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I'm referring to the fourth amendment, regarding unreasonable searches and seizures.
Many find the Bill of Rights germane to a discussion regarding the TSA, but I've not yet encountered someone who can make a reasonable argument for declaring it irrelevant, so I was curious to hear the reasoning behind the statement.
The 49 US Code SS 40103 is the appropriate reference for the public right of transit through navigable airspace.
With some serious trepidation, and against my best judgement, here is the reasoning behind the legality of airport security screening and searches. Somehow I know I'll be sorry I didn't just keep my mouth shut and continued watching the Knicks and Bulls.
The Fourth Amendment:
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.
The key word is "unreasonable." Case law has found that airport security checks are not unreasonable and do not violate the Fourth Amendment based on a principle called the
Administrative Search Doctrine. Basically, airport screening has been found by the courts to be administrative (not criminal) searches “conducted as part of a general regulatory scheme” where the essential administrative purpose is “to prevent the carrying of weapons or explosives aboard aircraft”. An airport screening search is reasonable if it is no more extensive or intensive than necessary, in light of current technology, to detect weapons or explosives, and it is confined in good faith to that purpose.
The screening and searches must be conducted by administrative personnel, not armed police, The screening and searches must not carry the stigma of a criminal investigation, and cannot be for the purpose of discovering evidence of criminal activity. A person must be allowed to avoid screening by electing not to fly, however, that election must take place before the screening begins. Once a person enters the screening process, they cannot back out.
If all those conditions are met, then the courts have determined that the searches are legal and are not "unreasonable" as courts have interpreted the meaning of the Fourth Amendment. If, in the course of the adminstrative search, evidence of a crime is discovered, that evidence is admissible at a criminal trial.
The key case that established this principle was
US v Davis, 482 F.2d 893 (1973). Multiple cases have followed this one, and all have been decided in favor of airport security searches not being in violation of the Fourth Amendment. More cases are in process, with the point of argument being the degree to which present airport security meets the "reasonable" requirement of
Davis. There is no way to know if future courts will change the interpretation of the administrative exceptions to the Fourth Amendment. However, courts are typically not inclined to overturn case law absent significant changes in circumstances or a change in the arguments.