In fact the answer is none, none at all. This is the basis for all the retaliatory or "continuous" screenings in the past 6+ years, and although in theory it violates the legal precedents (Davis et al.) nobody in authority cares. Least of all the courts.

I think that we are in agreement with most everything; just saying it a little differently.

In reality, the bag can always be pulled out because something doesn't look right. I think, however, that if the TSO testified that the bag was pulled out randomly after x-ray, that may be difficult to sustain given the standard operating procedures I have observed. There just isn't any randomness to it. And if the TSO testifies that he had the bag pulled after x-ray solely because he thought he saw drugs, then that search will not fly IMHO.

U.S. v. Aukai (9th Circuit Ruling)

Aukai wanted to leave the checkpoint after he had already initiated screening. Although his bags did not indicate anything suspicious, nor did he set off the walk-through metal-detector, he was subject to secondary screening because he did not have an ID (TSA policy). They felt a bulge in his pocket. He asked to leave the sterile area and was refused (by TSA) until LEO's arrival. Subsequent search found a felony amount of drugs. The 9th Circuit upheld the conviction, citing that if TSA/LEOs simply let people go after initiating the screening process, then anyone could test the system to find weaknesses.

In my short time here, I have found several folks advising people to contact an attorney for being "illegally detained" or where TSA "falsely arrested" the person by not allowing them to leave the checkpoint until LEO arrival when an involved item found during the process was non-weapon related.

It is a simple fact that contraband of any sort found during the screening process will be brought to the LEO's attention. It is at that point in time where the LEO will decide whether to take criminal action against the passenger.

Now I can only personally speak of one airport (mine), but I have yet to hear a case out of any court in this country where contraband found during the screening process was not allowed or supressed because it was outside of TSA's scope of the search as so many of you claim. If there has been case precedent set, please provide the case-law and/or ruling.

It seems that since these rulings remain upheld in every court, which in my opinion is pretty common knowledge, people come to this forum to simply gripe about something that is legal and continues to be legal.

I would think it would be a much better use of time to send emails, write letters to the appropriate politicians, and/or have protests about such behavior rather than gripe about what should be illegal actions by TSA during searches at the checkpoint.

Although some misguided courts might have upheld the introduction of this illegally found evidence, the fact remains - until the police actually show up, the TSA has no legal right to physically restrain or detain a passenger, and any attempt to hold, restrain, cuff, tackle, threaten or otherwise prevent someone from leaving the checkpoint until the police arrive is illegal and a crime.

If the police are standing right there, then the issue is moot - but if they need to be called, and there could be a 3, 4, 5 minute or longer wait for them to arrive, then the passenger can gather their belongings and leave and there is nothing legal the TSA staff can do to stop it.

Bocastephen,

What you said is true.

Wow. Thought so, but nice to see this confirmed by a TSO. Thank-you. And IMHO that makes Aukai a totally impractical, muddled sham ruling that concludes no ability to terminate an administrative search should be given because terrorists might use this to test the airport "security" system.

And SgtScott31 takes a break from his lecture and claims that he takes all who "assualt" screeners with attitude off to jail:

To make some interesting points:

There are many such precedents where evidence was suppressed due to illegitimate search records, that do not involve airport security. IANAL, but this case law seemed well settled (evidence in plain view at traffic stops is admissible, evidence found by opening the trunk without express permission was not admissible) for searches in place since road blocks were legitimized by SCOTUS. The government has now extended the searches under cover of needing to find/stop terrorists at airports, and very occasionally, at other transportation nodes. Just because no court has yet ruled when the search goes out of bounds and when the evidence becomes inadmissible, doesn't mean to say they won't ever rule this way, and definitely doesn't mean to say SgtScott31's approach, (needing a we are always being tested , we have arrestees who will shortly be at a well publicized trial , you have to pass my made up on the spot criteria to take pictures at my airport perspective to even sound plausible) will always be legitimate or upheld. This area of law seems unsettled again, with the ever increasing expansion of airport screening technique and scope.
It may take a perfect storm of well heeled "perp", egregious screener behavior and the right media coverage following it, but from everything I see, the TSA turns more people against them every day in behaviors that are not soon or easily forgotten by the recipients. It may take a while, but I would suspect that a legal spanking for the TSA may well be in their future. Or that's what I hope for, anyway.

Thank you, which is why I'm so interested in knowing from the various posts mentioning 'detainment', exactly how the customer was actually 'detained' by the TSA?

Were they threatened, physically restrained, bags held hostage, tied up? How did it happen?

Me too.

When I read Aukai and I read "not free to leave" (or words to that effect, I'm operating from memory) then that reads to me "forced detention."

How can one have a forced detention without seizure, either overt (physical restraint) or implied (not free to leave due to authority)? I'm confused.

