Libertarian Party of Florida
I had my staff do some research after my phone conversation with you. Here are some of our preliminary findings. A lot of this follows the lines of our conversation. It would appear that there has been some lively debate between some local police agencies that work with the TSA on the very topic you brought to my attention. It would appear at first blush that TSA is working within their authority to detain and even search people who want to leave the secure area. But our agency and some others have seemed to agree with at least our local TSA that if they stop someone from leaving the secure area, that detention will only be long enough to reasonably determine why the person is leaving and if any other cause exists to detain them longer. If not, they should be free to leave.
Here is some of the research we have found so far:
While the new TSA enhanced pat downs may violate the Fourth Amendment on the surface, what most people are not aware of is that the 9th Circuit Court of the United States<http://www.ca9.uscourts.gov/> ruled on the search of passengers in airports back in 1973, which effectively suspends limited aspects of the Fourth Amendment while undergoing airport security screening.
In 1973 the 9th Circuit Court rules on U.S. vs Davis, 482 F.2d 893, 908<http://www.ca9.uscourts.gov/datastore/opinions/2005/06/07/0430243.pdf>, there are key pieces of wording that give the TSA its power to search essentially any way they choose to. The key wording in this ruling includes “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.”
U.S. vs Davis goes onto to state “[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.”
U.S. vs Davis was upheld by the 9th Circuit Court in 1986 in U.S. vs Pulido-Baquerizo, 800 F.2d 899, 901 with this ruling “To judge reasonableness, it is necessary to balance the right to be free of intrusion with society’s interest in safe air travel.”
Then there was the act of congress post 911…Public Law 107-71 which requires the Under Secretary to: (1) require screening or inspection of all individuals, goods, property, vehicles, and other equipment before entry into a secured area of an airport; (2) prescribe specific requirements for such screening and inspection that will assure at least the same level of protection as will result from screening of passengers and their baggage; (3) establish procedures to ensure the safety and integrity of all persons providing services with respect to aircraft providing passenger air transportation or intrastate air transportation, supplies placed aboard such aircraft, and persons providing such supplies and their facilities; and (4) require vendors having direct access to the airfield and aircraft to develop security programs. Authorizes the Under Secretary to provide for the use of biometric or other technology that verifies the identity of each employee and law enforcement officer who enters a secure area of an airport.
Followed closely by the TSA’s regulations (administrative law):
§ 1542.201 Security of the secured area.
(a) Each airport operator required to have a security program under §1542.103(a) must establish at least one secured area.
(b) Each airport operator required to establish a secured area must prevent and detect the unauthorized entry, presence, and movement of individuals and ground vehicles into and within the secured area by doing the following:
(1) Establish and carry out measures for controlling entry to secured areas of the airport in accordance with §1542.207.
(2) Provide for detection of, and response to, each unauthorized presence or movement in, or attempted entry to, the secured area by an individual whose access is not authorized in accordance with its security program.
§ 1542.215 Law enforcement support.
(a) In accordance with §1542.217, each airport operator required to have a security program under §1542.103(a) or (b) must provide:
(1) Law enforcement personnel in the number and manner adequate to support its security program.
(2) Uniformed law enforcement personnel in the number and manner adequate to support each system for screening persons and accessible property required under part 1544 or 1546 of this chapter, except to the extent that TSA provides Federal law enforcement support for the system.
Then there was case law post Public Law 107-71 and 911…
Airport screening searches no longer considered a matter of implied consent; they are regulatory searches, and they are not without limits
Defendant went into the security line at the Honolulu airport, but it was noted on his boarding pass that he presented “No ID” to get through security. He was accordingly selected for secondary screening, although he was protesting that his flight was about to leave, which it was. A handheld wand went off on a front pants pocket three times, and he protested that he had nothing in his pocket. The TSA officer used the back of his hand to feel what might be setting off the alarm on the wand, and something was in there but he could not tell what it was. Defendant at that point asked to leave the airport because he changed his mind about flying. The TSA officer told him to empty his pockets, and a meth pipe was found in the front pocket. A further search of his person revealed meth. The Ninth Circuit held that airport searches no longer are dependent upon implied consent; they are now administrative searches because flying on an airplane in a post-9/11 world is now the same as a “highly regulated industry.” Any “implied consent,” thus, cannot be revoked once the passenger elects to enter the secure area. Such searches, however, are not limitless; they are limited by their justification: screening for terrorists. This search was reasonable under the circumstances. United States v. Aukai<http://caselaw.lp.findlaw.com/data2/circs/9th/0410226p.pdf>, 497 F.3d 955 (9th Cir. 2007) (en banc):
In the first decision of its kind, a court recently ruled that child pornography found in luggage during a random Transportation Security Administration airport check can be used as evidence in a sex crimes<http://www.statecollegelawyers.com/Criminal-Defense-Overview/Sexual-Offenses.shtml> case based solely on that pornographic material. While the United States Supreme Court has not yet ruled on the issue, two courts in different states recently found that such evidence was not admissible. However, the judges in the most recent case distinguished the most recent case from the earlier two, saying that the TSA employee’s intent in searching the luggage brings the seizure within the purview of the Fourth Amendment of the U.S. Constitution.
According to court documents, a man was departing Pensacola, Florida for a trip to Colorado when a TSA employee performed a random physical inspection of his luggage, looking for weapons and explosives. The agent allegedly discovered images of child pornography and alerted local police, who detained and eventually arrested the traveler. He moved to suppress the images discovered in his luggage, claiming that they were discovered in a way that violated his Fourth Amendment protection against illegal search and seizure.
The Florida court denied the traveler’s motion for suppression. District Judge Bradford Thomas distinguished the case from those in other states, stating that in those other locations agents were actually searching for child pornography and not performing a general search, as in this case. “We hold that the TSA agent was not engaged in ‘general law enforcement objectives’ when she discovered the child pornography,” Judge Bradford said.
The traveler ultimately pleaded no contest to 194 counts of possession of child pornography<http://www.statecollegelawyers.com/Criminal-Defense-Overview/Internet-Crimes.shtml>, but reserved his right to appeal the court’s denial of his motion for the suppression of the evidence discovered by the TSA agent.
The libertarians quote the Florida Constitution in their email to the sheriffs: Searches and seizures.—“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained.”
But you must read the rest of that section as follows:
SECTION 12. Searches and seizures.—The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.
Remember in our phone conversation we talked about the true law coming from the Supreme Court interpretations and rulings. That is what this section says.
And the V.I.P.R. units you mentioned to me are described below. I still have not learned any more about the VIPR units yet, but this is apparently their mission.
VIPR Actions. During VIPR operations, any person entering the impacted area has to be screened. VIPR is a team that’s made up of Federal Air Marshals<http://www.tsa.gov/lawenforcement/programs/fams.shtm>, Surface Transportation Security Inspectors<http://blog.tsa.gov/2009/03/day-in-life-of-transportation-security.html>, Transportation Security Officers<http://blog.tsa.gov/2008/02/what-it-takes-to-be-transportation.html>, Behavior Detection Officers<http://www.tsa.gov/what_we_do/layers/bdo/index.shtm> and Explosive Detection Canine teams<http://www.tsa.gov/lawenforcement/programs/editorial_1886.shtm>. The teams provide a random high-visibility surge into a transit system and work with state and local security, and law enforcement officials to expand the unpredictability of security measures to detect, deter, disrupt or defeat potential criminal and/or terrorist operations.
Hope this helps. Sheriff Bill Cameron, Charlotte County
Libertarian Party of Florida
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