At the end of the day, though, it's up to a judge to determine if the scope of the search was appropriate.

Which, of course, would in theory show up on an x-ray scan that would give them reason to look in that folder.

I think absent that (and having it available for a judge to review), a good lawyer could get the evidence suppressed.

For all the Southerners, by "pantry" he means cabinets like where you put the dishes.

law dawg, down south we call the big closet in or just off the kitchen a pantry. This is where we store our canned and dry goods. Most are large enough to conceal a body.

So if you ever serve a warrant looking for a body be sure to check by the pinto beans, that is where I keep mine until I can feed them to the gators. ;)

I didn't think screeners were held to the Probable Cause doctrine in the legal sense. The legislation which (ostensibly) controls their actions is administrative not criminal, as someone pointed out.

With regard to the 4th Amendment, courts ruled some time ago that airport searches were constitutional provided they were limited in scope to discovering items which were a threat to flights. I don't think there's any question that that particular interpretation/ruling has gone by the board.

If a screener summons a LEO then PC is supposed to come into it, except that the LEO can simply defer to the screener - because a LEO has been summoned that is ipso facto probable cause. A court might not and hopefully would not agree, but I wouldn't place any bets.

This begs another question:

Scenario 1: Passenger A goes though security, calls over a LEO and says, "I looked in Passenger B's bag and saw a big wad of cash."

Scenario 2: TSA screener inspects Passenger B's bag, calls over a LEO and says, "I looked in Passenger B's bag and saw a big wad of cash."

In scenario #1 does the LEO have probable cause to detain, question or search Passenger B?

If no, then why would the answer be different in scenario #2?

The officer, based on the TSO's word, would have probable cause to detain (seize) the passenger and investigate. This would be a reasonable seizure under the Constitution.

If the officer during his investigation feels that the circumstances presented articulatable probable cause the officer can then instigate a search.

Which is prone to abuse and has been, unfortunately.

What it comes down to is referrals to LEOs can be done at screener whim. :td:

It's to the TSA's advantage never to state a minimum size for a prohibited item. No police department will ever challenge this, either, because the TSA constantly hands them probable cause and/or reasonable suspicion on a silver platter with no standards attached that any beat cop would have to meet before even talking to you.

Now, since the smallest substance on this planet, an atom of hydrogen, is flammable, you can bet that the TSA will never declare a smallest prohibited item.

NOTE: I am not a lawyer. The following is only a lay opinion.

Probable cause does not apply to TSA, as previously stated, because TSA functions under administrative search authority. As part of the administrative search authority, TSA may ask questions about items that might have implications to aviation security. If you choose not to answer those questions, it is my understanding that it is supposed to be taken as a neutral input. A simple, polite refusal to answer questions should not bolster the TSO's case or create probable cause where none already exists. Also, LEOs in many jurisdictions will tell the TSO where to shove their "concern" if the TSO cannot articulate LEO probable cause.

On the other hand, there is a difference between "I refuse to answer that question" and "F*** you, I don't have to talk to you." or even the ever-so-popular, "Go SPOT someone else." Depending on the individuals you encounter, the difference may be important.

Ultimately, the passenger can do quite a bit if questioned. I can't really provide decent advice as to what is advisable, as I am not qualified, and do not know your individual circumstances. You must decide, in your circumstance, if it is more likely to help you or harm you to provide a specific piece of information to TSA. Stand mute. Answer only those questions you are comfortable with, answer all questions, engage the TSO in conversation until his supervisor yells that he should return to work. I'm sure there are plenty of people who can come up with far more creative possibilities than I. There are a few things which are not advisable. Don't walk off into the sterile area without finishing screening. Don't grab your items out of the TSO's hands, or before the TSO finishes screening them. Don't start a physical altercation. Don't start screaming or throwing a fit on the checkpoint. Don't start yelling about how you're a terrorist, where the bomb is located, your explosive toothpaste/shaving cream/deodorant/ect.

Yes it can be abused on a whim, but so can any "tip" to a police officer. It is up to the police officer to investigate before a search and the officer must be exercise due diligence to avoid abuses.

In the case of the Ron Paul money, the screener DID abuse the rights of the traveler by referring him to a police officer out of spite not good faith. My recommendation to the Ron Paul worker is to sue the TSO for violating his civil rights and to seek charges for false imprisonment.

I think the key to this whole thing is this "TSA may ask questions about items that might have implications to aviation security."

If a TSO sees an electronic item that they are not familiar with, I think it is completely within their right to ask what it is and how it works as the device may have safety implications.

If a TSO sees something that they feel may be criminal like kiddie porn, white powder or cash, the TSO needs to STOP and call a LEO. The TSO can then relay to the LEO their concerns.

