Originally Posted by
Section 107
I am not aware of anything that limits TSA inspections/searches to only the formal checkpoint screening area; in fact, the CFR section I referenced earlier specifically extends TSA's authority to pretty much most of an airport. But again, TSOs are limited in where they operate.
This is being approached backwards. The inquiry does not start with TSA having broad authority to conduct searches of non-covered persons and then what regulations limit that authority. Just the opposite. A constitutional right inquiry starts with the basis that no search is permitted unless it is shown not to be unreasonable. As such the authority to conduct the search without a search warrant must be articulated and specific. When additional security measures were proposed, “
President Obama directed the Department of Homeland Security and the TSA to ensure all pursued security measures were consistent with the privacy rights guaranteed by the Constitution.”
Part 1542 is for airport operators and, as such, defines the relationship between airports and the TSA; this part is not applicable to passengers. Much like an LEO’s zone of operation is defined to a city, county or state, so is Part 1542 defining the TSA’s zone with respect to airports. Even if an LEO is operating within his jurisdiction, it doesn’t give him the right to stop and search with impunity. Part 1542 is inapplicable to the discussion about the authority of TSOs to search passengers outside of the screening checkpoint and not boarding a plane.
The section of the TSA regulations entitled “
Responsibilities of Passengers and Other Individuals and Persons,” contains the TSA’s rules regarding what air travelers must do to comply with TSA regulations.” 49 C.F.R. §§ 1540.101–.117.
Originally Posted by
Section 107
In the immediate checkpoint screening area (or the other areas I mentioned) no level of suspicion is required. Outside of that or the other areas, reasonable suspicion is much too high a requirement and doesn't apply in administrative searches. But at the same time, no, not on a whim or arbitrarily, either. But sure, if a TSO believes someone in the sterile area had not been searched appropriately or is in possession of a prohibited item then the TSO could require (through supervisors, of course) that person to undergo additional screening and request person to come back to the screening area (but also right there). If the person refuses then local law enforcement would be brought in. If the person refuses a lawful order of a LEO then s/he is most likely going to miss a flight, connection, or timely exit from the airport....
What support do you have for your statements of law? How does the law differentiate in its effects between your standard of something less than reasonable suspicion and something more than “whim or arbitrarily”?
One important caveat should be stressed, however. To meet the test of reasonableness, an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it. . . . At the minimum, governmental restrictions upon freedom to travel are to be weighed against the necessity advanced to justify them, and a restriction that burdens the right to travel "too broadly and indiscriminately" cannot be sustained. Aptheker v. Secretary of State, 378 U.S. 500, 505, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). "'[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved."' Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1961), quoted in Aptheker v. Secretary of State, supra, 378 U.S. at 508, 84 S.Ct. 1659.57 Moreover, exercise of the constitutional right to travel may not be conditioned upon the relinquishment of another constitutional right (here, the Fourth Amendment right to be free of unreasonable search), absent a compelling state interest.
United States v. Davis, 482 F.2d 893.
Originally Posted by
Section 107
A TSO is not a LEO so one can give a "stop and freeze" direction/order but has no authority to compel compliance (refusal of a LEOs lawful order is a different matter).
Under your rules, if I am in the sterile area after deplaning and walking through the terminal to the airport exit a TSO can decide without even reasonable suspicion to detain me and do a pat down search, but can't force me to stop and freeze. The former is much more intrusive, but you would permit it, but not the latter. That's incongruous.
Bottom line, a higher standard to conduct a search of a non-covered person is required if that person is not proceeding through the screening checkpoint or is not boarding an aircraft.
Originally Posted by
gsoltso
All searches conducted at the airport by TSA, are part of the regulatory scheme. They are clearly defined in regulation, are implemented according to those regulations and are used at several locations throughout the airport. The signage is posted so that folks are aware that searches are not just conducted at the checkpoint areas.
Interesting your statement about “clearly defined in regulation” as
this law review article notes, “Because information about the security measures followed by TSA agents is largely unavailable to the public . . . .”.
The section of the TSA regulations entitled “Responsibilities of Passengers and Other Individuals and Persons,” contains the TSA’s rules regarding what air travelers must do to comply with TSA regulations.” 49 C.F.R. §§ 1540.101–.117. What else can you point us to? And that clearly states:
§1540.107 Submission to screening and inspection. (a) No individual may enter a sterile area or board an aircraft without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area or aircraft under this subchapter.
Originally Posted by
gsoltso
As I explained above, I do not post images I am unable to find online at one of our sites (for the most part). That goes double for official signage - if it isn't on a TSA site, I will not post it.
I don’t think the signage says what you think that it says.
Originally Posted by
gsoltso
I have never conducted a search without consent - I have had situations where passengers chose not to participate in the screening process and were denied entry into the sterile area. I have also been in situations where a passenger chose not to participate in additional screening (again, conducted as part of the regulatory scheme) at the gate area and was denied boarding, and escorted out of the sterile area by LEOs.
Actually, every time you work the screening checkpoint, you are “conduct[ing] a search without consent”. Your anecdotal statement about searches reinforces my point about searches done outside of the screening checkpoint or not part of boarding an airplane.
Originally Posted by
gsoltso
There is no higher standard required for a search past the checkpoint area, merely that the searches being conducted in the sterile area comport with the regulatory scheme or design.
That is just not true. What is your basis for your statement of law? Please link us to that “regulatory scheme or design” that supports your statement.
“Faced with the choice between changing one's mind and proving that there is no need to do so, almost everyone gets busy on the proof.” John Kenneth Galbraith
Bottom line, a higher standard to conduct a search of a non-covered person is required if that person is not proceeding through the screening checkpoint or is not boarding an aircraft.
Originally Posted by
Boggie Dog
Can you as a TSA screener approach a person in an airport parking lot and screen them and/or their belongings?
Without their consent, no.
Originally Posted by
Section 107
A search by a TSO is an administrative search. Therefore, such a search as you propose by a TSO could only legally happen if ALL persons in the parking lot were also being searched. A TSO has no authority to arbitrarily stop individual persons and demand/conduct a search.
Unless you are proposing that the screening checkpoint be moved to the parking lot, where is the authority of the TSA to conduct an administrative search outside of the sterile area/screening checkpoint?