Understood, but if they are considering these thing honestly, then they honestly need to recognise the fact that someone who is attempting to smuggle a weapon on board is going to be as polite and low-key as possible. Assertive and abusive language should therefore be looked upon as an indication that someone has nothing to hide, and politeness and consideration should be eyed with suspicion.

The fact that they instead react to abuse by intensifying the level of scrutiny and dragging out the "inspection" process is simply yet another re-confirmation that their exercises of authoritay have much more to do with petty abuse of power than they do with keeping air travel safe.

^+1

True. Of course, a TSO would be severely deficient if he were to search an item and not be capable of describing why it was appropriate to the scope of the search.

Fair point. Actually, any time you attempt to make rules that state "This is how the bad guys behave..." you create an opportunity for the bad guys to observe the rule and change their behavior. (Well, to change voluntary behaviors, anyway)

That may be true in theory, but in practice, it would be hard to exclude just about anything from the scope of a TSA search on that basis. As has been noted, a stack of papers could conceal a razor blade. A pointed object could conceivably be concealed just about anywhere.

That said, I twice have had CBP agents commence a secondary by starting to shuffle through a stack of cards that I carry (credit cards, airline loyalty cards, hotel loyalty cards, various IDs, etc.). In both cases I immediately challenged them, noting that there was no possibility of any contraband being secreted in the stack and that this was a customs inspection, not a fishing expedition, and in both cases they put them down (and in one case, the agent also decided to terminate the secondary and send me on my way)

In my experience (not security screening, but rather an enforcement role), very aggressive and belligerent people often have something to hide, but so to do the overly-friendly sort. The situation as a whole has to be considered rather than relying on a single indication of potential non-compliance.

Which is precisely the point. Although the TSO may be "very much held" to a standard in a court, what they do up to that point seems to be entirely capricious. They can, do and have pawed through anything they please at the checkpoint, usually supported without question by the aiport PD.

To the victims it is scant vindication that they don't go to (criminal) court or are acquitted there: a substantial part of their lives has been arbitrarily disrupted along with possibly considerable financial outlay. And if you are cited by the TSA's own kangaroo court, none of these "standards" is worth a damn anyway.

No kidding -- I'm still stunned by KellyMae's belief that she worked in law enforcement. I mean if the handpicked bloggers do understand this, then what are the odds that the rank and file TSOs do?

Sorry, don't believe that. I have little doubt the 9-11 hijackers were all "good morning to you," fully co-operative, friendly and cheerful on their way through the checkpoint. Probably the most pleasant people the screeners encountered that morning.

I am generally irritable and unpleasant going through U.S. customs. But the one time I brought a box of cohibas in, I was mr. charming and affable, and breezed right through.

There is a video of Atta and Jarrah going through security and they are grim-faced and taciturn. Not what I'd call friendly, but not obviously bad guys either - just two more passengers. However, Atta did get into a bit of a dispute about having to be screened twice (PWM/BOS), something he obviously hadn't anticipated.

Which proves nothing, except the truism that you can't tell a terrorist just by looking. Or SPOTting.

http://www.historycommons.org/contex...ideoclassified

Leads me to wonder if terrorists are just breezing through the checkpoints unnoticed... Do they now have a 100% rate of checkpoint transit, and TSA a zero rate of detecting them?

you can recognise them by the large shampoo bottle in their carry-on, however:eek: (I'm sure KellyMae will back me up on this:D)

*****

Great post, actually I think its the FTW post of this thread. Pretty much answered all the questions I had from the OP. The comparison to bouncers at a nightclub seems particularly apt.

BART: what's your take on the famous case of Michael Vick's water bottle ?
http://www.thesmokinggun.com/archive...71mexico1.html

Wouldn't that classify as a clear case of search with no probable cause ?

Hey. Nice to hear from you! ^

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welcome back to the voice of reason ^

From my understanding of Criminal Procedure, the courts will not make a decision on the validity of the search based on the nature of the item discovered or the crime. Specifically, the TSA authority is based on administrative searches. However, should the discover a crack pipe on an x-ray scan or kiddie porn stash during a physical inspection of the bag, it is all admissible evidence.

Now on to TSA's as LEO's

TSA's are not LEO's, that's all been covered. However, according to the 9th Cir. (IIRC) once you consent to the TSA search, you can not withdraw that consent.

If you are talking to a LEO you can end the conversation by simply stating, "I invoke my 5th amendment right to remain silent, and I will not speak with you without my attorney present." At that point the officer has one of two choices, letting you go, or arresting you and holding you for a max of three days.

If the officer arrests you they must charge you or have a VALID reason to hold you, such as waiting for your identification confirmation. The three day rule only means they can not hold you longer than three days, even if your ID confirmation is not returned, without filing formal charges. (yes I know it is the procecution's office that charges you not the police)

I agree with the 9th's ruling about screening submission. Once you have turned custody of your carry on over to a TSO for the purpose of screening, it should be screened.

Once you have allowed a TSO to start screening your person (NOT the ID check) you should be screened completely.

