AIRPORT SEARCH AND THE FOURTH AMENDMENT - RECONCILING THE THEORIES AND PRACTICES

• NCJ Number: 60066
• Journal: Criminal Law Review Dated: (1979) Pages: 117-146
• Author(s): H WEINSTOCK
• Date Published: 1979
• Length: 30 pages
• Corporate Author: Clark Boardman Company, Ltd
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: REPRINTED FROM UCLA-ALASKA LAW REVIEW, V 7, N 307 (1978)

Annotation

LEGAL THEORIES USED TO SUPPORT AIRPORT SECURITY SEARCHES ARE CRITIQUED.

Abstract

DISCOUNTING THE THEORY OF IMPLIED CONSENT, ALL OF THE APPARENTLY DIVERGENT AIRPORT SEARCH RATIONALES REVOLVE AROUND BASICALLY IDENTICAL BALANCING OF INTERESTS ANALYSES AND LIMITATIONS ON THE SEARCHES' PERMISSIBLE SCOPE. THE DISPARATE COURT CASES HAVE REVEALED A TREND TOWARDS PROHIBITING SEARCHES OF CHECKED BAGGAGE AND ALLOWING PASSENGERS TO AVOID THE SEARCHES BY LEAVING, UNLESS THERE EXISTS AN EXIGENCY SUCH AS A BOMB THREAT OR AN UNUSUALLY HIGH LEVEL OF SUSPICION BASED ON ARTICULABLE FACTS. THUS, IT IS NOT OF PRACTICAL SIGNIFICANCE WHICH THEORY IS ADOPTED. WHICHEVER APPROACH IS USED, THE BALANCE MUST BE STRUCK BETWEEN GOVERNMENTAL AND INDIVIDUAL PRIVACY INTERESTS. WHILE THE NEED FOR AIRPORT SECURITY IS RECOGNIZED, IT CAN BE PERCEIVED AS A BEING A DISTURBING PRECEDENT FOR A GROWING NUMBER OF ROUTINE SEARCHES CONDUCTED IN THE NAME OF GOVERNMENTAL INTERESTS. IT IS THEREFORE VITAL THE ANTIHIJACKING MEASURES BE THE LEAST INTRUSIVE POSSIBLE, A REQUIREMENT NOT YET ADEQUATELY FACED BY THE COURTS. ALTHOUGH THE THEORIES JUSTIFYING AIRPORT SEARCHES HAVE MUCH IN COMMON, IT DOES NOT FOLLOW THAT THEY ARE EQUALLY SUITABLE TO THE CURRENT AIRPORT SITUTATION. THE 'TERRY' DOCTRINE IS INAPPLICABLE TO INDISCRIMINATE SEARCHES DUE TO THE SPECIFIC AND ARTICULABLE FACTS REQUIREMENT; THE BORDER SEARCH ANALOGY LACKS HISTORICAL FOUNDATION AND APPEARS EXTREME; AND THE THEORY OF IMPLIED CONSENT CIRCUMVENTS THE FOURTH AMENDMENT INQUIRY INTO 'REASONABLENESS' AND IS NOT APPROPRIATE FOR AIRLINE PASSENGERS IN ANY EVENT. THE GENERAL REASONABLENESS AND ADMINISTRATIVE SEARCH APPROACHES ARE THEREFORE THE MOST TENABLE, WITH THE LATTER HAVING THE ADDITIONAL ADVANTAGE OF EXPLICIT U.S. SUPREME COURT BACKING WITHOUT THE NEED FOR EXCESSIVE FORCED INTERPRETATION TO MAKE IT FIT AIRPORT SECURITY CIRCUMSTANCES. FOOTNOTES ARE PROVIDED. (AUTHOR ABSTRACT MODIFIED---RCB)