If you have flown recently, there is a good chance that your checked luggage has been searched. I know mine has.

How are they allowed to do that?

Doesn’t the Fourth Amendment of the U.S. Constitution prohibit searches (and seizures) without a warrant? And isn’t “probable cause” required before a warrant can be issued?

This is what the Fourth Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Generally, that means that neither federal nor state officials can search you, your clothing, your bags, your house, your car — and so on — unless they have a search warrant that was issued by a court based on a showing of “probable cause” to believe that the search will uncover evidence of a crime.

But the Transportation Safety Administration (TSA) certainly does not obtain search warrants for every bag they search. And even if they tried, there is rarely probable cause to believe that there is evidence of a crime in those bags.

So, what gives? Why are warrantless luggage searches by the TSA lawful?

Actually, courts have carved out a number of exceptions to the requirement for a search warrant based on a showing of probable cause. These are some examples:

  • It is lawful to search a person “incident to arrest.” For a police officer’s protection and to prevent the destruction of evidence, when a person is lawfully arrested a police officer can search the person without a search warrant.

  • Even short of an arrest, there is authority to “stop and frisk” a suspect on the street if a trained police officer has a reasonable suspicion that criminal activity is imminent.

  • Warrantless searches of vehicles are allowed when an officer has probable cause to believe there is contraband in the vehicle.

Once you know that there are exceptions to the Fourth Amendment’s search warrant requirement, it is easy to understand that courts have found exceptions that apply to warrantless searches of luggage for weapons and explosives.

These are some of the reasons that courts have approved warrantless airport searches:

  • Consent. By agreeing to travel on a plane, passengers have impliedly consented to the searches.

  • Reasonableness. The Fourth Amendment only prohibits “unreasonable” searches and seizures. Balancing the safety of the flying public against the level of the intrusion to privacy, courts have determined that luggage searches that may keep a suicidal wingnut from blowing a plane and its passengers out of the sky are “reasonable.” (The injudicious language is mine, not any court’s.)

  • These searches are administrative, not criminal. Their administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft, not detecting crime. Therefore, the reasoning goes, the Fourth Amendment does not apply.

  • Special Needs. The special need to protect the safety of the flying public justifies the searches. (Other circumstances where “special needs” have been invoked to justify warrantless searches include highway sobriety checkpoints, border patrol checkpoints and student searches in schools.)

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    **These questions and answers are designed to provide helpful information that can be read quickly. They are neither a full explanation of the subject nor legal advice. To learn more, and to receive legal advice on which you can rely, contact me or another lawyer.