Does the 4th amendment apply with TSA and airports.
Nov 14, 2010 | 4:47 pm
#46
Join Date: Aug 2006
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TSA airport security constitutes an "administrative search" to which passengers voluntarily submit in order to fly on commercial aircraft departing from most large U.S. airports. My understanding (admittedly as a non-attorney) is that by choosing to purchase the ticket and enter the sterile area, you are consenting to this "administrative search" limited to the kinds of things that TSA determines could pose a threat to aviation security.
But TSA screening is not a full-blown search like LEOs could carry out with a warrant or probable cause. For example, TSA screening does not include searching the electronic files on your laptop, or reading any documents in your wallet except the government-issued photo ID you provide to clear security. These things would fall outside the scope of an "administrative search."
I have personally witnessed the TSA going through a person's wallet, inspecting each item (papers and credit cards), and asking questions about each one. They would be hard pressed to justify that in court, I believe, as would they be hard pressed to justify search of electronic files on a laptop. In my experience, and other proven experiences, many TSA personnel ignore those limitations. They DID get slapped down with Bierfeldt, but that hasn't stopped them from looking for large sums of money. There is no nexus to aviation security with large sums of money at the checkpoint.
The same goes for those bag searches at the entrance to museums. Don't like them? Then don't go to museums. Don't like TSA security? Nobody is forcing you to fly on commercial aircraft, or at all. You commit to administrative searches by CHOOSING to engage in certain activities that either the government or some organization has decided to involve security procedures. If you do not wish to consent, you cannot be forced. Just avoid the activities where administrative searches occur.
Now, I'm ambivalent on the issue of TSOs' reporting to LEOs when they see items in luggage that are illegal to possess, or legal but highly suspicious and likely associated with unlawful activities, but that do NOT pose a threat to aviation security. For exemple, TSA might notify local LEOs if the screeners see narcotics, Cuban cigars, or unusually large amounts of unexplained cash in your luggage. My opinion is that TSOs are not qualified to evaluate what is suspicious and what is not.....that function should be left to sworn LEOs who have the necessary professional training.
As Ron is contending that screeners are trained to determine what is suspicious, I would likewise contend that said statement is prima fascia evidence that TSA is exceeding limits of administrative search. The job of TSA, and the administrative search provisions, are tightly tied to safety of flight. A bundle of cash or a disassembled cellphone is not dangerous to flight, accordingly legal items should not be turned over and there should be no LEO involvement. Not that it would stop someone like Ron that believes that he has the right to lord over everyone and terrorize Americans.
Nov 14, 2010 | 5:06 pm
#47
Join Date: Nov 2010
Posts: 33
There are significant differences between "rights" and "privileges".
Rights are those things that you possess by virtue of being born. They are inalienable, meaning the government cannot take them away or subject them to regulations which would effectively take away the right.
Life, liberty and the pursuit of happiness are the broad definition of the rights we have in the US. Those were clarified under the Constitution by way of the amendments. The right to freedom from unreasonable search and seizure is one.
A privilege is similar to a right but is is granted by a license from the state. The state can set the terms and conditions for the exercise of a privilege. Driving is a good example. The state builds the roads, and has the power to regulate who gets to drive on them.
What I see here is a clash between right and privilege. So what happens to your rights when exercising a privilege? The privilege must recornize the right and give way. While you have to follow the state's rules when driving a car, you do not give up your Fourth Amendment Rights. Law enforcement cannot search an area of your vehicle outside of your immediate reach without getting your consent or doing a search incident to an arrest.
The examples of having police search the trunk is a good one. The police can't search your trunk without a warrant or without your permission.
And you do not automatically consent to a search based on obtaining a license. The government cannot say you needed to read the fine print. There is no such thing as "administrative consent" when it comes to the Fourth Amendment.
Just because the government believes a search would be useful, that darn Fourth Amendment keeps popping up.
It is pretty amazing that this whole TSA thing has gone this far. Before a new rule is put into place, it is supposed to undergo legal review to insure it does not violate the Constitution or other laws. I have a hard time beleiving that was done here, but if it was, I would love to read the legal opinion.
Rights are those things that you possess by virtue of being born. They are inalienable, meaning the government cannot take them away or subject them to regulations which would effectively take away the right.
Life, liberty and the pursuit of happiness are the broad definition of the rights we have in the US. Those were clarified under the Constitution by way of the amendments. The right to freedom from unreasonable search and seizure is one.
A privilege is similar to a right but is is granted by a license from the state. The state can set the terms and conditions for the exercise of a privilege. Driving is a good example. The state builds the roads, and has the power to regulate who gets to drive on them.
What I see here is a clash between right and privilege. So what happens to your rights when exercising a privilege? The privilege must recornize the right and give way. While you have to follow the state's rules when driving a car, you do not give up your Fourth Amendment Rights. Law enforcement cannot search an area of your vehicle outside of your immediate reach without getting your consent or doing a search incident to an arrest.
The examples of having police search the trunk is a good one. The police can't search your trunk without a warrant or without your permission.
And you do not automatically consent to a search based on obtaining a license. The government cannot say you needed to read the fine print. There is no such thing as "administrative consent" when it comes to the Fourth Amendment.
