So what exactly creates probable cause?
 

OK, we've had a lot of talk, especially this past week, about probable cause-- primarily around what creates it and what doesn't. I think it would be a service to those of us on this board, and the flying public in general, to hold a candid and frank discussion about this issue.

I'd like to specifically target this issue around probable cause as it relates to TSA checkpoints, and I'm hoping that those with practical experience or solid legal knowledge will chime in on this. (Opinions from the peanut gallery cannot be stopped, I suppose, but I really intend this thread to solicit feedback from those who know what they're talking about on the matter.)

To start the discussion off:
- Can we get a legal definition, with a relevant example or two, of probable cause? I think that many of us who play armchair attorney here (myself included) think we know what it is, but do we really know?

- How does obtaining probable cause relate to questioning by TSA? I understand that you have a right to not answer questions asked to you... how does answering or not answering bolster a TSO's position if s/he decides a referral to an LEO is warranted?

- What exactly are your rights at a checkpoint? I've read a lot of assertions from a lot of people-- some sound knowledgeable and some sound like they're on a power trip. What can and can't a passenger do if questioned? What is advisable? (Note that these two questions may lead to substantially different answers.)

PROBABLE CAUSE - A reasonable belief that a person has committed a crime. The test the court of appeals employs to determine whether probable cause existed for purposes of arrest is whether facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime. U.S. v. Puerta, 982 F.2d 1297, 1300 (9th Cir. 1992). In terms of seizure of items, probable cause merely requires that the facts available to the officer warrants a "man of reasonable caution" to conclude that certain items may be contraband or stolen property or useful as evidence of a crime. U.S. v. Dunn, 946 F.2d 615, 619 (9th Cir. 1991), cert. Denied, 112 S. Ct. 401 (1992).

Example: LEO sees crime in progress, or LEO has articulable facts to determine whether a crime is/was committed.

TSA Screeners are not LEO's, therefore probable cause does not apply to them.

You search at a TSA checkpoint falls under an Administrative Search (read below)

All I know is from direct experience. I make a point of routinely verbally harassing TSOs as much as possible every chance I get. But I am careful not to cross any lines, e.g., anything that could be considered assault or a threat. Sometimes they just deal with it and move on. Other times, they get uppity and threaten to call the cops, a threat to which I always respond to with, "yes, absolutely, please do." Then I never answer any of their questions and they eventually let me go.

The bottom line is that you do not have much in the way of rights at the checkpoint. Walking down the street, a cop wants to know this or that and with the exception of the need to identify yourself in some states, you can pretty much tell him to go ******* ****** with your ******* until he ********* and there isn't much he/she can do about it. At the checkpoint, all they need to do to ruin your day is just inform you that you're not going past the checkpoint, and there isn't a lot you can do about it. There is no need for probable cause for anything, because again, you either consent to the search or you don't fly. However, even though it has yet to be tested in court, I doubt they could justify keeping you off the plane just for annoying them. If they tried to bar me from boarding on the basis of my taunting them and their pathetic rules, I'm reasonably confident I could successfully sue. They have backed down on issues like the KHIAI bag because they are aware that they are on legally thin ice if they try to use 1st amendment activity as the basis for barring a passenger from a plane. But other than that, I think they have pretty wide latitude in terms of whom they keep off. But I would expect that if they are unable to articulate a specific and credible reason for it they would be at risk of a lawsuit of some sort.

As for development of probable cause in relation to a security inspection, it's pretty straight forward. Walking down the street with decapitated head in a bag, if its not dripping blood on the sidewalk as you walk there is pretty much no way a cop could get a look inside. But if a screener sees it, they are allowed to alert the cops by saying "it looks like he has a decapitated head in the bag," and voíla -- instant probable cause and the cops can search (although it should be noted that the cop in that case wouldn't be able to search beyond what was necessary to establish whether there was or was not a decapitated head in your bag, i.e., he couldn't search your bag, find out it was just a bowling ball, and then search your jacket and find a packet of cocaine).