If you were allowed to walk away at any point it would be too easy to game the system. Remember our Constitution protects us against UNreasonable searches and seizures. Finishing a screening that you initiated by willfully entering the checkpoint is not unreasonable. The method the TSA uses to screen you may be unreasonable and therefore unconstitutional.

I have yet to see anyone here present a valid argument for what is or is not constitutional in the TSA screening process. Lots of posturing and belief’s, but not a single valid argument with supporting data. So you will excuse me if I take the whole argument here of constitutionality with a HUGE grain of salt.

Feel free. We'll likewise do the same as when we distill all your bluster, we don't see anything of outside of your unsupported opinion anyway.

And of course, as you dismiss anything anyone else has to say, you're not going to see any "valid" arguments. Especially when you determine what's a "valid" argument. :rolleyes:

TSORon:
"...is and is not constitutional?" :rolleyes: WHAT? If you were to actually read it, that wasn't part of the OP's question. But it is a good effort at avoiding a real, meaningful response.

Let me offer my reply at: . Now, tell me where part of that is wrong, doesn't address the original question or doesn't address the TSA limits and authority?

It is the job of the government to demonstrate where its actions are in accordance with the LIMITED powers of the Constitution. I have yet to see anything that definitively proves to me that the most aspects of the missions assumed by the TSA are not running afoul of the provisions granted by our Creator and specifically guarded by the 4th, 5th and 10th Amendments.

+1.

IANAL, but here is my understanding of the issue.

Every SCOTUS decision on the subject of searches has wording to the effect that every warrantless search is presumptively unreasonable\. However, there are some narrowly defined exceptions.

As far as I remember (please correct me if I am wrong), the decision about airport searches said that they were reasonable because the intrusion into individual's privacy by WTMDs and X-raying of bags was minimal compared to the compelling need to keep dangerous items out of the airplanes.

As I see it, first the decision recognizes the expectation of privacy at airport checkpoints. Second, it authorizes only WTMDs and X-raying of bags. Anything beyond that is presumptively unreasonable, absent a probable cause or at least some reasonable suspicion that the person is concealing a contraband item. For instance, an opaque X-ray image may justify a bag check. A beep of a WTMD or a bulky clothing item may justify further inspection.

Absent a beep from WTMD or a bulky clothing item, virtual strip searches and pat-downs should be considered unreasonable and hence unconstitutional. Same for bag dumps if there are no unresolved X-ray images.

Unfortunately you completely miss the issue of “Implied Consent”. How does that affect your current belief’s?

Again, the way I understand it, implied consent must be interpreted narrowly, that is it extends only to viewing my bag on the X-ray and scanning me for metal by the WTMD.

Broader interpretation of implied consent renders Fourth Amendment meaningless. Here is why.

Suppose some jurisdiction (Let's call it the City of Idiotsville) decides to "eradicate" all crime by searching all vehicles that pass through it. So, at the Idiotsville city limit line they put up a sign stating that traveling beyond this sign constitutes an implied consent to a search of your vehicle. Will this be constitutional?

But why stop there? Let's say they pass an ordinance stating that Idiotsville residents give implied consent to a search by leaving their home. Better yet, make living in Idiotsville an implied consent to a search of your home at any time.

Where do you draw the line?

Let us take an another example. Every state has an implied consent law to have your BAC tested as a condition for having a driver license. No state has any kind of an implied consent law allowing the search of your vehicle as a condition of having a driver license. And driving is most definitely a privilege as opposed to a right.

Therefore, there has to be a limit to the doctrine of implied consent.

The consent so implied is to the administrative search of limited scope at the checkpoint. It is not a waiver of all constitutional rights.

This is one reason why the new MMW machines are valuable to TSA--they can alert on more things than do the WTMDs. As long as they can tune their MMW device to show some level of alert (anything but zero on their 0-10 scale) they do not completely rule out danger, so more extensive searching is no longer unreasonable. ( USA v AUKAI describes a "reasonable" escalation of a minimally intrusive search)



Metal detection is a mature technology and gives an objective indication of carrying hidden metal, as compared to TSA's new MMW technology based on more complicated and much more subjective image recognition and visual inspection techniques. By putting more subjectivity into the screening system with MMW instead of WTMD, it reduces certainty and opens the door to more intrusive searches. Which may be what TSA desires.

I’m not saying that it does. What I am saying is that once someone places their bags on the X-Ray belt they know that an X-Ray search is going to be taking place. They know that it may entail a physical search if there is a question about some item in their bag, or if the X-Ray operator cannot see through an item to determine if it is masking something else. That is what constitutes a “reasonable” search on the checkpoint. It may end up going so far as to open seams of a bag if it is determined that there is an unidentified item artfully concealed in the bags seam. I have never personally seen this happen, but the rules we operate by leave that as an option.

You have used the term “administrative search” several times, but its not a very descriptive term. Could you please explain your understanding of the term?

Since MMW machines perform what is, essentially, a strip search, they should be considered unreasonable. It is hard to to argue against expectation of privacy in one's own naked body. Therefore, I think these machines should fail the balance test of expectation of privacy vs. compelling government need.

