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-   -   Court Says Travelers Can't Avoid Airport Searches (https://www.flyertalk.com/forum/practical-travel-safety-security-issues/724162-court-says-travelers-cant-avoid-airport-searches.html)

coxta Aug 10, 07 9:23 pm

Court Says Travelers Can't Avoid Airport Searches
 
I thought this link might be of interest to the readers of this forum.

"U.S. airline passengers near the security checkpoint can be searched any time and no longer can refuse consent by leaving the airport, the nation's largest federal appeals court ruled Friday.

The decision (.pdf) by the 9th U.S. Circuit Court of Appeals overturned the circuit's 34-year-old precedent that over time was evolving toward limiting when passengers could refuse a search and leave the airport after they had checked their bags or placed items on the security screening X-ray machine. Citing threats of terrorism, the court ruled passengers give up all rights to be free of warrantless searches once a "passenger places hand luggage on a conveyor belt for inspection" or "passes though a magnetometer."

"…Requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world," Judge Carlos Bea wrote for the unanimous 15-judge panel. "Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by 'electing not to fly' on the cusp of detection until a vulnerable portal is found." "


http://blog.wired.com/27bstroke6/200...says-trav.html

VideoPaul Aug 10, 07 9:33 pm

in other news, the 9th circuit decided that the 2nd amendment is "unnecessary becasue there are police departmnts", the 10th amendment is "outmoded by the fact of federal funding controlling local politics", the 5th amdnement is "a speed bump in the highway of justice" and the 1st amendment is "quaint, but anachronistic and antagonistic toward many of different philosophies".

The 9th circuit, having put in a full day, is expected to finish its execution of the Bill of Rights on monday.

On the science beat, the United States Geological Survey reports "seismically inexplicable vibrations" in many areas of the northeast and east coast at shallow depths, now confirmed as the founding fathers spinning in their graves. Muarray Energy Corporation, speaking at the scene of its Utah mine disaster said "This proves that the mine collapse was NOT our fault."

--PP

RIP US Constitution 1791-2007

SDF_Traveler Aug 10, 07 10:52 pm

I haven't read the full decision (the PDF), but I do agree that once you (a) put luggage on the x-ray machine belt or (b) walk through a metal detector, you have consented to a search.

If the WTMD beeps, I don't believe you should have the ability to turn around, elect not to fly, and leave the airport. You have initiated the search procedure by choosing to go through the WTMD.

On the other hand, I believe the scope of the search conducted by the TSA should only be limited to weapons, explosives, or anything that would be a threat to an aircraft or its passengers.

The individual who challenged the search decided he wanted to leave the airport and not fly after he was put into a queue for secondary security because he lacked ID. That's a BS reason, IMHO, to be forced into secondary security - just as the selectee system is. The only people who should go into secondary security are those who don't clear the security checkpoint and need a further search to resolve the alarm.

The 4th Amendment provides protection from illegal search and seizures. When a search warrant is issued, it specifically states what is to be searched and what they're looking for. The search is limited by that scope. Anything found outside of the scope is not admissable in court.

Airport security, which is conducted by the federal government, should be handled the same way. The search allows them to search you and any belongings you intend to bring into the sterile area and onto an aircraft. The scope should be limited to items such as weapons, explosives, or anything that may harm an aircraft or passengers.

This passenger wanted out of the secondary search because he had drugs on him. Without going into OMNI territory, with the exception of perhaps marajuana, I believe drugs such as meth (which is what this passenger had) are rightfully illegal.

However, the security checkpoint is there for aviation safety and safety of passengers/individuals - it is not there to make drug busts or discover other items that could be deemed illegal. It is of my opinion, items found outside of the scope of an aviation safety search should not be admissable as evidence of a crime. It is not meant to allow for fishing expeditions either - unless related to aviation security. If a passenger has a lot of cash, that is their own business. If they're traveling overseas, it is up to the passenger to file the correct paperwork. Now, if you find a gun, explosives, an aviation safety threat, or something like blood which could indicate the individual recently assulted or harmed someone, then by all means turn it over to law enforcement.

Interesting article; the passenger may have been a big meth-head scumbag, but the findings in the search should not have been admissable for a drug arrest.

