Are the Transportation Security Administration’s (TSA) administrative checkpoint searches limited to those “no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives” as required by the Ninth Circuit, or may the TSA conduct more extensive searches as allowed in this case by the Eleventh Circuit?

This is the first and perhaps most significant of the questions presented to the US Supreme Court by a petition for certiorari in the case of Jonathan Corbett v. TSA, et al. The petition as filed last month was rejected on trivial procedural grounds, but is being resubmitted and should appear shortly on the Supreme Court’s voluminous docket of pending petitions.

This is an important case because almost the only limit on TSA searches which the courts have recognized has been the requirement that they be limited to searches for weapons and explosives, and that TSA checkpoints not be used as pretexts for general law enforcement dragnets.

In press releases and blog posts, the TSA has claimed that it has broader authority to detain, search, and interrogate travelers about matters unrelated to weapons, explosives, or transportation security. In practice, TSA checkpoint staff and contractors routinely rifle through wallets, read and copy books and papers, and search for any evidence that might create a suspicion of any criminality. But even while upholding the legality of these searches in specific cases, courts have continued to uphold, at least in theory and rhetoric, the principle that searches at TSA checkpoints are “limited”.

So far as we can tell, the decision by the 11th Circuit in Corbett v. TSA is the first appellate opinion explicitly to approve the use of TSA checkpoints for a broader general (warrentless and suspicionless) search of all travelers for evidence of any sort of potential crime.

There are three potential strikes against Mr. Corbett’s request for the Supreme Court to review the decision of the 11th Circuit Court of Appeals in this case:

1. The Supreme Court has almost unlimited discretion to choose which cases it will hear, and rejects 99% of all petitions for certioriari.  Almost any petition for Supreme Court review is a long shot.
2. Mr. Corbett submitted his petition pro se, without a lawyer.  The Supreme Court is most likely to accept cases on petition of the government itself, much less likely to accept them on petition of a private party represented by lawyer, and by far least likely to grant a pro se petition.
3. The case concerns practices at TSA checkpoints, which the Supreme Court has declined to review in any case since the creation of the TSA (thereby letting stand, although without creating any Supreme Court precedent, whatever decisions lower courts have made). The significance of TSA checkpoint “screening” as the most common sort of search by Federal agents  hasn’t moved the Supreme Court to take related cases in the past.

The main factor likely to influence the Supreme Court to grant Mr. Corbett’s petition for cert is the contradiction between the decsision by the 11th Circuit in Mr. Corbett’s case and prior decisions by other Circuot Courts, particularly (but not exclusively) that of the 9th Ciruit in U.S. v. Aukai.

Accroding to Mr. Corbett’s petition to the Supreme Court:

The Court Should Resolve the Split Between the Ninth Circuit and Eleventh Circuit Regarding the Boundaries of an Administrative Search that Affects Two Million Americans Daily

Approximately 2,000,000 persons per day are searched by the Transportation Security Administration [or on behalf of the TSA by private contractors – PapersPlease.org], a number far larger than the number of searches conducted by all other state and federal government agencies combined.

This search is conducted without neither a warrant nor any level of suspicion, and is mandatory for any individual who wants or needs to travel by commercial airplane. Instead, these searches are constitutional pursuant to the administrative search doctrine, which allows limited warrantless, causeless searches for specific “special needs,” rather than general law enforcement objectives….

In 1987, the court finally defined  the contours of administrative searches with a three-pronged test: (1) There must be “substantial government interest” supporting the regulatory scheme to which the search was made, (2) The warrantless searches must be “necessary to further the regulatory scheme,” and (3) “[T]he statute’s inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant.” Burger at 702, 703. This test was applied only after the court determined that a “special need” was present to justify an administrative search at all. Id.

The “special need” … for the TSA flows from the need to protect the skies from air piracy and terrorism. The TSA, created in 2002 after the tragic events of September 11th, 2001, exists solely to secure our nation’s travelers from people intent on taking their lives. This is the “regulatory scheme” contemplated by Burger and the rest of the long lines of administrative search doctrine case law.

It follows, then, that the TSA’s administrative searches may not be conducted with the intent of finding cocaine, child pornography, counterfeit money, stolen credit cards, etc., but must be confined to finding instrumentalities of taking over, or taking down, airplanes: weapons and explosives. Federal courts across the country had quite consistently applied the limitations for administrative searches set by the high court for at least 40 years. United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc) ; United States v. Davis, 482 F.2d 893 (9th Cir. 1973); United States v. Hartwell, 436 F.3d 174 (3rd Cir. 2006), cert. denied ; United States v. Fofana, 2009 U.S. Dist. LEXIS 45852, 09-CR-49 (S.D.O.H. 2009).

Aukai offers perhaps the clearest articulation of the application of Supreme Court doctrine to the context of TSA searches with a three part balancing test: (1) the search is “no more extensive or intensive than necessary, in light of current technology, to detect the presence of weapons or explosives;” (2) the search “is confined in good faith to that purpose;” and (3) a potential passenger may avoid the search by choosing not to fly. Aukai at 962.

The Eleventh Circuit here, however, has tossed aside virtually all of these well-reasoned restrictions, instead allowing the TSA to search through passengers’ belongings not just for the presence of weapons and explosive, but for anything that could make a traveler “suspicious:” from a credit card in someone else’s name to possession of a book that might contain words that the TSA does not approve of. Appendix C, p. C13 (“a thorough screening of Corbett’s bags was reasonable, even beyond the point of determining whether those belongings contained weapons”).
This must not be allowed to stand, or the administrative search doctrine will be an end run around the constitutional guarantees of the Fourth Amendment. The Court should hear this petition to narrow the scope of TSA searches to the boundaries set by the Ninth Circuit in Aukai.