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Ray, Lawyer
Category: Legal
Satisfied Customers: 41600
Experience:  30 years in civil, probate, real estate, elder law
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My questions come from a recent event with the TSA and their

Resolved Question:

My questions come from a recent event with the TSA and their means of pat-down and complaints of groping travelers.

1. Are the TSA Searches illegal or legal?
2. Does the TSA Searches violate the 4th Amendment? If so, what judical cases support this?
3. What does mean when it refers to the TSA and Adminstrative searches?

First, let's review the Fourth Amendment. It states, "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.”

Now, let me summarize Fish's argument:

A constant complaint from those opposed to the Transportation Security Administration’s (TSA) new ‘enhanced’ pat down searches is that these pat downs violate a traveler’s Fourth Amendment rights...

While the new TSA enhanced pat downs may violate the Fourth Amendment on the surface, what most people are not aware of is that the 9th Circuit Court of the United States ruled on the search of passengers in airports back in 1973, which effectively suspends limited aspects of the Fourth Amendment while undergoing airport security screening.

In 1973 the 9th Circuit Court rules on U.S. vs Davis, 482 F.2d 893, 908, there are key pieces of wording that give the TSA its power to search essentially any way they choose to. The key wording in this ruling includes “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.”

U.S. vs Davis goes onto to state “[an administrative search is allowed if] 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.”

So far, so good. Though more recent caselaw, which I shall discuss below, clarifies U.S. v. Davis, it is true that airport security screenings are generally classified as valid administrative searches in terms of Fourth Amendment analysis.

But it's Fish's conclusions from the above caselaw that trouble me:

These laws give the Department of Homeland Security (DHS) and Transportation Security Administration significant legal latitude to perform the searches utilizing their current procedures without fear of violating the Fourth Amendment. Any attempt to oppose TSA searches citing the Fourth Amendment would be rebuffed unless done through the proper legal channels...

Presently the TSA has what appears to be a “blank check” in writing out what is “no more intrusive or intensive than necessary” and what is “confined in good faith to that purpose.” With the latitude the agency has been granted … not only does a legal precedent need to be set that challenges U.S. vs Davis, but further oversight of the TSA needs to be created by the House & Senate committees responsible for overseeing and funding the agency...

Misinformed yelling does nothing to help bring about the change that is necessary.

I can only assume that the last comment was directed at people like me, who have been arguing for months that the TSA's full body scanners used as a primary screening device and enhanced pat-downs violate the Fourth Amendment. But as a lawyer in training, I know better than to make unfounded legal conclusions and my argument that the TSA actions violate the Fourth Amendment is based on careful legal research.

Just because the Ninth Circuit ruled that 1973 airport screening procedures were legal administrative searches does not mean that the TSA is not currently violating the Fourth Amendment. In fact, the same court addressed secondary screenings only three years ago.

In Aukai, the Ninth Circuit stated TSA screening procedures are “well-tailored to protect personal privacy escalating in invasiveness only after a lower level of screening disclosed a reason to conduct a more probing search.” (United States v. Aukai, 497 F.3d 955 (2007)).

Employing AIT and enhanced pat-downs as primary screening mechanisms hardly seems to comport to that ruling.

That's a very simple way of arguing that the administrative search doctrine does not cover manhandling and peeping by the TSA, but a look at how the U.S. Supreme Court has justified the administrative search doctrine further reveals the TSA is at odds with the Fourth Amendment.

In Burger, the Court laid out a three-prong test to determine whether a warrantless inspection was reasonable. A warrantless inspection will be deemed to be reasonable only so long as (1) a substantial government interest exists, (2) warrantless inspections are necessary to further the regulatory scheme, and (3) the statute authorizing the warrantless inspection serves as a constitutionally adequate substitute for a warrant. (New York v. Burger, 482 U.S. 691 (1987)).

I will concede the first prong of the test, but the second and third prongs are problematic to those who claim TSA pat-downs and full body scanners are lawful. Are these inspections necessary? Well, when the Government Accounting Office warns Congress that full body scanners haven't been tested and may not be able to detect the very type of explosives material the machines were procured to detect, you have to wonder.

As for the third prong of the test, you could argue that the TSA's organic act, which gives the agency broad and sweeping power to implement airport security, satisfies the requirement, but you might also argue that Congress never intended to allow U.S. citizens to be strip-searched or groped without probable cause in passing the act, even if the language might be construed that way by an overly broad reading of the text.

Fish's final conclusion is correct: this issue is going to have to be resolved in court if Congress doesn't step in first, but we don't need to overturn U.S. v. Davis. The airport screening of 1973 is not remotely analogous to the screening of late 2010 and the Ninth Circuit, or whoever hears the challenge, only has to cite Aukai to argue that such obtrusive searches are only permitted after a passenger sets off a metal detector or arouses suspicion in some other way to give TSOs the probable cause required to conduct such an invasive search.
Submitted: 6 years ago.
Category: Legal
Expert:  Ray replied 6 years ago.
Thanks for your question.You raise some valid issues here.The ACLU may yet ultimately litigate these matters on behalf of the American Public.Certainly there are constitutional issues here at stake.And the more ominous one in my mind is the push to scanners as well.The article here if you have seen it reflects that ACLU is gathering information for possible legal challenges in the near future.Congress is also interested in raising issues on behalf of constituents.I cannot help but think that eventually the Supreme Court ultimately will have to weigh in on the matter and decide constitutionality.
Ray, Lawyer
Category: Legal
Satisfied Customers: 41600
Experience: 30 years in civil, probate, real estate, elder law
Ray and 4 other Legal Specialists are ready to help you
Customer: replied 6 years ago.
Relist: Incomplete answer.
Expert:  Ray replied 6 years ago.
Good luck here, I'll leave for others.
Customer: replied 6 years ago.
I will be awaiting your reply from others. once all information has been gather.
Expert:  Ray replied 6 years ago.
Customer: replied 6 years ago.
Relist: Incomplete answer.
My question was not answer therefore, i would like refund or find someone who can answer my question
Expert:  Law Educator, Esq. replied 6 years ago.
Your previous expert's answer was actually quite accurate based on the fact this is so new of an issue that no courts have weighed in on it yet and the national security argument and the issue that air travel is not a right it is a choice of the customer. Your experts answer was as complete as it could be at this time including the link he provided which was accurate.

For a refund please go to