Well, we all make mistakes.

On that last sentence, I think we have just found gold in a bit more common ground. :D

I disagree with your conclusion that current judicial decisions hold that the Fourth Amendment is implicated only in criminal cases and that there are no remedies available to persons complaining of warrantless searches where no probable cause exists, but I may be mistaken.

We disagree on this issue. Perhaps airport WMD and bag searches are fundamentally necessary to the continuation of our free society. Maybe they aren't. But if we are going to perform them, perhaps we need to come clean on the legal justification for such searches since air travel really isn't as "optional" as you (and the courts) assert.

As some like to say, "the Constitution is a living document." If so, then our interpretation of it should take into account changed circumstances, and those changes may work both ways (not always justifying further restrictions on liberties but also perhaps justifying relaxation of restrictions when the circumstances change). Air travel is no longer the "optional luxury" it once was. For many people, it is as necessary to their livelihood as driving a car is to most employed people.

In my career I have visited many courtrooms around the USA. More and more require WMD and bag searches, usually based on the whim of the presiding judge(s), not even because there are statutes authorizing such searches. Is my consent truly "voluntary"?? Hardly, since my absence from the courtroom will result in a citation for contempt and my possible incarceration.

Recently I was summoned for jury duty. My "consent" to be searched at the courthouse door was hardly voluntary, for the same reasons as when my appearance is due my status as counsel. Failure to "consent" to the "voluntary" search carries with it a high price indeed. Failing to "consent" at the airport means you don't get to go where you want to go.

But we are free to disagree that "consent" is truly given without coercion at the airport. :)

I have to agree with you there. This is the crux of whether or not the search is in fact reasonable and justifiable if no consent is given. If consent is given, do you agree, the reasonableness of the search becomes immaterial as far as the 4th amendment goes?

Now is the consent voluntary? I think that we would both agree that the courts most likely would find this to be the case. They are often fond of using the language, you are free to refuse. They only look at what your alternatives are to the search. In the case of air travel, they will point out that you could drive/walk. They don't look at the reasonableness of the alternative. If they did, they would find a lot more coercive behavior. As long as there are options, viable or not, they most likely will not find the consent forced.

I like you often have to apear in court. My options are go through screening, or be found in contempt. This type of search is more likely to be found involuntary, as your only option is jail, which is what the 4th is designed to protect you from. i.e. similar to the 5th, you cannot be forced to give testimony against yourself. The 4th provides a similar protection in your home/persons/property. However, I believe the framers felt that a modest intrusion into the home, i.e. with a warrant based on reasonableness, was necessary to protect the public good. (They didn't want the axe murderers or theives to be able to hide their guilt under the shield of the home) Thus the lower standard applied to the 4th. If you look at the 5th, you can use it in a civil trial, but use of it in a civil trial can result in the judge/jury making reasonable negative inferences from your silence. However, I know of no case, rule or other holding that applies the 4th to a civil action. (if anyone knows of one I would be interested to know that) Thus evidence acquired during an illegal seach can be used in a civil action, and is not subject to exclusion.

I guess in order for us to determine the degree of consent given, we need to have a test case. We need someone inside security, i.e. past the checkpoint, refuse a search, and be arrested for refusing said search. This would force the courts to determine what consent is given once inside the secure area of the airport. Any volunteers :) ?

I am facinated with constitutional law, and have worked in that area in the past. I would really enjoy a FT event where the FT attorneys got together and discussed these issues. I think we all bring a valuable insight into the living document we call the constitution.

I nominate Spiff. ;)

I'd love to volunteer, but in today's climate, my conviction (probably inevitable, despite the assistance of capable counsel) would probably be classified as a felony, and that would be a real problem for me. ;)

I volunteer. Seriously!

Bruce

From my point of view, the constitutionality of gate inspections is less significant than their inefficiency. Here's why:

1. This is once again an effort to find weapons, not terrorists. Even if the TSA has found four billion pocket knives, were any of the passengers carrying them planning fould play?

I know, "profiling" is a hot topic, but I feel that we need to refocus our security efforts on the human element, not on finding sharp objects.