My opinion and other opinions are welcome.

law dawg Aug 11, 07 12:06 am


Originally Posted by SDF_Traveler (Post 8212451)
I haven't read the full decision (the PDF), but I do agree that once you (a) put luggage on the x-ray machine belt or (b) walk through a metal detector, you have consented to a search.

If the WTMD beeps, I don't believe you should have the ability to turn around, elect not to fly, and leave the airport. You have initiated the search procedure by choosing to go through the WTMD.

On the other hand, I believe the scope of the search conducted by the TSA should only be limited to weapons, explosives, or anything that would be a threat to an aircraft or its passengers.

The individual who challenged the search decided he wanted to leave the airport and not fly after he was put into a queue for secondary security because he lacked ID. That's a BS reason, IMHO, to be forced into secondary security - just as the selectee system is. The only people who should go into secondary security are those who don't clear the security checkpoint and need a further search to resolve the alarm.

The 4th Amendment provides protection from illegal search and seizures. When a search warrant is issued, it specifically states what is to be searched and what they're looking for. The search is limited by that scope. Anything found outside of the scope is not admissable in court.

Airport security, which is conducted by the federal government, should be handled the same way. The search allows them to search you and any belongings you intend to bring into the sterile area and onto an aircraft. The scope should be limited to items such as weapons, explosives, or anything that may harm an aircraft or passengers.

This passenger wanted out of the secondary search because he had drugs on him. Without going into OMNI territory, with the exception of perhaps marajuana, I believe drugs such as meth (which is what this passenger had) are rightfully illegal.

However, the security checkpoint is there for aviation safety and safety of passengers/individuals - it is not there to make drug busts or discover other items that could be deemed illegal. It is of my opinion, items found outside of the scope of an aviation safety search should not be admissable as evidence of a crime. It is not meant to allow for fishing expeditions either - unless related to aviation security. If a passenger has a lot of cash, that is their own business. If they're traveling overseas, it is up to the passenger to file the correct paperwork. Now, if you find a gun, explosives, an aviation safety threat, or something like blood which could indicate the individual recently assulted or harmed someone, then by all means turn it over to law enforcement.

Interesting article; the passenger may have been a big meth-head scumbag, but the findings in the search should not have been admissable for a drug arrest.

My opinion and other opinions are welcome.

I'm torn here because I understand your position and agree with it. OTOH, consent searches are defined by the consenter and consent may be withdrawn at any time, or at least up until the discovery of contraband. So why would this consent search be any different? They should be able to withdraw that consent like any other consent search, should they not?

Also, as you are consenting, anything discovered should be allowed, just as if a LEO searches your trunk looking for narcotics finds a dead body, it's allowed. And vice versa. Consent means consent to it all.

PaulKarl Aug 11, 07 1:02 am


Originally Posted by law dawg (Post 8212616)
I'm torn here because I understand your position and agree with it. OTOH, consent searches are defined by the consenter and consent may be withdrawn at any time, or at least up until the discovery of contraband. So why would this consent search be any different? They should be able to withdraw that consent like any other consent search, should they not?

Also, as you are consenting, anything discovered should be allowed, just as if a LEO searches your trunk looking for narcotics finds a dead body, it's allowed. And vice versa. Consent means consent to it all.

If you bother to read the opinion, you'll see that the Court's ruling is that consent is irrelevant after a certain point in the process. So your statements are moot and betray the fact that you didn't do your homework.

Here is the write-up of the case from my blog ( www.knifetricks.blogspot.com ):


NINTH CIRCUIT CLARIFIES BASIS OF AIRPORT SCREENING

Daniel Kuualoha Aukai is no criminal mastermind.

When Aukai decided to transport crystal meth from Honolulu, Hawaii, to Kona on the Big Island in 2003 (his first mistake), he decided to fly commercial (his second mistake). He passed through the metal detector without incident, but he failed to produce government-issued photo identification (his third mistake). Consequently, he was subject to a secondary search by a hand-held magnetometer which beeped when it passed over Aukai’s right front pants pocket, where Auhai had left his keys or his change (his fourth mistake). The TSA officers investigated further and found several bags of meth on Aukai’s person.

