Administrative Search Exception and Airport Security Screening

Introduction

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 appear to violate the Fourth Amendment on the surface, most people are unaware that the 9th Circuit Court of the United States ruled on passenger searches in airports in 1973, which effectively suspends limited aspects of the Fourth Amendment during airport security screening (Frischling 2010). The U.S. Supreme Court case which established the exclusionary rule as a rule of law—the principle that evidence obtained illegally could not be used against a defendant in court—was not found to be applicable in this 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 public safety. This concept has been increasingly broadened over the years to include a variety of searches, including airport screening.

The 9th Circuit Court ruling in U.S. v. Davis defined airport searches of passengers as administrative in nature, designed to protect passengers by preventing the carrying of weapons or explosives aboard aircraft. The court found such searches to be constitutional so long as the search was confined to those purposes (Frischling 2010). Regarding the concern that a Fourth Amendment violation was at issue, the Court noted that persons who objected could simply avoid flying. This reasoning suggests that the intention of the search matters: people are not being searched to specifically discover a crime but for public protection, and it is theoretically possible to decline the search by choosing not to fly.

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

However, the idea that opting out of flying is a realistic option is questionable. Many people must fly for work, and few viable alternatives exist for traveling to 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 probable cause that a crime has been committed. They can conduct regular searches of passengers, and if evidence is found linking the passenger to a crime—even a crime unrelated to airport security—the individual can still be prosecuted.

In Terry v. Ohio (1968), the U.S. Supreme Court ruled that even without a warrant, if a police officer had reasonable suspicion that a crime was being committed and that the person was armed and dangerous, a stop and frisk procedure was acceptable. Once a suspect was detained, "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," provided that the search was limited in nature, focused on discovering 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 it was in airport screening contexts.

Terry v. Ohio and Reasonable Suspicion (1968)

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, this principle does not necessarily support those who disagree with 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.

Conclusion

Terry and Lopez set the groundwork for allowing airport searches of all passengers. U.S. v. Davis established unequivocally the administrative and reasonable nature of most airport searches, given that the search serves "a narrow but compelling administrative objective and is limited as is consistent with satisfaction of the administrative need that justifies it" (Skean 2002). Although flyers have a right to privacy, "the need to prevent airline hijacking is unquestionably grave and urgent. The potential damage to person and property from such acts is enormous" (Skean 2002). Coupled with the voluntary nature of flight, efforts to curtail such searches seem unlikely to withstand the test of judicial review in the near or far future.