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...

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,…