Just because the government believes a search would be useful, that darn Fourth Amendment keeps popping up.
It is pretty amazing that this whole TSA thing has gone this far. Before a new rule is put into place, it is supposed to undergo legal review to insure it does not violate the Constitution or other laws. I have a hard time beleiving that was done here, but if it was, I would love to read the legal opinion.
Nov 14, 2010 | 5:10 pm
#48
Join Date: Mar 2007
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It is pretty amazing that this whole TSA thing has gone this far. Before a new rule is put into place, it is supposed to undergo legal review to insure it does not violate the Constitution or other laws. I have a hard time beleiving that was done here, but if it was, I would love to read the legal opinion.
Nov 14, 2010 | 5:23 pm
#49
Join Date: Jun 2007
Posts: 966
Do you have a reasonable expectation that what's under your clothes is *YOUR* business, and no one else's? That *YOU* have the right to tell nosy people, "No, you may not view my naked body, or frisk me as though I were a convicted violent felon coming to visit the warden." - and have that stick, even if you wish to fly by common carrier?
*I* think so.
What TSA is doing is an unwarranted invasive search without informed consent, and with coercive government power (*NOT* legitimate authority - just usurped power) as the threat to back it up.
Nov 14, 2010 | 5:57 pm
#50
Join Date: Nov 2010
Posts: 33
Search these forums for references to "Francine the Googling Lawyer". The phrase refers to Francine Kerner, TSA Chief Counsel, who has made public statements referencing Wikipedia and Google searches as the basis for her "legal" opinions about why TSA is allowed to do some of the things it does.
Nov 14, 2010 | 7:37 pm
#51
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Nov 14, 2010 | 8:11 pm
#52
Join Date: Jul 2006
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Nov 14, 2010 | 10:55 pm
#53
Join Date: Sep 2003
Location: Houston
Posts: 8,957
We are trained and qualified to determine what is or is not suspicious. Suspicious does not immediately qualify something as dangerous, but as something needing additional investigation. That can be done by that same TSO or another TSO, a lead TSO or supervisory TSO, or by another member of the TSA such as a Bomb Appraisal Officer. LEOs may also be called to make this type of determination, and often are. TSA will use whatever resources it feels are necessary to make this determination, and we have access to many different types of resources.
Last edited by Kiwi Flyer; Nov 15, 2010 at 12:13 am Reason: merge consecutive posts
Nov 14, 2010 | 11:21 pm
#54
Join Date: Jul 2008
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- driving to work
- smoking a cigarette
- obesity
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- and a zillion other things
What's the cost/benefit analysis of groping genitals and looking at my naked body?
Nov 15, 2010 | 12:24 am
#55
Join Date: Nov 2010
Posts: 60
How about the same security standards that I encounter when I enter: Federal courthouses, military bases, CENTCOM, the Capitol, the White House, the Pentagon.
At these locations the most "hassle" I've had to deal with was having my briefcase x-rayed and walking through a metal detector. All of this supervised by trained professionals who were extremely laid-back and friendly. No barking orders, no threats. If anything, they seemed almost apologetic that they were taking some of my precious time. Most of the time these security professionals aren't wearing cheap tin stars nor are they wearing fake police uniforms. Instead they're usually dressed in crisp black suits with equally crisp dress shirts.
At some of these locations I've been asked to present an ID, where they used it to verify I was on THEIR list of people to be admitted, not just verifying it against a document I brought with me. Anyone with a computer can fake a boarding pass these days.
Oh, and yes, each of these screenings happens with leaving my shoes on, drinks and liquids in my bags, and I leave the checkpoint without losing my dignity nor civil rights.
If the TSA went away (I can always dream, right?) or changes its tune/attitude back to something reasonable, I might actually stop avoiding flying.
The facts still remain: If we removed ALL security from the airports, air travel is still vastly safer than the taxi ride I took to the airport this morning.
Just thing of all the good the billions we've wasted on security theater could have done if spent on infrastructure, healthcare, kittens, etc.
At these locations the most "hassle" I've had to deal with was having my briefcase x-rayed and walking through a metal detector. All of this supervised by trained professionals who were extremely laid-back and friendly. No barking orders, no threats. If anything, they seemed almost apologetic that they were taking some of my precious time. Most of the time these security professionals aren't wearing cheap tin stars nor are they wearing fake police uniforms. Instead they're usually dressed in crisp black suits with equally crisp dress shirts.
At some of these locations I've been asked to present an ID, where they used it to verify I was on THEIR list of people to be admitted, not just verifying it against a document I brought with me. Anyone with a computer can fake a boarding pass these days.
Oh, and yes, each of these screenings happens with leaving my shoes on, drinks and liquids in my bags, and I leave the checkpoint without losing my dignity nor civil rights.
If the TSA went away (I can always dream, right?) or changes its tune/attitude back to something reasonable, I might actually stop avoiding flying.
The facts still remain: If we removed ALL security from the airports, air travel is still vastly safer than the taxi ride I took to the airport this morning.
Just thing of all the good the billions we've wasted on security theater could have done if spent on infrastructure, healthcare, kittens, etc.