After a guilty plea (with a limited reservation of appeal rights), the U.S. District Court in Hawaii sentenced Aukai to almost 6 years in jail for possession with intent to distribute methamphetamines and for being unbelievably stupid.

I mention this because the U.S. Court of Appeals for the Ninth Circuit, the federal appellate court for the westernmost United States, ruled on Aukai’s appeal on Friday. Not surprisingly, the conviction was affirmed.

Of interest to frequent travelers is the Ninth Circuit’s ruling that, language in prior decisions notwithstanding, consent has nothing to do with a search at airport security.

An airport search is a “special government needs” search, the court unanimously clarified in a special 15-member panel. The majority opinion read:

“The constitutionality of an airport screening search, however, does not depend on consent, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by ‘electing not to fly’ on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks. Likewise, given that consent is not required, it makes little sense to predicate the reasonableness of an administrative airport screening search on an irrevocable implied consent theory," the Court wrote.

"Rather, where an airport screening search is otherwise reasonable and conducted pursuant to statutory authority, all that is required is the passenger’s election to attempt entry into the secured area of an airport. Under current TSA regulations and procedures, that election occurs when a prospective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine. The record establishes that Aukai elected to attempt entry into the posted secured area of Honolulu International Airport when he walked through the magnetometer, thereby subjecting himself to the airport screening process,” the Court continued. United States v. Aukai, Case No. 04-10226 (9th Cir. August 10, 2007) (en banc) (emphasis added).

In footnotes, the Court agreed with the government’s position that a passenger becomes subject to the search upon entering the screening line or upon presenting identification and a boarding pass to a TSA officer prior to screening. Three concurring justices felt that the references to 9/11 were irrelevent to the constitutional analysis.

These legal distinctions are, however, academic to Mensa member Aukai. According to the federal Bureau of Prisons, Aukai was released from custody on July 3, 2007.

In the future, he may prefer to travel by boat.

MrAndy1369 Aug 11, 07 1:04 am

Does this mean beyond the security checkpoints too (into the secure area) or only at the checkpoint area?

At the checkpoint itself, I guess it makes sense. But, if you had a family emergency or something at the checkpoint before/after you go through the actual WTMD/trays/etc process - would they let you go? The wording isn't exactly clear, altho I wish they would STOP referring to terrorism or 911. Move on, move on - I'm more threatened by drunk drivers or sickness, and lately, my own government!

SDF_Traveler Aug 11, 07 3:17 am


Originally Posted by law dawg (Post 8212616)
I'm torn here because I understand your position and agree with it. OTOH, consent searches are defined by the consenter and consent may be withdrawn at any time, or at least up until the discovery of contraband. So why would this consent search be any different? They should be able to withdraw that consent like any other consent search, should they not?

Also, as you are consenting, anything discovered should be allowed, just as if a LEO searches your trunk looking for narcotics finds a dead body, it's allowed. And vice versa. Consent means consent to it all.

I just read PaulKarl's post and found it informative. I still haven't read the full ruling, which will likely be interesting to take a look at. The court seems to view it as a "special government needs" search.

As far as the consent issue, I believe you're giving consent to a full search once you present yourself at a checkpoint to enter a sterile area with the intent to fly. When the WTMD goes off or a bag check is called at an x-ray, you can't say stop and withdraw consent. It's all (you entering the posted security checkpoint) or none (not entering a posted checkpoint). Because of the nature of an airport, I would argue that an alarm gives immediate reason to search further because the WTMD picked something up - or a screener saw something needing further investigation on an x-ray.

As far as a motor vehicle search by a LEO, I've never encountered one other than a couple 'once off' "pop the trunk, peek under the auto with a mirror" 20 second type check entering an airport -- which I view as an "unposted" search as there is no sign saying vehicle security checkpoint - you may enter or turn around. Airports usually have signs "vehicles may be subject to search" when entering a parking structure -- I've seen temporary signs put up when the random type search I describe is done on the approach road; "Slow down - vehicle subject to search ahead".

