The Fourth Amendment and Airports (2016)

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21 of privacy always yield to what must be considered the paramount interest in institutional security.”204 The Supreme Court has thus recognized that urgent institutional needs for safety and security at a gov- ernment facility may substantially diminish the pri- vacy interests of those at the facility. The lower courts have repeatedly determined that there are diminished privacy expectations in an airport context and upheld government inspection programs undertaken to prevent terrorist acts and protect safety. For example, they have noted that “the State has an overwhelming interest in preserv- ing air travel safety” and that passengers are on notice of the airport environment and choose to fly under those circumstances.205 There is “no doubt that preventing terrorist attacks on airplanes is of paramount importance.”206 It is “hard to overesti- mate the need to search air travelers for weapons and explosives before they are allowed to board the aircraft. As illustrated over the last three decades, the potential damage and destruction from air ter- rorism is horrifically enormous.”207 The events of September 11, 2001 (9/11), “only emphasize the heightened need to conduct searches at this nation’s international airports.”208 Thus, courts have recognized the importance of public safety and security in an airport context and determined that many individual expectations of privacy must yield to those interests. In doing so, the courts have identified urgent needs that govern- ment programs must address and have discussed the diverse nature of threats against aviation, where an item as small as a box cutter can have potentially catastrophic consequences. They have pointed out that security needs vigorously, pervasively, and obvi- ously diminish expectations of privacy at an airport with society’s full approval. Thus, the cases reviewed below in this digest evaluate government intrusions at an airport in light of that context. III. AIRPORT ADMINISTRATIVE ACTIONS Both the airport proprietor and TSA conduct administrative inspection actions at airports, and airport law enforcement actions also interact with administrative actions. When an administrative search is properly conducted, the information discov- ered by the search is lawfully known to the govern- ment. If administrative actions transform into law enforcement actions or are otherwise invalid, how- ever, they lose their Fourth Amendment justification because they exceed the scope of the administrative program’s safeguards. This section discusses Fourth Amendment parameters for valid action under an airport administrative inspection program. A. Common Administrative Actions at Airports The public is familiar with many of the administra- tive inspection actions that occur at an airport. TSA has a statutory responsibility to provide for airport screening inspections for all passengers and property entering secure areas at the airport, including mail, cargo, carry-on and checked baggage, and other arti- cles being transported by flight.209 A Federal Security Director generally manages the federal government’s security role at the airport.210 Although TSA pro- vides this screening function in most cases, airports also have the option of applying to TSA to engage a private security company to conduct this function.211 TSA’s screening procedures require a thorough screen- ing inspection and implement regulations that respond to security needs. Some regulations may not be available to the public,212 and TSA’s screening tech- nologies and procedures continue to evolve.213 Administrative programs at airports can involve other actions as well. For example, a number of screening efforts scrutinize the identity of persons who seek to access secure areas. TSA has a statutory responsibility to screen all passenger names against a terrorist watch list maintained by the federal gov- ernment, and passengers must bring acceptable identification to the airport.214 TSA also allows pas- sengers to enroll in a PreCheck program that per- forms a pre-travel identity check and then provides 204 Id. at 528. See also United States v. Prevo, 435 F.3d 1343 (11th Cir. 2006) (upholding a search of a prison visitor’s car after she drove past signs advising of searches and pro- hibited items); Neumeyer v. Beard, 421 F.3d 210 (3d Cir. 2005) (upholding random suspicionless searches of prison visitor vehicles as a relatively minor inconvenience when balanced against prison needs, even though law enforce- ment action may result). 205 United States v. Hartwell, 436 F.3d 174, 181 (3d Cir. 2006) (upholding an airport search as an administrative search). 206 Corbett v. Transp. Sec. Admin., 767 F.3d 1171, 1180 (11th Cir. 2014) (quoting Hartwell, 436 F.3d at 179) (uphold- ing airport searches using AIT screening technology). 207 United States v. Marquez, 410 F.3d 612, 618 (9th Cir. 2005) (upholding random section procedures during air- port administrative searches). 208 United States v. Yang, 286 F.3d 940, 944 n.1 (7th Cir. 2002) (upholding a search of luggage by Customs officers). 209 See 49 U.S.C. § 44901. 210 See 49 U.S.C. § 44933. 211 See 49 U.S.C. § 44920. 212 See 49 U.S.C. § 44903; 49 U.S.C. § 114(r); 49 C.F.R. § 1520.5. 213 See 49 U.S.C. §§ 44912, 44913, 44925. 214 See 49 U.S.C. §§ 114(h)(3), 44903(j)(2); 49 C.F.R. pt. 1560.

