Survey on the 4th Amendment
 

(Ratified effective December 15, 1791):

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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Weigh in: what's unreasonable, in your opinion, and accordingly what would constitute probable cause?



[This message has been edited by essxjay (edited 09-02-2003).]

Who are you and what have you done with anonplz? We all know this is "his" question. http://www.flyertalk.com/travel/fttravel_forum/mad.gif

Well, as we've argued before, the TSA search is an "administrative search". My view is that it is effectively mandatory to be searched.

Therefore, they must look the other way if they find anything other than a threat to aircraft safety. Just the way they skirt the right against self-incrimination when they force you to sign an income tax return: nothing you say can be used against you except to make sure you pay your tax.

I hope this issue is resolved this way, then I wouldn't mind getting searched for aircraft safety purposes. I think in the long run this will be the resolution because this search issue extends into every part of our daily lives.

Only if we are assured that such "implied consent" mandatory searches are guaranteed not to bother us except for a narrow stated purpose, will we maintain a free country we all hope to continue living in.

Would searching by forcing or requesting checked bags to be unlocked without owners present, as stated on an MSNBC article, be representative as breaking the 4th Amendment of the US Constitution, if probable cause was found for a reasonable search of these "effects" and "papers" without one's knowledge until after the fact?

And after such search, the owner, now unaware what the party who searched such "effects" or "papers", would not know what personal effect is in the knowledge of the party who searched them until retrieving their property a very far distance away.

An interesting argument. An illegal search, unless the owner was present.

BTW, I should have added that I'll stay out of the thread for a while so everyone can have a say without me commenting on it.

Are you saying that this is the way it is, or should be?

Because it's certainly not the way it is.

As it is, if they find anything they don't like, you get in trouble. That means money, drugs, whatever. Countless people have had their money - legally obtained and held -confiscated under the awful drug forfiture laws which basically allow the government to take anything from anyone based on suspicion alone.

d

Unfortunately this is NOT the case in real life. On a recent return from AMS, I had to go though security in DTW. In my carry on bag, was a 16" steel ruler with VERY sharp edges and corners which I had packed into the wrong bag. Also in my carry on, were some souvenir rolling papers from the Amsterdam 'coffeeshops', where cannabis products are legally sold by licenced dealers. The TSA agent had the ruler in his hand, when he noticed the rolling papers. He immediately lost interest in the 16" blade, and started looking for 'something to go with those rolling papers'! He searched every crevice of my carry on bag, and felt me up like a horny schoolboy, looking for harmless 'contraband'. Finding no devil weed, he put the dangerous weapon back into my carry on! I was glad not to lose the ruler, but appalled by the oversight. Has any airplane ever been hijacked by joint wielding stoners?
BTW, I use cannabis medicinally with my physician's written approval.

Well, of course! The DEA pays, or at least used to pay, $250 if you give them a tip on someone with drugs or drug money.

d

To think that Amendment IV only reflects upon those who are actual US Citizens. Otherwise, everyone will have to be asked their citizenship and thus slowing down the security lines even more.

The search and seizure at the airports is for your safety. No ifs/and/or buts about it. That tube of lipstick could actually be a lipstick/knife. That pen could be switch blade. That credit card could be a card knife.

All effects should always be searched. I cannot wait for the day when there is a full body scan like that on one of Arnold Schwarzenegger's movies where you see his bones running through security. That is the type of security we need!

Just tonight, a person ran into a school with a gun running from cops here in Chicago. Minnesota this year just passed the right to a concealed weapon. How many of those people who will be concealing those weapons, just happend to 'forget' they are carrying them in the airport?

Just remember, that extra search is put forth for your safety!

Sluggo

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Gordon 'Sluggo' Valentine
AA Furloughed Flight Attendant

Someone told me that by purchasing an airline ticket that one has given implied consent to security searches and all the other indignities that now accompany airline travel.

