Airport Searches Illeagal?

[Timebuilder]

I'd like to hear those arguments, also. Drop a PM if you hear of any.

 

[prpjt]

As far as airline employed screeeners violating someones 4th amendment rights, it's not an issue; the airline can pretty much do as they please as far as boarding requirements. A pax can always elect not to purchase the airlines service. In as much as an employee is concerned; the airline can do pretty much as they please as far as boarding requirements.
This issue Might get muddied when the Fed's employ the screeners, but probably not. The distinction lies in the fact that the screeners will be Federal bag checkers and not empowered as law enforcement personel,(I could be wrong here) there's a huge difference when it comes to the fourth amendment.
In a court challenge concerning search and seizure, the courts have a litmus test to see if the fourth amendment even applies. I've copied the plain language form from NOLO below:
The Fourth Amendment applies to a search only if a person has a "legitimate expectation of privacy" in the place or thing searched. If not, the Fourth Amendment offers no protection because there are, by definition, no privacy issues.

Courts use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched.

1.Did the person subjectively (actually) expect some degree of privacy?
2.Is the person's expectation objectively reasonable, that is, one that society is willing to recognize?
Only if both questions are answered with a "yes" will a court go on to ask the next, ultimate question: Was the search reasonable or unreasonable?
I don't think a challenge would get past this stage because: a) How many people in our society go to get on a plane with the expectation that their bags and person will not be checked. b) if a person has the expectation that they won't be searched, will society see this as reasonable.
Let me add that I think strip searching the folks in the pointy end of a plane is a bit counterproductive, and something needs to be done to streamline the process. But I don't think a 4th amendment challenge is it.

 

[ShawnC]

Now if they aren't empowered with law enforcement powers than why can you get arrested if you have a knife in your bag, you will get arrested?

Well thats just how I see it we will probally find out in a few months.

 

[skydiverdriver]

Again I ask, if these searches are reasonable and legal, then when are they not? What is a constitutionally protected activity, and when are searches unreasonable and illegal?

I also feel that random drug testing is unconstitutional, and if they started doing it to congressmen, then it would stop immediately! Again, I'm talking about going to work, this has nothing to do with serching the passengers. I'm only talking about pilots and other flight crewmembers.

Thanks for the lively debate. I think this search precident is starting us on a very slippery slope. Perhaps I should write a letter to Thomas Sowell or Robert Bork.

 

[prpjt]

(Now if they aren't empowered with law enforcement powers than why can you get arrested if you have a knife in your bag, you will get arrested? )
The screener doesn't make the arrest, they detain until the police get there, much like the rent a cop detains a suspect trying to get out of books a million with this months Hustler stuffed in their pants.
SDD, here's an illegal one. Border Control agent boards a bus to check passports, I think. Squeezes a duffle bag and feels something that feels like a brick. Opens the bag and finds a brick of Methamphetamine, arrest is made. The court ruled that this was an illegal search and the Meth was inadmisable as evidence.
Basically they felt the border agent had no business squeezing bags, and go into detail as to what is a legal and illegal squeeze.
As far as employees being searched, is there maybe some fine print in your contract, that could be manipulated into meaning you consent to being searched by your employer? Or that by accepting employment you by default consent to the search? Just like when you make an application for a drivers license there is fine print that says you consent to a breathalizer test. Most of us don't read the legal mumbo jumbo, we just sign and get out of the DMV as quick as possible. By the way, I'm not a lawyer, just throwin' this stuff out for discussion.

 

[ksu_aviator]

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

That should be all the argument needed. Show me where the governement has "probably cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person's or theings to be seized." The words oath or affirmation imply that testimony or proof of wrong doing must be presented in order to search and seize an individuals property. The government has neither proof nor testimony that I have done any thing to warrant being searched and therefore has no legal authority to do so.

How ever, like I and others have stated if the airport or airline felt so inclined as a part of our dealings/employment then that would be a completely different issue.

 

[RJFlyer]

prpjt: good points.

ksu_aviator:

How ever, like I and others have stated if the airport or airline felt so inclined as a part of our dealings/employment then that would be a completely different issue.

The airlines paid for security screening, prior to last month. Now the government has seen fit to take over, on what I assume was a Congressional vote spurred by constituent sentiment. So was it constitutional last month, but not this month merely because the airlines are no longer paying Argenbright but the government is? After all, currently those doing the searching are still employees of a private company.

 

[Flydaplane]

Skydiverdriver, I understand that jumpseaters and nonrev employees are not actually purchasing the ticket, however most, not all, airlines' computer systems input their names into the computer (as standby's or something like that) and for one reason or another they come up as selectees. Not sure why some do and some don't.