22 expedited screening at the airport, and it performs similar checks for persons who engage in charter and other types of aviation.215 For employees and contractors, federal law requires each person who has unescorted access to aircraft areas to pass a fin- gerprint-based criminal history record check.216 That check may be conducted by an air carrier, the airport proprietor, or another authorized govern- ment entity, and the applicant cannot have a convic- tion for specified crimes within a 10-year period prior to the check.217 Airport proprietors typically have other adminis- trative inspection responsibilities as well. For exam- ple, they must implement security plans approved by the federal government.218 Under those plans, they are required to control access to aircraft areas, and only those with authorized access can enter. Air- port proprietors may be responsible for checking identities and inspecting property being transported into those areas. Their security plans may require them to conduct other vehicle, employee, or contrac- tor inspections as well.219 They also may conduct or assist with ramp checks for suspect aircraft pursu- ant to regulatory requirements.220 Some airport tenants may have similar kinds of inspection respon- sibilities under security requirements.221 As these examples illustrate, administrative inspection activities at an airport can take a number of forms and involve a variety of actors. The Fourth Amendment applies to intrusive actions seeking information as part of an administrative inspection, whether the government inspection is conducted by TSA, the airport proprietor, or private parties.222 B. Information Discovered During Airport Administrative Actions The courts evaluate intrusive inspection actions under the administrative search doctrine (as more generally discussed supra at Section I.G), which allows the government to use inspections to address “special needs” or a “special law enforcement” con- cern. Under this Fourth Amendment doctrine, administrative search programs (such as those at airports) are valid when they limit the actions that may be taken to those that are justified by an impor- tant programmatic need to obtain information, rather than searching due to an individualized sus- picion of wrongdoing. Any information discovered during a valid administrative search is lawfully known to the government and may be used for law enforcement purposes. To determine whether an airport administrative search is valid, the courts consider two issues: whether the administrative program itself is valid and whether the scope of the search actually conducted remained within the pro- gram’s limitations. Courts have upheld the validity of airport admin- istrative programs for many years. For example, the Supreme Court upholds administrative programs when “the possible harm against which the Govern- ment seeks to guard is substantial, [and] the need to prevent its occurrence furnishes an ample justifica- tion for reasonable searches, calculated to advance the Government’s goal.”223 It has stated that this “point is well illustrated… by the Federal Govern- ment’s practice of requiring the search of all passen- gers seeking to board commercial airliners, as well as the search of their carry-on luggage, without any basis for suspecting any particular passenger of an untoward motive.”224 The Court has also noted that “lower courts that have considered the question [of airport administrative searches] have consistently concluded that such searches are reasonable under the Fourth Amendment.”225 In particular, the Supreme Court has identified the important government interests that justify an airport administrative program. It has pointed out that aviation dangers to life and property alone jus- tify routine inspection measures to deter such risks: [T]hat danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choos- ing not to travel by air.226 The Court has not required evidence of past prob- lems to demonstrate these important government interests. It has observed that “[i]t is sufficient that the Government have a compelling interest in pre- venting an otherwise pervasive societal problem from spreading to the particular context.”227 A lack 223 See Nat’l Treasury Emp.’s Union v. Von Raab, 489 U.S. 656, 674–675 (1989). 224 Id. at 675 n.3. 225 Id. 226 Id. (quoting United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974)). 227 Id. 215 See 49 U.S.C. § 44903(j). 216 See 49 U.S.C. § 44936. 217 See id. 218 See 49 U.S.C. § 44903(g), (h). 219 See 49 U.S.C. § 44903(c). 220 See United States v. Massi, 761 F.3d 512 (5th Cir. 2014) (considering actions that began with an administra- tive ramp check performed by an airport’s police officers). 221 See 49 U.S.C. § 44903(c)(2) (discussing tenant secu- rity programs). 222 The courts recognize that a private party may be considered a “state actor” subject to governmental require- ments when it assumes governmental responsibilities. See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991).

23 of dangerous incidents does not impugn the validity of the program and can be viewed as an indicator of its success.228 The Supreme Court recently reiter- ated, “where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable’—for example, searches now routine at airports.”229 Lower court decisions have developed a more exten- sive analysis when upholding airport administrative programs. Early cases considered them using a bal- ancing test under the totality of the circumstances that weighted the gravity of the public interest in an airport inspection program, the degree to which the intrusive action advances that public interest, and the severity of the program’s interference with Fourth Amendment rights.230 Under this test, early cases rou- tinely identified the context of an airport as one pre- senting urgent public interests in safety based on dangers such as air piracy and kidnapping.231 With that background, in United States v. Hartwell,232 Judge Samuel Alito on the Third Circuit Court of Appeals then consolidated and established a number of principles for determining the constitu- tional validity of an airport administrative screen- ing program. In Hartwell, a passenger triggered an alarm while walking through a magnetometer, trig- gered it again during a second attempt, and then was taken aside and scanned with a handheld mag- netometer, which also resulted in an alarm.233 When the passenger refused to empty his pockets, he was taken to a private area.234 Eventually a TSA official reached into the passenger’s pocket and discovered drugs. The official called a police officer, who found more drugs and cash during a search of the passen- ger and arrested the passenger.235 Prior to that time, the courts had disagreed on whether an airport screening process consisted of several individual searches or one prolonged search. Judge Alito initially determined that although the screening process might include several procedures, a court should view the passenger’s “entire experi- ence as a single search under the administrative search doctrine.”236 It did not require a series of sep- arate justifications; rather, the same justification needed to support all of the steps taken. As search procedures escalated, they all needed to relate back to the programmatic reason for conducting the search in the first place.237 Next, Judge Alito determined that this “search at the airport checkpoint was justified by the adminis- trative search doctrine.”238 He noted