Motor vehicles - because they move - present a different set of issues when it comes to other searches (i.e. traffic stop) vs. the search of a house or business which is a known, fixed location with physical address. There is the plain view doctrine; aside from that an officer can ask you for consent to search. I've had a five, maybe six traffic stops since getting my license at 16. It's been several years (knock on wood) since I've been stopped. Not once have I ever had an officer ask to search the vehicle. If you give consent to search a motor vehicle, anything found is fair game since there is no scope. A LEO can't run to a judge while you're pulled over and get a search warrant either.

Getting back to airport searches: It's my belief there needs to be a scope with what they're looking for now that it is carried out by the federal government. Limits need to be placed on big brother for individuals to be secure in their home or person from "illegal" searches, seizures, and fishing expeditions. I'm sick of 9/11 being used as a catch-all or justification for all types of searches, seizures, and fishing expeditions whether it be at an airport, a train station, a bus stop ... or anywhere within a public transit system. Heck, wiretap the phones and go fishing that way too.

Afterall: They who would give up an essential liberty for temporary security, deserve neither liberty or security. The DHS Motto should be "We're at a high threat level -- so why don't ya just give up your essential liberty; we're darn good at giving you a false sense of security (and a small bit of temporary security if we're lucky)"

law dawg Aug 11, 07 9:11 am


Originally Posted by PaulKarl (Post 8212734)
If you bother to read the opinion, you'll see that the Court's ruling is that consent is irrelevant after a certain point in the process. So your statements are moot and betray the fact that you didn't do your homework.

Here is the write-up of the case from my blog ( www.knifetricks.blogspot.com ):


NINTH CIRCUIT CLARIFIES BASIS OF AIRPORT SCREENING

Daniel Kuualoha Aukai is no criminal mastermind.

When Aukai decided to transport crystal meth from Honolulu, Hawaii, to Kona on the Big Island in 2003 (his first mistake), he decided to fly commercial (his second mistake). He passed through the metal detector without incident, but he failed to produce government-issued photo identification (his third mistake). Consequently, he was subject to a secondary search by a hand-held magnetometer which beeped when it passed over Aukai’s right front pants pocket, where Auhai had left his keys or his change (his fourth mistake). The TSA officers investigated further and found several bags of meth on Aukai’s person.

After a guilty plea (with a limited reservation of appeal rights), the U.S. District Court in Hawaii sentenced Aukai to almost 6 years in jail for possession with intent to distribute methamphetamines and for being unbelievably stupid.

I mention this because the U.S. Court of Appeals for the Ninth Circuit, the federal appellate court for the westernmost United States, ruled on Aukai’s appeal on Friday. Not surprisingly, the conviction was affirmed.

Of interest to frequent travelers is the Ninth Circuit’s ruling that, language in prior decisions notwithstanding, consent has nothing to do with a search at airport security.

An airport search is a “special government needs” search, the court unanimously clarified in a special 15-member panel. The majority opinion read:

“The constitutionality of an airport screening search, however, does not depend on consent, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by ‘electing not to fly’ on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks. Likewise, given that consent is not required, it makes little sense to predicate the reasonableness of an administrative airport screening search on an irrevocable implied consent theory," the Court wrote.

"Rather, where an airport screening search is otherwise reasonable and conducted pursuant to statutory authority, all that is required is the passenger’s election to attempt entry into the secured area of an airport. Under current TSA regulations and procedures, that election occurs when a prospective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine. The record establishes that Aukai elected to attempt entry into the posted secured area of Honolulu International Airport when he walked through the magnetometer, thereby subjecting himself to the airport screening process,” the Court continued. United States v. Aukai, Case No. 04-10226 (9th Cir. August 10, 2007) (en banc) (emphasis added).

In footnotes, the Court agreed with the government’s position that a passenger becomes subject to the search upon entering the screening line or upon presenting identification and a boarding pass to a TSA officer prior to screening. Three concurring justices felt that the references to 9/11 were irrelevent to the constitutional analysis.

These legal distinctions are, however, academic to Mensa member Aukai. According to the federal Bureau of Prisons, Aukai was released from custody on July 3, 2007.

In the future, he may prefer to travel by boat.

If you'd bother to read my post I was talking how I think the issue should be viewed and not through this decision.

