SubscribeThe appropriate standards for evaluating the airport search program under the Fourth Amendment are found in a series of Supreme Court cases relating to "administrative" searches and in two Court of Appeals decisions applying these precedents.United States v. Davis, 482 F.2d 893, 908-911 (9th Cir. 1973) (most footnotes and citations omitted).
The essence of these decisions is that searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched.
As we have seen, screening searches of airline passengers are conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings. The essential purpose of the scheme is not to detect weapons or explosives or to apprehend those who carry them, but to deter persons carrying such material from seeking to board at all.
Of course, routine airport screening searches will lead to discovery of contraband and apprehension of law violators. This practical consequence does not alter the essentially administrative nature of the screening process, however, or render the searches unconstitutional. One purpose of the searches authorized in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), was to discover continuing violations of regulatory codes.
There is an obvious danger, nonetheless, that the screening of passengers and their carry-on luggage for weapons and explosives will be subverted into a general search for evidence of crime. If this occurs, the courts will exclude the evidence obtained. [FN44] Appellant does not argue that airport searches are currently being used as a subterfuge for the prohibited "general search."FN44. See, e. g., Abel v. United States, 362 U.S. 217, 229-230, 240, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Montana v. Tomich, 332 F.2d 987, 989 (9th Cir. 1964); Taglavore v. United States, 291 F.2d 262, 265- 266 (9th Cir. 1961). It has been suggested that in order to avoid the danger of abuse, any evidence unrelated to the legitimate purpose of the regulatory search should be excluded. See Note, Skyjacking: Constitutional Problems Raised by Anti-Hijacking Systems, supra note 33, at 365; see also McGinley & Downs, supra, note 33, at 323, n. 198; quoting Note, The Supreme Court, 1967 Term, 82 Harv.L.Rev. 63, 186 (1968). Although we impliedly rejected this suggestion as applied to the facts of United States v. Schafer, 461 F.2d 856 (9th Cir. 1972), the Supreme Court expressly reserved the question in Wyman v. James, 400 U.S. 309, 323, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971). However, the evidence uncovered in the search of appellant's briefcase could hardly be called unrelated to the justification for the search.To pass constitutional muster, an administrative search must meet the Fourth Amendment's standard of reasonableness. "Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails." Camara v. Municipal Court, supra, 387 U.S. at 536-537, 87 S.Ct. at 1735.
The need to prevent airline hijacking is unquestionably grave and urgent. The potential damage to person and property from such acts is enormous. The disruption of air traffic is severe. There is serious risk of complications in our foreign relations.
A pre-boarding screening of all passengers and carry-on articles sufficient in scope to detect the presence of weapons or explosives is reasonably necessary to meet the need. Little can be done to balk the malefactor after such material is successfully smuggled aboard, and as yet there is no foolproof method of confining the search to the few who are potential hijackers.
It is not fatal that the search of appellant's briefcase was conducted without a warrant. Under the indiscriminate screening procedures required by current regulations and applied in this case, the decision to search the carry-on luggage of a particular passenger is not "subject to the discretion of the official in the field," Camara, supra, 387 U.S. at 532, 87 S.Ct. at 1733; and the practical effect of a warrant requirement would be to "frustrate the governmental purpose behind the search." Id. at 533, 87 S.Ct. at 1733.
In this and other relevant respects, the airport search program is indistinguishable, for Fourth Amendment purposes, from the warrantless screening inspection of air passengers and their luggage for plant pests and disease approved in United States v. Schafter, 461 F.2d 856 (9th Cir. 1972).
One important caveat should be stressed, however. To meet the test of reasonableness, an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it. It follows that airport screening searches are valid only if they recognize the right of a person to avoid search by electing not to board the aircraft.
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In sum, airport screening searches of the persons and immediate possessions of potential passengers for weapons and explosives are reasonable under the Fourth Amendment provided each prospective boarder retains the right to leave rather than submit to the search.
Of course, routine airport screening searches will lead to discovery of contraband and apprehension of law violators. This practical consequence does not alter the essentially administrative nature of the screening process, however, or render the searches unconstitutional.In order to reconcile this passage with the one you cited, you must focus on the scope of the search. If the scope of the search is sufficiently broad to suggest that the searching authorities intended it as a general search, the evidence will be excluded. If the scope of the search is only broad enough to search for weapons, but also happens to find the contraband, the evidence will not be excluded. I don't think we can answer that question in this case by hearing only one side of the story.
posted by Captaintripps at 2:26 PM on December 10, 2004