So, if you want to fly, you waive your constitutional rights, which I didn't think was possible or allowable.

Not being a lawyer, much less a constitutional expert, I had no rebuttal...

Of course you wan waive your rights: "you have to the right to be silent"... you can still talk to them.

A cop not having PC can still ask you if he can search your car. If he doesn't have a search warrant or PC he can't search it but if you give him permission he can.

At an airport security checkpoint you can refuse permission for them to check you or your belongings at any time. The only negative result of this would be not being allowed entry into the sterile area.

[This message has been edited by CATSA Screener (edited 09-03-2003).]

If anyone actually believed that their 4th amendment rights were being violated, then why would they not sue? Or better yet, seek the help of the ACLU? Where are the lawsuits?

The Supreme Court has already covered this with their ruling on "implied consent." You already KNOW your bags are subject to search, that was true pre 9/11 in case anyone forgot. The airlines had complete control over what went on "their" aircraft before 9/11 and did searches.

Why anyone would think that a screener who finds a human head (to bring back a tired example) should just turn away and "forget" that he found it is beyond me. Two glazed eyes staring at me would not be something I could easily forget, much less the shocked expression on the face that would obviously be there.

If you do not agree with the policy and actually believe that your rights are being violated, you have options. You can sue (good luck), you can quit checking bags, or you can drive to your destination, (conditions permitting of course). I have yet to see anyone forced at gunpoint to check a bag, or fly to a destination.

I do not see the policy going anywhere in the near, or distant future.

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"All life is a concatenation of ephemeralities" - Alfred Kahn, American economist

If this search process deters one person from doing something wrong at an airport or on a plane, I'm all for it. Safety is worth a few hassles, I don't even believe this is an issue.

Unfortunately we will never know how many if any have been deterred by our security. Its a fair assumption that it has but there are not any facts to back this up that I know of.

Rather than talking about security check points for searches with carry ons, could everyone add some comments about checked bags that are not in your possession, passed in unlocked (by a requested US governmental policy, not a law) and then searched without owners present. That, IMO, is the constitutional issue. If owners are present, it is then constitutional by agreeing to be searched, to watch this search and to move forward, or not agreeing and leaving the airport.

Build tents or restructure the airport but adhere to the Constitution.

Baggage checks are done by law, not by "policy." See... http://www.tsa.gov/interweb/assetlib...401_to_501.pdf

Also see... http://www.tsa.gov/interweb/assetlib...w_107_1771.pdf

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"All life is a concatenation of ephemeralities" - Alfred Kahn, American economist

[This message has been edited by The Unknown Screener (edited 09-04-2003).]

I introduced the 4th Amendment issue in this thread. My post is third from the last.

I was surprised that this discussion and debate was not continued, especially with the new backscatter screening technology with which the TSA is experimenting.

I would be interested to know what everybody’s thoughts are pertaining to that discussion.

Passengers unlocking baggage for inspection away from their property, without being present (which is my point) is not part of the law, nor is it written in the language you provided. That therefore is policy. The fact is, the policy to be away from an inspection done in secret is infact illegal.

Provide to this forum a line or text in the law for airport security that says a passenger *must* unlock their bags, submit them for a secret inspection away from such owner's property? If you can, then that law is unconstitutional.

Spin.

[This message has been edited by Sky 1 (edited 09-04-2003).]

That is of course your opinion, and one that is not shared by the Supreme Court. If you feel that they are in error, you are free to challenge the law in court. If you are unwilling to do that, then you either acquiesce to the law as it stands, or do not check any baggage. I am sure there is a screener out there who would appreciate the latter.

P.S Nowhere does it say that your bags MUST be unlocked. It is only a suggestion. Hyperbole is not always fact.

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"All life is a concatenation of ephemeralities" - Alfred Kahn, American economist

[This message has been edited by The Unknown Screener (edited 09-04-2003).]

I am a lawyer by training, but I don't practice.

