No, I did not miss your point but you and NDSol have very much missed mine. I absolutely agree with you that airport searches must comport with the 4th. I also agree with almost everything you have said EXCEPT for the bolded parts above.

FIRST PART: The simple fact of the matter is that TSA is authorized to, and does, conduct suspicionless and warrantless searches of persons and things in the sterile and secure areas of airports all across the country on a daily basis. Period.


Now, for a variety of reasons TSA by policy and practice chooses to not conduct searches of passengers outside of the immediate areas of the PSCs unless it is on the relatively rare occasions that it does so in the immediate area of the boarding gate (door to the jetbridge).

But, as far as I know, there is nothing in law or regulation that prevents those searches from being conducted outside the immediate areas of the PSC or boarding gates. If you can point to such a limitation, please share.

Additionally, I am not aware of any court ruling that TSA's searches and inspections as part of the security program (the required general regulatory scheme) are only constitutional if they occur only in the immediate areas of the PSC or boarding gate. If you have contrary information, please share.

SECOND PART: Absolutely TSA can conduct random searches. In fact, courts have regularly upheld and demanded randomness as one of the hallmark tests of whether the TSA's searches are reasonable (see Marquez).

Courts have regularly held that having undergone one search at the PSC does not mean additional searches are unconstitutional. In fact, courts have held that (a) once a person has been given notice of being subject to search - the infamous signs - :) and (b) impliedly consented to being searched (such as checking in, waiting in line to be searched, having carryon bags screened or having walked through the metal detector) and (c) not withdrawn consent to have both his person and belongings searched before screening begins, then (d) the person is REQUIRED to submit to other additional screening. (see Pulido-Buzquiero)

I do agree with you that if a person was to be searched in a part of the sterile or secure areas under at least one of the three conditions you stated then yes, of course, the search would be legal and permissible.

Administrative searches at an airport are reasonable and allowable if (among other conditions) the search was not conducted on a discriminatory basis. So, if TSA conducted a search of a person in the terminal (sterile area) and that person wanted to challenge the search in court, the person would have to show the search was unreasonable.

Is having been screened at the checkpoint and cleared to leave the checkpoint area enough to make a later additional search unreasonable? No, because as you and NDSol have stated many times, searches at the gate are A-okay. Again, there is nothing in law or regulation that limits additional searches to being conducted only at the gate (but please correct me if I am wrong).

Now, if TSA only screened one or a very few other persons somewhere in the sterile area and the agents that conducted the searches had complete discretion in whom they selected for the additional screening (i.e. the persons were selected on a discriminatory basis) then yes, those searches would almost assuredly be held unreasonable and therefore illegal.

But I am highly confident that TSA and its lawyers would be more than able to portray any such search as being conducted as part of the regulatory scheme (conducted under the policies and practices of the security program) and therefore not discriminatory or unreasonable.

To my knowledge a case challenging a search away from the PSC has not come before the courts. Maybe one day such a case will be brought (most likely from someone who got through the checkpoint but was later discovered to be carrying narcotics) and a definitive ruling comes down that restricts TSA from searching and inspecting persons and things in the areas covered by the security program but away from the PSC or the gate. But, until then.......yes it can.

I have never witnessed this, nor ever heard of anyone reporting this. However, the fact that TSA may do it does not render it legal nor constitutional.

Then I have absolutely no idea what you're talking about, if not pax.

I already have. It's called the 4th Amendment. I thought I've already explained this. The Bill of Rights recites a series of limitations on government power, i.e. things the government is not allowed to do. Unreasonable search and seizure is something the government is not allowed to do. The decisions which have addressed checkpoint searches permit only narrowly-tailored administrative searches for very specific purposes. No law is needed that says, "TSA may not search passengers outside the checkpoint." The 4th Amendment already says that.

They don't have to. Again, the relevant decisions reviewed ONLY the question presented to the Court, i.e. is a particular search unconstitutional. To my knowledge, the only searches that were challenged occurred at the checkpoint, and the opinions were limited to those searches.

AT THE CHECKPOINT. Don't take one part of what I wrote out of context.

That's an irrelevant strawman. Random sterile area searches outside of the checkpoint aren't unconstitutional because a pax has already been searched.

