Metropolitan News-Enterprise


Thursday, August 8, 2002


Page 1


Ninth Circuit Upholds Random Searches at Airports


By a MetNews Staff Writer


The Fourth Amendment does not prohibit authorities from conducting random, suspicionless searches of bags that have cleared the X-ray machines, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court also held that a person whose bag has gone through the machine does not have the option of taking the bag and leaving the airport rather than submit to the search.

The court affirmed a judgment in favor of United Airlines, Inc. and the Los Angeles Department of Airports.

The plaintiff, San Francisco attorney Hugo Torbet, came to LAX in 1998 to catch a shuttle flight to San Francisco. He walked through the metal detector and placed his carry-on bag on the belt for scanning.

After the bag cleared, he was stopped and told that his bag had been selected for random search. He objected, then offered to take his bag and leave the airport, all to no avail.

A search of the bag—conducted by security personnel overseen by a Los Angeles police officer—revealed nothing troubling, and Torbet took the bag and went to catch his flight. But he later filed suit under 42 U.S.C. Sec. 1983 for the claimed violation of his right to be free from unreasonable search and seizure, seeking $1 million for his alleged loss of dignity and emotional distress.

U.S. District Judge A. Howard Matz of the Central District of California, after reviewing federal security directives in camera, granted judgment on the pleadings. The judge said Torbet had impliedly consented to the search, and that Torbet’s related claims under state law were preempted.

Senior Judge Jerome Farris, writing for the appeals court, agreed.

“To avoid search, a passenger must elect not to fly before placing his bag on the x-ray belt,” the judge wrote, citing United States v. Pulido-Baquerizo, 800 F.2d 899 (9th Cir. 1986).

That decision, Farris wrote, applies even if the x-ray scan appears to rule out the possibility of weapons or explosives being in the bag.

“The district court read Pulido-Baquerizo to mean that consent to an x-ray scan implies consent to a further search, regardless of whether the x-ray is ‘inconclusive’ or ‘flatly devoid of suspicious features,’” the jurist wrote. “As we read Pulido-Baquerizo, and as we now make explicit, an x-ray scan may be deemed inconclusive, justifying further search, even when it doesn’t affirmatively reveal anything suspicious.”

Farris also rejected Torbet’s contention that he should have been allowed to take his bag and leave the airport in lieu of submitting to a search. “[T]he Fourth Amendment does not require that passengers be given a safe exit once detection is threatened,” he wrote.

Torbet represented himself in the District Court, but was represented by Los Angeles attorney Vincent Chan on appeal. Ashley E. Dempsey and Douglas J. Pahl, of the Los Angeles firm of Kern & Wooley represented United Airlines, while Douglas Knoll of Camarillo represented the Department of Airports and the police officer who oversaw the search.

The case is Torbet v. United Airlines, Inc., 01-55319.


Copyright 2002, Metropolitan News Company