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.