that ordinarily a search or seizure is not reasonable under the Fourth Amendment absent an individualized suspi- cion of wrongdoing, and that the Supreme Court has recognized only limited circumstances where this rule does not apply.239 The court noted that “[t]hese circumstances typically involve administrative searches of ‘closely regulated’ businesses, other so- called ‘special needs’ cases, and suspicionless ‘check- point’ searches.”240 Judge Alito then identified the Supreme Court’s analysis in Brown v. Texas241 as providing the test for determining whether an airport administrative screening program was reasonable under the Fourth Amendment. He phrased the applicable test as find- ing “a favorable balance between ‘the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual lib- erty.’”242 Under the first element of this test, the con- text of an airport, he quickly found “there can be no doubt that preventing terrorist attacks on airplanes is of paramount importance,” particularly in light of the events of 9/11.243 He noted that the lives and property at stake were “unquestionably… the most compelling reasons.”244 Judge Alito then focused on the second element of the test. He noted that airport checkpoints advance the public’s interest in protecting safety. He deter- mined that “absent a search, there is no effective 228 Id. 229 See Chandler v. Miller, 520 U.S. 305, 323 (1997) (cit- ing airports as an example of a proper administrative search). See also City of Indianapolis v. Edmond, 531 U.S. 32, 47–48 (2000) (citing airports as an example of a proper administrative search); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (citation omitted) (citing airports as an example of a proper administrative search); Von Raab, 489 U.S. at 674–675 (citing airports as an example of a proper admin- istrative search). 230 See United States v. Hartwell, 436 F.3d 174, 176–177 (3d Cir. 2006) (recognizing that past courts had not settled on a single framework for analyzing airport searches); Ruskai v. Pistole, 775 F.3d 61, 68 n.3 (1st Cir. 2014) (noting various formulations of the test used by the courts). 231 See generally sources cited supra notes 205–208. 232 436 F.3d 174 (3d Cir. 2006). 233 Id. at 175. 234 Id. at 176. 235 Id. 236 Id. at 178. 237 Id. 238 Id. 239 Id. 240 Id. 241 443 U.S. 47 (1979). 242 Hartwell, 436 F.3d at 178–179 (quoting Illinois v. Lidster, 540 U.S. 419, 427 (2004), which quoted Brown v. Texas, 443 U.S. 47 (1979)). 243 Id. at 179. 244 Id. (quoting Singleton v. Comm’r of Internal Reve- nue, 606 F.2d 50, 52 (3d Cir. 1979)).

24 means of detecting which airline passengers are rea- sonably likely to hijack an airplane.”245 He also con- cluded “it is apparent that airport checkpoints have been effective.”246 The Supreme Court had previously noted that the lack of a history of such incidents can be viewed as evidence of a program’s success.247 Finally, Judge Alito addressed the test’s third ele- ment. He determined that these routine airport search procedures were “minimally intrusive” and “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.”248 In this case, the search began when the passenger “passed through a magnetometer and had his bag x-rayed, two screenings that involved no physical touching.”249 Only after the passenger set off the “metal detector was he screened with a wand – yet another less intrusive substitute for a physical pat-down. And only after the wand detected some- thing solid on his person, and after repeated requests that he produce the item, did the TSA agents…reach into his pocket.”250 Judge Alito also noted that “other factors make airport screening procedures minimally intrusive in comparison to other kinds of searches.”251 Among them, “[s]ince every air passenger is subjected to a search, there is virtually no ‘stigma attached to being subjected to search at a known, designated airport search point.’”252 Also, “the possibility for abuse is minimized by the public nature of the search. ‘Unlike searches conducted on dark and lonely streets at night where often the officer and the subject are the only witnesses, these searches are made under supervision and not far from the scrutiny of the trav- eling public.’”253 In addition, “the airlines themselves have a strong interest in protecting passengers from unnecessary annoyance and harassment.”254 Judge Alito also observed that notice plays an important role in minimizing public impacts. “[T] he entire procedure is rendered less offensive—if not less intrusive—because air passengers are on notice that they will be searched.”255 Passengers have long had notice of routine screening proce- dures. “Air passengers choose to fly, and screening procedures of this kind have existed in every air- port in the country since at least 1974. The events of 9/11 have only increased their prominence in the public’s consciousness.”256 It was “inconceiv- able” that the passenger in Hartwell “was unaware that he had to be searched before he could board a plane.”257 Judge Alito thus concluded that an airport admin- istrative search program that included an escalat- ing search procedure to resolve potential threats did “not offend the Fourth Amendment even though it was initiated without individualized suspicion and was conducted without a warrant.”258 This program “is permissible under the administrative search doc- trine because the State has an overwhelming inter- est in preserving air travel safety, and the procedure is tailored to advance that interest while proving to be only minimally invasive, as that term is under- stood in Brown.”259 In United States v. Aukai,260 the Ninth Circuit followed the reasoning discussed in Hartwell to conclude that an airport administrative screening program was constitutionally valid, and it also con- sidered two other aspects of these searches. The screening officials had conducted a secondary screening procedure because a passenger lacked proper identification, and they discovered drug paraphernalia in the passenger’s pocket.261 The Ninth Circuit first noted that, consistent with Hartwell, airport screening programs are “consti- tutionally reasonable administrative searches because they are ‘conducted as part of a general regulatory scheme in furtherance of an administra- tive purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.’”262 245 Id. at 179–180 (quoting Singleton, 606 F.2d at 52). 246 Id. at 180. 247 See Nat’l Treasury Emp.’s Union v. Von Raab, 489 U.S. 656, 675 n.3 (1989). 248 Hartwell, 436 F.3d at 180. 249 Id. 250 Id. 251 Id. 252 Id. (quoting United States v. Skipwith, 482 F.2d 1272, 1275 (5th Cir. 1973)). 253 Id. (quoting Skipwith, 482 F.2d at 1276). 254 Id. 255 Id. 256 Id. at 181. 257 Id. 258 Id. 259 Id. (referring to Brown v. Texas, 443 U.S. 47 (1979)). Judge Alito noted that “[e]ven assuming that the sole pur- pose of the checkpoint was to search only for weapons or explosives, the fruits of the search need not be suppressed so long as the search itself was permissible.” Id. n.13 (citing Minnesota v. Dickerson, 508 U.S. 366, 377 (1993) (seizure of an item whose identity is already known occa- sions no further invasion of privacy). Judge Alito also cited United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974), which noted that “traditional rule [is] that if the search is proper, it is of no moment that the object found was not what the officer was looking for.” 260 497 F.3d 955 (9th Cir. 2007). 261 Id. at 958. 262 Id. at 960 (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)).