At no time should a TSO question anyone about non safety related items or subjects. All questioning about criminal matters need to be handled by those trained to do so. (note: I am not saying they can't chat in a friendly manner)

Let's play what if. Assume for a moment that the Ron Paul money man was in reality a drug dealer. Assume the money was from a drug sale. Assume when the Ron Paul money man asked if he was required by law to answer the question he was told by the untrained TSO that he was.

If the Ron Paul money man at that point said it was drug money and that in turn triggered a search of his vehicle, person and checked luggage, that untrained TSO just blew the case and the dealer walks.

His "confession" would not be admissible as he was not read his rights before being questioned by the TSO under color of law. His confession would not count as a spontaneous utterance as he was being directly questioned to the nature of the money at the time of his utterance.

The search would be tossed because it is fruit of the poison tree. The police officer may have probable cause due to the confession but the confession is invalid and the officer should know that it is invalid and therefore not reliable and therefore is not strong enough to induce probable cause.

If the checked luggage has already been screened the officer could not rely on the TSA's administrative search for a look in the bag.

Interesting. So an administrative search that unnecessarily rifles through papers after an X-ray and finds cash can be used to refer to the victim to a LEO, who then has probable cause to confiscate the money.

Genius. Airport Authorities can make some serious coin this way.

Lengthy...sorry
 

There are a lot of answers here and they run in a lot of different directions. I'm approaching this from almost 30 years in and around law enforcement starting as a regular street cop and now training police all over the world. So, having said that, I'm not a lawyer and don't play one on TV....

Trying to get back to what the OP said, I think the underlying issue here - one which some have touched on and described well - is what applies to the TSA security guard at the check point? The best answer is: the concepts of probable cause and reasonable suspicion really apply to real law enforcement officers, not those engaged in "administrative activities." Lemme' see if I can explain this better:

Contact with law enforcement normally starts with either (a) an observed direct and active violation of the law or (b) where the LEO can articulate a reasonable suspicion. Reasonable suspicion is where the LEO can articulate through some set of facts or circumstantial evidence or inference to believe that a crime has is being, has been, or will be committed in the foreseeable future. The test is: would the facts or circumstances lead the reasonable man to suspect a crime...? In a simplified example say a LEO is driving down the road at night and sees a car ahead of his weaving or swerving within its lane and then, occasionally, into the adjacent lane. The reasonable man might believe there was a drunk driver behind the wheel. The officer stops the car based on a reasonable suspicion the driver could be under the influence. He COULD stop the driver and write them a ticket for a number of actual violations depending on the state (i.e.: "unsafe lane change," "failure to maintain path" and so on) so the stop is initially based on an observation and a reasonable belief there may be a crime being committed (the DUI) or the actual violation (ticketable offense) at that moment. Once he contacts the driver, say he realizes the driver's actually tired, or dropped something and was weaving as he was trying to reach across the seat but he doesn't smell booze on his breath. At that point, the officer's choices are: (a) the ticket for the "unsafe lane change" (etc) or (b) cut him loose with a warning to pay more attention to his driving. Reasonable suspicion, in this example, is the lower standard justifying the contact with the police, that is, it's a lower standard than "probable cause (to conduct a search or make an arrest)."

Carrying that example forward, the officer contacts the driver, sees bloodshot eyes, slurred speech, smells the booze...he has probable cause to get the driver out and investigate further by doing field sobriety tests and, based on the totality of the observations, develops probable cause to arrest the driver for driving under the influence of alcohol. The progression is from the lower standard: a reasonable suspicion (to make the contact with the person), to probable cause to conduct the investigation into the potential crime, to the higher one: probable cause to make the arrest.

And here, I think (caveat: my opinion only) is where we stray from the normal application of reasonable suspicion leading to probable cause leading to an arrest when it comes to the TSA at the checkpoint. TSA security guards have administrative authority to examine our belongings under the guise of aviation safety (and through programs like SPOT and so on observing you and Iin plain view in a public place). As such, even if the concept of reasonable suspicion were to apply to these non-law enforcement individuals, when we go through the checkpoint they have the equivalent of what I'm going to call here "built in, non-law enforcement level reasonable suspicion sufficient to justify a search." What I'm saying is, they have the administrative authority to make contact with us solely by virtue of the situation not an articulated set of facts which would lead the reasonable man to conclude a crime is, has, or was being committed and that we were involved. On the street, a real LEO would have to articulate reasonable suspicion to contact you and move into the area of probable cause examine your possessions. At the checkpoint, the administrative search has eliminated the lower step in the normal process and they can jump straight to a search of our belongings under the notion that "do you want to fly today? You do? Good, then I have the authority to search your possessions without warrant or other justification which would apply in any other setting."

