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Ok Spiff,
If a bag check is called on your bag because say we can't see through it, can't properly identify it or whatever, does it become unreasonable? Here is my problem. If a guy comes up to the checkpoint with a weapon in his bag and the best the checkpoint can do at that point is say bag checks because x-rays are down(has happened), is it against his 4th amendment rights? If he comes up and puts his bag on the xray and a gun is found, was he techinally " secure in his persons, houses, papers, and effects, against unreasonable searches and seizures". Is it a unreasonable search because he hasn't shown he will use the weapon on board? Should he be arrested and fined or what. In the case of the basketball player, he went through what Spiff calls a reasonable search and failed , the WTMD. Should he have been shown to the screening area for addition screening or is that unreasonable. Many on here argue'd in the past that it was against his 4th amendment rights, why? He failed the first test. The evidence I gave was he refused to let screeners open the package and he even deined it was his. Screeners knew this wasn't true and summoned a officer, but people still argued it was against his 4th amendment rights, and many hoped he beat the rap. I can understand a random bag check being done and the finding of drugs while the bag check is done being against your 4th amendment rights, why? Because it wasn't a reasonable search because there really wasn't any reason to do so, it cleared the xray screener. Now I feel a ETD of a bag is a reasonable search but many don't feel that way. Heellaw, I understood what your saying. I just would like to know when the checks become unreasonable, when it's random? when your bag or yourself have to be checked by an individual. |
Originally Posted by screenerx
Ok Spiff,
If a bag check is called on your bag because say we can't see through it, can't properly identify it or whatever, does it become unreasonable? And I know all too well that all the current methods of searching passengers and belongings at the checkpoint and beyond it are (unfortunately in many cases) Constitutional. However, anything beyond the x-ray and WTMD is, when done without probable cause, extremely un-American and simple harassment. |
However, anything beyond the x-ray and WTMD is, when done without probable cause, extremely un-American and simple harassment. In the past, you seemed to indicate, if the WTMD alarms or the xray screener calls a bag check. If a guy walks sideways through the walkthru and is told to go back and walk normal and again does it, is it harrasment to send him back for screening? If a airport has no x-rays or for some reason the x-rays are down, is it harrasment to use full bag checks to clear bags? |
Originally Posted by MSY-MSP
I have been following this thread for a few days, wrote a response which was lost when my computer crashed, and now feel it is time to post my thoughts. While many may not agree with it, it is what I do believe.
First of all, I think that the gate searches are ineffective. I really how much contraband (knives guns etc) are actually found during one of these searches. I am sure one of the TSA screeners here could give us an idea on the overall effectiveness of these searches compared to the front-line screening. Second of all, it is my belief, being a federalist (and leary of any government intrusion in my life), that the searches conducted at the gate, regardless of reasonableness are in fact constitutional. I base my arguement on the following. The 4th amendment hinges around consent, and the concept of "free to leave." One must also consider that an airport is divided into two areas, at least for the purposes of the 4th amendment, a public area, and a semi-public area. The public area is open to all members of the public regardless if they are traveling or not. Any search conducted in this area must conform the current concept of 4th amendment law. That is consent must be given and that it must not be coerced consent (i.e. 5 cops with guns drawn at you saying "can we search X"). As for reasonableness, in this area the standard of reasonable articuable suspision holds for determining the reasonableness of a search. This is a broad concept, but provides a limited degree of restraint on law enforcement. When one wishes to enter the semi-public area of the airport, which is much like a military base, you must give consent to be searched at the checkpoint. This is a condition of entry to the semi-public area of the airport. You can always refuse, but you will not have access to this area. Therefore, you are searched, with consent, when entering the secure area. Once in the secure area, have you now taken back your consent to be searched. My belief is no. So long as you are in the semi-public area of the airport, you may be searched at any time for any reason. Now you can always refuse the search, but at that point you have lost your right/priveledge to be in the secure area and should be escorted out and back to the public area. Now as far as the gate check screening, effectiveness aside, you are now moving from a semi-public area to a private area. (last I checked planes were not per se government property). The private operator has the right to search anyone on their aircaft, as is covered in the contract of carriage. Now while the government may mandate the searches, the airline has the right to refuse, but may lose the right to