Well, here it is at the end of 2007 (Happy New Year, everybody!). I had some time over the last couple of days to ponder if there might be a root cause why many of us who confront an airport more than occasionally have fundamental issues with the way our government is "screening" us. Many with legal credentials have offered chapter & verse one way or the other. Those of us with zero legal education (just life experiences) and some level of aged discernment have offered hunches and gut-level perspectives.
On a purely objective level (sincerely), I'd like to toss out something for us to think about and perhaps debate from a policy perspective as much as a legal one. I admit I had help from a lawyer friend that will become apparent later on. OK, here goes...
I was thinking the other day about comparing what goes on at an airport to the long-accepted practice of a "Terry Stop." Actually, I'd make the argument that the DHS/TSA version of a "Terry Stop" occurs as soon as we attempt to buy a ticket.
OK -- the first thing I did was to make sure I understood exactly what a Terry Stop was. So, rather than look up a legal definition, I found training materials from the Federal Law Enforcement Training Center, owned & operated by none other than the DHS itself. Regardless of what the law says, here is what TSA screeners are presumably taught about this subject (Bolding is mine.) [
FLETC Web Site:
Solari (This person is the instructor talking per the iPod transcript): Okay. Let’s start with Terry Stops. A Terry Stop, as you know, is an investigative detention of a suspect. We can conduct one with reasonable suspicion that criminal activities is a foot. An agent can stop a suspect and investigate that person for a reasonable period of time. And, even though that’s not a formal arrest, it is a seizure. The suspect’s not free to leave during that Terry Stop. The agent’s going to control that stop and can even use reasonable force to stop the suspect and keep him there while the agent does his investigation.
Now in addition to a Terry Stop, there’s another legal tool that’s similar, it’s called a Terry Frisk. After legally detaining the suspect in that Terry Stop, if the agent also has reasonable suspicion that the suspect’s presently armed and dangerous, then the agent can conduct a limited search of that suspect’s outer clothing for weapons. Now weapons are basically anything that can be used to hurt the officer. So the search is going to be limited to searching for hard objects that the suspect could use to hurt the officer like guns, pocket knives, mace, clubs, … it’s not limited to just those things we ordinarily think are weapons. It could also be things like car keys or pens because those could hurt an officer as well.
So, I wonder if a period of questioning by a SPOT guy (especially the MA State Cops in BOS) could be construed as a Terry Stop? Is someone's perceived behavior good enough to provide "reasonable suspicion that criminal activities is a foot [sic]."? I've read other stuff defining that there has to be a context for the "reasonable suspicion" and that a police officer has to be able to reasonable articulate why he or she concluded that a crime was about to be committed. Note that the person is put in the position of being legally detained and can't just walk away. If the TSA believes that a SPOT interrogation is equivalent to a Terry Stop, they could make the case that a person can't leave until the SPOT guy has concluded his interrogation. Further, do the SPOT guys have to articulate that the crime they presume is about to be committed has to be related to civil aviation security? If not, arresting college-age bar hoppers for fake IDs and guys carryng a joint or two is fair game. (I believe I read somewhere that the cop has to be able to articulate some sort of contextual aspect for the behavior to lead to a reasonable suspicion of criminal intent.)
I bounced all this off my lawyer friend who pointed me in the direction of an IL Court of Appeals case in which they threw out evidence (and a lot of it!) seized during a highway counter-drug checkpoint:
People versus Ray.
From this case, here is a pretty interesting argument against the SPOT program and the accusations of it being a "dragnet" for all sorts of thing unrelated to aviation security:
Just as in Edmond, the public interest herein is a desire to thwart the trafficking of illegal drugs. The Supreme Court did not consider this public interest sufficient to outweigh the subjective and intrusive nature of the drug checkpoint. In the instant case, the public interest is outweighed by the intrusive nature of the drug checkpoint. The purpose was for general crime control and was an insufficient public interest to outweigh the private interests. Further, the questions asked-specifically, why the person was getting off at that exit, where the person was coming from, and where the person was going-were highly intrusive. Asking a person's destination or departure point and using the answer as the basis of suspicion is a highly subjective and objective intrusion. Thus, a weighing of the interests establishes that the drug checkpoint violated defendant's fourth amendment rights.
Given the TSA's self-proclaimed successes with the SPOT program (700 arrests, etc) for all sorts of things unrelated to counterterrorism, does the SPOT program (and the checkpoints) fall into the realm of "general crime control" as articulated above? As such, are the SPOT guy's seemingly benign questions, which are remarkably similar to those cited above, intrusive and illegal?
In addition to what appeared to be some real police bungling (fortunately caught by the court of appeals), I found a reference to a cited case to be most interesting:
As was noted in the case of United States v. Huguenin, 154 F.3d 547 (6th Cir. 1998), a case factually similar to the case at bar, "a driver, who has violated no traffic law, whom an officer could not stop for a pretextual purpose away from the checkpoint, [citation], may be subjected to a pretextual stop merely for choosing to travel the road on which a checkpoint has been erected," and such a stop is not to be permitted under the fourth amendment. Huguenin, 154 F.3d at 557.
Let's paraphrase this a little (phraphrasing in bold):
..."a passenger, who has violated no provision of the USC for civil avilation security law, whom a TSO could not stop for a pretextual purpose away from the airport or TSA checkpoint, may be subjected to a pretextual stop merely for choosing to travel by commercial aircraft from an airport at which a checkpoint has been erected," and such a stop is not to be permitted under the fourth amendment.
I concluded from this text that the Supreme Court ruled that cops could not conduct a checkpoint for anything else other than ensuring the public safety. I gather they concluded that looking specifically for drugs in a highway checkpoint did not pass the "public safety" test. (DUI checkpoints do apparently meet the "public safety" test.)
My guess is that those on the side of the TSA's present practices would argue that what the TSA does (including SPOT and background checks) are simply "administrative screenings" and are not searches as defined by law, so none of this applies. Everything the TSA finds during SPOT interviews, pre-flight background checks, and checkpoint searches is legally-obtained evidence.
Those on the other side of the argument could assert that, "If it looks like a Terry Stop, smells like a Terry Stop, and quacks like a Terry Stop...", so, therefore, anyone who attempts to buy a plane ticket or enters an airport is assumed to be, by their action, about to commit a crime. Ergo, if the TSA can't meet Terry standards, much of what they have done at, or associated with, airports could be considered to be unconstitutional. And, if the standards apply to the TSA that made unconstitutional Indiana's highway dragnet (Stopping of cars searching for drugs -- a reason having nothing to do with public safety on the highways), these folks could also assert that nothing is not specifically connected with TSA-declared prohibited items can be seized or used as criminal evidence.
So, I guess the way to challenge all this in court is to be stopped, detained, and arrested for an alleged crime having nothing to do with civil aviation security and challenge that the SPOT program (and perhaps some checkpoint procedures) is really a Terry Stop out of control. I'm almost ready to conclude that, at the very least, the SPOT interrogations are really Terry Stops and ought to be conduced with the identical level of standards and judicial scrutiny. But, I promised to remain objective!
In a final note concerning context, I doubt that the most ardent proponents of Terry Stops ever envisioned that a Terry Stop would be conducted on tens of millions of air travelers each year. My hunch is that the actual number of Terry Stops occuring in the US every year are orders of magnitude less, and that many are successfully challenged in courts.
In conclusion, to quote a famous DC-area preacher, "Not a sermon, just a thought."
Looking forward to your views and comments!