Originally Posted by
law dawg
There would be a substantive difference between a consent stop and search (checkpoint) and a SPOT stop.
A consent search can be stopped at any time up to the point the officer finds something that elevates the consent search to a non-consensual level (reasonable suspicion). Once that level is reached then the person no longer enjoys the right to terminate the search.
Away from the checkpoint it would seem that Terry policies apply but again, as has been noted, TSOs aren't LEOs so I must admit I'm ignorant how their function applies here. Us LEOs would definitely be bound by Terry. TSOs? Can't say.
The points you raise always get me wrapped around the axle when I try to make sense of the whole TSA thing.
In your first paragraph, I would agree except that we are told that we can't stop the checkpoint screening once it has started. So, is the checkpoint a "consent search?" If you can't withdraw once it has started, I tend to believe the consent stops when you put your stuff through the X-Ray and walk through the metal detector. So, if you can't stop it (i.e.: being detained) and it is no longer a consent search, there must be reasonable suspicion to conduct a search in this manner. So, that would tell me that everyone entering a checkpoint has crossed the line of reasonable suspicion simply for attempting to enter a sterile area of an airport. This conclusion would make me believe that we are dealing with a Terry-type situation.
In your second paragraph, I think we agree on all of your points. The legal issue remaining is if there is any difference between a LEO and another government employee, such as a TSO. On the surface, one argument is that a LEO and a TSO are different. On the other hand, if you apply a "reasonableness" test, would a judge conclude that the proverbial "average American" would be able to conclude that a LEO and TSO, standing side-by-side, both wearing uniforms and police-looking badges, have different authorities? My guess is "no", and a judge could rule that a SPOTnik would have to meet Terry standards in order to detain a nervous-looking passenger for questioning and be able to clearly articulate reasonable suspicion.
This appears to be the fundamental issue: Is a TSO a LEO for the purposes of Terry standards (and others as well)?