operate. Therefore they agree to the gate searches. Therefore, I believe, that once you voluntarily enter the secure area of the airport, you are subject to search as a condition of your entry, and that consent given to enter remains until such time as you leave the area. Thus, any search in the secure area meets the tests for the 4th amendment. These are my thoughts. I may be wrong, and you are free to disagree with me. Now, I have to say I think the gate searches are a waste of time and manpower that could be used to better stop contraband at the first point of entry to the secure area Very interesting and thought-provoking post. I would disagree, only for the reason that ALL searches, even those with "consent" must be reasonable. Since in this circumstance, there is no individualized probable cause, or even individualized reasonable suspicion, it rests squarely on this concept of balance between some great public good and privacy -- it has to be limited to effectively serve the purpose and it has to be in good faith. I think you could make an argument that either the initial screening OR the gate screening is reasonable (depending on the circumstances of both...I maintain that wanding my bare foot is unreasonable under any measure). However, by allowing both, presumably for the same purpose (to discover contraband that is flight restrictive), you're admitting that one is not effective -- which would then make it unreasonable -- after all, it would clearly be unreasonable to subject a U.S. citizen to an ineffective search without any probable cause or individualized reasonable suspicion. Or, perhaps the government could claim that contraband can sneak into the terminal in other ways, and that gate screening is therefore necessary to make the aircraft sterile. But if that's the case, then isn't the initial screening ineffective, and therefore unreasonable? In reality, it would probably depend on how a court packaged it. If it actually looked at the individualized practices, I think the government would be in trouble. More likely, it would look at it as "airport security" generally and give it the rubber stamp, but who knows. Interesting conversation. |
Originally Posted by MSY-MSP
When one wishes to enter the semi-public area of the airport, which is much like a military base, you must give consent to be searched at the checkpoint. This is a condition of entry to the semi-public area of the airport. You can always refuse, but you will not have access to this area. Therefore, you are searched, with consent, when entering the secure area. Once in the secure area, have you now taken back your consent to be searched. My belief is no. So long as you are in the semi-public area of the airport, you may be searched at any time for any reason. Now you can always refuse the search, but at that point you have lost your right/priveledge to be in the secure area and should be escorted out and back to the public area.
My disagreement with the current thinking of the "implied consent" theory of airport searches is that it assumes that traveling by air is optional. As I posted above, for many people, that is an unreasonable assumption. I'm not free to leave - I must consent to the search in order to get where I'm going. And arguing that I could just leave the airport and go home is ridiculous. You would argue that it stretches the bounds of reasonableness to say that driving to work is an option, wouldn't you? After all, you could walk, couldn't you?? Sure, it would take a long time, but it is possible, right? For the same reason, travel by air is not some optional activity undertaken by a small segment of the US population - it is an everyday activity for some and a regular fact of life for millions of others. It's not 1972 anymore. Sure, I could take a slow boat to China or Japan or London or South Africa, but I would get very little work done (much like you if you walked to work to avoid my hypothetical routine warrantless searches of drivers of autos). Flying is as necessary as driving, in this day and age. And neither group (drivers or flyers) should be coerced into continuous searches as a condition of travel. And coerced consent is no consent at all. My position is not shared by very many people (and probably zero judges and DAs), but you've gotta admit - its logic is appealing. |
FWAAA,
I think you're right on all counts...it's an interesting theory, and one that I could buy into but probably not many others. It's clearly coming though. Until 1979, a bored police officer could pull someone over for the heck of it, just to see what was going on and check out their papers. Obviously that can't happen today...so at the right time, I think this will fly, too. Either that or we'll all have our own personal hover-somethings. Incidentally, is your name FWA AA or something else? FWA is not an abbreviation I see much on here, although I'm intimately familiar with it. |
Do your homework
Originally Posted by screenerx
What is probable cause to you?
In the past, you seemed to indicate, if the WTMD alarms or the xray screener calls a bag check. If a guy walks sideways through the walkthru and is told to go back and walk normal and again does it, is it harrasment to send him back for screening? If a airport has no x-rays or for some reason the x-rays are down, is it harrasment to use full bag checks to clear bags? |
Originally Posted by FWAAA
Excellent analysis and very well-written summary of the conventional wisdom on warrantless airport searches.