I'm frankly pretty hazy on constitutional law, but I remember that after my first year constitutional law class I was left with the distinct impression that it was an area of law where the individual's rights depended a great deal on the mood of the police and the courts, and that who you are plays nearly as significant a role in how you're treated as what you've (allegedly) done.

Look, you cannot provide any written language about passengers to unlock checked bags. So your comments about the Supreme Court are unrelated and irrelevent.

So, if no where does any written language exist that states passengers **must unlock** bags for a secret search, then such secret searches are against the 4th Amendment of the Constitution which is the law.

Why don't you go search an old bag, because you will be building tents.

[This message has been edited by Sky 1 (edited 09-04-2003).]

Ahhh yes. How soon they resort to name calling. Ok moron, here is the deal. I will type slowly so you can read this. When you present your baggage to the ticket agent you are also giving your IMPLIED CONSENT to having it searched. No ifs ands or buts. Now, you do not HAVE to send it through locked, but if it requires opening to resolve an alarm, or to properly identify something, then it WILL be opened. Your prescence is not required because you have already given your IMPLIED CONSENT.

Now, if you want to argue over the legality of IMPLIED CONSENT you will have to take that up with the Supreme Court as they have already ruled that such searches are LEGAL and do NOT violate the 4th amendment. So for you I would suggest that you either not check a bag, or drive.

Is this clear enough for you or do you still need help?

Timing is everything.....

Wow, that's one of the funniest jokes I've read in awhile. You must be sharing some of HigherFlyer's stash, but in your case, it's almost certainly not medicinal.

Wait until the cops toss your home 'for your safety'. http://www.flyertalk.com/travel/fttr...m/rolleyes.gif

(Where is the 'stonie' or the 'druggie' smiley icon???) http://www.flyertalk.com/travel/fttr...m/confused.gif

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"Give me Liberty or give me Death." - Patrick Henry

You're a real class act, Sky 1 http://www.flyertalk.com/travel/fttr...m/rolleyes.gif

Okay, so an ad hominem argument has been posted and edited out. But from here on out could we please remain on topic in this thread rather than delvolving into commenting on the off topic posts? Thanks.

Anyone else?

Strictly for comparison... Section 8 of the Canadian Charter of Rights and Freedoms: Everyone has the right to be secure against unreasonable search or seizure.

And here's the section of the Aeronautics Act that gives us the authority to open bags without the owner being present (although by policy we don't do this except in exceptional circumstances):
Search of goods
(7) No person who, having been required by a screening officer to permit an authorized search of goods that the person intends to have transported on an aircraft, refuses to permit the search to be carried out shall place or attempt to place the goods or cause the goods to be placed on board the aircraft.

Unaccompanied goods
(8) Where goods are received at an aerodrome for transport on an aircraft and are not accompanied by a person who may give the permission referred to in subsection (7), a screening officer may carry out an authorized search of the goods and, in carrying out that search, may use such force as may reasonably be necessary to gain access to the goods.

Thats the bottom line here. Everyone is well aware of the screening of their baggage so there are no "secret" searches. Very few bags are even opened as the reports I read on here of false positives are GREATLY exagerated. If you do not want your baggage screened, then do not check a bag. I have yet to see anyone forced against their will to check a bag, or fly for that matter.

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"All life is a concatenation of ephemeralities" - Alfred Kahn, American economist

Yes, if you want to go to Europe, you can row a boat. And if you have a long trip, well tough, you aren't "forced" to check your bag.

And even if you carry on a bag, you are "consenting" to having it searched because you aren't "forced" to travel http://www.flyertalk.com/travel/fttr...m/rolleyes.gif

At least we agree on that. You KNOW your baggage is likely to be searched, so it is no secret. If you do not want your bag to be screened, then leave it behind or ship it seperately. Why people do not understand this and continue to wave the 4th amendment around is beyond me. You submit to the search or you don't, it is not FORCED on you. If it were, then it would be "unreasonable" and therefore a violation of the 4th amendment.

