Metropolitan News-Enterprise


Monday, August 13, 2007


Page 1


Airport Screening Not Dependent on Consent, Ninth Circuit Rules




The government’s authority to screen passengers passing security checkpoints at airports is in no way dependent on the passenger’s express or implied consent, the Ninth U.S. Circuit Court of Appeals ruled Friday.

In a 15-0 en banc decision, the court—which has previously upheld Transportation Security Administration procedures—made it clear that a potential passenger may be subjected to screening even after offering to leave the airport without boarding a flight instead.

The judges affirmed Daniel K. Aukai’s conviction for possession of more than 50 grams of methamphetamine with intent to distribute. Aukai pled guilty, but reserved his right to appeal, after U.S. District Judge Helen Gillmor denied his motion to suppress.

He was sentenced to 70 months in prison, plus five years’ supervised release.

Aukai was arrested at Honolulu International Airport in February 2003. Testimony at the suppression hearing indicated that he checked in for a flight from Honolulu to Kona, but did not have government-issued photographic identification.

‘No ID’

A TSA officer explained that when a passenger lacks ID, the airline may issue a boarding pass marked “No ID.” Unlike passengers who present ID, the “No ID” passenger is subject to the more intrusive “secondary screening”—in which an officer passes a handheld “wand” close to the passenger’s body—even if the primary screening does not set off an alarm.

When Aukai went to secondary screening, the officer testified, the alarm sounded as the wand passed over his pocket. When Aukai insisted he had nothing in his pocket, the officer “wanded” him again, and the alarm went off again.

At this point, according to the testimony, a TSA supervisor came over and ordered Aukai to empty his pockets. After he took out a few items and insisted his pocket was now empty, however, the supervisor noticed a bulge in the pocket—which he said looked like the outline of a possible weapon—and called police.

Aukai finally removed the object, which turned out to be a glass pipe. Following his arrest, he was searched and several bags of what turned out to be methamphetamine were found.

In moving to suppress, Aukai claimed that at some point during the screening process, he told the TSA officer he had changed his mind and no longer wanted to fly that day. But Judge Carlos Bea, writing for the Court of Appeals, said that the agents were entitled to complete the screening process even if that was true.

That process, Bea said, is valid under the Supreme Court’s “administrative search” jurisprudence.

‘Special Need’

The high court, he explained, has held that the government may conduct a warrantless search in the exercise of its regulatory authority, provided that there is a “special need” and the search is no more intrusive than is justified by the administrative need. He cited cases upholding a warrantless search of a junkyard and its records, as part of a regulatory program designed to deter theft and control insurance rates; as well as the use of sobriety checkpoints.

The Supreme Court, Bea noted, as held that a valid administrative search does not require consent. In United States v. Biswell, 406 U.S. 311 (1972), the court held that a gun dealer’s participation “in this pervasively regulated business” subjects the business premises to warrantless searches authorized by federal statute.

Suggestions in two prior Ninth Circuit cases that a passenger could have avoided a search by turning back prior to submitting to the initial screening were erroneous, Bea wrote. “The constitutionality of an airport screening search...does not depend on consent...and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world,” Bea wrote.

The opinion was joined by Chief Judge Mary M. Schroeder and Judges Alex Kozinski, Andrew J. Kleinfeld, Barry G. Silverman, M. Margaret McKeown, William Fletcher, Ronald Gould, Johnnie B. Rawlinson, Jay S. Bybee, Consuelo Callahan, and Sandra S. Ikuta.

Judge Susan Graber, joined by Judges Michael Daly Hawkins and Kim M. Wardlaw, concurred separately. While agreeing with the majority that Aukai was subjected to a valid administrative search, Graber said the references to 9/11 and terrorism were “irrelevant and distracting.”

Graber wrote:

“By relying on those factors, the majority unnecessarily makes its solid holding dependent on the existence of the current terrorist threat, inviting future litigants to retest the viability of that holding.”

The case is United States v. Aukai, 04-10226.


Copyright 2007, Metropolitan News Company