Originally Posted by
law dawg
Vassilipan - thank you for the explanation. I haven't done many admin searches (other than inventory), so that's new territory for me.
Also, I had this sent to me as part of a longer email documenting the biggest cases facing LE this year:
The Ninth Circuit Court of Appeals recently reaffirmed its ruling that a passenger entering a secure zone at an airport may not leave the secure zone as an alternative to a required security search. Xiphos previously reported that the decision in United States v. Aukai, 440 F.3d 1168 (9th Cir. 2006), had been scheduled for reconsideration by the full panel of the court (known as an "en banc" hearing). The court moved away from a thirty-year old precedent that based security searches on consent by the traveler. Following a case decided by the Third Circuit, in United States v. Hartwell, 436 F.3d 174 (3rd Cir. 2006), the court ruled that suspicionless security screenings are constitutional under the Fourth Amendment''s special needs doctrine. Under the special needs doctrine, a search or seizure is allowed if it supports services special governmental needs, beyond ordinary law enforcement need, that outweigh an individual''s privacy expectations, and the circumstances of the search (such as a transportation security zone search requiring expediency) make it impractical to require a warrant or to impose a requirement of individual reasonable suspicion. United States v. Aukai, 497 F.3d 955 (9th Cir. 2007).
I believe this ruling is flawed, and here's why...
The court is establishing the legal basis to conduct a search without a warrant - they are still not understaninding the true, underlying basis for the search, and that is voluntarily accepting the search as the 'price' to enter a restricted area.
Yes, the search is allowed as it supports special governmental needs and outweighs an individual's privacy expectation, but only to the extent that individual wishes to enter the restricted area. The court failed to understand that entering the restricted area is voluntary conduct, thus the search is voluntary and an individual should be able to withhold consent for the search if the decide to terminate the behavior which supports the search - removing themselves from entry to the restricted area.
You cannot withdraw from the search AND enter the restricted area, but the act of withdrawing from the restricted area means the justification for the search is moot and the individual should have the right to terminate it unless a warrant is secured or probable cause exists - in which case, the individual must be informed their search is no longer administrative and is now criminal and anything found in the search can be used as evidence against them, AND they have the right to withhold permission for the search unless a warrant is secured.
As a counter note, here is an example of an administrative search which one cannot withdraw from - a search before being taken into jail. You cannot withdraw from being taken to jail, yet you cannot enter the jail without be searched - in this case, the court's ruling would be appropriate; just not in the case of airport searches.