25 The court then rejected previous Ninth Circuit precedent that had evaluated the scope of an airport screening search based on passenger consent. The court noted that “[s]ignificantly, the Supreme Court has held that the constitutionality of administrative searches is not dependent upon consent.”263 It fur- ther reasoned: [R]equiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terror- ists multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found. This rule would also allow ter- rorists a low-cost method of detecting systematic vulnera- bilities in airport security, knowledge that could be extremely valuable in planning future attacks.264 The Ninth Circuit determined that rather than consent, “where an airport screening search is other- wise reasonable and conducted pursuant to statutory authority, 49 U.S.C. § 44901, all that is required is the passenger’s election to attempt entry into the secured area of an airport,” and “under current TSA regula- tions and procedures, that election occurs when a pro- spective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine.”265 It expressly overruled previous cases to the extent that they “predicated the reasonableness of an airport screening search upon either ongoing consent or irrevocable implied consent.”266 Finally, the Ninth Circuit identified a test for determining whether the scope of the screening search that officials actually conducted was reasonable: [T]he scope of such [airport] searches is not limitless. A par- ticular airport screening search is constitutionally reason- able provided that it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [][and] that it is con- fined in good faith to that purpose.”267 The Ninth Circuit then considered the facts before it. In this case, a passenger had passed through a magnetometer and was directed to sec- ondary screening because his boarding pass was marked “No ID.”268 He underwent a standard “wand- ing procedure,” and when the machine sounded an alarm over his pants pocket, a TSA official asked if something was in the pocket. The passenger repeat- edly claimed that the pocket was empty as the offi- cial conducted a second wanding procedure, felt something in the pocket, and then called a supervi- sor, who also felt the pocket using the back of his hand. The passenger finally removed some items from the pocket, but a bulge was still visible. After more requests and denials, the passenger then removed an object wrapped in tissue paper. The TSA supervisor unwrapped the item and discovered drug paraphernalia.269 Under these facts, the Ninth Circuit determined that the scope of the search actually conducted was properly limited. It focused its test on the extent to which the search procedures were intrusive. The court concluded, “[l]ike the Third Circuit, we find these search procedures to be minimally intrusive” because escalating invasiveness occurred “only after a lower level of screening disclosed a reason to con- duct a more probing search.”270 The court also con- sidered the time required to conduct the search. It noted that the “duration of the detention associated with this airport screening search [18 minutes] was also reasonable,” especially in light of the passen- ger’s conduct, “because it was not prolonged beyond the time reasonably required to rule out the pres- ence of weapons or explosives.”271 Thus, the search was no more intrusive than necessary to resolve concerns for weapons or explosives, and as such, the information discovered during the search was law- fully discovered. Previous Ninth Circuit cases had addressed the rationale of Aukai without fully developing it. For example, in United States v. Marquez,272 the Ninth Circuit upheld the constitutionality of an airport program and search that required a secondary screening procedure on a random basis. The passen- ger in Marquez walked through a magnetometer and his luggage was x-rayed without raising any concerns, but he was randomly asked to go to a selectee lane for screening with a more sensitive hand-held magnetometer, which produced an alarm that led to the discovery of cocaine.273 The court first 263 Id. at 959 (citing United States v. Biswell, 406 U.S. 311, 315 (1972) in which the Court determined “[i]n the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends not on consent but on the authority of a valid statute”). 264 Id. at 960–961. 265 Id. at 961. 266 Id. at 962. See also United States v. Herzbrun, 723 F.2d 773 (11th Cir. 1984) (even under past consent cases, a passenger had no constitutional right to revoke consent to a search of his bag once it entered the x-ray machine and he walked through the magnetometer because that option would be a one-way street for the benefit of a party planning airport mischief). 267 Aukai, 497 F.3d at 962 (alternation in original) (quoting Davis, 482 F.2d at 913). 268 Id. 269 Id. 270 Id. at 962 (internal quotation marks omitted) (quoting Hartwell, 436 F.3d at 180). 271 Id. at 962–963. 272 410 F.3d 612 (9th Cir. 2005). 273 Id. at 614–615.

