I am not a lawyer, nor do I play one on DU

[IDemo]

But doesn't the Fourth Amendment bear any relevance to the current topic of the day - TSA pat-downs? Has anyone with more legal background than I something to offer here? I'm aware of the fact that the expectation of privacy doesn't apply at seaports or points of international departure and arrival. Laptops are commonly examined or even confiscated because of this (and I do not agree with that exception). But the TSA outrages are occurring at almost all airports, regardless of whether they are international.

http://www.lectlaw.com/def/f081.htm

Blanket searches are unreasonable, however 'evenhanded' they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-2, 92 n.4 ('79) (invalidating a blanket patdown search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but 'evenhanded' general police searches.

[PeaceNikki]

1. TSA's official take on the matter:

Even prior to the passage of ATSA and the Federalization of the screening work force, Federal courts upheld warrantless searches of carry-on luggage at airports. Courts characterize the routine administrative search conducted at a security checkpoint as a warrantless search, subject to the reasonableness requirements of the Fourth Amendment. Such a warrantless search, also known as an administrative search, is valid under the Fourth Amendment if it is "no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, " confined in good faith to that purpose," and passengers may avoid the search by electing not to fly. .

While the searches at the airport will be conducted by private screening companies, such searches will continue to be subject to the Fourth Amendment requirements of reasonableness because they are conducted at the instigation of the federal Government and under the authority of federal statutes and regulations governing air passenger screening.

http://www.tsa.gov/what_we_do/optout/spp_faqs.shtm

[IDemo]

3. So who gets to decide that public screenings fit the "administrative search" definition?

Are traffic checkpoints for drunk drivers under the same umbrella?

[PeaceNikki]

5. I don't have the answer you seek but am also interested in the answer.

[elleng]

7. Courts, ultimately the U.S. Supreme Court

[jberryhill]

10. Yes, it is the same category of search cases as sobriety checkpoints

There is quite a body of case law in this area.

This particular issue is not a slam dunk for either side, but that is why we have a procedure - ie the federal courts - for sorting this stuff out, instead of who can shout the loudest.

[sabrina 1]

2. If you still believe in the Constitution it is very relevant. If you have

succumbed to the politics of fear, then no, we must do anything we can, even if it means destroying the Constitution, to remain safe. Of course we are not safe, but shhhh, that is not important. It is the illusion of safety that matters.

I expect there will be hundreds of lawsuits over this, maybe even criminal cases as more and more people are groped and fondled inappropriately. If it happened to me, I would definitely be willing to sue, but I am among those who will not be flying until our constitutional rights are restored.

[jancantor]

4. Among other things, the first sentence of your cite offers you part of an answer

"traditional criminal law enforcement context"

TSA searches don't fall under "traditional CRIMINAL law enforcement" context...

I;m not saying they are or aren't justified. I am saying TSA are not police, their primary goal is NOT law enforcement, and the purpose of a search done by TSA is not to gather evidence. It MAY result in criminal evidence, but that's not the purpose.

This is similar to the "border search' exception which has existed for a much longer time than many people realize.

[IDemo]

8. That caught my eye as I read it again

Not the police who are conducting the searches, but employees of TSA.

Still, when the answer given is "if you don't like it, then don't fly", it brings to mind a statement I read a few years ago regarding the Constitution: the Founders considered the right to free travel so fundamental that it was not seen as a necessary addition.

[jancantor]

13. right

but let's remember that airplanes are special in many ways. They are essentially a thin skinned metal tube filled with captive riders (kind of hard to get off in the middle of the flight) and some very hot burning fuel. Whatever amount of damage one person can do with a car, a plane can do exponentially more damage. It's also a closed environment, much like a courthouse (and unlike say... a school) where EVERYBODY who comes on is screened.

Generally speaking, when a law enforcement officer conducts a search (incident to arrest, pursuant ot warrant, etc.) a person has no choice (unless it's a consent search). In the case of airplanes, you do have a choice not to enter the plane...

Again, I am NOT saying this level of invasiveness of a search is justified. I am just saying that the "reasonableness" standard under the 4th always involves a balancing test, and thus you have to look at the totality of the circumstances.

It's kind of a unique situation in that airlines are private companies, however HEAVILY regulated federally (air traffic controllers being a good example), that have all sorts of issues regarding airspace (heavily regulated), fuel (ditto), passage over sensitive areas (ditto) etc.

We've always recognized a right of airport security (private or govt.) to conduct searches of passengers and their luggage. In fact, with luggage, you have ZERO right to privacy. Once you turn it over to the airport personnel, they can search it without any cause and be almost as invasive as they want (generally speaking they cannot access data on hard disks, etc.).

It's when the search applies to the person, that we get (understandably) more sensitive to privacy issues regarding flight.

[Greyhound]

6. For all intents and purposes the fourth amendment was rendered invalid in the 80's.

Also in response to "safety" issues growing out of a bogus "war".

We've always been at war with Oceania...

[jberryhill]

12. Yes

There have been serious erosions in some circumstances. The result is that search law is so convoluted, it is difficult to know what exception may apply in a given situation.

I blame civics education. It is one thing when we chuckle at teabaggers whose position is "the constitution means what I say it means", but that is hardly limited to them.

[jberryhill]

9. Yes, but you are looking at the wrong line of cases

If you are going to say that mass search is unconstitutional in any circumstances, then you are going to have to get rid of the metal detector and the bag X-ray, because these two are searches.

This is a species of "suspicionless search" known as an administrative search. A good example is a sobriety checkpoint. Tha can be done for a legitimate purpose - eg finding drunk drivers - but has to follow certain rules.

First - you can't "target" anyone you want. You can search everyone, x% of everyone at random, or every nth person.

Second, you can add in anyone giving an objective reason to stop them - eg taillight is out, car was speeding.

There are some here who think it would be better to target searches based on an interrogation of passengers. Those people are right. However, that approach causes a fifth amendment problem on top of the fourth amendment one. They do not understand how the current policy WAS shaped by case law in this area.

Part of the relevant analysis is whether the current process is only as intrusive as required by the circumstances. The government would argue that it is, on the basis of the underwear bomber attack.

[nadinbrzezinski]

11. There are several lawsuits in place

the TSA is trying to pass this under the 1980s decision... but I suspect this will not pass muster once it reaches the courts. Of coursethe USSC might have a different take than me since they are quite on the right, but have surprised me a few times.

[customerserviceguy]

14. Yes, the prior security measures were upheld

But that was only while they were doing non-invasive things, such as X-raying luggage instead of people, and the metal detector, rather than the nude body scanner. Also, the groping was only a true patdown before the recent regime, and the courts backed it up.

At some point, it has become unreasonable, and there are a number of us who are willing to state that we feel that way, before they get to the routine random body cavity searches of little children and old ladies. Maybe having three women on the Supreme Court will make a difference in what is considered beyond necessary.