My disagreement with the current thinking of the "implied consent" theory of airport searches is that it assumes that traveling by air is optional. As I posted above, for many people, that is an unreasonable assumption. I'm not free to leave - I must consent to the search in order to get where I'm going. And arguing that I could just leave the airport and go home is ridiculous. You would argue that it stretches the bounds of reasonableness to say that driving to work is an option, wouldn't you? After all, you could walk, couldn't you?? Sure, it would take a long time, but it is possible, right? For the same reason, travel by air is not some optional activity undertaken by a small segment of the US population - it is an everyday activity for some and a regular fact of life for millions of others. It's not 1972 anymore. Sure, I could take a slow boat to China or Japan or London or South Africa, but I would get very little work done (much like you if you walked to work to avoid my hypothetical routine warrantless searches of drivers of autos). Flying is as necessary as driving, in this day and age. And neither group (drivers or flyers) should be coerced into continuous searches as a condition of travel. And coerced consent is no consent at all. My position is not shared by very many people (and probably zero judges and DAs), but you've gotta admit - its logic is appealing. |
Originally Posted by PresRDC
You do raise an interesting question as to what is actually meant by "optional." I suspect, and I have not done any research to back this up, that as long as another option exists, regardless of its practicality, a court would consider air travel optional. "Implied consent" is most definately a legal fiction, in that it was judicially invented to get around some of the thorny 4th Amendment issues we've been discussing. From a legal perspective, it would be interesting to challenge the notion of optional as it relates to air travel.
Why bother to gather the support of 38 state legislatures to actually change the Fourth Amendment as long as we ALL agree that airport searches (violative of our rights as they may be) are completely reasonable and necessary? Especially since judges can just decree it so?? ;) Of course air travel is still "optional." So is any public appearance outside one's home. So is driving. So is riding a bus. So is taking a cab. So is taking a train. So is . . . well, you get the picture. Since I theoretically could stay in my home all day and all night (having all essentials delivered to me) then there is nothing wrong with warrantless searches every time I venture outside, right? Think of the children. ;) Have a great weekend, all. :) |
Originally Posted by GUWonder
Are you a transplant to N. Virginia (since Arlington, Alexandria and Fairfax are a bit less jackboot-oriented than the rest of the state)? [Perhaps a consequence of the Founding Father's footprint. :D ]
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Originally Posted by AuAAdvantage
"..taken over by those who believe so little in liberty (as shown by the votes)", said by you, means, I assume, that all the so-called red states which went to Bush are inhabited by those who don't believe in the Bill of Rights/Constitution/American Way of Life, etc. Amazing statement. You have basically written off half the U.S. population, those who reside in what the effete snob liberals call "flyover country". To answer your question, yes, I'm a transplant, originally from New York. At least here in Virginia, the jackbooted police you imagine we have, don't ram broomsticks up suspect's butts or mow down prisoners and law enforcement personnel alike at State Penitentiaries. I suppose you have to live in the more tony areas of the country, like New York, to enjoy that kind of police treatment. Too bad the ignoramuses at Duke, UVA, UNC, etc don't realize how truly ignorant and reactionary they are, at least in world of GUWonder. :mad:
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Originally Posted by FWAAA
Given the long history, and almost universal acceptance, of the implied consent theory to warrantless airport searches, I'm pretty sure most judges would dismiss such an argument (something about "we've come too far down this road to suddenly admit that the king is naked") out of hand. Besides, we have a long history in this country of amending the US Constitution by lazy acceptance of outlandish legal opinions by judges.
Now, I wouldn't want to get it in front of a court this year, but maybe in a couple years if things have calmed down. I do like your theory though... |
As I was thinking last night, I think we may be missing a point (myself included) about the constitutionality/reasonableness of warrantless airport searches. The courts have held that the 4th amendment only applies to a criminal defendant. So a search that yeilds nothing, without a warrant, does not violate the 4th amendment protections, as there is no remedy available to the "victim." The only remedy that is available is exclusion of the evidence obtained during the illegal warrantless search, and any evidence that is obtained as a direct result of the illegal search (i.e. phone numbers of conspirators found in an illegal bag search) as a fruit of the poisonous tree. Now the co-conspirator cannot raise the 4th amendment issue, b/c it was not his property that was illegally searched, and therefore he is not protected.
