Have you ever heard of the fourth ammendment? And I quote....
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. "

Having to remove and dump my belt, shoes, watch, wallet, money clip, and spare charge in the plastic tray just to get through the metal detector with out setting it off is one thing. But then, at random, wanding me down at the gate again and going though my dirty drawers in font of everyone is plain unreasonable. :mad: Unless of course, the main checkpoints are that ineffective :rolleyes:

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Ben Franklin

This is true now more than ever.

AuAA, I don't think the complaints stem from not wanting security -- at least that's not the case for me. Instead, it's that it's simply not effective.

- There's a story in USA TODAY this morning about how a woman walked to a gate at Charley West with a loaded 9mm...when she realized it, she turned herself in.

- Last week, an air marshall left his loaded gun in an airport restroom.

- The TSA, acting only on a telephone psychic's tip searched a DL plane so long that the flight had to be cancelled.

- I was forced to take off flip-flops so that they could wand the bottoms of my BARE FEET (the flip-flops never went through any sort of detector).

- The claim that by 'mixing things up,' it will throw off terrorists. Yeah, getting three people to check your boarding pass instead of one or two will really disrupt their plans.

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The problem, in my opinion, is not that the government wants to make us safe. It's that the government is incapable of doing so and instead wants to do idiotic things so that the masses feel safe. The frustrating thing -- again in my opinion -- is that when someone questions the policy or process, we're told that it's for our own security or 9/11 is brought up. Sorry, but I don't need my bare feet wanded for my own protection, thanks.

To imply that people who think that the current system is stupid don't want security is to miss the point -- but it's exactly that reaction that the powers that be are counting on.

First or al, I'll say that I don't like the TSA random searches either. I don't think they accomplish anything, and they are truly annoying. But it isn't as if we are walking down the streets being randomly searched. We are undertaking a voluntayr activiy- flying- and the authorities believe (right or wrong) that the searches are warranted. We can choose not to fly, and we will not be subject to these searches. We fly knowing that this can happen. Again, I don't like them, but I don't see a fourth amendment violation.

At the concerts, we search people. They enter knowing that they will be searched. They are able to refuse the search, be denied entrance, and receive a refund of their money. Since I've seen what happens when an item is not found, perhaps I'm more sensitive to "better safe than sorry" than some here.

Cheers.

Do you know that courts have ruled long time ago and many times since, that the good and safety of the whole outweigths the rights of an indivdual? The rulings were made in reference to public environments. The courts still recognize the right to privacy and protection from searches when it comes down to your personal living space.

Before you get bend out of shape that we must change regimes because they are the ones that are somehow guilty for these court rulings, I want you to know that many of these rulings were made many, many years ago. The rulings came down during liberal controlled courts as well as during conservative controlled courts. Besides, I don't know, and maybe you could explain it to me, but when did flying a commercial jet become a right? If you don't like the rules........maybe it's time to consider a different mode of transportation. You know, I love to drink and drive, and damn it, it's my right. The government is stopping me from doing it. Let's revolt.

That said, I do have a huge problem with any personal info needed for security. There is no need for it and it won't help in any way. If the security at the airport worked the way it's suppose to, what's the difference if Joe Blow is sitting next to Osama bin Laden on any given flight?

I agree it's not effective, but what system, other than El Al's, is? I doubt that El Al's system could be implemented here because it's designed for a much smaller airline and air transportation system. My problem is with:

(1) the folks who resent any intrusion on their so-called freedom. For example, they feel the government has no right to check on what books/mags they've checked out at the local public library. They don't want the govt knowing they checked out a Chilton's Repair Manual for their '86 Plymouth Reliant, even if it means the govt won't know that Mohammed the Terrorist has checked out a book on how to grow botulism cultures at home.
It's this kind of mentality that prevented the Minneapolis FBI office from trying to get a search warrant for one of the 9/11 terrorist's laptops because they knew it wouldn't get approved. Who knows what the hard drive on that laptop might have revealed? The 3,000 9/11 victims sure won't.

(2) The politically correct idiots who prevent profiling. To them, a 20 year male from Saudi Arabia is just as likely to be a terrorist as a 90 year old grandmother in a wheelchair from Norway or a 7 year old little girl from New Zealand. Everyone is equal, don't you know? I read the other day that prior to 9/11 there was some FAA security reg that really punished airlines if they detained more than 2 Saudi nationals on any given flight. I'm sure the rich Saudis who bankroll the Arab terrorists did quite a bit of lobbying to get that gem implemented.