26 noted precedent under the administrative search doctrine that upheld airport administrative pro- grams that required passengers to walk through a magnetometer and submit carry-on luggage for x-ray screening, including supportive Supreme Court precedent.274 It then determined: The added random screening procedure at issue in this case involving a handheld magnetometer scan of Marquez’s per- son was no more extensive or intensive than necessary in order to detect weapons and explosives. It utilized the same technology and reported results based on the same type of information (e.g., the presence or absence of metal) as the walkthrough magnetometer.275 The court’s analysis in Marquez was consistent with the Ninth Circuit’s later decision in Aukai. It reasoned that airport administrative screening pro- grams were conducted “first, to prevent passengers from carrying weapons or explosives onto the air- craft; and second, to deter passengers from even attempting to do so.”276 It determined that in this case, “the randomness of the selection for the addi- tional screening procedure arguably increases the deterrent effects of airport screening procedures because potential passengers may be influenced by their knowledge that they may be subject to ran- dom, more thorough screening procedures.”277 The court also found that these measures are justified by important purposes: It is “hard to overestimate the need to search air travelers for weapons and explo- sives before they are allowed to board the aircraft.”278 It also determined that the search conducted was “a limited search, confined in its intrusiveness (both in duration and scope) and in its attempt to discover weapons and explosives.”279 As such, it held that “the random, more thorough screening involving scan- ning of Marquez’s person with the handheld magne- tometer was reasonable.”280 A number of courts have now applied the ratio- nale expressed by Hartwell and Aukai to other aspects of the screening process. In general, they look to Hartwell’s reasoning to uphold the constitu- tionality of an airport administrative screening pro- gram under the Fourth Amendment, and they consider whether the scope of the search conducted was reasonable under the three-part test from Aukai: “An airport screening search is reasonable if: (1) it is no more extensive or intensive than neces- sary, in light of current technology, to detect weap- ons or explosives; (2) it is confined in good faith to that purpose; and (3) passengers may avoid the screening by electing not to fly.”281 Among those cases, in George v. Rehiel,282 the Third Circuit determined what it considered to be the outer boundary of the proper scope of an air- port screening search. In Rehiel, TSA officials checked a passenger’s boarding pass and identifica- tion and then asked the passenger to remove two stereo speakers that he had stated were in his carry-on bag.283 Officials x-rayed the carry-on items, and the passenger walked through a screening device. Officials then asked the passenger to enter an additional screening area and empty his pock- ets, and they saw a set of handwritten flashcards containing Arabic words such as “bomb” and “ter- rorist.” Officials took the passenger to another area, swabbed his phone for explosives and searched his carry-on items, and a supervisor aggressively ques- tioned him. TSA’s process took approximately 45 minutes, and then the airport police and FBI became involved.284 The Third Circuit noted that under Hartwell, an airport screening program “that involved an esca- lating level of scrutiny and intrusion [was valid] where ‘a lower level of scrutiny disclosed a reason to conduct a more probing search.’”285 In this case, TSA officials had discovered handwritten flash- cards containing words that could describe rele- vant threats in the course of their routine search.286 “[A]t that point, the Officials had a justifiable sus- picion that permitted further investigation as long as the brief detention required to conduct that investigation was reasonable.”287 The court 281 See, e.g., United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005) (citation omitted) (upholding random sec- ondary screening procedures); Fofana, 620 F. Supp. 2d at 861–862 (upholding that airport administrative searches are reasonable and applying the three-part test from Aukai concerning their reasonable scope). 282 738 F.3d 562 (3d Cir. 2013). 283 Id. at 567. 284 Id. at 567–568. 285 Id. at 576 (quoting United States v. Hartwell, 436 F.3d 174, 180 (3d Cir. 2006)). 286 Id. at 577. 287 Id. 274 Id. at 616 (citing Chandler v. Miller, 520 U.S. 305, 323 (1997) (suggesting that “where the risk to public safe- ty is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable’”)). 275 Id. at 617. 276 Id. 277 Id. 278 Id. at 618. 279 Id. 280 Id. See also VanBrocklen v. United States, 2009 WL 819382 (N.D.N.Y. 2009) (upholding the secondary screen- ing of a wheelchair-bound plaintiff); Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) (upholding secondary screen- ing procedures for passengers without required identifica- tion); United States v. Fofana, 620 F. Supp. 2d 957, 860 (S.D. Ohio) (determining that in addition to prohibited items, other security issues such as forms of identification could be relevant to an administrative search, but this search was not properly conducted).