My guess is that the passengers being 'detained' are simply told by the screeners that they cannot leave. Not knowing the limits of authority they probably believe the screeners are telling the truth (like they always do). In any case, should the passengers do as they are entitled to and exit the sterile area I am quite sure the screeners would call the LEOs to locate the 'perp', probably fabricating some kind of threatening behavior. And 99% of the LEOs will of course believe them.

It is awesome how you and a few others take one sentence out of all of my posts and throw it in as you see fit to make it sound like I am just an overbearing cop who wants to side 110% with TSA and beat up the "bad passengers." Hopefully people are smart enough to read my posts on this forum in their entirety and form their own opinion of how I do my job. It is definitely a trend here to twist my words as much as possible.

Well, too bad. The US Appellate judges feel differently, and I doubt this case will even be heard by SCOTUS, again, reaffirming what is going to stick (in most cases) when it comes to airport searches (for a good while anyway).

True, the courts may not always see this way, and each ruling will obviously take all the facts of each incident into consideration before they make another decision, whether reaffirming Aukai, or deciding new precedent. If a new case comes about, I will be happy to discuss it with you, whether it is for or against my stance on the issue. As it stands right now, the higher court of the land advises that it is perfectly legal to hold passengers for LEO arrival if they refuse to be searched at anytime once the screening process is initiated.

It is probably a mute issue, because if I understand correctly, LEOs are required to have a 1 minute (or less) response to the checkpoints at all times, but in the mean time, show me a civil or criminal case that was won against TSA due to holding someone for LEO arrival and I will send a dinner gift card your way.

It surprises me that you find most of the judges/courts in the US so incompetent because this practice of TSOs holding someone for LEO's has yet to be challenged (and won). I would like to think that we should have some confidence in those making life changing rulings in our society. If and when the time comes where checkpoint searches become more stringent for the TSA, I will go by what is decided in our courts and the advice given by the AG/ADA's on how we handle it.

One judge's opinion holds with the others, but he disagrees with the viewpoints the others took regarding relying solely on 9/11. As stated in the last sentence, as time passes, future challenges will come when it comes to searches at the security checkpoint and the time and reason held by TSOs and/or law enforcement. As far as your question, he and the others felt that the LEO & TSO searches and/or "holding" fell under the administrative standard.

http://vlex.com/vid/29333647

[QUOTE]GRABER, Circuit Judge, with whom HAWKINS and WARDLAW, Circuit Judges, join, specially concurring: I concur in the result and nearly all of the reasoning in the majority opinion. I write separately, however, because I cannot join the majority's irrelevant and distracting references to 9/11 and terrorists. Daniel Aukai is no terrorist and yet, whether in 1997 or 2007, the search that law enforcement personnel conducted of his person falls squarely within the confines of a reasonable administrative search.


10 We note that the detention in this case was prolonged, not by delay on the part of the TSA officers conducting the screening, but by Aukai's repeated lies as to the contents of his pocket.


The majority holds, and I agree, that once a passenger enters the secured area of an airport, the constitutionality of a screening search does not depend on consent. That legal conclusion rests firmly on Supreme Court precedent and on the government's interest in ensuring the safety of passengers, airline personnel, and the general public. For decades, nefarious individuals have tried to use commercial aircraft to further a personal or political agenda at the expense of those on board and on the ground.1 And the threat continues to exist that individuals, whether members of an organized group or not, may attempt to do the same. In my view, references to a "post-9/11 world," maj. op. at 9657, do not advance the analysis. Nor is there any legal significance to whether or not an individual is a terrorist. See maj. op. at 9657-59. By relying on those factors, the majority unnecessarily makes its solid holding dependent on the existence of the current terrorist threat, inviting future litigants to retest the viability of that holding.[/QUOTE]

SgtScott, I understand LEO detention requirements. I'm a LEO.

What I don't know is how or if those detention standards hold with TSOs as well, since they're not LEOs. Specifically, can a TSO engage in a forced detention?

I've seen no case law on this issue. I read Aukai as permitting TSO forced detention as, to me, not free to leave means just that. But I've not yet seen that specific issue put to the test, as it were.

I knew you were a LEO.

I think if it came down to it, the TSOs would have verbally told Aukai that he could not leave simply because they could not resolve what the bulge was in his pocket (i.e. weapon or not), which I assume would have been fine based on the 9th's interpretation of what occurred. I think it was evident in the text of the ruling that Aukai knew he was not free to leave.

Those here who disagree with the court's decision are basically saying that anyone who gets "caught" with something anytime during the screening process should be allowed to leave the security checkpoint if they wish before TSA and/or LEOs figure out what it is they do not want to reveal.

I knew you did. I was just testing you.

While I concur, what would happen should he try and leave? Can a TSO lay on hands (the old "Habeas Grabus")? Can a TSO physically restrain?

It would seem that, should a TSO not be able to physically restrain someone from leaving, then the "not free to leave" part is a toothless provision. But again, I've not seen this put to the actual test yet.

Or at least I'm unaware of such.