Does the United States Constitution allow the Transportation Security Administration, (TSA) agents or any government agency or agents, without probable cause, without a warrant issued upon an affidavit of probable cause, to conduct a full body search of airline passengers, or any United States citizens, and/or does it allow government officials to conduct full body scan searches of United States citizens, these scans being so invasive, they render the citizen naked in the resulting photograph, for the purpose of finding illegal contraband?.
When the Transportation Security Administration (TSA) conducts full body hand searches, and/or full body scan searches of airline passengers at American airports for the purpose of finding illegal contraband, without the requisite affidavit of probable cause and a warrant issued on the affidavit hereto, when these citizens protest, but are threatened by the TSA with arrest, detention in jail and an $11,000.00 fine if they resist, might this constitute a coerced search and seizure, thus an unlawful search and seizure under the Fourth Amendment of the United States Constitution?
The Legal Definition of a Search
Looking for or seeking out that which is otherwise concealed from view. An examination of a person’s house or other buildings or of his person, with a view to discover contraband, consists of probing or exploration for something concealed or hidden, for something illegal. Merely looking at that which is open to view is not a search.
The Legal Definition of a Seizure
The Seizure of an individual, within the Fourth Amendment, connotes the taking of one physically or constructively into custody and detaining him, thus causing a deprivation of his freedom in a significant way, with an interruption of his liberty of movement. Such occurs not only when an officer arrests an individual, but whenever he restrains the individual’s freedom to walk away.
The Fourth Amendment of The Constitution of the United States asserts the following: 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.
Assault and Battery: any unlawful touching of another which is without justification or excuse.
Battery requires physical contact, while assault does not require physical contact. In fact, assault can happen when a person puts another in fear of imminent bodily harm. Criminal battery requires an intent, (mens rea), to inflict an injury on another, as distinguished from a tortuous battery. (Black’s Law Dictionary, Abridged Sixth Edition, 1891-1991, West Publishing Co. 1991)
Our government, without so much as a blink of its increasingly intrusive eye, had the unlawful, unmitigated gall to suspend the Constitutional provisions that protect our privacy over our persons, our effects, our homes, and all things that are most sacred to us. The provision which affords this personal protection of our privacy is found in one of our most revered documents, the Bill of Rights, and was taken away from the American people in a clandestine decision making process, without warning, by the government agency, the Transportation Security Administration. The ruling that was effected forthwith, was said to be necessary for our air travel safety, and was enforced immediately and with such a heavy-handedness it failed to offer those affected by it, airline passengers, civilly acceptable levels of respect, not even to disabled passengers, such as those who were fitted with prostheses or other more personal medical contraptions. There was absolutely no consideration or mercy shown any of the people who were put off by having their crotch and breasts groped by strangers, much less folks who were disabled and had to undress even further, such as the flight attendant who was forced to remove her prosthetic breast, and the gentleman who was forced to remove a colostomy bag, which while in the process of removal, said bag burst. Passengers bold enough to question the legality of the intrusive new procedures, were quickly chastised and threatened with arrest.
This unlawful invasion of our persons and our privacy by the Transportation Security Administration, (hereinafter referred to as the TSA), should have American citizens up in arms, figuratively speaking of course. Our government claims to have made this new rule, it calls enhanced security procedures, for security against terrorism targeted at the airlines, and simply told the people they would comply or not fly. There was no discussion, our representatives were not consulted, nor was this edict put through the mandatory administrative rule making process, so that the public would have its usual opportunity to weigh in on this proposition, preventing arbitrary and capricious rule making, which is exactly what transpired with these enhanced security measures that we the people have been forced to accept and endure,… except for the ruling class, of course. We can be fairly sure John Boehner will not endure the humiliation of having his penis grabbed at the airport, (Now that should make him weep.), and certainly Janet Napolitano will not have to endure the embarrassment of having her crotch groped, or a nipple pinched. I am sure there are union bosses, and friends of Obama’s who will not have to endure these new procedures. There is an administrative process by which new rules are to be made legal. It is notable then, when this new procedural rule was instated not one lawful process was followed by the TSA. The Administrative Rule Making Process was ignored altogether. Not one person was given an opportunity to give any arguments in favor of, or against this arbitrary and capricious ruling the TSA adopted. Think of that. I am stunned that our American public will take this sitting down. This is probably the most dangerous move our government has ever made in attacking our liberties under the Constitution. This attack directed at our basic freedoms under the Fourth Amendment found in our Bill of Rights, is unprecedented in the history of our Republic. I have never heard of this happening before, and mark this down; if we allow this to go unchecked, it will happen again and again. It is only a matter of time, and our government’s ability and imagination to manufacture circumstances in which it will insist it requires the suspension of our rights.
(As an aside: Abe Lincoln suspending habeas corpus isn’t even comparable. The Constitution makes a provision for the suspension of habeas corpus for the conditions in which Lincoln found himself. What he did was lawful. See Article I, Sect 9, Clause 2, U.S. Constitution.),
Therefore, I am puzzled and somewhat troubled by the lack of real palatable outrage by the American public over what is being called enhanced security procedures at our country’s airports under the guise of keeping us, the American people, safe from terrorists. And, yes, I will say it; the terrorists who want to kill us are Fundamentalist Islamic Terrorists. I call them fundamentalists, rather than radical, because they take what is said in their Koran to the letter. Where it says they are to kill all who do not believe the way they do, do not share their faith, they simply take that literally. That is what makes them Muslim Fundamentalists. It does not make them radicalized necessarily. We surely cannot defend ourselves if we do not clearly define our enemy. However, this argument is not the purpose of this article, so I will not take it up here.
