The Fourth Amendment and Airports (2016) / Chapter Skim
Currently Skimming:
Pages 31-44
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 31... ...
31 heightened risk of attack.351 Similar to airports, she observed that the ferry operator did not need to demonstrate this special need by showing that there were threats to its facility. She noted, "[i]
|
From page 32... ...
32 object in a bag.362 An official then had to examine the object to ensure that it was not an explosive device, including "sheet explosives" that may be disguised as a piece of paper. The protocol required an official to thumb through papers and confirm that sheet explosives were not present, and under the protocol, a search did not conclude until the official had cleared the bag of the safety concerns identified by the CTX machine.363 Under this mandatory policy, the official's "sole job is to clear bags of safety concerns relating to air travel."364 If an official believed contraband was present, the official was required to call a law enforcement officer.
|
From page 33... ...
33 which the search ceases legitimately to be for the valid administrative purpose, as that is the point after which the administrative exception can no longer justify continuation of the warrantless search."377 The court concluded that "where an action is taken that cannot serve the administrative purpose -- either because the threat necessitating the administrative search has been dismissed, or because the action is simply unrelated to the administrative goal -- the action clearly exceeds the scope of the permissible search."378 In this case, "the scope of the permissible search -- mandated by the TSA protocol -- was defined by the point at which the screener was convinced the bag posed no threat to airline safety."379 The court observed that objectively, "[o] nce Andrade was sufficiently certain that there were no explosives or other safety hazards hidden inside McCarty's bag, the administrative search was over -- nothing else was required to detect threats to aircraft safety."380 At that point, the official's legitimate search for the programmatic purpose ended and it became an independent search for evidence of a crime.
|
From page 34... ...
34 selected for secondary screening, and a screening official found a large amount of cash on the passenger.392 Testimony established that screeners were required to look for anything that might compromise air safety, including information suggesting a false identity, and to report any unlawful possessions to law enforcement.393 The screening official discovered numerous envelopes while searching the passenger's bag, and when she opened some of them she saw large amounts of cash. She also looked in other envelopes and discovered passports with the passenger's picture under different names.
|
From page 35... ...
35 minutes, another Homeland Security agent arrived and gathered information so that he could corroborate what the officers knew, prepare an affidavit, obtain approval from the U.S. Attorney's Office, and properly obtain a search warrant for the aircraft.
|
From page 36... ...
36 that "[i] nformant's tips, like all other clues and evidence coming to a policeman on the scene may vary greatly in their value and reliability."429 As officers assess informant information, the Supreme Court has "consistently recognized the value of corroboration of details of an informant's tip by independent police work."430 It noted that there must be a "substantial basis for crediting the hearsay presented" in an affidavit that relies on hearsay to obtain a warrant, and "even in making a warrantless arrest an officer ‘may rely upon information received through an informant, rather than upon his direct observations, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge.'"431 For a law enforcement action to be valid, an officer's assessment of probable cause involving informant information must rely on "‘corroboration through other sources of information [that]
|
From page 37... ...
37 Supreme Court has determined that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions."437 Nor would "the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification."438 The person approached "need not answer any questions put to him; indeed, he may decline to listen to the questions at all and may go on his way."439 A person, however, "may not be detained even momentarily without reasonable, objective grounds for doing so, and his refusal to listen or answer does not, without more, furnish those grounds."440 The courts build on these general principles when considering how law enforcement officers may stop passengers at airports. The Supreme Court considered some basic principles concerning voluntary airport stops and detentions in United States v.
|
From page 38... ...
38 the search of the respondent's person was not preceded by an impermissible seizure of her person, it cannot be contended that her apparent consent to the subsequent search was infected by an unlawful detention."456 The Court also did not find the consent to be invalid for any other reason.457 The evidence sustained the trial court's view that the consent was given "freely and voluntarily."458 Some cases focus on whether an officer has reasonable suspicion that justifies detaining a passenger at an airport. For example, in Reid v.
|
From page 39... ...
39 and statements after spotting the officers aroused justifiable suspicion, and it noted that one officer had specialized training in narcotics surveillance and apprehension.473 It also considered the fact that the "[r] espondent ‘was approached in a major international airport where, due in part to extensive antihijacking surveillance and equipment, reasonable privacy expectations are of slightly lesser magnitude.'"474 When determining which facts will support reasonable suspicion, the Supreme Court looks at the collective facts known to the officers.
|
From page 40... ...
40 "scope of the detention must be carefully tailored to its underlying justification," and that the stop may "last no longer than is necessary to effectuate th[at] purpose."490 In addition, the statements "given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act of free will," but if a police encounter was permissible, the passenger's voluntary consent would legalize a search of his bags.491 The Court then considered whether "confinement" in the office in this case "went beyond the limited restraint of a Terry investigative stop, and Royer's consent was thus tainted by the illegality, a conclusion that required reversal in the absence of probable cause to arrest."492 The Court believed that the officers could ask the man for his ticket and driver's license: [B]
|
From page 41... ...
41 The court concluded that a court should closely scrutinize the totality of the circumstances of an airport stop and if they reveal that coercion was present, a "court must hold that a reasonable person would believe that his freedom had been limited."509 It noted some "specific factors that have arisen in the past on which a court should place great weight… in a[n airport] stop."510 It noted concerns for coercive factors such as "blocking an individual's path" or otherwise "preventing his progress"; "implicit constraints" on freedom such as "retaining an individual's ticket for more than a minimal amount of time or by taking a ticket over to a ticket counter"; statements implying that an "investigation has focused on a specific individual," which could induce a reasonable person to believe failure to cooperate would lead to detention; or stating that "an innocent person would cooperate with police" or implying "failure to respond is an indication of guilt."511 The Sixth Circuit believed: The more intrusive on an individual's freedom complying with a request would be, the greater should be the skepticism with which a court treats assertions that an individual consented to a request.
|
From page 42... ...
42 A variety of airport-specific factors thus affect whether an airport law enforcement officer has a basis to detain a passenger.
|
From page 43... ...
43 possession, the police conduct intrudes on both the suspect's possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary."536 Such a seizure disrupts the person's travel plans, and thus "when the police seize luggage from the suspect's custody, we think the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person's luggage on less than probable cause."537 The Court then found that in this case, the "length of the detention of respondent's luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause."538 The Court considered both the length of the detention and "whether the police diligently pursued their investigation."539 The officers had known when the man was scheduled to arrive and they had "ample time to arrange for their additional investigation" at the destination airport to minimize the intrusion, but they did not.540 Thus, the Court determined that "although we decline to adopt any outside time limit for a permissible Terry stop, we have never approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case."541 It stated: Although the 90-minute detention of respondent's luggage is sufficient to render the seizure unreasonable, the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion. In short, we hold that the detention of respondent's luggage in this case went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics.542 intrusive of the individual's Fourth Amendment interests," and the "opposing law enforcement interests can support a seizure based on less than probable cause."530 The Court determined that "[b]
|
From page 44... ...
44 Fourth Amendment does not prohibit governmental use of the now-nonprivate information."552 Then the Court determined that even if the powder had not been in "plain view" when the agent arrived, "there was a virtual certainty that nothing else of significance was in the package."553 As such, the scope of the agent's search would not exceed the scope of the search by the private employees. The agent also could "utilize the Federal Express employees' testimony concerning the contents of the package."554 The agent thus did not infringe on the package owner's privacy to "reexamine the contents of the open package."555 The package owner: [C]
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.