Why Airport Searches Are Constitutional

Administrative Search Exception

Administrative Search Exemption

Administrative search exception: Why it applies to airport searches

The 'administrative search exception' has often been called the TSA's attempt to circumvent the Fourth Amendment. However, "while the new TSA enhanced pat downs may violate the Fourth Amendment on the surface, what most people are not aware of is that the 9th Circuit Court of the United States ruled on the search of passengers in airports back in 1973, which effectively suspends limited aspects of the Fourth Amendment while undergoing airport security screening" (Frischling 2010). The U.S. Supreme Court case which established the exclusionary rule as a rule of law (the idea that 'fruit of the poisonous tree' evidence obtained illegally could not be used against a defendant in a court of law) was not found to be applicable in this particular category of searches. The U.S. Supreme Court had already established in 1968 that police officers could conduct warrantless searches when there was reasonable suspicion a crime was being committed to protect the safety of the public: this concept has been increasingly broadened over the years to include a variety of searches, including airport screening.

The ruling of U.S. v. Davis (1973)

The 9th Circuit Court ruling of U.S. v. Davis defined airport searches of passengers as administrative in nature, designed to protect passengers by preventing "carrying of weapons or explosives aboard aircraft" and thus was constitutional so long as the search was confined to those purposes (Frischling 2010). Regarding the idea that a Fourth Amendment violation was an issue, the Court noted that persons who objected could simply avoid flying. This suggests that the intention of the search matters -- people are not being searched to specifically discover a crime but for public protection and that it is possible to 'opt out' of the search given that flying is not a necessity.

Regarding the latter contention, however, the idea that 'opting out' of flying is possible is a questionable notion. Many people must fly for work and there are few viable options other than flying for most destinations. Although the searches may not be intended to screen for criminal violations, if someone is found with a concealed weapon, drugs, or other contraband, they can still be prosecuted. TSA officers who act on behalf of the state to conduct searches have no need to establish a probable cause that a crime has been committed and can conduct regular searches of passengers but if evidence is found which links the passenger to a crime, even a crime that is not explicitly linked to airport security-related needs, the individual can still be prosecuted.

The first major Fourth Amendment revision: Reasonable suspicion and Terry V. Ohio (1968)

In Terry V. Ohio (1968) the U.S. Supreme Court ruled that even without a warrant, if a police officer had a reasonable suspicion that a crime was being committed and that the person was armed and dangerous, a 'stop and frisk' procedure was acceptable. "Once he has detained the suspect, the officer is permitted to conduct a 'carefully limited search of the outer clothing of [the individual] in an attempt to discover weapons which might be used to assault him" so long that the search was limited in nature, a search for weapons, and was "not a general exploratory search for… evidence of criminal activity'" (Skean 2002). The safety of the public was the primary concern, as was the case with airport screening.

Prior to Terry, the Court "initially noted that wherever an individual may harbor a 'reasonable expectation of privacy,' he is entitled to be free from governmental intrusion" (Skean 2002). However, the contention does not necessarily support those who disagree with the current broad provisions regarding airport searches: air travel is not deemed a situation in which there is a reasonable expectation of privacy and "what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizure" (Skean 2002). It is reasonable, it could be argued, given the potential risks of air travel, that all passengers be searched, even those who might not meet the Terry standard of probable cause.

United States v. Lopez (1971)

The evidence seized during an airport search allows a defendant to be prosecuted for the offense, even if the evidence is not directly tied to potential violence during travel. In United States v. Lopez (1971), the defendant Lopez "met the FAA's criteria for its administrative hijacker profile, and, while proceeding through the security checkpoint, activated a metal detector…two Deputy United States Marshals frisked Lopez for weapons, and found a tinfoil covered plastic envelope filled with heroin" (Skean 2002). It was found that the search constituted a specific protective 'frisk' and thus was justified and even though the evidence was not what the U.S. Marshals were searching for, it still could be used against the defendant in court.