Originally Posted by
PTravel
It appears to be. The decision draws a distinction between "programmatic" intent and screener's intent. It seems to suggest that, as long as the intent of the program falls within the constitutionally valid ambit of an administrative search, e.g. preventing WEI, the screener's intent in going further is irrelevant. However, the decision then goes on to examine the screener's intent in the specific instance. The net result would appear to be some very disturbing dicta, along with the 9th Circuit finding what is, for all intents an purposes, an abuse of judicial discretion on the part of the lower court judge for finding the screener not credible.
However, this decision still is confined to the question of finding contraband during the course of an administrative search and the contraband in question here was child pornography. There has always been a judicial gloss involving subjective morality applied to a variety of decisions and this case is probably an example of it. I'm not too concerned. I far more interested in the cases that challenge the AIT and the grope.
I have to disagree - the courts need to step up and draw a clear and solid line between an administrative search and a criminal one and remove this ambiguous cross-over nonsense.
As part of our 4th and 5th Amendment rights, we must be able to defend ourselves from criminal searches by requiring a warrant or establishing a high-water mark for what constitutes probable cause. When one consents to an administrative search, that water mark must be raised far and above what would normally be applied to a chance encounter with the police as the person is voluntarily submitting themselves for examination under one set of rules - the state cannot enjoy the free privilege of a criminal search based on the fruits of an administrative search.
Either all criminal searches must be banned outright (except when the fruits of the admin search are directly germane to the criminal search, i.e. guns, bombs at the airport, etc), or the person must be given the unrestricted right to bar the criminal search - i.e. the cop must ask permission to examine the bag, and the person has the right to say no, thus barring the police from further examination unless they get a warrant - *and* the results of the admin search cannot be used as a basis for probable cause to support the warrant, essentially eliminating the chance of a criminal search if the person refuses the police request.
This should be cut and dry.