The Fourth Amendment and Airports (2016) / Chapter Skim
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Pages 21-30
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From page 21... ...
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 government facility may substantially diminish the privacy 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.
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From page 22... ...
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 fingerprint-based criminal history record check.216 That check may be conducted by an air carrier, the airport proprietor, or another authorized government entity, and the applicant cannot have a conviction for specified crimes within a 10-year period prior to the check.217 Airport proprietors typically have other administrative inspection responsibilities as well. For example, 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.
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From page 23... ...
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 reiterated, "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 extensive analysis when upholding airport administrative programs. Early cases considered them using a balancing 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 routinely identified the context of an airport as one presenting urgent public interests in safety based on dangers such as air piracy and kidnapping.231 With that background, in United States v.
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From page 24... ...
24 means of detecting which airline passengers are reasonably likely to hijack an airplane."245 He also concluded "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 element. 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.
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From page 25... ...
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]
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From page 26... ...
26 noted precedent under the administrative search doctrine that upheld airport administrative programs 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 person 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)
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From page 27... ...
27 cautioned, however, that "the detention at the hands of these TSA Officials is at the outer boundary of the Fourth Amendment. Once TSA Officials were satisfied that George was not armed or carrying 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 questioning the passenger after the search.
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From page 28... ...
28 effective means of addressing the government interest in deterring and detecting a terrorist attack" at airports. Common sense tells us that it is.305 The Eleventh Circuit believed that "[t]
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From page 29... ...
29 that the program selected passengers in a discriminatory manner.321 It also noted that "[w] ithin reason, choosing which technique best serves the government interest at stake should be left to those with a ‘unique understanding of, and responsibility for, limited public resources.'"322 It thus concluded that the Fourth Amendment does not preclude a program searching for "both metallic and nonmetallic weapons on passengers who trigger WTMD [walk through metal detector]
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From page 30... ...
30 alternate means of compliance.332 An airport security plan is classified as sensitive security information 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 individuals at the instigation of a government officer or authority constitutes a governmental search for purposes of the Fourth Amendment."334 The operator 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 involvement in the policy brought these searches "within the ambit of the Fourth Amendment."336 Judge Sotomayor then reviewed the constitutionality of these security plan searches as a program that addressed special needs under the administrative 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 context."339 She considered a ferry patron's privacy interest 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.
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