United States v. Edwards, 498 F.2d 496 (2d. Cir. 1974)
 

Having a little free time and Lexis/Nexus at my disposal, I figured I would do a search for the doctrine of implied consent as it relates to airport security. I know many of you consider the doctrine of implied consent to be un-American, but, at least, you recognize that it is constitutional. I came across the case of United States v. Edwards , 498 F.2d 496 (2d. Cir. 1974), in which the Second Circuit Court of Appeals (covering New York, Connecticut and Vermont and one of, if not the most, influential circuit in the country), ruled on the the legality of airport searches. Interestingly, the opinion was written by Judge Henrry Jacob Friendly, a well-known jurist who was appointed to the Bench by President Eisenhower in 1959. In addition to serving as a clerk to Supreme Court Justice Brandeis, Judge Friendly served, from 1946 to 1959 as Vice President and General Counsel for Pan American World Airways. What follows is a smmary of the case.

Facts

Defendant purchased at ticket for a non-reservation shuttle flight. Her carry-on bag tripped the airport magnetometer. A search of the bag revealed a package that contained a large number of glassine envelopes, each of which contained heroin. At a bench trial, she was convicted of possession of heroin with the intent to distribute in violation of 21 U.S.C. § 841. She appealed that judgment, which was affirmed. On appeal, defendant questioned the validity of the search.

The Court's Decision

An airport search is not unreasonable simply because it does not fit within one of the previously sanctioned categories of warrantless searches. Rather, under U.S. Const. Amend. IV, the question iss whether a warrantless airport search was reasonable. The court stated that the reasonableness of a warrantless search required a balancing of the need for the search against the offensiveness of the intrusion. Under that test, the court found that the applicable regulations of the Federal Aviation Administration were reasonable. In particular, the court noted that defendant had fair warning of the search, a requirement for a finding of reasonableness.

Notable Quotes from the Decision

"While the heavy judicial gloss that a warrantless search is invalid unless within an appropriate "exception" is surely here to stay, recognition of the historical background of the Amendment, with its stress on the seizure of books and papers on political affairs and the search of homes for illegally imported goods, helps to determine when an exception is justified. Nothing in the history of the Amendment remotely suggests that the framers would have wished to prohibit reasonable measures to prevent the boarding of vessels by passengers intent on piracy." Edwards , 498.

"When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air." Edwards , 500.

"In order to bring itself within the test of reasonableness applicable to airport searches, the Government must give the citizen fair warning, before he enters the area of search, that he is at liberty to proceed no further." Edwards , 501.

The Supreme Court's Approval of Edwards

The United States Supreme Court gave its approval to Judge Friendly's decision in National Treasury Employees Union v. Von Raab , 489 U.S. 656 (1989), when it stressed that where "the possible harm against which the Government seeks to guard is substantial, the need to prevent its occurrence furnishes an ample justification for reasonable searches calculated to advance the Government's goal." Id., 674-5. In a footnote the Court noted that "the point is well illustrated also by the Federal Government's practice of requiring the search of all passengers seeking to board commercial airliners, as well as the search of their carry-on luggage, without any basis for suspecting any particular passenger of an untoward motive . . . as Judge Friendly explained in a leading case upholding such searches."
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As much as you don't like it, the doctrine of implied consent is a long-standing and valid principle resting on sound legal and practical grounds. The way airport security is currently conducted may not be effective, but it is not unconstitutional and not un-American in that it does not go against any founding or guiding principles of the United States.

Pres, as you pointed out, the only caselaw on the issue, so far, comes from 30-year-old circuit court cases. The methods used then were different too -- I don't have any problem walking through a metal detector. I do have a problem having my bare feet wanded because I didn't want to take off my flip-flops, and I think there's a big difference in those details. Certainly a metal detector can/should identify weapons. Wanding my feet -- I'm serious about this, I was wearing shorts, no socks...just the bottoms of my bare feet were wanded -- is a completely different thing, factually.

I'm not predicting what the SCOTUS would say on the issue -- just that there are enough factual issues that I wouldn't say that the 2nd Circuit case is definitive on the subject.

OK, but there's a line between "any intrusion" and "the government secretly tapping your computer and accessing library, credit card, etc. records."