I'm not a moderator, nor do I play one on TV, but can I just put in a simple request from a lowly reader to be civil about this?

I'm as anti-TSA as anyone in here, but as a whole, it's getting harder and harder to read threads in this forum nowadays.

+1

well said ^ so let's play nice in the sandbox folks

[QUOTE=Wentor;11632209][b]

You search at a TSA checkpoint falls under an Administrative Search (read below)

Quote:
Administrative search
Definition
: an inspection or search carried out under a regulatory or statutory scheme esp. in public or commercial premises and usu. to enforce compliance with regulations or laws pertaining to health, safety, or security <one of the fundamental principles of administrative searches is that the government may not use an administrative inspection scheme as a pretext to search for evidence of criminal violations .People v. Madison, 520 N.E.2d 374 (1988)>

....................
This definition is what interest me. To bring into focus let's look at the $4700 incident.

Man with metal box presents to be screened. To clear the box it must be opened and the interior cleared of prohibited objects. No problems so far.

The bounds of the Administrative Search permit TSO's to search for certain things, explosives, weapons, incendaries and other prohibited items.

Does the TSO step out of bounds when seeing something that is clearly not a threat to aviation, as in the case of the $4,700 and calling in LEO?

It would seem so to me, but INAL, don't play one on TV nor did I stay at a Holiday Inn Express recently.

The TSA Dragnet Checkpoint is clearly a problem, have they jeopardized their Administrative Search criteria?

[QUOTE=Boggie Dog;11632597]Not so long as they're within the limits of the original justification for the search. If they're looking for items that are dangerous but in places that can't hold them, then that would be an invalid search. You can only look in those places that can legitimately hold the item(s) in question. If so, and they discover something illegal but outside their purview, then they are within the law to call over LEOs.

You have the right not to answer any questions from TSA, CIA, DEA, FBI, LEO, ABC, CBP, etc...

If you decide to play hardball, so can they...

So if I understand this correctly, the following would be accurate:

- While hand-inspecting a metal box the size of a laptop computer, a TSO finds a wad of cash. S/he thinks it might be evidence of wrongdoing, and the passenger refuses to give an explanation. The TSO refers it to an LEO. This is reasonable, because, based upon its size, the metal box being searched could have held a prohibited object/weapon.

- Someone brings a pill box (you know, something just big enough for about a half dozen aspirin). The TSO decides to open it and see what's inside, just for the heck of it. He finds a diamond that he believes to be valuable. When asked about it, the passenger refuses to give an explanation. The TSO refers it to an LEO. This is not reasonable, because, based upon its size, the pill box could not have held a prohibited object/weapon.

Does this make sense, or am I missing something else?

That sounds about exactly right.

For example, as a LEO executing a warrant looking for a body, I can't look in the pantry. So anything I find there would be inadmissible. If I looked in the closet, however, and found something that would be admissible.

So similarly, if a TSO is flipping thru someone's documents and find kiddie porn that wasn't in plain sight, that would also be inadmissible as there would be no reason for a TSO to be looking for weapons, incendiaries and similar in a folder. Correct?

Unless there's a way they can articulate they were looking in that place - ie-a razor blade or the like.

I have yet to see the TSA state that a particular container is too small to search. Examples of their reasoning are that grams of explosive material can fit within the smallest of containers or that a very small knife can also fit in a very small space. However, if liquids in containers of less than 3.4 oz are okay, then it would seem that a container that is less than 3.4 oz. has no reason to be examined.

Wouldn't something like this show up on the X-ray? If so, yes, looking in that place would make sense if such an image is identified. Otherwise, what would be the purpose of such search?

Of course, all this discussion is purely academic. In reality they just do whatever they want. Attempts to complain are met with DY...T threats, phone complaints are ignored, and written complaints are tossed in the trash.