Today’s blog explores airport searches and the Fourth Amendment of the United States Constitution. Everyone is aware that airport passengers are subjected to heightened scrutiny than an average law-abiding citizen. As we all know, every one of us must undergo some level of government search every time we go to the airport. This blog explores how and why such searches are constitutional and to what extent the government (TSA) may perform airport searches of individuals. For purposes of simplicity, this blog will cover some of the more common and basic TSA search protocols. In the interest of being as succinct as possible, we will not cover the rarer instances of hyper-invasive airport searches, such as strip searches or special x-ray searches (to be distinguished from standard body scanner x-ray searches).
Airport Searches and the Fourth Amendment of the United States Constitution
The United States Constitution provides individuals with many rights and bars the government from engaging in behaviors that violate these rights (click hereto learn more). The Fourth Amendment protects individuals from unreasonable searches and seizures (click hereto learn more). Typically a search warrant is required, however many exceptions, such as consent apply (click hereto learn more).
In addition, there are many special rules for searches. For example, different rules apply for searches of arrestees (click hereto learn more) and for searches of students in public schools (click here to learn more). In order for a “search” to have occurred under the meaning of the Fourth Amendment, a person must have a “reasonable expectation of privacy” (click here to learn more).
Generally speaking, arrestees and students have less of an expectation of privacy. Airplane passengers also have less of an expectation of privacy. In addition, airplane passengers must give some level of consent to be searched in order to exercise the privilege of riding on an airplane. Further,due to security concerns, the government has a “compelling reason” to perform searches of individuals that may otherwise be deemed to be unconstitutional in other settings.
Thus, the government is able to perform airport searches on law abiding passengers that would otherwise be deemed unconstitutional in most other settings. Simply put, special rules apply. Now let’s take a look at the extent that the government is allowed to search you and when it is allowed to perform more invasive airport searches on law abiding passengers.
All passengers are required to submit to search
Under Federal Law, all passengers must submit to a search of their belongings and their person.
But what about the individuals who are pulled aside for a more thorough search?
Additional and/or more thorough searches of a passenger’s person or belongings must be random or be conducted for a specific security reason. Let’s call these security searches “for cause searches”.
A search may be “for cause” for certain objective reasons as well as more subjective, TSA judgment-based reasons. Some examples of objective reasons include if someone sets off a metal detector or full body scanner (see below) or has attempted to bring in prohibited items. Some more subjective reasons include if a person is deemed to be behaving in a “suspicious” manner.
Obviously, the fact that the TSA agents can search people based on subjective factors and can perform “random” searches of passengers raises some cause for concern regarding profiling and discriminatory behavior. The fact of the matter is, TSA agents are given wide latitude to exercise discretion regarding who they search and many people have extremely valid concerns about this.
Full Body Scanner Searches
This type of airport search warrants a special section in this blog because such a search, while hyper-invasive, is standard practice in the United States. To see some examples of the types of images that these scanners produce, click here (warning: some more sensitive readers may find these pictures to be graphic, as they depict adult anatomy).
Under Federal law, all passengers may be required to submit to a full body scanner search. In fact, airports such as Charlotte Douglas International Airport require every single passenger to submit to a full body scan. However, federal law also allows for individuals to decline a full body scan search and instead submit to a hyper-thorough pat down of the person by a TSA agent. However, individuals that decline the full body scanner must wait for sometimes long periods of time, which one may not be able to do without missing one’s flight.
Individuals who set off the full body scanner will be subjected to a hyper-thorough pat down of the person as well as a residue test of the hands meant to detect explosive or gun powder residue.
While the practice of using full-body scanners is alive and well in the United States, the European Union has banned the use of full body scanners in airports citing health and safety concerns. Other countries forbid these scanners on being used on ALLminors due to the graphic nature of the images produced by these scanners.