Before the Patriot Act was passed, the government could access some kinds of these records, IF there was any evidence that the subject of the investigation was involved in spying or terrorism.

The Patriot Act took away that requirement and added a lot of other types of records that could be searched. The New York Times not long ago had an excellent story about how those provisions of the Patroit Act have resulted in many more "traditional" arrests than those involving terrorism.

I have a problem with people, especially those in government, who continue to use 9/11 to justify any kind of government action. First of all, it trivializes and demeans the actual events of that day. Secondly, it doesn't work out logically.

I think the expansion of investigatory rights for the government when it comes to terrorism is a debatable point, and I may even agree with you on it.

I think that th expansion of investigatory rights for "regular" criminal activity GUISED in propaganda and terrorism warnings is wrong. To invoke the deaths of 3000 Americans in order to do it is disgusting.

Further, I have a problem with the "it's impossible to have a truly effective system, so we should just have one for show" theory. If actual security is the goal, then let's have it. Let's not have token security and pretend that it's effective.

It's still un-American, no matter what the Supreme Court says
 

"As much as you don't like it, the doctrine of implied consent is a long-standing and valid principle resting on sound legal and practical grounds. The way airport security is currently conducted may not be effective, but it is not unconstitutional and not un-American in that it does not go against any founding or guiding principles of the United States."

It may be constitutional, but it is still definitely un-American. I object to ALL warrant-less and probable-cause-free searches, not just what goes down at airports in the name of illusory "security". It sickens me that roadblocks and other random searches are permitted in this nation in the name of safety.

Just because something has been ruled constitutionally valid does not make it "American". Slavery, non-universal-sufferage, Prohibition, etc. were all validated by one or more incarnations of the Supreme Court. Would these be considered "American"? Only in a historical sense, not in any principle about which we should be proud sense. :(

They Admit(?) the Current Security is a Waste of Time
 

In listening to the 9/11 hearings, I have heard, repeatedly, that there was "nothing effective which could have been done to prevent the 9/11 attacks without knowing a specific date and/or place."

They (the talk show hosts, in particular) repeatedly challenge anyone to name anything that could have been done to prevent the 9/11 attacks. They point out (correctly, in my opinion) that barring box cutters wouldn't have made a difference, because they could have killed other passengers with pencils or pens (still legal today). Reinforced cockpit doors wouldn't make a difference (there is on evidence that 9/11 involved physical break-in to the cockpit - to the contrary, the implication (as I understand it) is that the threat of killing more crew and/or passengers was the issue).

In other words, everyone admits that the system was are using today is *not* the answer. So why do we bother?

By the way, if the next attack is against trains, chemical plants, school busses, shopping malls, amusement parks, or some other target, will that be blamed on our not having enough notice that there are terrorists who want to harm innocent people? How soon until we are required to wear nothing but clear plastic clothing?

You repeat the often-repeated line that "flying is voluntary." Uh-huh. So is EVERY appearance in public, by you or anyone else.

You don't have to drive to work, so routinely stopping and searching you and your vehicle, even without probable cause should be all right with you. After all, it was your choice to drive to work, right?

In fact, you don't actually have to drive anywhere, do you? You could choose to stay home.

You don't actually have to walk down the sidewalk (you could have just stayed indoors), so routinely stopping and searching you as you walk down the street should be ok also, right?

You don't have to go anywhere, right? Each and every appearance by you outside your home is voluntary, right? So it would be ok with you if you were stopped and searched each time you opened your front door, right?

Since you don't actually have to have a home, why not allow it to be searched without probable cause? After all, establishing a home was a voluntary act by you.

At the concerts where you make money by searching people (no wonder you don't mind searches), are you employed by the government? If not, then your searches are ok, since they don't implicate any Fourth Amendment issues.

The comparisons are weak and you know it. According to you, the rights of a drunk driver are more important than the rights of a family driving to see grandma. We as a free society don't have a right to stop a drunk driver unless s/he clearly shows incompetence. Well, we all know of people that could drive straight but yet fell asleep at the intersection because of drinking/drug use and wipe out a family or an innocent person. Where are their rights?

Same with air travel. We as society recognize that there are some dangers involved when flying, We as a society decided that it's better for the majority of innocent passengers if we checked everybody before they get on the plane. I don't see a problem with that. Your statements are so easy to make till one day you have a gun stuck in your face by somebody that doesn't give a sh*t about your beliefs or your life.