In short then, as a function of the non-law enforcement nature of their position (despite the physical simulation of real law enforcement authority), and their charge to determine if you or I are a threat to aviation safety, reasonable suspicion really doesn't apply and, by extension, neither does probable cause in the context of real law enforcement. Which carries us to: so, what do they do when they see a crime being committed in their presence? The same thing anyone can do as a non-law enforcement officer: (a) make a citizen's arrest (jurisdictionally dependent definitions apply here) or (b) "observe and report" the situation to the appropriate real law enforcement agency. However, in the context of the TSA, the extension of their authority is that they can also arbitrarily and capriciously deny you access to the "sterile" area beyond the checkpoint for - as we've seen in examples described on this forum and in the mainstream media - reasons which would not otherwise rise to the level of reasonable suspicion much less probable cause (i.e: "the Steve Bierfeldt situation').

Now, since the OP, this thread has strayed into when one has to answer questions and such. In the context of the "DUI" example above, one is required to produce a driver license, and, in some states, there's the "implied consent" provision where one has to provide a chemical sample related to blood alcohol content as a condition of having a driver license. Nowhere is there the requirement (a) to answer questions which may incriminate you or (b) comply with the field sobriety tests (the roadside evaluation of the driver's sobriety; HOWEVER, not replying to questions or not performing the field sobriety tests may well factor into the officer's evaluation of the driver's sobriety and be one of the many factors that would lead to the arrest.

But how does that play at the checkpoint? Meaning, how does a refusal to answer questions play out at the check point? The TSA blogger recently posted the non-answer by the TSA lawyer about how, if you don't answer questions, that might lead to further detention (read: investigation) and one might compare that to the DUI example above; however I think the striking difference is that in the DUI example above there was a real law enforcement officer involved who went through the progression of reasonable suspicion to probable cause rather than having administrative authority to jump that step and cut to the interrogation where one would, under the normal constructs, not expect such interrogation.

So, do you have to answer questions? I think it's clear you don't "have to" (see also the U.S. Constitution and Bill of Rights); however, as a function of their administrative authority, they can impose the "do you want to fly today?" administrative penalty until they get caught and the courts hold their feet to the fire (again, in another case like the one involving Steve Bierfeldt I see coming but not soon enough) where they overstepped any reasonable bounds of reasonable authority. Until then, from me and me alone - and this is not offered as legal advice - if I feel like I'm getting jacked up for no good reason by one of these security guards, they will get the equivalent of "name, rank, and serial number" in the form of:

"We both know you may examine my belongings in my presence, check my ID and my boarding pass, but you're not taking any of my possessions out of my sight and I am not required to answer your questions. If you feel like you have a reason to detain me further, you need to make the call now for the TSA supervisor, my airline's Ground Security Coordinator and, if you think I committed a crime, a real law enforcement officer, otherwise I expect you to let me go on my way as soon as possible without any further unreasonable delay." It should be spoken in a low, calm, even tone, with no hand gestures and no pointing or swearing and no threats tucked in. It is an assertion of my rights and puts them in a position where they will have to make the next move and then justify that action with one or more of those people mentioned.

Now, to be clear, common questions I'd expect of someone being courteous, or even reasonably curious aren't the kinds of things I think the reasonable man ought to react like that to. For example, I often travel with a lot of "unusual looking" electronics or camera gear. I had a guy at a check point ask about a strobe I had and my experience with it. I may have been the subject of a "BDO" or it may have been wholly innocent conversation as he was rifling my stuff but my perception was it was casual, it seemed to be genuine interest, and it didn't extend my trip through the "secondary." I responded in kind, answering his questions and talking to him like I would anyone else who asked me about it. I see that as "no harm, no foul." It's been those few occasions where the person at the checkpoint has chosen a tone or line of questions I don't think I or any individual in that setting deserves that I have in the past and will again in the future reply to in the form of "name, rank and serial number (as above)." If they can articulate a reason for holding me, they will have to explain it to those people. I have no intention of subjugating my rights and freedoms to some wannabe who's nothing more than badge heavy.

I doubt it -- if a razor blade showed up on an x-ray, then the TSA wouldn't have any choice but to find it. If in looking for it, they found it in a stack of documents, and flipping through it, they found what was obviously kiddie porn, they would be quite legally able (required under their internal regulations, I believe) to summon a police officer. A police officer, when confronted with such evidence, would not really have any other choice but to arrest him, and I can't think of any basis on which such evidence would be suppressed.

I don't see any difference -- if a citizen sees something he believes is criminal and alerts a law officer, the law officer has the ability to investigate even if he didn't witness anything first hand. That's true at the airport or anywhere else. I once saw a guy exiting the building next to mine via a window with a bunch of stuff in his hands, gave chase, pursued him for eight blocks until my shouts attracted the attention of the police who then searched him, found contraband and burglary tools and arrested him. That search was perfectly legal even though all the cops saw was one guy chasing another guy down the street.