The Fourth Amendment and Airports (2016)

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3THE FOURTH AMENDMENT AND AIRPORTS By Jodi L. Howick, Howick Law, PLLC INTRODUCTION The United States Constitution, Amendment Four, states [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and sei- zures, 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. This constitutional requirement grew out of con- cerns raised during the history of the American colo- nies. Prior to the Revolutionary War, English revenue officers in the colonies had used “writs of assistance” to conduct general government searches solely at the discretion of the officer, and thus arbitrarily. These general searches were contrary to established prin- ciples under English law, and opposition to them was “perhaps the most prominent event which inaugu- rated the resistance of the colonies to the oppressions of the mother country.”1 When America’s founders later wrote the Fourth Amendment, they incorpo- rated protective restraints on the government’s search and seizure power.2 The “overriding function of the Fourth Amendment is to protect personal pri- vacy and dignity against unwarranted intrusion by the State.”3 As such, the amendment’s “proper func- tion is to constrain [government], not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.”4 This digest considers how the courts have applied Fourth Amendment concepts at airports. It begins in Section I by presenting a general overview of Fourth Amendment principles. That section first considers the amendment’s purpose and when it applies. It notes that the amendment lists four matters as subject to its protection—persons, houses, papers, and effects—but the Supreme Court recognizes that this list only creates a “baseline” of properties where society accepts that people have a right to secure their privacy if they choose to do so. The amendment’s protections apply when people make actual efforts to secure individual privacy against government intrusions and society accepts those expectations of privacy as being reasonable, making them legitimate. Section I then reviews general requirements under the Fourth Amendment’s two clauses, discusses some exceptions that the courts recognize as still fulfilling the purpose of the amend- ment, and notes the general consequences of a Fourth Amendment violation. Readers who work with Fourth Amendment issues on a regular basis may wish to skim this section since it reviews general concepts that can apply at airports and elsewhere. The bulk of the digest, however, discusses airport- specific Fourth Amendment issues that airport proprietors may encounter. It first notes that courts begin a Fourth Amendment analysis by considering the context where a government action occurs. Sec- tion II considers the general context of an airport and reviews precedent confirming that airports have long been understood to be places where the government must search people and private belong- ings to protect the safety of air travel. As such, case law establishes that the context of an airport sub- stantially diminishes the legitimacy of individual privacy expectations. Section III then discusses how the Fourth Amend- ment addresses administrative inspection actions at an airport, whether conducted by the Transporta- tion Security Administration (TSA) or by the airport proprietor. Under the Fourth Amendment, regula- tions can authorize these administrative searches and seizures when actions are limited to measures that protect safe air travel by screening passengers and baggage for threats. Administrative actions thus differ from law enforcement actions, where offi- cers investigate an individualized suspicion of wrongdoing. Section III reviews cases that establish that both administrative and law enforcement actions are affected by the constitutionality of an airport administrative search program and by the proper scope of a search as actually conducted. The 1 See Boyd v. United States, 116 U.S. 616, 625 (1886) (discussing the early history of the Fourth Amendment). 2 See generally id. See also Messerschmidt v. Millender, 132 S. Ct. 1235, 1253 (2012) (J. Sotomayor, dissenting) (not- ing the Fourth Amendment’s history and purpose); Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931) (dis- cussing the purpose of the Fourth Amendment’s two clauses). 3 See Schmerber v. California, 384 U.S. 757, 767 (1966) (considering the values protected by the Fourth Amendment). 4 Id. at 768.