 

[ShawnC]

prpjt: good points.

ksu_aviator:



The airlines paid for security screening, prior to last month. Now the government has seen fit to take over, on what I assume was a Congressional vote spurred by constituent sentiment. So was it constitutional last month, but not this month merely because the airlines are no longer paying Argenbright but the government is? After all, currently those doing the searching are still employees of a private company.

Well thats the question that I am rasing pirior to this the only place that we could complain to is the FAA for making the regs, and the airlines for hiring the people.

Now that they are government workers (or will be in the coming months) there is now the questions of consitiutionality once they all become government employees. From what it seems like, I have done no harm and you have no probale cause to search me (traveling is an everyday activity there is nothing out of the ordinary when you travel). I could just as easily taken my care and these days for the shorter trips it would actaully take less time if you drive.

 

[RJFlyer]

I could just as easily taken my care and these days for the shorter trips it would actaully take less time if you drive.

I assume you mean you could just as easily drive and it would be faster. This is true, and this is one of the options you have when you decide to travel. This is where the issue of consent comes in - you have other travel options, and you can certainly expect to be screened when traveling by air. Therefore, in purchasing your ticket, you imply consent to be screened (this applies to airline employees, as well - you imply consent by accepting employment at an airline).

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

I think the key aspects of this quote are the terms 'unreasonable searches and seizures,' 'probable cause,' and 'particularly describing the place to be searched, and the persons or things to be seized.' Is it unreasonable for the airlines, the government, and the people of the US to assume that there are people who would like to carry weapons aboard an airliner? I don't think it's unreasonable at all, therefore it would seem to be a 'reasonable' search. Probable cause - again, there are those who would (and will) attempt to bring weapons aboard airliners. That's a pretty good cause to search for those items. And the place to be searched is the entire secure area of the airport terminals, and all effects within that area. The things to be seized have been spelled out by the FAA - knives, guns, explosives, pointed objects, nail clippers, etc.

One other aspect I think is important in this issue is that there is already precedent, in that these searches have been performed for years. The government is doing nothing new, just doing the same old stuff on a more comprehensive scale.

 

[Andy Neill]

RJFlyer,

It is reasonable to expect that there are criminals, illegal weapons, and drugs in some US neighborhoods. That does NOT give the government probable cause to search that nor ANY other neighborhood door to door without a warrant.

 

[RJFlyer]

Andy,

You are right, but they are not screening you in your neighborhood. See the rest of my post about implied consent, etc.

I will repeat my question from several days ago, which nobody seems to have an answer to:

Let's assume for a moment that those of you who believe airport security is unconstitutional (i.e., illegal search and seizure) are proven correct. How then would you propose to keep bombs, guns and knives off of the airplane you are flying?

Lots of people are on here complaining about their rights being violated, with nobody proposing a solution.

 

[ksu_aviator]

RJ, your argument is somewhat flawed. Just because it is reasonable to believe that someone in a group of people may be carrying something similar to a weapon does not mean that the government has probable cause to search any one individual. Especially if no prior knowledge of a weapon exists.

As for the solution, I thought I stated it. Continue with private organizations conducting the search. A simple regulation that states either the Airport or Airline is responsible for ensuring that no weapons are brought onto an airplane (save the hunting rifles, shotguns and other no explosive weapons carried in cargo). Then the issue becomes one of consent. Not only would a passenger consider the price of a ticket, but the security that the airlines and airports offer would also be a consideration. The government can still set forth guidlines that the airlines and airports must follow. But, if the government is involved in the actual search it becomes unconstitutional.

 

[aero99]

Cops at airports can walk up to you and ask if they can do a search of belongings and pat down. If you say no, they will escourt you to a back room and write up a warrant to search you right there. The fact that you denied a search gives them probable cause, and the warrant makes it legal. They can do the same thing if they pull you over for a busted taillight.

I am not a cop nor a lawer, but a buddy of mine was a narcotics officer and he did this at DFW. Of course, they usually had something else they were going off of like a tip, but thats how they busted drug runners.

This seems unreasonable to me, but it happens. They are using the same tactics as it related to terrorist, but on a much wider scale.

 

[Andy Neill]

I was under the impression that only courts could issue warrants. Am I mistaken?

 

[aero99]

Judges issue warrants. There would be a judge at the airport to issue when they did drug searches.

 

[Andy Neill]

OK. That's good. We have a judge at the airport. That will make things easy.

"Excuse me, your honor. I have 300,000 people who will be passing through here today, and I wonder if you would mind writing individual search warrants. Probable cause? Well, you see, your honor, these people are traveling and we think SOME of them MIGHT be carrying weapons. Which ones? Well, your honor, I don't know exactly WHICH ones but surely SOME of them are. What's that, your honor? Don't let the door hit what on the way out?"