Another example, a police officer pulls you over for speeding and asks you if he can search your trunk. He has no warrant, and no speeding offense requires a search of the trunk, so no "probable cause." If you agree and he finds that stash of yours, or that human head. Do you think he should just look away because he only pulled you over for speeding? You gave him your consent so a warrant is not needed. It is the same when you present your baggage, you are giving your consent. You can withdraw your consent at any time, but your baggage will not go on the plane until it is screened.

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"All life is a concatenation of ephemeralities" - Alfred Kahn, American economist

[This message has been edited by The Unknown Screener (edited 09-05-2003).]

As I've written before, I think the other aspect of this is the "in plain sight" adaptation of the 4th Amendment. I know this applies during sobriety checkpoints -- that's why the cops are so zealous about looking into your vehicle with flashlights (along with the alcohol sensors covertly placed on the flashlights). You're toast if they find a joint in plain sight on the back seat, but they can't open your glove box or trunk and find a joint unless you're dumb enough to give them permission. So, this raises the question: Was Dionne Warwick's joints inside a lipstick case "in plain sight?" ...wish she had challenged this in court...

At military bases (of which I am VERY familiar), there are signs at the entrances stating that, by entering, all your property and your person are subject to search.

If the TSA has also taken up the War on Drugs, why don't they simply put up signs similar to those at bases at all checkpoints? If non-security "discoveries" found during searches are fair game, why not simply say so? In the internal staffing process, I assume the TSA General Counsel would get a vote on the wording...

Even during pre-TSA days, I recall that law enforcement authorities viewed airports as convenient chokepoints to catch a suspected bad guy or two. The TSA (corporately and individually) has apparently assumed the authority to become "deputized" because "We, the People" have allowed them to. Shame on us.

I know I've written about the slippery slope before, so I'll end briefly. What's preventing the TSA from stopping at drugs and large amounts of cash? It doesn't take too much of a crystal ball to image the following --
1. Checking all our credit cards to make sure they aren't stolen;
2. Checking all our cash to make sure it's not counterfeit;
3. Checking all our CD's, floppies, and hard drives to make sure they don't contain bootleg software and/or downloaded music;
4. Better check my reading material to make sure it doesn't violate the "local community decency standards"; and,
5. Why not enforce state and local licquor laws why we're at it?
6. And, while you're sniffing my Nike's, better make sure they aren't counterfeit as well...

We don't agree on that. I was being sarcastic, sorry that I didn't communicate well.

You are forced to submit to a search the way it is now. There is no way around it. To my mind, it is okay so long as the purpose is narrowed to security issues and anything else is completely disregarded.

This is not the same because you indeed are not forced to consent to the search under your scenario. But if you travel on an airplane, you are forcibly searched, otherwise you cannot travel.

You are forced to sign a tax return the same way. You don't "have" to sign it -- but you could wind up in jail if you don't. So you are in essence forced to sign. Since there is a strict right that you have against being forced to incriminate yourself, how is the requirement to sign a tax return under penalty of perjury reconciled with the right against self-incrimination?

It is to my thinking an identical circumstance with regard to being searched when you travel by air. Since you are "forced" to be searched, in the same way you are "Forced" to sign your tax return, the search must be narrowly focused and everything else turned up must be overlooked.

The difference is that on the tax return it states... "To the best of my knowledge the information on this form is complete and correct." That is the out. If something is incorrect, and you have kept your paperwork in order, there is no problem. If you indeed lied then that is another matter.

The bottom line is that this is not going to go away anytime soon, so you can either check that bag or not. Arguing about it, like arguing about paying taxes is pointless.



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"All life is a concatenation of ephemeralities" - Alfred Kahn, American economist

This is the fatalist point of view. And sadly, probably true. If we travel, especially internationally as I do, we need to develop personal stategies that maximise our human rights with respect to privacy and inappropriate search or seizure no matter where in the world we might be.