Only in the context of those pax who wanted to avoid the checkpoint screening after getting in line. No offense, but you're clearly not a lawyer. You're reading things into opinions that clearly are not there, and extrapolating based on a theory of government powers which is simply wrong.

That's not the only criteria. I suggest you familiarize yourself with more of the 4th Amendment decisional law than those opinions that involve TSA.

I'm highly confident that they will try. I don't think you are sufficiently familiar with what precedent holds is "unreasonable." Unfortunately, I'm way too busy today to elaborate.

Here's one:
And here's another:
The exception to the above being a court decision:
You're proceeding from a false assumption, however. Nothing government does is unlimited by nature. Any powers granted to the government by the people are inherently limited, including whatever search authority TSA has within the sterile area.

The law says they may search, but unless the law specifically says they may search anyone at any time anywhere inside the sterile area, they can't. I don't remember the term for this legal precept, but I'm sure Ptravel will enlighten us if he returns to the thread.

The law does not specifically grant TSA unlimited search authority within the sterile area. Therefore, TSA does not have unlimited search authority within the sterile area. And even if the law did specifically grant TSA unlimited search authority within the sterile area, that law would be un-Constitutional, as it would violate the 4th Amendment and not fit the limited Administrative Search exception created by US vs Davis.

I understand the 4th and the exemptions under administrative search doctrine very well. I agree with you 100% that even in the aviation environment the government must comply with the 4th; I have never suggested otherwise. I have certainly never suggested the TSA has unlimited authority.

What you seem unable or at least unwilling to grasp is that, absent egregious mistake(s) by government employees, any searches or inspections conducted by TSA in the sterile and secure areas as part of the security program have been, and will continue to be, defended and upheld on the grounds of being within the general regulatory scheme and reasonable administrative searches.

You believe differently. You believe that TSA can only conduct an administrative search at a PSC or at a gate. You believe that once a person has passed through a checkpoint that person is no longer subject to administrative search. You believe that once a person has passed through a doorway into the sterile or secure area without being searched that person is no longer subject to an administrative search.

I believe TSA's authority/ability to conduct an administrative search or inspection is not so limited.

I also know that if a court finds a TSA search or inspection was not compliant with the requirements for an administrative search the search will be unreasonable and any evidence discovered as a result of that search will be suppressed.

What the public needs to know is that the people with responsibility and accountability for airport security (airport/aircraft operators and TSA) agree with my point of view and not yours (that searches may only be conducted at the PSC or gate).

Maybe one day a court will hear a challenge and issue a ruling on what the gubmint purports was an administrative search or inspection conducted in the sterile/secure area away from a PSC (such as a person whom TSA required to be screened on arrival before being permitted to enter the sterile area who was then discovered to have some sort of prohibited item) and then we will know for sure.

Well, not really. There are no such things as "exemptions" to limits on government power to affect fundamental rights. Administrative searches are not "exemptions" but, as with obscenity prohibitions and the First Amendment, don't fall within the Fourth Amendment.

That's your prediction, not a fact, and, sorry, <deleted by moderator>.

And, apparently, TSA believes that, too. When someone evades security, the response is a terminal dump, not a search for the person and an on-the-spot inspection. Nonetheless, it might fall within the ambit of an administrative search to search him wherever he might be found. That has nothing to do with what we've been talking about, which are random, suspicionless searches in the sterile area post-checkpoint.

Once again, this isn't a matter of opinion re: administrative searches, but whether a random, suspicionless search, post-checkpoint, in the sterile area falls within the ambit of an administrative search. You've already decided it's an administrative search. There's nothing in the law that suggests that it is, and plenty that suggests that it is not.

That's not the point, nor is it the reason for the Fourth Amendment. You're simply ignoring the right to be "secure in their persons" part.

And those people are not, for the most part, constitutional scholars, much less lawyers. I couldn't care less what TSA administrators think. Wait -- I could care less, if we're talking about TSOs.

Moderator's Note: Getting Personal
 

Reminder!

That is conflating searches of airport employees and non-passenger property with searches of passengers and their personal property. Part 1542 permits the former, but is inapplicable to the discussion about the authority of TSOs to search passengers outside of the screening checkpoint and not boarding a plane.


What would those "variety of reasons" be (besides that is the extent the law permits administrative searches of passengers)?

Assuming no limitation unless one is specifically articulated has it backwards. The TSA is prohibited from conducting administrative searches except to the extent specifically authorized.

