Originally Posted by Bart
You cited exceptions to a rule. The reason behind lawyers and clergy is because it would serve as a double jeapardy against a defendant to confide in them only to have that information used against them in a court of law. However, I don't think you're entirely correct about doctors and spouses. I think the legal exception only applies to lawyers and clergy, but I could be mistaken.
I'll clarify the search rule for you. As long as we're searching for prohibited items and other security-related items, we are performing our jobs as you perceive it. However, the moment we come across something that is not security related, we cannot continue the search. Instead, we have to notify the supervisor who may decide to notify the police if we are unable to complete the search and clear the bag.
I'll throw another twist. If I see what appears to be a bong on the x-ray, I cannot call a bag search. It is not our job to detect drugs or drug-related paraphernalia. However, if I see a pair of scissors or a knife or other prohibited item, I am performing my job. If during the search for the scissors, knife, etc., a screener comes across what appears to be a drug-related item, then he notifies the supervisor; supervisor notifies the LEO, and the LEO makes a determination of whether or not is it evidence or indications of a drug-related crime. It is the LEO's decision to make not ours.
This works the other way around, too. Had a young lady who did have a pipe and baggie with what appeared to be some residue of some sort of weed or possible drug. We followed procedure and the LEO let her go. Now this young lady was quite attractive, wore a miniskirt, had a low-cut blouse that showed off a lot of cleavage, and was waving those twins in front of the police officer every chance she got. Some of my screeners thought that perhaps this was the reason he didn't file charges. The more practical explanation is that residue is not enough to convict; it won't even make it to the charge sheet; it would have been a waste of time to even pursue it. The officer probably enjoyed the show she provided, but I'm confident that he was looking at it from a matter of prosecutability instead of getting any cheap thrills from the impromptu T&A show. What I told my screeners is that once we hand the matter over to the LEO, it's his call. We don't have any jurisdiction or legal interest in the matter.
I have a few comments from a former prosecutor's perspective. Most states and the federal rules of evidence recognize statutory or common law privileges that the suspect may invoke. The classic privileges are those that have been mentioned already: attorney-client, priest-penitent (confer O.J. Simpson and Rosey Grier), doctor-patient, and spousal. The general rule is that these privileges are narrowly construed because they prevent relevant evidence from being adduced. However, the interests protected by these privileges, full disclosure to a trusted individual, are deemed important enough that the operation of the privilege outweighs the unavailability of the evidence.
I think that Dovster was expressing the same concept that I advanced several days ago. TSA searches should be considered to be restricted in scope. Fourth Amendment jurisprudence is full of examples of searches that can start off as legal but cross a line. Because TSA screeners are agents of the government, if they cross that line, subsequent searches and evidence thereby obtained may be suppressed under the "fruit of the poisonous tree" doctrine. That is why criminal defense attorneys and judges earn the big bucks.
Finally, in my home state, the babe with the pipe and baggie could have been prosecuted. Possession of drug paraphernalia is a misdemeanor. If a lab test discloses residue of a constrolled substance on a pipe, the state has made a prima facie case. However, police and prosecutors have a great deal of discretion in deciding whether to charge a suspect. A miniskirt and nice rack could tip the scales.