27 cautioned, however, that “the detention at the hands of these TSA Officials is at the outer bound- ary of the Fourth Amendment. Once TSA Officials were satisfied that George was not armed or carry- ing explosives, much of the concern that justified his detention dissipated.”288 The court then noted that the context of the airport supported the TSA officials’ decision to conduct a further investigation by briefly ques- tioning the passenger after the search. The offi- cials’ concern “did not totally vanish or suggest that further inquiry was not warranted. Suspicion remained, and that suspicion was objectively reasonable given the realities and perils of air passenger safety.”289 The passenger was carrying references to terrorism, and “[i]n a world where air passenger safety must contend with such nuanced threats as attempts to convert under- wear into bombs and shoes into incendiary devices, we think that the brief detention [for questioning] that followed the initial administrative search of George was reasonable.”290 The Third Circuit noted, however, that even at an airport, permissible intrusions had limits. The court noted that “harboring views that appear to be hostile to the United States government or its foreign policy is most assuredly not, by itself, grounds for detaining someone and investigating them pursuant to the administrative search doc- trine or an investigative [law enforcement] sei- zure under Terry [v. Ohio].”291 Officials did not have to “turn a blind eye” to the flashcards though.292 “Rather, basic common sense would allow those Officials to take reasonable and mini- mally intrusive steps to [briefly] inquire into the potential passenger’s motivations.”293 In this case, “the actions of the TSA Officials corresponded to the level of concern raised by the flashcards.”294 The court recognized that “[a]irport screening is obviously informed by unique concerns and risks.”295 Thus, “[i]tems other than weapons or explosives can give a TSA Screening Official rea- son to increase the level of scrutiny when circum- stances suggest that it is reasonable to conduct a more probing investigation.”296 C. Administrative Searches Using Recent Technology The Eleventh Circuit noted in Corbett v. Trans- portation Security Administration297 that in 2010, TSA issued new procedures that required it to use advanced imaging technology (AIT) body scanners, which detect nonmetallic threats, “as the primary screening method at airport checkpoints. If a pas- senger declines the scanner or…[there is an alarm] during the primary screening method, he receives a pat-down instead.”298 It also noted that legislation passed in 2012 required AIT scanners to generate only images of generic body contours, and that TSA adopted updated secondary pat-down procedures under which an official of the same gender must canvass most of a passenger’s body, using the back of the hand for sensitive areas.299 A passenger chal- lenged the use of the scanner and procedure, claim- ing that other measures were less intrusive and more effective.300 The Eleventh Circuit first adopted the adminis- trative search rationale of Hartwell and concluded that “the challenged [AIT] procedure is a reasonable administrative search under the Fourth Amend- ment.”301 It found that the government’s interest in preventing terrorism was of “paramount impor- tance”302 and that AIT scanners advance that public interest and “effectively reduce the risk of air terror- ism.”303 It observed that “the Fourth Amendment does not require that a suspicionless search be fool- proof or yield exacting results.”304 Instead: Choosing which technique best serves the government interest at stake should be left to those with “a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers.” “[W]e need only determine whether the [scanner] is a reasonably 288 Id. 289 Id. at 577–578. 290 Id. at 578. 291 Id. at 578. 292 Id. 293 Id. 294 Id. 295 Id. at 579. 296 Id. 297 767 F.3d 1171 (11th Cir. 2014), cert. denied, 135 S. Ct. 2867 (2015). 298 Id. at 1174. The D.C. Circuit also considered AIT screening in Electronic Privacy Information Center v. United States Department of Homeland Security, 653 F.3d 1 (D.C. Cir. 2011). The D.C. Circuit looked to Hartwell and Aukai to evaluate the reasonableness of this program and actions taken under it. Id. at 10. When the facts of this case occurred, AIT scanners had produced a realistic image of the body. But by the time the case was considered, TSA had begun distorting AIT images and taking other measures to reduce the invasiveness of program procedures. The D.C. Circuit upheld the program on that basis. See id. at 3, 10–11. Current program practices are reflected in Corbett v. Transp. Security Administration. 299 Corbett, 767 F.3d at 1175. 300 Id. 301 Id. at 1179. 302 Id. at 1180. 303 Id. at 1181. 304 Id.

28 effective means of addressing the government interest in deterring and detecting a terrorist attack” at airports. Com- mon sense tells us that it is.305 The Eleventh Circuit believed that “[t]he scan- ners pose only a slight intrusion on the individual’s privacy…[especially since] [t]he scanners now cre- ate only a generic outline of an individual, which greatly diminishes any invasion of privacy.”306 The court also considered TSA’s new alternate pat-down procedure and determined “that procedure as a secondary screening technique is a reasonable administrative search.”307 Although the new pat- down procedures are more intrusive than the scan: [T]he security threat outweighs that invasion of privacy. And the Administration reduces the invasion of privacy through several measures: the pat-down is not a primary screening method; a member of the same sex ordinarily conducts it; a passenger may opt to have a witness present during the search…[if requesting that it be performed] in private; and the procedure requires…[an official to use] the back of his hand while searching sensitive areas of the body.308 The Eleventh Circuit thus concluded that “the Fourth Amendment does not compel the Administra- tion to employ the least invasive procedure or one fan- cied by Corbett.”309 It relied on the rationale of Hartwell to determine that this program using AIT scanners complied with Fourth Amendment requirements.310 The First Circuit determined that TSA did not need to accommodate a traveler’s own preferred screening method in Ruskai v. Pistole,311 where a pas- senger argued that as a TSA PreCheck program member, her metallic joint replacement should not subject her to more extensive pat-down searches when airports did not have an AIT scanner. The court first noted that the courts of appeals determine the validity of transit security screenings as an adminis- trative search conducted without individualized sus- picion, consistent with the rationale in Harwell.312 The court then balanced the interests involved in cases where a passenger prefers alternate screening methods to accommodate a physical condition. It first determined that the government has a critical interest in keeping both metallic and nonmetallic weapons off commercial flights, noting that recent threats to aviation have involved nonmetallic explo- sives.313 Although the plaintiff preferred more limited procedures for joint-replacement passengers (using metal detectors rather than pat-downs in the absence of an AIT scanner), the court concluded that “the fact that a WTMD [metal detector] alerts TSA to Ruskai’s metallic implants does not mean that she is less likely to have a nonmetallic weapon.”314 The First Circuit then determined that the gov- ernment is not limited to using means that are the least intrusive. It noted that the “Supreme Court has repeatedly stated that reasonableness under the Fourth Amendment does not require employing the least intrusive means to accomplish the govern- ment’s ends.”315 The plaintiff argued