How does that compare to your examples. Governments make mistakes, enact laws that are clearly wrong, and I will be the first to raise hell when that happens, but to compare society safety issues to abuse of governmental powers is weak. Sorry.

I'm still against personal info being used in order to travel, but I really believe it's a whole different issue. I'm 100% behind everybody being checked for weapons at the airport. I like to enjoy my flight, not end up in some third world country, being ordered around by some as*hole and possibly killed for her/his cause.

Spiff, it is not un-American (in other words, it is American) in the sense that there is nothing in the records of the Constitutional Convention or historic practice at the time the Fouth Amendment was drafted to indicate that the drafters intended it to prevent all searches and sezures.

On its face, the Amendment, only limits unreasonable searches and seizures. The question left for us is "what constitutes an unreasonable search and seizure?"

In cases where there is not a specifically deliniated exception to the search and seizure doctrine, the reasonableness determination, as indicated by Edwards is done via a balancing test, in which the potential harm against which the search is protecting is balanced against the liberty interest in the searchee. Things to be considered when evaluating the potential harm could include, but are not limited to, the likelihood of the harm occurring and the severity of the harm. Things to be considered when evaluating the liberty interest could include, but are not limited to, the length of the search, the instusiveness of the search and whether the searchee has the opportunity to not consent to the search. As was pointed out in Edwards , the facts that the searchee is not required to go through the search (in that he or she can always opt not to fly) and the potential for harm (as illustrated in all to vivid fashion on 9/11) make it highly unlikely that a court would rule against the Government when it comes to airport searches.

HeelLaw, the wanding of your bare feet is without a doubt ridiculous. That said, I think the principles underlying the Edwards decision are still valid, if not more so in the wake of 9/11. Even though methods have changed since 1974, I don't think they've chnaged enough to impact the precedential value of the case. In any event, despite its age, it is binding authority on all Federal District Courts in New York, Connecticut and Vermont and is highly persuasive authority (but non-binding) in all other circuits. That the Supreme Court gave its approval to the case in 1989, only serves to make it more persuasive.

Well, after reading a little more, I disagree with the assertion that the way that airport searches are carried out today is Constitutional. Or at least not obviously so.

The Edwards decision does not deal with consent, implied or otherwise. (Friendly says at 501 "We thus have no occasion to consider the correctness of the district court's further finding of consent.") Instead, it is based on the "reasonable" cause theory that has really only existed since Terry in the last 60s.

Friendly's decision comes down to a concurrence he wrote in U.S. v. Bell, 464 F.2d 667 (1972):

The 9th Circuit did, in part, rely on consent in reaching a similar result in U.S. v. Davis, 482 F.3d 893, but it still spoke of the reasonableness requirement.

I don't disagree with the premise that some sort of airport search is permissible under the Fourth Amendment (although that has probably only been the case for 35 years or so). I would, however, make an argument that many of the practices that the TSA engages in don't fall into a 'reasonable' or 'good-faith' category.

First, remember that 30 years ago, U.S. airplanes often flew with cockpit doors open. The events of 9/11 were possible because passengers could access the cockpit. Today, supposedly, that is no longer a problem. So the main danger would be explosives. Is it reasonable, or in good faith, for a government agent to wand the sole of my foot in a search for explosives? I would say not. Is it reasonable, or in good faith, for a government agent to require open-toe leather sandals to be x-rayed? I would say not.

In fact, there are many measures currently being taken -- including the practice that this thread was initially about -- that are not reasonable nor in good faith.

Certainly, implied consent is constitutionally permissible, but there are limitations. It would obviously NOT be consitutional to station an officer outside of everyone's home and frisk then before entering "public." That limitation comes in the form of the reasonable test, and I think I could make a hell of an argument that many of the current practices are not.

andrzej and AuAAdvantage:

^ ^ ^

I absolutely agree that, after Terry and other SC decisions on the issue, some sort of airport screening is permissible. I would just argue that the scope of the screening has, at many times, crossed the 'reasonable' or 'good-faith' line. So I would disagree, in that I do think that things have changed factually enough since 74 (when U.S. airliners were being hijacked on a regular basis) that a court wouldn't rubber stamp it -- or at least shouldn't.

I don't know if you looked at the 1989 case or just the lexis notes from the Edwards case, but the 89 decision was 5-4 and the approval was just a mention in a footnote. It wasn't really a ringing endorsement of any and all government activity in airports.