By the way, on the broken tail light stop, the police would NOT have the authority to search the trunk on such a stop.

 

[aero99]

Andy,

I didn't mean to imply that I agree with searches in this matter. Just another .02 to think about. My how 911 has changed our lives.

And you are correct on the tail light. But, if the cop finds somehting else that is probable cause they could. Don't know if they need a warrant or not at that point.

Again, I'm not a lawyer nor will I pretend I know too much about the law. The security at airports is insane right now and I would bet Airport Security and how it is handled will be a hot topic for years to come.

 

[prpjt]

For passengers anyway, there is a consent to search in a document called " conditions for carriage" or contract for carriage. This document should be available at the airport. More than likely airline employees are also bound by this or another contract. I don't know. This is the document that spells out what the airline is liable for, say if they lose or destroy your bag. Here's an excerpt from Phillipene Airlines contract.
E) SUBJECT TO SEARCH - The Carrier reserves the right to search the passenger and inspect or examine his baggage(s), in coordination with the airport authorities, for any prohibited materials and substances and seize such, if discovered. A passenger refusing to be searched shall not be allowed to board the aircraft for his designated flight. The Carrier, furthermore, reserves the right to refuse to carry, at any time, any baggage discovered to contain any prohibited or unacceptable article(s) or any baggage the inspection of which is refused by the passenger.
Comair's contract says basically the same thing. Though crewmembers are not specifically mentioned, I would bet there is some written legal jizmo that adreeses the crew somewhere.

 

[Lindy]

United States Supreme Court

First, the issue of searching individuals is NOT unconstitutional. Please read Terry v Ohio, as discussed in a previous post. It was decided 30 years ago!!

If you really are going to quote the U.S. Constitution, then maybe you should understand how the United States Supreme Court has decided, over hundreds of years, the meaning.

The statement about warrants -- do you see the "and" before "issuing of warrants" The 4th Amendment has two clauses....unreasonable searches and seizures and the issuing of warrants.

The first part of the amendment is broken down into a two-part litmus test, as desribed above. Additionally, before 9-11, the purchase of your airline ticket was IMPLIED CONSENT to be searched by the Airlines. The Airlines are not providing a service to benefit the population, but trying to make money. If an Airline continually was hijacked or had bomb threats, would you, an average individual choose to fly? NO. You would fly the (allegedly) safer Airline. Security began because of hijackings and the safety of the passengers (read: it cost the Airlines less money to hire security than settle lawsuits of hijacked passengers).

And, who would you sue? You cannot make allegations that it is unconstitutional for your employer to "search" you every time you went to work? Why -- the airline is private sector. So you would bring the lawsuit in Federal District Court against the United States governent, alleging that it is a government function and all searches are "unreasonable." Any proposed lawsuit against an airport search as being unconstitutional would be denied. Why? There is not a "reasonable expectation of privacy" afforded to individuals flying on an airline. The alleged infringement of constitutional rights outweigh the "greater good" (airline safety).

And, on a business note: say an airline decides that you are correct and will stop searching passengers. It would take an insurance company only minutes to cancel any policy. That's right, aircraft hull & liability -- cancelled; personal injury -- cancelled. Now if there is any type of accident, for example, aircraft slides off the end of a wet runway, totals aircraft to the tune of several million dollars and many injured passengers. Who will pay?? The insurance companies have cancelled the policies (airlines are underwritten by several companies, not just one; additionally there exists a term called "reinsurance" thrown about on potentially large liability policies) and now the airline is bankrupt.

The arguments about airport searches being unconstitutional have no merit. If you would like a better understanding of the law, as decided by many benches, then go to the United States Surpeme Court site and research cases. Begin with Terry v Ohio.

 

[Andy Neill]

FurloughedGal,

First, many thanks for the reference. It made for some interesting lunchtime reading. However, I remain unconvinced.

Don't you think there were some striking differences between Terry v Ohio and the everyday traveler going through security? In Terry, an EXPERIENCED (39 years as a policeman) detective observed repeated SUSPICIOUS behavior over a period of time. He eventually questioned the suspects (granted, before reaching grounds for arrest) and searched them as a PRECAUTION FOR HIS OWN SAFETY. During the couse of the searches, he found the weapons which led to their convictions.

The court, in their opinion asserted that the provisions of the 4th Ammendment protect the person, not the place meaning that the men the policemen detained, barring any suspicious behavior on their part, retained that right of privacy from search even on the streets of Ohio.

