Originally Posted by
RichardKenner
But clearly, as you say, many (if not most) TSOs don't have equal sensitivity to this issue as you apparently do. Then there's the proverbial "bag of white powder". Some TSOs have posted there that they don't try to figure out what the powder is, but call an LEO to do so. That's exactly the same sort of ambiguity as the naked picture of a child, though less likely to run into emotional concerns. But calling an LEO in that case is equally wrong, I believe. The constitutional problem with this scheme is the fact that so many people are being required to "do the right thing" for it not to be a violation. And that sort of situation has been found, many times, to be unconstitutional for just that reason.
I think it's interesting that, as far as I know, there was no appeal to the two losses in an exclusionary hearing when a TSO found an illegal, but non-WEI, object. That tells me that DOJ is much more concerned about the constitutional issue than DHS and doesn't want to have a negative precedent. If DOJ keeps the practice of not appealing such, we may never have a definitive court opinion on the topic.
I agree that not every TSO thinks and operates the same way I do. It is a tough call on many of the things and I am certain that we could list a whole slew of items/substances that would be a subjective call on the part of the TSO. I just think there is no easy answer for this, we have both sides indicating that they are right Constitutionally, and it appears that neither side will go lightly on this issue.
There may have been procedural or technical issues that prevent those appeals, or it may be that they do not think they have anything to appeal on. One of the cases thrown out was because the TSO clearly exceeded the scope of the SOP, by looking specifically for something outside the WEI description - by her own admission. An appeal in that case would have been a moot attempt. Which cases are you referring to so I can look them up and see what type of situation you are commenting on? (I don't need necessarily a specific link, just something I can use to look them up)