Originally Posted by
halls120
Are you saying that SOP controls TSO actions? that there is NEVER any discretion employed by the TSO?
No, I'm not saying that at all.
But at certain times SOP does dictate the actions of a TSO. For example, a passenger designated as a selectee, the SSSS marked on their BP, SOP dictates that all of the passengers bags must be hand searched regardless of what was seen or not seen on x-ray.
But you are correct, at many times the TSO makes the decision regarding what to do. And that, btw, is also SOP.
Originally Posted by
RichardKenner
I don't see that it matters whether the TSO doing the search personally believes there's WEI in the bag. What's relevant is whether they are searching for WEI or not. In the case you cite, they are, because you believed (correctly, as it turned out) that it was there. It's like if I call a friend who's house I just left and ask him to look for my sunglasses. He may say "I'm sure I saw them in your hand when you walked out" and not believe they're there, but if he humors me and looks for them, he's nevertheless still looking for sunglasses.
In Fofana, the TSO testified she was not searching for WEI: in other words, not only didn't she believe it was there, she wasn't looking for it. That's the difference.
The interesting thing in Fofana, in my opinion, is that the way the decision was written, it seemed to hinge almost entirely on the testimony of the TSO. If she'd said "I hadn't decided that the bag didn't have WEI", would the search have been permissible? That would have been a much harder case because the relevant standard isn't clear.
I don't think whether the TSO followed the SOP or not is relevant in cases such as this (meaning the fact that the court didn't have access to it didn't matter) because the fact they were following the SOP doesn't matter if the effect was to exceed the boundary of an administrative search (i.e., some part of the SOP may be unconstitutional). I think it's an interesting question what the variant of the "reasonable person" standard would be here. Maybe something like "whether a reasonable person with knowlege of the security issues used to generate the SOP would think that WEI might be encountered doing the seach in question".
You have it partially correct.
In fofana the passenger was designated as a selectee, and per SOP EVERYTHING that passenger has on them must be searched for WEI. This is NOT a searched conducted because a TSO feels a prohibited item may be there. This is search conducted because of the recognition that TSA recognizes that nothing is perfect and WEI may pass through the x-ray undetected. So SOP dictates a through hand search of all selectees property to specifically look for WEI, as in fofana was done in fofana.
And as you stated, it does not matter what the TSO believes (as she stated she did not believe there were any WEI present, so she said she was looking for contraband). Her opinion was not relevant to why this search was taking place. But the judge had only the statements to go on, and not SOP, so I understand why the decision was rendered.
And I can tell you this: not one thing has had to be changed or re-written regarding selected searches because of this ruling. It is still conducted to find WEIs.
Edit: and I agree with you on another matter - the decision was based almost entirely on what the TSO said. If she has said she opened the envelope to look for WEI (such as an improvised det, which is easily hid in an envelope), I believe the decision would have been in TSAs favor.