J
jilly4ski
Guest
Well lets see someone wants legal arguments. Here is my take on it, with just doing a quick overview of the research nor shepardizing my sources.
Interstate travel is a right under the constitution, (Shapiro v. Thomas, Corfield v. Coryell, 6 Fed. Cas. 546 (1823), Paul v. Virginia, 75 U.S. 168 (1869)).
As such any restriction on such would need to pass at least intermediate scrutiny if not strict scrutiny. footnote 4 to United States v. Carolene Products (1938).
Under strict scrutiny, the regulations must serve a compelling governmental interest and the least restrictive means to achieve that goal. (Can you really argue that procedures put in place 1 year after the underwear bomber, that wouldn’t have caught him anyways are the least restrictive means).
Intermediate scrutiny calls for an important governmental interest and the rule/law be narrowly tailored to achieve that interest.
Surely we can agree that stopping terrorist is a compelling governmental interest, but can we really say that having random people at the airport get a full body scan and/or frisked is really narrowly tailored or the least restrictive means to accomplish this goal? Indeed as it is not checking everyone and is over inclusive in that everybody will be searched and under inclusive in that these security measures might not actually catch bombers like the underwear bomber.
Now lets look at the means used. A search with no warrant and where probable cause is an issue. Mapp v. Ohio denied the use of evidence in a trial for having obscene material, but they entered the house on suspicion that the occupants we harboring a bomb fugitive. The police did not have a warrant and no consent was given, but the entered the house anyways. (Hmm suspected bomber and you still need a warrant).
In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that a search occurs only when 1) a person expects privacy in the thing searched and 2) society believes that expectation is reasonable. (I think we all have a reasonable expectation that our genitals, and our bodies in general are private).
In Terry v. Ohio 392 U.S. 1 (1968), a police officer may conduct a warrantless search with less then probably cause when the officer has a reasonable suspicion that “criminal activity is afoot.” The officer may conduct a frisk, but must point to specific and articulable facts which taken together form a reasonable basis for the search. A vague hunch is not enough. (So the police cannot conduct a frisk without some sort of reason, but the TSA can randomly select people to be frisked? If you set of the metal detector or are seen hiding something in your pants, maybe then you could be frisked by TSA, but before then? Not under this standard.)
In City of Indianapolis v. Edmond, 531 U.S. 32 (2000), ruled that police checkpoints set up for the purpose of “general crime control” were unreasonable under the Fourth Amendment. Though checkpoints for border security and catching drunk drivers is generally allowed, Michigan v. Sitz. In Sitz, the officers could only ask questions, not search the vehicles. (So are the checkpoints for a specific purpose? maybe, but just because there is a checkpoint doesn’t give the authority license to search a persons body without a warrant or probably cause/reasonable suspicion).
United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) travelers may be stopped and searched at the border without individualized suspicion even if the stop or search is based largely on ethnicity" (citing United States v. Martinez-Fuerte, 428 U.S. 543, 562-563(1976)) (At the border we can “discriminate” based on ethnicity and search people).
Customs may only conduct searches of the traveler’s body, including strip, body cavity, involuntary x-ray, and in some jurisdictions, pat-down searches, if the Customs officer has reasonable suspicion to believe the traveler is concealing contraband. See United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004); United States v. Johnson, 991 F.2d 1287, 1291-92 (7th Cir. 1993). (So customs can only do body searches with reasonable suspicion, I highly doubt a random search rises to the level of reasonable suspicion).
(So here we have an issue, are the checkpoints themselves constitutional, maybe because they are there for a specific purpose, if terrorism can be defined as a specific purpose, though again in interstate travel maybe not. But the searches may not be constitutional. Even at border crossings search of travelers body is limited to reasonable suspicion, so that would mean that body searches of interstate travelers could not be supported by the 4th amendment if border crossings can’t be).
As you can see from my post, this is why others have not cited authority and made the “legal argument” that you seem to desire. It is not conductive to good forum discussion.
Interstate travel is a right under the constitution, (Shapiro v. Thomas, Corfield v. Coryell, 6 Fed. Cas. 546 (1823), Paul v. Virginia, 75 U.S. 168 (1869)).
As such any restriction on such would need to pass at least intermediate scrutiny if not strict scrutiny. footnote 4 to United States v. Carolene Products (1938).
Under strict scrutiny, the regulations must serve a compelling governmental interest and the least restrictive means to achieve that goal. (Can you really argue that procedures put in place 1 year after the underwear bomber, that wouldn’t have caught him anyways are the least restrictive means).
Intermediate scrutiny calls for an important governmental interest and the rule/law be narrowly tailored to achieve that interest.
Surely we can agree that stopping terrorist is a compelling governmental interest, but can we really say that having random people at the airport get a full body scan and/or frisked is really narrowly tailored or the least restrictive means to accomplish this goal? Indeed as it is not checking everyone and is over inclusive in that everybody will be searched and under inclusive in that these security measures might not actually catch bombers like the underwear bomber.
Now lets look at the means used. A search with no warrant and where probable cause is an issue. Mapp v. Ohio denied the use of evidence in a trial for having obscene material, but they entered the house on suspicion that the occupants we harboring a bomb fugitive. The police did not have a warrant and no consent was given, but the entered the house anyways. (Hmm suspected bomber and you still need a warrant).
In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that a search occurs only when 1) a person expects privacy in the thing searched and 2) society believes that expectation is reasonable. (I think we all have a reasonable expectation that our genitals, and our bodies in general are private).
In Terry v. Ohio 392 U.S. 1 (1968), a police officer may conduct a warrantless search with less then probably cause when the officer has a reasonable suspicion that “criminal activity is afoot.” The officer may conduct a frisk, but must point to specific and articulable facts which taken together form a reasonable basis for the search. A vague hunch is not enough. (So the police cannot conduct a frisk without some sort of reason, but the TSA can randomly select people to be frisked? If you set of the metal detector or are seen hiding something in your pants, maybe then you could be frisked by TSA, but before then? Not under this standard.)
In City of Indianapolis v. Edmond, 531 U.S. 32 (2000), ruled that police checkpoints set up for the purpose of “general crime control” were unreasonable under the Fourth Amendment. Though checkpoints for border security and catching drunk drivers is generally allowed, Michigan v. Sitz. In Sitz, the officers could only ask questions, not search the vehicles. (So are the checkpoints for a specific purpose? maybe, but just because there is a checkpoint doesn’t give the authority license to search a persons body without a warrant or probably cause/reasonable suspicion).
United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) travelers may be stopped and searched at the border without individualized suspicion even if the stop or search is based largely on ethnicity" (citing United States v. Martinez-Fuerte, 428 U.S. 543, 562-563(1976)) (At the border we can “discriminate” based on ethnicity and search people).
Customs may only conduct searches of the traveler’s body, including strip, body cavity, involuntary x-ray, and in some jurisdictions, pat-down searches, if the Customs officer has reasonable suspicion to believe the traveler is concealing contraband. See United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004); United States v. Johnson, 991 F.2d 1287, 1291-92 (7th Cir. 1993). (So customs can only do body searches with reasonable suspicion, I highly doubt a random search rises to the level of reasonable suspicion).
(So here we have an issue, are the checkpoints themselves constitutional, maybe because they are there for a specific purpose, if terrorism can be defined as a specific purpose, though again in interstate travel maybe not. But the searches may not be constitutional. Even at border crossings search of travelers body is limited to reasonable suspicion, so that would mean that body searches of interstate travelers could not be supported by the 4th amendment if border crossings can’t be).
As you can see from my post, this is why others have not cited authority and made the “legal argument” that you seem to desire. It is not conductive to good forum discussion.
