile area, picks up an odd-looking battery and says, "What's this?" just as I have no problem with a LEO who, seeing me holding a green bottle on the street under circumstances where it would be reasonable to assume it might be a beer bottle says, "So what you got there?"
I will, however, stand firm that there is no permissible constitutional basis to conditioning my entry into the sterile area on the answers to questions about where I'm going, where I've been, why I'm traveling, etc.
From
United States of America v. Charles Davis Aka Marcus Anderson
United States Court of Appeals, Ninth Circuit. - 482 F.2d 893
On February 1, 1972, the FAA issued a rule requiring air carriers to adopt and put into use within 72 hours a screening system "acceptable" to the FAA "to prevent or deter the carriage aboard its aircraft of sabotage devices or weapons in carry-on baggage or on or about the persons of passengers."21 This system was to require the screening of all airline passengers "by one or more of the following systems: behavioral profile, magnetometer, identification check, physical search."
The Justices apparently feel that the FAA rule to use behavioral profiling was Constitutional.
From
Gilmore v. Gonzales
United States Court of Appeals, Ninth Circuit. - 435 F.3d 1125
In Davis, an airline employee searched the defendant's briefcase as part of the airport's preboarding screening procedure. Although we remanded for further consideration of whether the defendant consented to the search, 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.
Wouldn't asking questions to see what your response and/or the BDO program fall under the umbrella of "behavioral profiling"?