From Wikipedia [achived link]
Local TSA, including the TSA’s own blog, has been citing United States v. Aukai (2009) 497 F.3d 955, that provides a person cannot withdraw consent after a search has started because it would allow those detected to escape. Misconstruing the case, TSA’s new searches violate the US Constitutional “administrative” and “special needs” doctrine exceptions to the 4th Amendment as outlined in that very case. A search has to be no more “extensive” “nor intensive than necessary” and “confined in scope in good faith to that purpose.” [[US v. Aukai, 497 F. 3d 955, 961 (9th Cir.2007) citing United States v. Davis, 482 F.2d 893, 913(9th Cir.1973).
Pistole acknowledged Novemeber 21, 2010 that new TSA screening procedures are "invasive" and "uncomfortable" [7] confirming the public’s outcry over the searches and thereby implicitly acknowledging what was known all along; the extensive searches are unconstitutional without reasonable suspicion.
Pistole’s agency will continue to face criticism because screening all passengers with AIT or extensive pat-downs is not confined in good faith because they are generally applicable to all passengers traveling and without any limitation. A “special needs” search requires reasonable suspicion for more than that most minimally invasive searches (visual, metal detector, questioning, profiling, etc.). While an administrative search doctrine provides that the officer’s discretion is to be limited and when a person objects they get a warrant. New York v. Burger, 482 U.S. 691, 711 (1987).
Pistole’s agency during the reevaluation may finally come up with a constitutionally permissible search process which would escalate the levels of intrusiveness from a positive metal detector to a normal pat-down and then AIT or extensive pat-down if there was a need or reason to suspect, as in “good faith” they had an underwear bomb or to determine what triggered a safety alarm depending on the available technology.
However, this is unlikely given the totalitarian stance taken by the TSA and their unwillingness to do so. In fact local TSA on “national opt-out day” has requested local police departments to be on hand to arrest and bully those who exercise their rights and opt out before any search has taken place. [8] This too violates the constitutional rationale behind not requiring a warrant in the first place. Contrary to threats by TSA agents, civil penalties do not exist nor can they for refusing to be searched once a person has entered the checkpoint, rather fines exist for interfering with a search once it has started.
I am not a lawyer. Thoughts from any who are?
