Don't count on the ACLU to get involved, at least for law-abiding citizens. I contacted ACLU about SSSS and it did nothing. Probably too busy hassling Boy Scouts and manger scenes.

So, the terrorist tries it and if he draws an inspection he walks away. Sooner or later he'll figure out how to get through.

For this reason I do not think you should be allowed to walk away from the search.

That's not a good enough reason - I am never going to advocate reducing any rights over this terrorism nonsense.

Absent a warrant, you should have the right to withdraw permission for ANY search, administrative or not - but most definitely an administrative one.

Terrorists are going to get through whether we have lots of rights or no rights at all - one should not effect the other.

There would be a substantive difference between a consent stop and search (checkpoint) and a SPOT stop.

A consent search can be stopped at any time up to the point the officer finds something that elevates the consent search to a non-consensual level (reasonable suspicion). Once that level is reached then the person no longer enjoys the right to terminate the search.

Away from the checkpoint it would seem that Terry policies apply but again, as has been noted, TSOs aren't LEOs so I must admit I'm ignorant how their function applies here. Us LEOs would definitely be bound by Terry. TSOs? Can't say.

Nice coin of phrase. ^

Great post by the OP. ^

Absolutely. Someone, somewhere must first mount a challenge with a viable legal argument. (For an example of a legal argument that was not ultimately viable, see Gilmore v. Gonzales {formerly Gilmore v. Ashcroft}.)

Until someone, somewhere comes up with the wherewithal and resources to mount a better challenge, no ruling is possible.

The points you raise always get me wrapped around the axle when I try to make sense of the whole TSA thing.

In your first paragraph, I would agree except that we are told that we can't stop the checkpoint screening once it has started. So, is the checkpoint a "consent search?" If you can't withdraw once it has started, I tend to believe the consent stops when you put your stuff through the X-Ray and walk through the metal detector. So, if you can't stop it (i.e.: being detained) and it is no longer a consent search, there must be reasonable suspicion to conduct a search in this manner. So, that would tell me that everyone entering a checkpoint has crossed the line of reasonable suspicion simply for attempting to enter a sterile area of an airport. This conclusion would make me believe that we are dealing with a Terry-type situation.

In your second paragraph, I think we agree on all of your points. The legal issue remaining is if there is any difference between a LEO and another government employee, such as a TSO. On the surface, one argument is that a LEO and a TSO are different. On the other hand, if you apply a "reasonableness" test, would a judge conclude that the proverbial "average American" would be able to conclude that a LEO and TSO, standing side-by-side, both wearing uniforms and police-looking badges, have different authorities? My guess is "no", and a judge could rule that a SPOTnik would have to meet Terry standards in order to detain a nervous-looking passenger for questioning and be able to clearly articulate reasonable suspicion.

This appears to be the fundamental issue: Is a TSO a LEO for the purposes of Terry standards (and others as well)?

This really is a great thread and I love the mental exercise. ^

The Terry doctrine has never been tested with a non-LEO, as the basic test is whether or not one's freedom of movement has been impaired in a significant way, up to and including an arrest (at which time a search incidental to arrest is permissible). TSO's are agents of the government, but lack powers of arrest, and cannot be considered law enforcement officers.

A Terry Stop is not based on a "reasonableness" test, but a balancing test, where the rights of an individual to move about are weighed against the government's right to determine if something criminal is afoot.

The consent that applies at a checkpoint is implied; by presenting yourself you are implying that you consent to a search of your person and property. TSA conducts an administrative search, which is an exception to the search warrant requirement. The inability to withdraw an implied consent also occurs with DUI cases - refusal to comply with a breath or blood test results in separate charges, so in reality you either comply or get arrested.

All of this will (and should) result in a test case somewhere. I believe a lot of weight will be given to a traveller's assertion that a certain "intimidation" factor is present at a checkpoint, and TSO's, to a great many people, are LEO's.