I don't check bags unless absolutely unavoidable (which means I'm travelling with my golf clubs). I request that all my bags are with me in case I've been singled out for further searches. I am always visually vigilent at checkpoints. I don't call attention to myself but always open everything in case I've been called out for additional screening, pointing out where cables and other points of interest for security people might be.

Do I think this is invasive. Yes. Do I think this is ineffective. Yes. Am I willing to risk my career and personal life style to defend these issues. Sadly no. Does the U.S. constitution cover the rest of the world. No.

I'll repeat this point. Develop your own personal strategy to deal with the shortcomings of today's world. Defend yourself with awareness and intelligence. When a situation becomes unreasonable, point it out, document it if you intend to follow up, and then move on with your own plan.

As I understand it, free movement (or travel) is a right, not a priviledge. Technology's ability to move us faster or further has not changed that.

I'd like to add that I have no intent to make FT my forum to discuss political or legal issues around which I have only my opinions and no expertise. It is only that this thread brought forward a few thoughts I'd had and thought I'd add to the conversation.

There is a concept in law called "contracts of adhesion" where, for example, a landlord has a lengthy agreement with massive fine print, and a tenant with little bargaining power or skills is required to sign it to have a place to live. Such contracts are often construed against the landlord under public policy grounds.

This notion that I've voluntarily signed away my rights by purchasing an airline ticket sure seems to fit this same profile. I'd be more convinced if I thought it would be possible for a commercial carrier to compete on the grounds of privacy: "Fly with us and you won't be searched" where there was truly choice and existed options for a traveller who wasn't keen on being searched. However, if the FAA is mandating all carriers require this "voluntary" waiving of rights, then it sure isn't voluntary any more and that argument completely loses its effect.

[This message has been edited by Nugget (edited 09-05-2003).]

I do some side work in Tijuana for a friend (they manufacture tiles and decorative stones there) and do the border crossing about 2-3 times a week in my car. The catch is, i'm 23.

So, they ask what I was doing in Mex, I tell them that I work for a small manufacturer and was inspecting something that needs to be shipped up north, I also present a business card with my passport.

About half the time, they buy it with no further questions, the other half can take anywhere from 5 seconds to 5 minutes of questioning. I often hear the same question more than twice, been asked exactly where I live, the exact address of the shop in TJ, how long I've lived in california, how long i've owned my car, when and where I've had my tires changed...

I've been asked to step out of my car, routinely open the trunk, glovebox, adjust my seats forward.

The point isn't the fact they want to know where the good deals on tires are, they're seeing if I crack and am trying to hide something. They want to see if i'm smuggling drugs. I already have probable cause, since I was crossing from Mexico into the US. A 23 year old, driving alone, in a decent (ok, a honda civic) car is enough to drive suspicion (aside from the fact i'm also a full-time student).

My assumption is that as far as TSA and customs is concerned, you're guilty until proven innocent. A simple x-ray exam is a proof of innocence. Answering questions satisfactory is another proof of innocence. My friends one time, a bit intoxicated, made the mistake of telling the customs official when they were coming back into the US "I was doing stuff in Mexico I would never plan to tell my own mother." So that little prank cost them about 3 hours and a lengthy search of their car in San Ysidro.

Point is this, they have probable cause as you're entering an enclosed tube that can and has been used as an instrument of terror, extortion and crime. Until you prove that you have no negative intent, you are offically free.

Frankly, I feel the needs of the many outweight the needs of the one or the few (thanks, Spock) and don't mind a small hassle as long as I know that they're doing their job to ensure my saftey, as best they can.

I must say that as a British person this whole argument seems very strange.

The realitiy of modern day life is that if you do not search people and bags before they fly then some mad people will use this weakness and will fly more plans into buildings.

Therefore to me the arguement should be what needs to happen to make sure that the searches are not illegal. As for me if it is a choice between my bag being searched or 1000s of people dying it really is a no brainer.