Administrative Search Exception and Airport Security Law

Introduction: The Administrative Search Exception

The administrative search exception has often been called the TSA's attempt to circumvent the Fourth Amendment. However, while TSA enhanced pat-downs may appear to violate the Fourth Amendment on the surface, what most people are unaware 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 during airport security screening (Frischling, 2010).

The U.S. Supreme Court case that established the exclusionary rule as a rule of law — the principle that "fruit of the poisonous tree" evidence obtained illegally cannot be used against a defendant in court — was found not 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, in order to protect public safety. 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 (1973) defined airport searches of passengers as administrative in nature, designed to protect passengers by preventing the carrying of weapons or explosives aboard aircraft, and thus held such searches to be constitutional so long as they were confined to those purposes (Frischling, 2010). Regarding the question of a Fourth Amendment violation, the Court noted that persons who objected could simply choose not to fly. This reasoning suggests that the intention of the search matters — passengers are not being searched specifically to discover criminal activity, but for public protection — and that it is possible to "opt out" of the search given that flying is not a necessity.

The latter contention is, however, questionable. Many people must fly for work, and there are few viable alternatives for reaching most destinations. Although the searches are not 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 acting on behalf of the state need not establish probable cause that a crime has been committed before conducting routine passenger searches. Yet if evidence linking the passenger to a crime is discovered — even a crime not directly related to airport security — the individual can still be prosecuted.

The First Major Fourth Amendment Revision: Terry v. Ohio (1968)

In Terry v. Ohio (1968), the U.S. Supreme Court ruled that even without a warrant, a police officer who had reasonable suspicion that a crime was being committed and that a person was armed and dangerous could conduct a "stop and frisk." Once the suspect was detained, the officer was 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 as the search was limited in nature, confined to 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 it is with airport screening.

Prior to Terry, the Court had 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 oppose the current broad provisions regarding airport searches. Air travel is not considered a situation in which passengers have a reasonable expectation of privacy, and "what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures" (Skean, 2002). Given the potential risks of air travel, it can be argued that it is reasonable to search all passengers, even those who would not meet the Terry standard of reasonable suspicion based on individual conduct.

Conclusion

Terry and Lopez set the groundwork for permitting airport searches of all passengers. U.S. v. Davis established unequivocally the administrative and reasonable nature of most airport searches, given that such a 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 retain 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 notion that flight is considered a voluntary activity, efforts to curtail such searches seem unlikely to withstand judicial review in the near or far future.

References

Frischling, S. (2010). How the TSA legally circumvents the Fourth Amendment. Flying with Fish. Retrieved from http://flyingwithfish.boardingarea.com/2010/11/20/how-the-tsa-legally-circumvents-the-fourth-amendment/

Skean, B. (2002). Airport exceptions to the Fourth Amendment's warrant requirement. NIU's Northern Exposure. Retrieved from

Terry v. Ohio. (1968). LII. Retrieved from http://www.law.cornell.edu/supremecourt/text/392/1