Thus returning to airport situation. Let us assume that Pax is stopped inside security and searched, under the current gate screening senario. TSA finds a knife, drugs, or something illegal in his bag. They arrest him through the local/airport PD for the items. What happens next. Well at trial the Pax can challenge the fruits of the search and the reasonableness or the consent issue under the 4th amendment. If he wins, the evidence is excluded, and he walks away free. If not, then the evidence remains, and he most likely goes to jail/pays big fine. However, any damage done to Pax has already happened, and there is no basis in the law for a civil 4th amendment suit. so Pax is left without a remedy for not being able to travel. Heellaw-- I agree with you that any search should be reasonable. However, an unreasonable search can be constitutional if there is found to be consent to the actual search performed. Thus, if a police officer walked up to you and said. "can I search your bag." and you say yes, then the question of reasonableness is gone, because you agreed to the search. The only thing you can challenge is was your consent, voluntary. If your consent was not voluntary, i would argue, then you can challenge the reasonableness of the search under the doctrine of warrantless searches. (which is a high bar to pass). If your consent was voluntary, then there is no issue on the search. As I discussed before, the question turns on whether inside the secure area of the terminal you have given implied consent to being searched at any time. I believe that you have given your consent. I think that a court would agree with this logic, because you are alerted to this at the checkpoint, and with anouncements throughout the terminal stating that "Pax and bags are subject to search." This is a clear statement of what is expected by those inside the secure area. thus if you don't like the conditions you can leave (though you may not get where you want to go). Well those are some of my thoughts, I will have others, as I am known to have. If it doesn't flow well I appoligize as i may not have been as clear as I wanted to be. |
Originally Posted by AuAAdvantage
"..taken over by those who believe so little in liberty (as shown by the votes)", said by you, means, I assume, that all the so-called red states which went to Bush are inhabited by those who don't believe in the Bill of Rights/Constitution/American Way of Life, etc. Amazing statement.
Originally Posted by AuAAdvantage
"You have basically written off half the U.S. population, those who reside in what the effete snob liberals call "flyover country".
Perhaps you would care to note that I vote in "flyover" country. I did not know Wisconsin qualified for "snob liberals". Either way, I have not written off any population, let alone writing off myself. ;) And where is this "writing off" half the US population? The votes of the cower-in-my-boots crowd are significant and I could not write them off if I wanted.
Originally Posted by AuAAdvantage
To answer your question, yes, I'm a transplant, originally from New York. At least here in Virginia, the jackbooted police you imagine we have, don't ram broomsticks up suspect's butts or mow down prisoners and law enforcement personnel alike at State Penitentiaries.
Originally Posted by AuAAdvantage
I suppose you have to live in the more tony areas of the country, like New York, to enjoy that kind of police treatment. Too bad the ignoramuses at Duke, UVA, UNC, etc don't realize how truly ignorant and reactionary they are, at least in world of GUWonder. :mad:
I do not know where Duke and UNC fit in this discussion (since they are is NC and not in VA), but residents of Northern Virginia have amongst the most discretionary income in the country. It does not get more "tony" than that when you look at money and time spent eating out. [It even passes up the UES of NYC.] |
Originally Posted by GUWonder
Perhaps you would care to note that I vote in "flyover" country. I did not know Wisconsin qualified for "snob liberals".
How easily some of us get angry. Where is that movie Anger Management when one needs it? ;) I do not know where Duke and UNC fit in this discussion (since they are is NC and not in VA), First off, I only saw reference to DC and NYC noted in your "location". I had no idea WI was your home. I guess I was "assuming" again. :) I'm not really "mad" per se, but since there's no smiley for flabbergasted, I chose :mad: Duke and UNC fit in because I figured you were dissing all "red" states and NC went to Bush. I had no idea you were referring to (state? Fed?) legislators from those states (or even just VA). Regardless, I would never make assumptions about either state or Federal legislators from ANY state because they're all a mixed bag. You could find anything from a totally clueless double digit IQ liberal like Maxine Waters to a dolt who should be wearing a sheet to reflect his political leanings. |
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