that TSA’s pro- cedure for passengers like her was not effective and underinclusive because only passengers who trig- gered an alarm for metal were searched for nonme- tallic weapons. The court noted, however, that TSA was still in the process of implementing AIT scan- ners, and that “[t]he United States enjoys flexibility in selecting from among reasonable alternatives for an administrative search.”316 It also noted that TSA had submitted some evidence that it had examined the effectiveness of its security measures, and “the Supreme Court has not required the degree of preci- sion tailoring advocated by Ruskai.”317 The First Circuit noted, however, that there still must be a fairly close fit between the nature of the government’s interest in searching and the intrusive- ness of a search. It noted that although an airport search is more intrusive than some searches that gov- ernment undertakes, “given the scale of the risk, the safety interests at stake are also dramatically more acute,” and “the Supreme Court ‘never has implied— much less…held—that a reduced privacy expectation is a sine qua non of special needs analysis.’”318 In this case it determined that the government “may deal with one part of a problem without addressing all of it,” and that TSA was working on increasing its imple- mentation of AIT scanners.319 Thus, although airports without AIT scanners used intrusive procedures to search only some passengers for nonmetallic weap- ons, the court did not find that this practice rendered the searches unconstitutional.320 The court also considered and dismissed a num- ber of other arguments. It found no basis to argue 305 Id. (alterations in original) (quoting Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 454 (1990) and MacWade v. Kelly, 460 F.3d 260, 273 (2d Cir. 2006)). 306 Id. at 1181. 307 Id. at 1182. 308 Id. 309 Id. 310 Id. 311 775 F.3d 61 (1st Cir. 2014). 312 Id. at 68–69. 313 Id. at 71. 314 Id. 315 Id. at 71–72 (quoting Cassidy v. Chertoff, 471 F.3d 67, 80 (2006)). 316 Id. at 73 (quoting Corbett v. Transp. Sec. Admin., 767 F.3d 1171, 1181 (11th Cir. 2014)). 317 Id. at 74. 318 Id. at 75 (quoting MacWade v. Kelly, 460 F.3d 260, 269 (2d Cir. 2006)). 319 Id. (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 215 (1975)). 320 Id.

29 that the program selected passengers in a discrimi- natory manner.321 It also noted that “[w]ithin reason, choosing which technique best serves the govern- ment interest at stake should be left to those with a ‘unique understanding of, and responsibility for, lim- ited public resources.’”322 It thus concluded that the Fourth Amendment does not preclude a program searching for “both metallic and nonmetallic weap- ons on passengers who trigger WTMD [walk through metal detector] alarms just as it does on passengers who decline to pass through AIT scanners.”323 Under airport administrative search programs in effect both before and after 9/11, the courts have routinely upheld these programs as constitutional under the Fourth Amendment. When the facts of a case have raised concerns for the scope of a given search, the courts have also frequently found that screening officials remained within the limitations of the administrative program. In those instances, any information discovered during a valid search is lawfully known to the government and can be used by the police when enforcing criminal laws. D. Administrative Actions Taken by Proprietors and Tenants Although TSA conducts many of the administra- tive searches that occur at an airport, airport propri- etors and airport tenants may also conduct these searches pursuant to an administrative program.324 When they do, the courts use the administrative search doctrine’s requirements (discussed supra in Section III.B) to determine the constitutionality of the program and to evaluate whether the scope of a search remained within the program’s lawful limita- tions. The case of Cassidy v. Chertoff325 illustrates how one court applied these principles to searches conducted under a transportation proprietor’s feder- ally approved security plan. In Cassidy, Judge Sonia Sotomayor on the Second Circuit Court of Appeals upheld a private ferry oper- ator’s inspection program implemented under its approved transportation security plan.326 Judge Sotomayor first reviewed the law requiring the ferry operator to adopt the plan (pursuant to the Mari- time Transportation Security Act of 2002, which was adopted in the wake of 9/11).327 The Act required the Department of Homeland Security to conduct a detailed vulnerability assessment of vessel types that posed a high risk of being involved in a security incident, and ferry operators were then required to conduct a security assessment, prepare a security plan for deterring incidents, and submit the plan to the Coast Guard for review and approval. Under a plan, a ferry operator was required to screen per- sons, baggage, and vehicles for dangerous items and check identification for persons seeking to board. The operator could also opt out of these screening requirements by implementing alternate security measures.328 A security plan was classified as sensi- tive security information under federal law, but for purposes of the motion to dismiss in this case, the court assumed that the procedures at issue were required or permitted by this private ferry opera- tor’s security plan.329 Airport proprietors (and sometimes airport ten- ants) are subject to similar federal laws that require them to create a security plan that is subject to approval by TSA.330 An airport security plan must take into account potential vulnerabilities and risks at a given airport and must implement measures for deterring risks, which include acts of “criminal vio- lence, aircraft piracy, and the introduction of an unauthorized weapon, explosive, or incendiary onto an aircraft.”331 Federal law specifies contents that must be included in an airport security plan, and the proprietor also has the option of proposing an 321 Id. at 76 (citing Wayne LaFave, 5 SeaRch & SeizuRe § 10.6(b) (5th ed.) (noting that some degree of nonrandom selectivity is permissible under the Fourth Amendment only if the selection criteria tend to identify suspicious peo- ple, and noting that central considerations for assessing nonrandom criteria should include whether some selection criteria is necessary to avoid overwhelming the system and whether it reasonably appears that another basis for selec- tion is not likely to at least work as well)). 322 Id. at 77 (quoting Corbett v. Transp. Sec. Admin., 767 F.3d 1171, 1181 (11th Cir. 2014)). 323 Id. This digest does not discuss all concerns that may relate to the use of technology in a search, and the Supreme Court has made a variety of statements on that subject. Among them, see Kyllo v. United States, 533 U.S. 27 (2001) (thermal imaging of a home’s interior did not physically intrude but was a search requiring a warrant where the technology was not in general public use); Florida v. Jardines, 133 S. Ct. 1409 (2013) (officers could not use a trained narcot- ics dog (a technology) to explore the protected area of a home without a warrant); United States v. Jones, 132 S. Ct. 945 (2012) (a warrant was necessary to physically attach a GPS device to a car, and Justice Sotomayor’s concurrence noted at length concerns about the use of technology that gathers a comprehensive record of personal information about the individual being tracked); Riley v. California, 134 S. Ct. 2473 (2014) (searching a cell phone required a warrant and was not justified incident to an arrest due to the extensive per- sonal information accessible from a cell phone). 324 See 49 U.S.C. § 44903(c). 325 471 F.3d 67 (2d Cir. 2006). 326 Id. at 70. 327 Id. 328 Id. at 71. 329 Id. at 72. 330 See 49 U.S.C. § 44903(c); 49 C.F.R. § 1542.105. 331 See 49 C.F.R. § 1542.101(a).