2. Gate security based on random or continuous searches defies the laws of statistics. As an epidemiologist I do not find colon cancer by picking random patients out of the waiting room and perform colonoscopies on them.

In the late 90s, US Customs abandoned random inspections, deeming them to be ineffective and expensive.

3. Gate searches are humiliating. (I'm sure someone can chime in with, "I don't mind" or "anything for security" comments). The WTMD and x-ray are entirely bearable. Wanding and frisking, especially in public view, are undignified and time consuming.

I don't care that such practices are more common in other countries. I'm not accustomed to being frisked in public and hope that I never become accustomed to it.

I firmly believe that nobody should ever be pulled out of line of passengers. Passengers arousing suspicion should be quietly subjected to more scrutiny long before they reach the gate area... and without the knowledge of other passengers.

4. The shoe obsession is now just laughable. It's a mockery of security and merely highlights the TSA's tunnel vision. Having one's shoes inspected first at the checkpoint and then at the gate is absurd.

Excellent Points
 

^ Mats, Right on!

Me too
 

Especially if I arrive at my destination and they want to reverse screen the plane. They will be told to get bent.

Now this I totally agree is unecessary, unreasonable, and flat out stupid. There can be no implied consent to being searched when you have arrived at your desitination. failure to consent results in what.... arrest, denial of disembarkment from the plane. Regardless of my previous posts, in this instance you are not free to leave. You have no alternative, but to submit to the search. What does reverse screening do. ensure that the pax on the plane didn't do something stupid on the all ready arrived flight. If TSA is that concerned about the pax on this plane, all they have to do is disembark the pax through the customs and immigration gates, if the airport is designed for this, or merely force the pax out to the public area of the terminal. those needing to make connections are rescreened prior to re-entering the sterile area, and those that are terminating are allowed to go on their merry way. In this instance, I beleive all passengers should refuse the rescreen to disembark, or at least demand that you be allowed to move to the unsecured area of the airport.

Like I have kind of been trying to say throughout this, airport and courthouse cases aren't really about implied consent. A couple of the cases mention it, but it's dicta. The standard that is used is the reasonableness standard balancing privacy interests and important government interests, and that's really where the case law lies.

We could argue consent until the cows come home, and whether or not it's voluntary, and maybe, if these issues ever end up in court again, that's how it will be decided. Edwards and the other couple airport cases from the early-to-mid 70s and the courthouse security cases deal instead with there being some sort of greater good in mind and balance that with privacy concerns.

:confused:

If so, then why did the court in Edwards say:

"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. (emphasis added)

"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.

I'm not the brightest bulb here but that sure sounds like implied consent based, in part, upon the optional nature of the air travel. YMMV. :)

Besides, where I live, the Ninth Circuit recently said in Torbet v.United Airlines , (2002) that:

Granted, Torbet concerned the permissibility of a post-x-ray random search of his bag (he wasn't even challenging the emperor's scanty wardrobe at the initial WMD and x-ray), but the reasoning is the same, IMO.

I'm not convinced that the "reasonableness" requirement of an airport search (WMD, Bag x-ray, Bag search or Gate Grope) can be satisfied without implying consent because the air travel (and accompanying presence at the airport) is optional, but we can agree to differ on that issue.

But like I said earlier, it's not as though a court would entertain my rantings about the naked emperor anyway. We've probably come too far down this path to admit constitutional infirmity with accepted practice. :)

BTW: I am NOT Hugo Torbet. ;)

I maintain that it's dicta for the precise reason given above: those who are compelled under court order to appear are subject to the same type of search, which surely cannot be considered consentual.

Further, in a couple cases decided after Edwards (by different circuits, if I recall), a person who goes to the search "area," then leaves without being searched (or denies the screeners the right to do a more thorough search) can then be searched against his will.

In other words, I just don't think that the courts have found implied consent determinative. Like I said in the above post, they mention it, but it's a passing mention where most of the legal analysis is based on the idea that it's for a greater public good, balancing that good vs. privacy concerns, etc. I'm not saying it's not a factor -- I think that it's part of the balancing test on the side of privacy concerns -- I'm saying that it's not determinative.