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 and provides the extent of what the TSA is authorized to do with respect to administrative searches of passengers. 49 C.F.R. §§ 1540.101–.117.



Yes, once again, only because Part 1540 permits administrative searches of passengers when boarding a plane. No authority exists permitting administrative searches of passengers within the sterile area otherwise. Period.


Once again, that is conflating searches of airport employees and non-passenger property with searches of passengers and their personal property. Part 1542 permits the former, but is inapplicable to the discussion about the authority of TSOs to search passengers outside of the screening checkpoint and not boarding a plane.

You are making "official" statements without offering any support. Who have you specifically talked to that confirms your opinion? I have discussed matters previously with TSA Legal related to this; have you?

"What the public needs to know is that" the TSA does not have the authority to use the administrative search exception to conduct a search in the sterile area of a passenger except if that person is proceeding through the screening checkpoint to enter the sterile area or is boarding an aircraft.

It seems this is pretty well played out. We will see when and if this question ever comes before a court.... Smart money will not bet on the government being on the losing end and being told it its administrative searches cannot be conducted in any area of the sterile and secure areas except for only in the immediate area of a PSC or gate.

In the meantime, until someone challenges the searches and a court tells them otherwise, TSA will continue to regularly conduct suspicionless and warrantless searches and inspections in all areas of the sterile and secure areas and not just those areas that are in the immediate vicinity of a PSC or gate.

Are you again trying to conflate searches of airport employees and non-passenger property with searches of passengers and their personal property? Are you asserting that your statement, "TSA will continue to regularly conduct suspicionless and warrantless searches and inspections in all areas of the sterile and secure areas and not just those areas that are in the immediate vicinity of a PSC or gate" is occurring with respect to passengers?

For months now you have had the opportunity to provide an example of an administrative search by the TSA of a passenger other than at the screening checkpoint or when boarding a plane. No example has been forthcoming. In fact, everything that has been posted comports with the TSA's authority to only do such at the screening checkpoint or when boarding a plane.

Would seem to me, as a private citizen, that when a federal agency gets to write the standards by which they operate that those standards would cover all aspects of what the agency plans to do. In this particular case the agency, TSA, is pretty clear by their written communication that screening of passengers will be conducted at the entrance to the sterile area and in some cases also at the gate to the aircraft.

I can understand that airport workers who often have access to the sterile area without entrance inspection should be subject to different policy such as random inspection which appears to me how the regulation was written.

Willy-nilly interpretation that exceeds the regulation should be challenged but we know that in addition to having to have standing the cost of a challenge will discourage most people from taking that path. That alone is probably responsible for TSA's exceeding the written regulation. Still, TSA cannot read additional requirements into their regulations anymore than a traveler can just say they are exempt from those same regulations. I would hope that this is one area where the OIG leans heavily on TSA to perform exactly as the regulations dictate. If the regulations are too limiting then change the regulations.

I also think that how we as individuals interpret a directive is beneficial to other readers and participants. We each may have a different understanding of what something means and can only improve our understanding as the fine points of a passage are discussed and the nuances are better understood. That doesn't mean that the discussion need become personal but free open discussion should lead to at minimum a consensus understanding.

The discussion seems to have boiled down to how TSA actually conducts business vs what the regulations state.

Searches Away From The Checkpoint or Jetway
 

I can think of a few examples of these kinds of searches:

1. SPOTNik interrogations pretty much anywhere in the airport;

2. Those silly drink tests they did a few years ago; ;

3. Pretty much anything the infamous VIPR teams do.

Each one of those not done at the screening checkpoint or when boarding the plane were done under the theory that the passenger had consented.

1. I have walked away from BDOs trying to question me.

2. There are stories of those that refused and nothing adverse occurred.

3. VIPR teams have not been in the sterile area as far as I know. Unsure what, if any, administrative search authority they have outside of airports. Certainly have read where some have seen them set up at subway stations, so they walk out and go over to the next station where no search is required to access the same system.

My view is that they are both the same with respect to the issue of administrative searches of passengers.

They should both be the same but as put forth by Section 107 it seems there may be a difference in what the regulations state and what TSA actually does.

Forgot this one: VIPR Detains Guy on Chicago Metra Train for testing Positive for Radiation.