In other words, my post was my dissent brief, pithy though it was.

law dawg Aug 11, 07 9:20 am


Originally Posted by SDF_Traveler;8212951As far as the consent issue, I believe you're giving consent to a full search once you present yourself at a checkpoint to enter a sterile area with the intent to fly. When the WTMD goes off or a bag check is called at an x-ray, you can't say stop and withdraw consent. [B
It's all[/B] (you entering the posted security checkpoint) or none (not entering a posted checkpoint). Because of the nature of an airport, I would argue that an alarm gives immediate reason to search further because the WTMD picked something up - or a screener saw something needing further investigation on an x-ray.

Sure, once the WTMD goes off it's too late to pull out, because now there is a whole new realm of suspicion opened, independent of consent. But before then? Why could they not withdraw consent before then (independent of this decision - I'm speaking in generalities and concept here, not specifically this decision)?


Motor vehicles - because they move - present a different set of issues when it comes to other searches (i.e. traffic stop) vs. the search of a house or business which is a known, fixed location with physical address. There is the plain view doctrine; aside from that an officer can ask you for consent to search. I've had a five, maybe six traffic stops since getting my license at 16. It's been several years (knock on wood) since I've been stopped. Not once have I ever had an officer ask to search the vehicle. If you give consent to search a motor vehicle, anything found is fair game since there is no scope. A LEO can't run to a judge while you're pulled over and get a search warrant either.
Inherent mobility is always a concern, no doubt. But aren't people, due to their inherent mobility, more like searching vehicles than homes? They can leave and go dump contraband, which was why I made that comparison rather than the search of a fixed place.


Getting back to airport searches: It's my belief there needs to be a scope with what they're looking for now that it is carried out by the federal government. Limits need to be placed on big brother for individuals to be secure in their home or person from "illegal" searches, seizures, and fishing expeditions. I'm sick of 9/11 being used as a catch-all or justification for all types of searches, seizures, and fishing expeditions whether it be at an airport, a train station, a bus stop ... or anywhere within a public transit system. Heck, wiretap the phones and go fishing that way too.
The question in my mind is - is the problem one of principle (we shouldn't be doing these searches as they're unconstitutional) or practice (we should be more efficient and do a better job)?

Wally Bird Aug 11, 07 9:54 am


Originally Posted by Andy1369 (Post 8212735)
Does this mean beyond the security checkpoints too (into the secure area)...?

The TSA certainly thinks so, given the original gate checks and the recent "surge". I don't know that there has been any legality challenge yet, but I think I'd pick somewhere other than the 9th to mount one :eek:

Superguy Aug 11, 07 9:35 pm

I guess what bugs me most about the ruling (at least how it's written) is the interpretation is based on 9/11 and terrorism rather than actual law. :td: :mad:

whirledtraveler Aug 11, 07 9:38 pm


Originally Posted by Superguy (Post 8215941)
I guess what bugs me most about the ruling (at least how it's written) is the interpretation is based on 9/11 and terrorism rather than actual law. :td: :mad:

Exactly. 9/11 isn't part of the Constitution last time I checked.

Does anyone know which States this affects? Isn't it just California, Alaska, and a few others?

essxjay Aug 12, 07 12:28 am


Originally Posted by whirledtraveler (Post 8215948)
Does anyone know which States this affects? Isn't it just California, Alaska, and a few others?

Not quite. The Ninth Circus <cq> includes: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington (plus a couple of territories). It's the largest of the 13 appellates.

sbrower Aug 12, 07 12:41 am

This probably answers the question about "reverse screening" (when they screen a plane at its arrival point due to security breach at the departing airport). It will probably be held to be mandatory because you gave your consent when you first entered the system.

ewick12 Aug 12, 07 2:38 am


Originally Posted by Superguy (Post 8215941)
I guess what bugs me most about the ruling (at least how it's written) is the interpretation is based on 9/11 and terrorism rather than actual law. :td: :mad:

yeah, the 9th circuit is notorious for their activism rather than for actually looking at the law. it's quite possible that this decision could be overturned if taken to the supreme court.

the 9th circuit does have a pretty high reversal rate
http://abclocal.go.com/kgo/story?sec...cal&id=5450499

:rolleyes:


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