Even US Customs cannot do a strip search without some measure of probable cause or at least reasonable suspicion. Why should TSA be given this kind of power?

I don't think they should be given that kind of power. Supposedly, the power would make them more effective at detecting non-metallic explosives, weapons, and incendiarys, but since there aren't enough of those to count, TSA has moved on to drugs, fake IDs, large amounts of cash, and the "unidentifiable".

"Administrative search" is descriptive as it is the legal term for the basis of what you do each day at the screening checkpoint.

I don't think anyone here really disagrees with that. There is disagreement on whether things should be searched for like drugs and so forth, , but not with items that fall under TSA's scope.

Consent is implied via an affirmative action - something that can't be mistaken as acceptance. At the checkpoint, that's placing your items on the belt for inspection. When you get a DL, it's a signature on the app with an acknowledgement that consent is given to check for BAC if there's reasonable suspicion that a driver may be drunk.

Simply placing a sign in a public area saying an organization is going to be searching doesn't give an opportunity for an affirmative action for implied consent.

The important distinction is the word if. In these circumstances you have the requisite reasonable suspicion, which makes the search reasonable. I would, however, expect that the physical expection will be limited to resolving the image as opposed to dumping the contents of the bag on the table as was done to me once by one of your colleagues.

However, a distinction has to be made between limited inspections to resolve the image and "fishing expeditions" that some TSOs seem to engage in as well as "random" bag dumps and retaliations for complaining.

How about a legal definition?

An administrative search is an inspection or search carried out under a regulatory or statutory scheme, generally in public or commercial premises and usually to enforce compliance with regulations or laws pertaining to health, safety, or security.

The legal basis for administrative searches is the Fourth Amendment's reasonableness requirement. "A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. While such suspicion is not an 'irreducible' component of reasonableness, [the Supreme Court has] recognized only limited circumstances in which the usual rule does not apply." (City of Indianapolis v. Edmond (2000) 531 U.S. 32, 37.) "[W]here the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as 'reasonable'--for example, searches now routine at airports and at entrances to courts and other official buildings." (Chandler v. Miller (1997) 520 U.S. 305, 323.)

In the particular case of airports: "[A]irport screening searches...are constitutionally reasonable administrative searches because they are 'conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.' [Citation.]" (United States v. Aukai (9th Cir. 2007) 497 F.3d 955, 960.) "[T]he scope of such searches is not limitless. A particular airport security screening search is constitutionally reasonable provided that it 'is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [ ] [and] that it is confined in good faith to that purpose.' [Citation.]" (Id. at p. 962.)

Two recent interesting law review comments on body-scan searches, both at least somewhat supportive:

Comment, The TSA's New X-Ray Vision: The Fourth Amendment Implications Of "Body-Scan" Searches At Domestic Airport Security Checkpoints, (2009) 49 Santa Clara L. Rev. 213.

Comment, Does the TSA Have Stage Fright? Then Why Are They Picturing You Naked? (2008) 73 J. Air L. & Com. 643.

Over in http://www.tsa.gov/blog/2009/04/inci...rnational.html you thought it was "reasonable" to go so far as to count Bierfeldt's money:

They can't be searched for specifically. But if they're found while in the scope of the permitted search (weapons, etc.) then they're admissible.

Your logic about gaming the system, lines up directly, IIRC, with the 9th circuit logic. What I may never understand is where this concern came from. Does "game the system", mean, enter into the "system" to get intel about it, without going all the way through? Why would any self-respecting bad guy want only partial data?
If the bad guys wanted to learn the "system", such as it is, then they would be further ahead to buy a fully refundable ticket, print out dozens of BP's and transit the "system" completely as often as need be to learn as much as they needed to know. If you're going to wrap a block of cheese in wires, you'll likely create the same check-point response, ie get the same info, whether you try to leave the screening part way through or have the TSO's determine it's a harmless block of cheese wrapped in wires, and let you go on your way.
And if someone decides to leave a screening part way through, which TSO has authority to detain them?
The posted logic seems to me to be just a red herring to assist turning administrative searches into fishing expeditions under color of a court ruling.

This is what I mean by "game the system". Imagine I have a stick of dynamite in my pocket and I am not just glad to see you. I send my bag with all my electronics through the x-ray. There is nothing in the bag so no worries if they give it a secondary.

My dynamite will not trigger the metal detector so no problems there. If the TSO decides to do a pat-down or MMW screen on me I am now in trouble as the dynamite will be detectable.

If I am allowed to say "no thanks" to the MMW AND the pat-down and if I am free to turn away, the TSA has prevented THAT attempt to bring down a plane.

Now assume I walk though the metal detector with no problem and I am not chosen for a secondary. I have just entered the sterile area with a stick of dynamite.

No advanced intel needed.

Yes.

Yes.

Yes. Who has suggested that it doesn't?

Really? And what kind of threat to aviation can be artfully concealed in a bag's seam?

All I can say is it will be a bad day for TSA if that ever happens to me.

http://research.lawyers.com/glossary...ve-search.html