Analysis of Root Cause of Recurring Airport Security Search Issues?
 

Well, here it is at the end of 2007 (Happy New Year, everybody!). I had some time over the last couple of days to ponder if there might be a root cause why many of us who confront an airport more than occasionally have fundamental issues with the way our government is "screening" us. Many with legal credentials have offered chapter & verse one way or the other. Those of us with zero legal education (just life experiences) and some level of aged discernment have offered hunches and gut-level perspectives.

On a purely objective level (sincerely), I'd like to toss out something for us to think about and perhaps debate from a policy perspective as much as a legal one. I admit I had help from a lawyer friend that will become apparent later on. OK, here goes...

I was thinking the other day about comparing what goes on at an airport to the long-accepted practice of a "Terry Stop." Actually, I'd make the argument that the DHS/TSA version of a "Terry Stop" occurs as soon as we attempt to buy a ticket.

OK -- the first thing I did was to make sure I understood exactly what a Terry Stop was. So, rather than look up a legal definition, I found training materials from the Federal Law Enforcement Training Center, owned & operated by none other than the DHS itself. Regardless of what the law says, here is what TSA screeners are presumably taught about this subject (Bolding is mine.) [FLETC Web Site:

So, I wonder if a period of questioning by a SPOT guy (especially the MA State Cops in BOS) could be construed as a Terry Stop? Is someone's perceived behavior good enough to provide "reasonable suspicion that criminal activities is a foot [sic]."? I've read other stuff defining that there has to be a context for the "reasonable suspicion" and that a police officer has to be able to reasonable articulate why he or she concluded that a crime was about to be committed. Note that the person is put in the position of being legally detained and can't just walk away. If the TSA believes that a SPOT interrogation is equivalent to a Terry Stop, they could make the case that a person can't leave until the SPOT guy has concluded his interrogation. Further, do the SPOT guys have to articulate that the crime they presume is about to be committed has to be related to civil aviation security? If not, arresting college-age bar hoppers for fake IDs and guys carryng a joint or two is fair game. (I believe I read somewhere that the cop has to be able to articulate some sort of contextual aspect for the behavior to lead to a reasonable suspicion of criminal intent.)

I bounced all this off my lawyer friend who pointed me in the direction of an IL Court of Appeals case in which they threw out evidence (and a lot of it!) seized during a highway counter-drug checkpoint: People versus Ray.

From this case, here is a pretty interesting argument against the SPOT program and the accusations of it being a "dragnet" for all sorts of thing unrelated to aviation security:

Given the TSA's self-proclaimed successes with the SPOT program (700 arrests, etc) for all sorts of things unrelated to counterterrorism, does the SPOT program (and the checkpoints) fall into the realm of "general crime control" as articulated above? As such, are the SPOT guy's seemingly benign questions, which are remarkably similar to those cited above, intrusive and illegal?

In addition to what appeared to be some real police bungling (fortunately caught by the court of appeals), I found a reference to a cited case to be most interesting:

Let's paraphrase this a little (phraphrasing in bold):

I concluded from this text that the Supreme Court ruled that cops could not conduct a checkpoint for anything else other than ensuring the public safety. I gather they concluded that looking specifically for drugs in a highway checkpoint did not pass the "public safety" test. (DUI checkpoints do apparently meet the "public safety" test.)

My guess is that those on the side of the TSA's present practices would argue that what the TSA does (including SPOT and background checks) are simply "administrative screenings" and are not searches as defined by law, so none of this applies. Everything the TSA finds during SPOT interviews, pre-flight background checks, and checkpoint searches is legally-obtained evidence.

Those on the other side of the argument could assert that, "If it looks like a Terry Stop, smells like a Terry Stop, and quacks like a Terry Stop...", so, therefore, anyone who attempts to buy a plane ticket or enters an airport is assumed to be, by their action, about to commit a crime. Ergo, if the TSA can't meet Terry standards, much of what they have done at, or associated with, airports could be considered to be unconstitutional. And, if the standards apply to the TSA that made unconstitutional Indiana's highway dragnet (Stopping of cars searching for drugs -- a reason having nothing to do with public safety on the highways), these folks could also assert that nothing is not specifically connected with TSA-declared prohibited items can be seized or used as criminal evidence.

So, I guess the way to challenge all this in court is to be stopped, detained, and arrested for an alleged crime having nothing to do with civil aviation security and challenge that the SPOT program (and perhaps some checkpoint procedures) is really a Terry Stop out of control. I'm almost ready to conclude that, at the very least, the SPOT interrogations are really Terry Stops and ought to be conduced with the identical level of standards and judicial scrutiny. But, I promised to remain objective!

In a final note concerning context, I doubt that the most ardent proponents of Terry Stops ever envisioned that a Terry Stop would be conducted on tens of millions of air travelers each year. My hunch is that the actual number of Terry Stops occuring in the US every year are orders of magnitude less, and that many are successfully challenged in courts.

In conclusion, to quote a famous DC-area preacher, "Not a sermon, just a thought."

Looking forward to your views and comments!

We have a HUGE gray area which needs the courts to clear up - but I'm afraid our courts are either too immature or right-wing centric to follow the Constitution and the rule of law properly.

The gray area involves clearly defining the limits of an Administrative search, and preventing an Administrative search from morphing into a criminal one - without the participant being given the opportunity to withhold permission, remove the articles to be searched or remove themselves from the search area.

The result of this unclaimed territory is our airports being turned into dragnets for criminal activity (real and imagined). It saddens me that so many people think it's a good thing. What's next - checkpoints and dragnets at supermarkets, malls and gas stations?

