it must fit into a few "specifically and well-delineated exceptions" (Katz, 1967). Of course, in the airport security context, "time limitations effectively preclude security personnel from obtaining a warrant for searching" (McGinely and Downs, 1972). Therefore, airport security searches, if they are determined to be searches in the context of the Fourth Amendment, must fit into one of three established exceptions applicable to the airport security context: the administrative search exception, the stop-and-frisk exception, and the consent exception. Other exceptions, such as exigent circumstances or a search incident to a lawful arrest based on probable cause, have been found to be applicable in the airport security context, but these will not be discussed in this report since, by their very nature, they are random and unpredictable occurrences.
Virtually all Fourth Amendment challenges to airport security screening devices and procedures have been claims made by criminal defendants seeking to exclude the evidence so obtained from criminal trials or to overturn convictions. These people were found to have had illegal items, such as drugs, on their persons or in their carry-on baggage during a security search. To prevent the use of the discovered evidence and to thwart a criminal prosecution against them, these defendants sought to suppress the evidence by alleging a violation of the Fourth Amendment; that is, that the evidence was obtained as a result of an illegal search.
Occasionally, a person who has not allegedly committed a crime, at least not in the current lawsuit, brings a civil claim for a monetary award based on Fourth Amendment protection or makes a criminal complaint against officers or agencies responsible for breaching their protection. A person or group may also sue to stop an allegedly violative process in advance (Klarfeld, 1992; Hartke, 1973; Wagner, 1985; Bivens, 1971).
Airport security searches fit quite naturally into the administrative search exception to the Fourth Amendment. Administrative searches are justified on the basis that they serve a societal purpose other than standard criminal law enforcement (Vernonia School District 47J, 1995, citing Griffin, 1987). After all, the Fourth Amendment cannot be construed to prevent the government from fulfilling a variety of other necessary functions, such as maintaining school discipline, preventing drunk driving, detecting illegal aliens, or even ensuring air traffic safety (Vernonia, 1995; Michigan Dept. State Police, 1990; United States v. Martinez-Fuerte, 1976).
The first issue that must be faced in determining whether a search scheme falls into the administrative search exception balances the privacy interests sacrificed against the societal purpose or the need for which the search scheme was undertaken. If the balance is struck on the side of the government, it must still be determined whether the special need could have been met in a less intrusive manner. Finally, it must be determined whether the particular search was really made pursuant to the special need.
In determining whether a need justifies a general regulatory scheme of searching, the court balances the nature of the privacy interest on which the search intrudes against the nature of the government interest (Vernonia, 1995 at 2390, citing Skinner, 1989). In the case of airport passenger screening, the nature of the government interest will change according to the perceived threat level. That is, government interest in ensuring air safety is stronger during times of danger, such as when a credible threat of attack exists against a specific airport (as there was against the three New York City area airports during the writing of this report) or when the United States is involved in international conflicts (such as during the Persian Gulf War).
Even in times of relative peace, the societal interest in preventing air piracy has commonly been balanced favorably against the invasion of a search, thereby allowing the use of general passenger screening procedures (United States v. Pulido-Baquerizo, 1986; United States v. Epperson, 1972; Camara, 1967; United States v. Davis, 1973). Part of the justification for the administrative search exception to the requirement for a search warrant is the regulatory scheme for airport security searches, which requires that all persons be searched, regardless of suspiciousness of any particular individual (14 C.F.R. §107.20 ). The issue considered in this report is whether that search, if performed using new technologies that are more intrusive than current technologies, will tip this balance. "Is the interest important enough to justify the particular search at hand, in light of other factors which show the search to be relatively intrusive upon a person's expectation of privacy?" (Vernonia, 1995 at 2394). To answer this question, we must look at the other factors in the balancing approach.
Against the special need of the government, the court must consider the passenger's expectation of privacy. This consideration involves the same analysis used in the threshold issue of whether a search has occurred, with one important difference. Deciding whether a person has a reasonable expectation of privacy for purposes of determining whether or not a search has taken place is a yes-or-no-question. Either one does or does not have a legitimate expectation of privacy in this context. On the other hand, expectation of privacy as a factor in the balancing test becomes a matter of degree. Thus, the court in Vernonia (1995) held that schoolchildren, because of the supervisory role schools have over them, have a decreased expectation of privacy at school. As discussed in the first section, airline passengers most probably have a legitimate