30 alternate means of compliance.332 An airport secu- rity plan is classified as sensitive security informa- tion under federal law.333 When considering procedures under the private ferry operator’s plan, Judge Sotomayor first noted that the private operator’s actions were subject to the Fourth Amendment because although “a wholly private search falls outside the scope of the Fourth Amendment, a search conducted by private individ- uals at the instigation of a government officer or authority constitutes a governmental search for purposes of the Fourth Amendment.”334 The opera- tor had “implemented its security policy in order to satisfy the requirements imposed by MTSA [the Maritime Transportation Security Act of 2002],” and its adopted plan was “approved by the Coast Guard.”335 The government’s significant involve- ment in the policy brought these searches “within the ambit of the Fourth Amendment.”336 Judge Sotomayor then reviewed the constitution- ality of these security plan searches as a program that addressed special needs under the administra- tive search doctrine.337 Similar to Hartwell, she determined that the constitutionality of the search program depended on weighing the privacy interest affected, the nature of the government intrusion, and the manner in which the intrusion advanced the government’s need.338 Under the first of these factors, Judge Sotomayor noted that the Fourth Amendment only protects expectations of privacy that society recognizes as legitimate, and “the Supreme Court has cautioned that privacy expectations necessarily depend on con- text.”339 She considered a ferry patron’s privacy inter- est in carry-on luggage and contrasted it with that of an airline passenger, where the courts have long upheld the intrusions involved in airport searches. “[A]irplanes are very different creatures from the more quotidian commuting methods at issue…[in] the instant case, and society has long accepted a height- ened level of security and privacy intrusion with regard to air travel.”340 In the context of commuting on mass transportation, however, she found that “the pri- vacy interests of LCT’s ferry passengers in their carry- on luggage are undiminished.”341 When weighing the second factor, Judge Sotomayor determined that despite the presence of greater privacy interests when traveling by ferry, the administrative searches conducted under the private ferry operator’s security plan were “mini- mally intrusive.”342 They were of “short duration”; the operator did not have “unbridled discretion” to search in a “discriminatory or arbitrary manner”; the search was “limited to visual inspections”; and the passengers had “[a]mple notice” that they were subject to search and could “avoid the search by exiting the premises.”343 That notice helped to reduce “any unsettling show of authority”344 and to “eliminate any stigma associated with the search.”345 She noted that search methods such as the use of a magnetometer may be less intrusive than visual inspections, but “‘reasonableness under the Fourth Amendment does not require employing the least intrusive means’ to accomplish the gov- ernment’s ends.”346 She also rejected a “slippery- slope” argument that the threat of terrorism could be used without limits to conduct suspicionless searches.347 She found that “the scope of the searches is rather limited,” and under the circum- stances, the balancing test weighed in favor of the private ferry proprietor implementing its man- dated security plan.348 Under the third factor of her test, Judge Sotomayor considered whether the government’s asserted special need was important enough to jus- tify the particular search at hand (inspections under the proprietor’s federally approved security plan).349 She first noted that special needs searches “must not be isomorphic with law enforcement needs, but rather go beyond them.”350 She then noted that the government’s special needs did not have to target a “well-defined target class,” and that in this case the Coast Guard had identified a special need when it determined that certain vessels were at a 332 See 49 C.F.R. §§ 1542.103, 1542.109. 333 See 49 C.F.R. § 1520.5. 334 Cassidy, 471 F.3d at 74 (citation omitted) (citing two cases: one determining that a seizure by a private compa- ny without government knowledge was unlawful but not a Fourth Amendment violation and the other determining that a private seizure pursuant to a regulatory program was subject to the Fourth Amendment). 335 Id. 336 Id. 337 Id. at 75. 338 Id. 339 Id. at 76. 340 Id. 341 Id. at 77. Judge Sotomayor also determined that there are “lesser expectations of privacy attendant to automobiles” brought onto a ferry, including “diminished privacy interests in their vehicles’ trunks.” Id. at 78. 342 Id. at 79. 343 Id. 344 Id. 345 Id. at 80. 346 Id. (quoting Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 837 (2002)). 347 Id. 348 Id. at 81. 349 Id. 350 Id.