Now let's get back to the everyday air traveler. What has he done to arouse the suspicion of law enforcement authorities that would warrant a search of his person or belongings? What reasonable belief does a police officer have that he would find a weapon. Of the hundreds of thousands of searches done daily, why is it that when a weapon is found, it makes national news? The reason is that it is a one in a million event. If I am not acting suspiciously as I travel, the government has no right to detain me. If finding a weapon is a 1:1,000,000 event, the government has no reasonable basis to believe that I pose any harm to its agents.

I remain unconvinced that Terry v Ohio provides any justification for the bulk of airport searches.

 

[ShawnC]

Well you make some good point but there are some holes in your defence, first in formost I relize that before it was private and there was implied consent to be searched my an airliner representive, well now they are federal workers/officers and that changes alot.

Second from the Terry v Ohio they came about the weapons search, "Terry" Pat. They are allowed to quickly search you for guns and knives and other hazderous materials. But they can't pull out a bag of dope if they feel it, they must ask (there have been several cases dissmised due to evidence found during a Terry pat is thrown out). When they said weapon the law generally mean weapons, knives guns, etc. But it doesn't say anything about Medal of Honors, nail clippers, and nail files.

 

[RJFlyer]

Ok, once more. What would you propose be done then? How do we keep our aircraft safe from hijackers and suicidal maniacs? And ksu_aviator, your solution isn't a solution - the airlines had that responsibility before, but the public (through its elected representatives) deemed that they weren't doing a proper job and placed the responsibility on the federal government.

Currently the only difference between today and pre-911 is the type of items allowed to be carried (or not) and the thoroughness of the screening. Did you all forget that there was security screening pre-911?

When they said weapon the law generally mean weapons, knives guns, etc. But it doesn't say anything about Medal of Honors, nail clippers, and nail files.

The perception of what is (or could be) a weapon has changed.

Which portions of the screening process do you object to (those of you who think screening is unconstitutional)?

 

[ksu_aviator]

I never said that what we had before was good, I just said it was constitional. Transferring the same screeners from private to federal didn't improve anything. It was constitutional before and it can be improved. Remember the terrorists did everything legally up until they charged the cabin. They used the rules against us, not the personell. Change the rules not how writes the paychecks.

 

[flx757]

here is some news for all you 121 pilots. Every time you are a "Random" selectee at the gate and you are in uniform that airline is wrong. I just got a copy of the FAA security memo, and it say that crew members in uniform are exempt from randon screening. Talk to your union about it. Our chief pilots and union reps are calling any stations we report. It doesn't matter if you are jumpseating, nonreving. If you are in uniform they can not select you. The only way this will end is if we make sure the gate agents(nazis) follow the rules the FAA has set.

Actually, the security directive states that uniformed crewmembers are exempt from random screening AT THE SECURITY CHECKPOINT. What happens at the gate is something else entirely...and it's been my experience that dead-heading crewmembers and jumpseaters will most likely be selected.

 

[Lindy]

Private Sector

The issue of constitutionality pertains, generally, to governmental entities. Flying as a passenger is a private sector issue. As such, the companies have the right to refuse boarding and/or handling of bags/freight.

The company chooses how to handle the boarding of passengers. If they wanted to make us strip down before we utilized the service they are providing, the airline could demand such actions. (Note: This is a hypothetical......)

With respect to the discussion of Terry v Ohio, why did I utilize the case for this discussion? It was decided by the US Supreme Court, upheld numerous times, and is the law regarding "searches of individuals." Yes, the facts are different...a police officer (government function) searching an individual on the street versus a passenger being searched in order to board an airplane.

What I see missing in these discussions is the purpose of the search -- access to aircraft. (Now, if you want to discuss the disparate treatment of mechanics, a/c services personnel, etc. versus flight crews, well..........).

The airline has the final authority (or should I say the Captain ...I'm digressing....looks like the American Airlines Captain versus the Secret Service Agent is beginning to heat up via legal channels.....) to decide who they will or will not board.

The whole argument about constitutionality is irrelevant with respect to security searches at the airport -- it isn't a government function. Talking out of both sides of my mouth? (I haven't read the recent legislation regarding federalizing, etc. However, I have faith that it will be attacked constitutionally in the courts, and will survive, in a meandering way, the legal attacks.)

If you want to fly on [insert name of company] airline, then that airline has the right, responsibility, and authority to decide who they will or will not permit access to the aircraft.

FYI: If anyone is interested in "landmark" cases decided by the Court, I would suggest picking up "May it Please the Court...." It is a great overview of arguments presented with respect to some of the more recent/popular issues addressing the Court. For example, the Miranda case is discussed as well as reverse discrimination.

Or, spend three years in law school.....pass the bar....and decide that flying a Learjet is cool....