By Kevin “Coach” Collins
The 1968 U.S. Supreme Court decision Terry v Ohio should put an end to the outrageous behavior of our TSA agents. The Terry case provided guidelines for police to “stop and frisk” those they deemed to have just committed a crime, are committing a crime or are about to commit a crime. Nevertheless, the Court tempered this new authority with a requirement that the police also have “reasonable suspicion” to justify such actions
The basic elements of Terry v Ohio are that a Cleveland Police Detective ( Martin J. McFadden) who was patrolling in plainclothes, observed three men loitering in the vicinity of a jewelry store. Relying on the experience and intuition he developed over his 38 years as a police officer, McFadden determined that the trio was preparing to rob the store so he stopped them and frisked them. The search revealed that two of the men were armed with handguns. McFadden placed all three under arrest. Until “Terry” police were empowered to stop and search suspects only after a crime had been committed.
All were found guilty, but they appealed their convictions up to the U.S. Supreme Court. After almost five years of legal maneuvering their convictions were upheld as justifiable based on McFadden’s established knowledge and experience regarding the identification of criminals even before they had committed their crime.
The Terry decision was not a complete “green light” for those in law enforcement to violate the 4th amendment with total impunity. As agents of government, Police officers must determine the existence of “reasonable suspicion” about the criminal nature of the person[s] being observed. Such “reasonable suspicions” must be based on ““specific and articulable facts.” Agents of the government may not act on a hunch.
This is the salient point as Terry v Ohio relates to the intrusive searches being carried out by Transportation Safety Administration (TSA). These TSA agents are employees of the Department of Homeland Security which makes them government agents and therefore bound by “Terry.”
Private security officers
It is an established fact that private security officers are not bound by the Terry v Ohio guidelines. A security guard is allowed to search someone on the property he/she is guarding on a mere hunch of wrong doing.
Given the sharp differences between the ways “Terry” rules apply to private guards and TSA agents, there appears to be no grounds for the type of vague and unsupported “hunch searches” TSA agents are doing everyday without cause.
Almost all of these searches would fall victim to Terry v Ohio as they should.
To read more about Terry v Ohio use these links:
http://www.clevelandseniors.com/forever/photoquiz32.htm
http://www.dhs.gov/xnews/releases/pr_1219416095765.shtm
This day in history November 22
1963: John F. Kennedy was murdered in Dallas Texas by Lee Harvey Oswald who later murdered Dallas Police Officer J.D. Tippit. Kennedy’s murder led to the swearing in of Lyndon Johnson as the 36th President later that day.
Remember we have work to do. Join your local TEA party and Republican County Committees to make sure real conservatives get our nominations.
Comments on this or any other coachisright.com essay can be sent by following the posting instructions below.
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The TSA would contend that the mere purchase of an airline ticket is “reasonable suspicion.”
Coach, Terry doesn't apply to this. Everybody seems to forget that airports are "ports." The mere fact that people are getting on public conveyances that are known targets of terrorists provides a reasonable pretext to do a search. This includes both the person and his effects. The problem lies in how invasive and how effective the search is. My position is that the TSA's methodology and over-reliance on flawed technology makes us less safe. Gizmodo. com has an excellent write up from a former LEO on this subject today. She believes our system might actually makes us less safe. http://gizmodo.com/5696160/why-the-tsa-could-lead…
So Terry doesn't apply because you think it doesn't. What do you want to bet those of us who are fed up with this police state crap can find a federal judge who says it does?
Then as I pointed out on another forum, that is the end of your theory. If Terry doesn't apply why would there already be at least two airports opting out of TSA "services"? Do you think it's because they believe there is NO chance of losing a "Terry" challenge or do you think it is just smart policy to follow established business law that says security personnel can search on a hunch and don't have to articulate ANY reasonable suspicions"? I'll go for door number two.
I was trying to point out that Terry doesn't apply because airports are "ports" to a public conveyance makes them different than just standing on the street, which is what Terry covered. I went and found the ruling that covers this:
"In 1973 the 9th Circuit Court rules on U.S. vs Davis, 482 F.2d 893, 908, 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.”
I want the searches gone as much as anyone, but it is probably going to have to be a political decision because the courts don't have our backs on this one.
Thanks for your thoughtful response. Exchanges like this are exactly what I had in mind when we re-designed our site.
That said, your comments that, "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.” " speaks to my point. As currently conducted, these searches are more intrusive and intensive than necessary. Current "technology" should include, but not be limited to, the technique of profiling which is used so effectively by the Israelis. We should have thousands of our people trained in this art by the best practioners – the Israelis. Also pulling the seal off of a urine collecting bag to conduct a search screams of bad faith.
Please write again when you want to expand on a topic.
happy Thanksgiving to you and yours,
Coach
Constitutional rights?? Apparently you haven't heard that it takes only one leftist, activist judge to VACATE our so-called Constitutional rights!!! And the overwhelming majority of these shining guardians of justice work for/support/donated to the Hussein regime. The rights and liberty once guaranteed actual Americans in the Constitution will never again be ours until tens of millions stand up and TAKE them back by whatever means are necessary. And I refuse to believe that so many of us have been EMASCULATED by political correctness that this will not happen in the very near future.
This is absolutely erroneous. The truth is that there is no reasonable right to privacy in a government building or a building under government control. Which means that transportation terminals, courthouses, and other government premises are like unto a private property and the TSA a private security force. They are legally permitted to search all persons to ensure the safety of all on the premise, and those who purchase a ticket or present themselves at the terminal, knowing the security measure in place, are implying their consent with the policies of these facilities. You don't like it… Don't Fly! Its just that simple. The 4th Amendment protects citizens from UNREASONABLE search and seizure… what is unreasonable about making sure that a person is not smuggling harmful items onto an airplane that could endanger the lives of many. You don't want to be searched… you can always drive…or stay home!
Wake up. The TSA is now conducting road side checkpoints in several cities and is now expanding the program to train stops. There will soon be no place you can travel, car or otherwise, without presenting your papers. You will be searched everywhere you go. Just yesterday it was announced movie theaters would begin frisking people upon entry. What is the use of the 4th amendment now? Does it only apply to your home? Oh wait, now there are warrantless searches of homes. But you’re right, this is all reasonable so you can be safe.