The courts must rule than an administrative search is only legal when the following are true:

1) the location of the search is clearly defined
2) the scope of the search is clearly defined - the person being searched AND the person conducting the search must know the what is being looked for and anything not part of the search must be ignored
3) a person must be able to decline the search
4) a person must be able to stop the search and terminate the activity or relationship which triggered it - i.e., leave the airport checkpoint, federal building, courthouse, etc.
5) evidence is never admissible in a criminal proceeding unless the person being searched has been informed by an officer of the law that the Administrative search is terminated and a criminal search is going to commence - and the person being searched must be able to decline that criminal search until a warrant is secured or they leave absent an arrest (and the arrest must show clear probable cause)
5a) the Courts must establish the act of declining a criminal search is not grounds for probable cause or suspicion of any kind, but is nothing more than a fair exercise of a citizen's Constitutional rights.
6) A person or official conducting an Administrative search shall not have any power to arrest or detain the person being searched

FliesWay2Much -- great thoughts and quite well articulated; thanks for taking the time to connect these ideas and bundle them into a package that seems to be scattered throughout the forum.

Bocastephen -- I suspect that many would interpret #4 above as the reasonable suspicion necessary to proceed from casual* to involuntary encounter*


*apologies to those in the know if I've misused the states of interaction

Which is why we need this ruling - there can be no transfer from administrative to involuntary without a warrant or permission by the person being searched and it must be clearly defined that the act of declining or ending a search cannot be used as the sole determination of reasonable cause or suspicion.

Another point to consider is how many of these SPOT encounters are done by non-sworn, non LEO types from the TSA. It's one of those few situations that it may look like a duck and quack like a duck but it is still not a duck.:rolleyes:

Beat me to it: TSA is NOT law enforcement.

The other interesting case to watch is the Indiana case that the Supreme Court accepted on Voter ID.

The State's argument - accepted by at least one judge - is circular: "Since ID is pervasive, you can't board a plane or cash a check without an ID, it is perfectly reasonable and allowable for the State to require ID for voting". Of course, as ID is required more and more under this logic, it does become universal, meaning that one can support any use of ID by using the same logic.

If the Indiana statute wins, then it will simply be used as precedent in favor of more ID, more of the time.... including more rigorous ID checks by TSA. If it fails, we'll need to look at the language of the decision to see if it could be leveraged into a precedent elsewhere.

Wirelessly posted (Mozilla/4.0 (compatible; MSIE 6.0; Windows 98; PalmSource/Palm-D052; Blazer/4.5) 16;320x320)

"The State's argument - accepted by at least one judge - is circular: "Since ID is pervasive, you can't board a plane..."

Let alone that this judge was unaware that you CAN board a plane without an ID....

Wirelessly posted (Mozilla/4.0 (compatible; MSIE 6.0; Windows 98; PalmSource/Palm-D052; Blazer/4.5) 16;320x320)

I had kept that in my head while writing the OP. I know the Terry Stop doctrine started with cops. An interesting excursion would be to determine if compliance with Terry Stop restrictions were intended to apply to only cops? Does it apply to other government officials who interrogate the public in similar fashion: IRS auditors, EPA inspectors, etc? Clearly, the screener or the passenger who involves a cop ups the ante and actually brings more of the Constitutional protections back into play.

A "Terry Stop" applies to law enforcement officers of competent jurisdiction. There are two parts to a Terry Stop - the stop itself and a limited patdown to see if the individual is armed. Both parts must have specific and articulable facts that give a reason for the stop and, if performed, patdown. Probable cause is not needed, but an officer has to have more than a hunch.

A TSO does not have the ability to invoke a "Terry Stop" or "Terry Frisk," as a TSO does not have the authority to restrain one's freedom of movement in any significant way. Absent a state law that allows a "citizen's arrest," a TSO can only summon a real police officer.

What TSA hangs their hat on is the ability to conduct administrative searches, which fall outside the search warrant requirements of the 4th Amendment.

Being picked out by a SPOTnik should simply mean the ensuing administrative search will be more thorough than would otherwise be the case (a "secondary").

Two issues I'm not sure of:
- can the passenger leave the lineup, assuming it's prior to the checkpoint ?
- does the passenger have to submit to any additional search after clearing the checkpoint ?

I suspect the answers currently are no and yes; and it would take a court challenge to determine the legality or otherwise. Which, as I posted elsewhere, is most unlikely to happen any time soon.

The hapless individuals so far ensnared by SPOT are unlikely to have either the wherewithall or the inclination to mount such a challenge. "Illegal" immigrants, frat boys and the like will be easily intimidated by the process and simply want to get it over with. All the while Kippie can continue to claim more potential terrorists have been caught. But then we're all potential terrorists now according to the TSA paradigm, aren't we.

So, simply wanting to get on an airplane is cause for "reasonable suspicion that criminal activities is a foot"?

This point to me is the objectionable basis of TSA and aviation screening in the United States. We are all treated as suspects and treated like criminals for merely trying to board an airliner. Rather than allocating resources to more intensive screening of those far more likely to be terrorists, TSA spends time and our tax money on secondary searches of "threats" such as Roman Catholic sisters, grandmothers from Des Moines, and children. Unless these individuals exhibit behavior that satisfies Terry, a stop and frisk is unconstitutional. By the reasoning used to justify TSA procedures, anyone entering a national governent building would be subject to a stop and frisk. For that matter, because armed robberies occur at banks, anyone entering a bank would be subject to a stop and frisk. The Founding Fathers did not draft the Constitution and Bill of Rights to give the state the power to stop and search people who did not exhibit indicia of involvement in crime. Read the Fourth Amendment.

FliesWay2Much -- interesting and thought-provoking thread. I think we will have to wait for the right defendant to come along before this one is settled, but it would not be the least bit surprising to see the ACLU, CCR, EFF or other launch precisely such a defence if the "right" person is caught in this dragnet.