The ACLU is much like the TSA itself. It selectively chooses cases that it can trumpet publicly, and uses the resulting publicity as a means of fund raising. Likewise, if you've ever gotten one of their fund raising pieces, it uses "fear" to try and generate money. Likewise, the TSA uses fear to concentrate its power and raise money (from congress).

The TSA and ACLU may be opposites in terms of their function, but the methods are much the same.

I agree. It makes my head hurt too. I know that I, as a FLEO, am bound by Terry, consent and the like, regardless if I'm in an airport or not. Things get a little more lax if I'm actually on a plane and in the air, particularly with regards to searches (safety considerations) but in the airport? No difference.

I'm not sure why the TSOs can do what they do and under what color of law. I'd love to hear the rationale and justification for it. Bart? You out there?

One other thing, does termination of screening in and of itself lend to reasonable suspicion? As in, they got scared and backed out? I'd say no off the top of my head, but is there some ruling I'm unaware of maybe?

Ah, admin search. Things maybe become more clear now. Would an admin search work like our inventory searches?

Correct - it is an exception to the search warrant requirement. And, applied much more broadly - fire marshals can conduct admin searches to look for fire code violations, code enforcement officers can conduct admin searches to look for local building code violations, etc. They are still government actors, but without law enforcement powers. I imagine TSO's would fall in the same general category.

Vassilipan - thank you for the explanation. I haven't done many admin searches (other than inventory), so that's new territory for me.

Also, I had this sent to me as part of a longer email documenting the biggest cases facing LE this year:

The Ninth Circuit Court of Appeals recently reaffirmed its ruling that a passenger entering a secure zone at an airport may not leave the secure zone as an alternative to a required security search. Xiphos previously reported that the decision in United States v. Aukai, 440 F.3d 1168 (9th Cir. 2006), had been scheduled for reconsideration by the full panel of the court (known as an "en banc" hearing). The court moved away from a thirty-year old precedent that based security searches on consent by the traveler. Following a case decided by the Third Circuit, in United States v. Hartwell, 436 F.3d 174 (3rd Cir. 2006), the court ruled that suspicionless security screenings are constitutional under the Fourth Amendment''s special needs doctrine. Under the special needs doctrine, a search or seizure is allowed if it supports services special governmental needs, beyond ordinary law enforcement need, that outweigh an individual''s privacy expectations, and the circumstances of the search (such as a transportation security zone search requiring expediency) make it impractical to require a warrant or to impose a requirement of individual reasonable suspicion. United States v. Aukai, 497 F.3d 955 (9th Cir. 2007).

I believe this ruling is flawed, and here's why...

The court is establishing the legal basis to conduct a search without a warrant - they are still not understaninding the true, underlying basis for the search, and that is voluntarily accepting the search as the 'price' to enter a restricted area.

Yes, the search is allowed as it supports special governmental needs and outweighs an individual's privacy expectation, but only to the extent that individual wishes to enter the restricted area. The court failed to understand that entering the restricted area is voluntary conduct, thus the search is voluntary and an individual should be able to withhold consent for the search if the decide to terminate the behavior which supports the search - removing themselves from entry to the restricted area.

You cannot withdraw from the search AND enter the restricted area, but the act of withdrawing from the restricted area means the justification for the search is moot and the individual should have the right to terminate it unless a warrant is secured or probable cause exists - in which case, the individual must be informed their search is no longer administrative and is now criminal and anything found in the search can be used as evidence against them, AND they have the right to withhold permission for the search unless a warrant is secured.

As a counter note, here is an example of an administrative search which one cannot withdraw from - a search before being taken into jail. You cannot withdraw from being taken to jail, yet you cannot enter the jail without be searched - in this case, the court's ruling would be appropriate; just not in the case of airport searches.

Wasn't this the reason that Chertoff wanted to train fire marshalls and building inspectors to "look for suspicious things" while performing their official duties? It's apparent that Chertoff was using the ruse of a fire inspection, for which the property owner presumably granted consent, to conduct a law enforcement (or thought police in the case of document reading materials and other contents of a dwelling) search for which the property owner was never asked to consent nor a warrant obtained.

...pretty slick...