Airport Searches Illeagal?

[skydiverdriver]

You are correct that flying is a privledge. However, the activity that you are participating in has NO bearing on your civil rights. The only time an activity would have any bearing would be if you were doing something illegal. Even the Supreme Court has said that you do not give up your rights when you enter a school (or any other location). If you think the fact that I fly a plane is a reasonable cause to make a search, then I guess they can search me anytime elsewhere too, right? So, where am I protected, and what is an unreasonable search?

 

[aero99]

Would be nice if the pilots could be included in a "trusted fliers program".



Officials to discuss trusted fliers program
February 25, 2002 Posted: 10:37 AM EST (1537 GMT)






WASHINGTON (CNN) -- Homeland Security director Tom Ridge will meet Monday with John Magaw, the head of the Transportation Security Administration (TSA), to try to work out their differences over the advisability of a trusted fliers program.

TSA officials have said the agency supports with reservations the trusted traveler idea, so long as the person still undergoes security screening at the airport. The fear is that a member of a terrorist sleeper cell, as a heretofore law-abiding person, could obtain such status as "trusted traveler."

The TSA last week scrapped a separate but related plan for expedited security screening lines that five airlines had established in more than a dozen cities for frequent fliers and first class passengers.

The agency said it wanted uniformity and consistency in the screening process. The move was one of the agency's first major enforcement actions since assuming responsibility for airport security February 17.

A spokesman for the Office of Homeland Security said Ridge does not believe it is a wise use of resources to subject everybody to the same level of security, and he will explore with Magaw the possibility of testing a trusted traveler program at a selected airport.

Ridge, according to a spokesman, believes it is important to both improve security and cut down waiting times at the nation's airports.

The subject came up Sunday at a meeting of the National Governors Association. Oklahoma Gov. Frank Keating told Ridge the current security system provides a false sense of security while exacerbating delays that will discourage travelers and slow the recovery of the airline industry.

-- Aviation Correspondent Kathleen Koch contributed to this report.

 

[skydiverdriver]

Hey flydaplane, I don't mean to demean what you said, but how can jumpseating or non-revving be seen as a same day purchase? A non-rev is someone who doesn't purchase a ticket, and neither do jumpseaters. Perhaps you mean something like going without a ticket.

 

[Andy Neill]

Skydiverdriver,

A couple of posts ago, you mentioned that it would not be acceptable to subject ourselves to random auto searches even though driving was a privilege. Interesting point.

Some communities, in an effort to thwart drug trafficking, set up highway stops to conduct 100% or random searches. These were deemed illegal in original or appellate courts. The tactic governments have used to get around this is to identify a compellling reason for the original stop. Some use "safety checks". If during the course of a safety check, a whiff of marijuana was smelled (or any number of trigger events), then the officers had probable cause to search. We recently had what I thought was an extreme stretch of this principle used when a driver was arrested because, seeing the check point and not wanting to be delayed thusly, turned around and drove away.

Now as to how this policy could be applied to the subject at hand, I am not certain. Is walking through a metal detector with no probable cause an illegal search? If setting off a metal detector, is a wand an illegal search? If setting off a wand, is a manual search intrusive and illegal? Is turning away from the metal detector (change of mind from going by air) probable cause?

 

[jetdriven]

I hope they include the pilots in the 'trusted flyers program"!! After all the employers trust us with the airplanes!!!

 

[ShawnC]

Skydiverdriver,

A couple of posts ago, you mentioned that it would not be acceptable to subject ourselves to random auto searches even though driving was a privilege. Interesting point.

Some communities, in an effort to thwart drug trafficking, set up highway stops to conduct 100% or random searches. These were deemed illegal in original or appellate courts. The tactic governments have used to get around this is to identify a compellling reason for the original stop. Some use "safety checks". If during the course of a safety check, a whiff of marijuana was smelled (or any number of trigger events), then the officers had probable cause to search. We recently had what I thought was an extreme stretch of this principle used when a driver was arrested because, seeing the check point and not wanting to be delayed thusly, turned around and drove away.

Now as to how this policy could be applied to the subject at hand, I am not certain. Is walking through a metal detector with no probable cause an illegal search? If setting off a metal detector, is a wand an illegal search? If setting off a wand, is a manual search intrusive and illegal? Is turning away from the metal detector (change of mind from going by air) probable cause?

They are illegal and I don't blame people for turning around at the checkpoints. When I was in that line once I did the turn around myself, there is no where in the law that says that you must submit to it.

As far as the security at airports, I believe there will be someone with enough balls to get caught and take it to court. I just hope that it happens soon.

Oh well thats just IMO, these days everything is being taken to the extreme when it comes to security.

 

[RJFlyer]

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

 

[ShawnC]

Well guns and knives are easy to deal with, just bring your own gun or knive on the planes. Bombs well there is still the bomb sniffing dog (that has been deemed consitutional by the supreme court).

 

[ksu_aviator]

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

Really if the FAA said something broad like all flights operated under 121 must ensure that no weapons are carried by unauthorized passengers onto the airplane. Then the airlines would be required to screen everyone and the question of constitutionality would be solved. This way, being screened is a condition of the ticket you purchased with the airline. The airline does the screening of passengers and baggage. When the government does it themselves, then we have problems.

 

[Lindy]

It doesn't have to be the FAA

"Really if the FAA said something broad like all flights operated under 121 must ensure that no weapons are carried by unauthorized passengers onto the airplane. Then the airlines would be required to screen everyone and the question of constitutionality would be solved. This way, being screened is a condition of the ticket you purchased with the airline."

KSU -- It doesn't have to be the FAA!! A company can implement this policy on it's own (some have already) and the FAA doesn't need to be involved.

The primary issue everyone seems to believe is whether an airport search through a security checkpoint is constitutional.

No one can provide a legal argument stating that it is unconstitutional!! The closest example would be the "Motor Vehicle Checkpoints" as discussed for Safety issues. The leading case pertaining to this issue was decided by the Supreme Court more than 7 years ago. A Michigan driver was stopped, arrested for drunk driving, and sued. It followed it's way through the Michigan Courts (including the Michigan Supreme Court) and was finally appealed to the US Supreme Court. Guess what the Majority stated?? LEGAL!! However, it was a "state's rights" issue and was remanded for further consideration. A state has the right to have legislation stating the "MV Checkpoints" are legal (or not). Why was it legal?? The crux of the argument was SAFETY!! Taking one drunk driver off the road to protect the other driver's was a key argument. This outweighed any privacy an individual might have had driving through the checkpoint.

Flying is NOT a "State's Rights" issue. (Yes, several states have enacted aviation legislation WHEN THE FEDERAL AVIATION ACT OF 1958 et seq does not speak to a partiuclar issue. However it is primarily property issues (floatplanes on waterways is one that comes to mind....).

I would love to see this challenged in a court -- I'm furloughed and just may travel to any oral argument to hear the claim that the plaintiff's attorney is proffering. If anyone hears of this being challenged, let me know!!

And, if I could think of a constitutional argument stating that they were illegal, I would write about it and beg someone to publish my "well-thought out legal literary theory of unconstitutionality."

 

[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.