Unfortunately, our government under the current administration cannot seem to come up with an effective and lawful way of keeping the homeland safe. Just today, Janet Napolitano, after visiting Israel, declared our country could not do behavioral profiling because we have such a much bigger population than Israel. (They cannot install the Israeli system of behavioral profilers, which would be lawful, but they can usurp the Constitution and suspend all of our civil rights? Obama was so concerned about the civil rights of the Guantanamo prisoners, he practically did flip-flops to get them out of there, and to also have civilian trials for them to insure their ‘rights ‘ were protected even when it would put the safety of the people of NYC in great jeopardy, and cost that city millions for security. Furthermore, look how he and his administration are perfectly okay trampling on our civil rights, showing no concern whatever for his own people.) This administration is the most whiney ‘we can’t do it’ bunch I have ever seen in one place. Of course we can do it. When did we get to be a nation so incompetent, a perpetual victim of circumstances? The issue of our population has nothing to do with instituting behavioral profilers at our airports. We are the United States of America. We can do whatever we need to do.
Surely there is a company out there who can provide behavioral profilers and training updates needed to keep the airlines safe. However, I am inclined to agree with Ms. Napolitano that the government would undoubtedly be unable to install such a program, and make it successful. I think experience has taught us that a high caliber security scheme using the Israeli system should not be trusted to the management of our government. It would need to be owned and managed by a private, reliable, patriotic American company. A competent security company will not be flummoxed by the amount of people using our airports. Of course the Israeli system can be installed here and can work here. However, as we have seen, time and again, the past two years, this administration prefers to goad, agitate and make war on the American people, rather than show good faith that it cares seriously about the peoples’ safety. It is not surprising then that this administration would come up with this current hunt and peck system of smoke and mirrors, to make us appear more secure, but actually allowing the terrorists to win, by trampling on our unalienable rights, rights given us by God, and ratified into law for us by The Bill of Rights in our Constitution.
Our Republican form of government is designed to do what we the people direct it to do, although it has not felt that it works that way lately. We know we are the best managers of our safety and what is best for us. We need to let our government leaders know suspension of any part of our Constitution is unacceptable, and that we insist the Israeli system be looked into for installation here; Ms. Napolitano’s rejection of that system is not good enough. We must insist our Constitutional rights be restored immediately, the unlawful searches and seizures stop, and the issues of the Israeli system be brought before a panel of experts to be discussed and considered seriously.
The Fourth Amendment of our Constitution is the specific law that governs matters of illegal searches and seizures anywhere, and in this particular discussion, at our nation’s airports. The Fourth Amendment is the law that restrains the government’s power over the citizens, and keeps the government from reaching into the citizens’ persons, effects, privacy, and private spaces. It essentially protects our reasonable expectation of privacy, as U.S. citizens. No one can deny that the TSA is right now in every airport in the United States, conducting unlawful searches and seizures of the flying American public, as the TSA is breaching this reasonable expectation of privacy every time they search an airline passenger. As you can see above, the Fourth Amendment clearly states that we, the citizens of the United States, cannot be searched and/or seized except with a showing of probable cause by affidavit, and there must also be a warrant issued based on the affidavit.
The Fourth Amendment right against unreasonable searches and seizures, made applicable to the States by the Fourteenth Amendment “protects people, not places,” and therefore applies as much to the citizen on the streets as well as at home or elsewhere. The Fourth Amendment applies, and protects a person from search and seizure only if that person has a “legitimate expectation of privacy” in the place or thing searched. If not, the Fourth Amendment offers no protection because there are, by definition, no privacy issues. Courts use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched:
• Did the person actually expect some degree of privacy?
• Is the person’s expectation objectively reasonable — that is, one that society is willing to recognize?
In this case, for example, does a person ready to board a plane to fly to a vacation or business destination have a reasonable expectation to not be searched or seized, to not have her body groped or private parts touched before she boards that plane, to not be threatened with arrest if she does not comply? Does this person have a reasonable expectation of privacy so that she can refuse to have none of this done to her? (Yes, the person has an expectation of privacy.) And, most people — including judges and juries — would consider that expectation to be reasonable (There is an objective expectation of privacy as well.). Therefore, the hand searches and scans searches conducted by the TSA, and instituted by our government, fly (no pun intended), in the face of our Constitutional protections against unreasonable searches and seizures, because the Fourth Amendment is a law protecting individuals from government prying into their lives, where they would reasonably have an expectation of such privacy. What the TSA instituted, its enhanced security scheme, is a “search” and is then subject to the Fourth Amendment’s requirement of reasonableness. Thus, the question becomes, does society recognize the traveling public has a reasonable expectation of privacy so that they can opt out of the invasive scans that render them naked on the resulting picture, and does their reasonable expectation of privacy under the Fourth Amendment, allow them also to refuse the groping full body hand searches. I believe we all know the answer to these questions.
A good example of how this works comes from a U.S. Supreme Court case in which the court held that a bus passenger had a legitimate expectation of privacy in an opaque carry-on bag positioned in a luggage rack above the passenger’s head, and that the physical probing by the police of the bag’s exterior for evidence of contraband constituted a search subject to Fourth Amendment limitations. (Bond v. United States, N.O. 98-9349, Apr.17, 2000)
Taking into account Obama’s past behavior and his agenda in the past two years, as well as how he has treated the American people in the past two years, I believe there are several reasons why his administration was so quick about taking out Constitutional rights away from us in the name of airline safety. 1) Obama wants us to become accustomed to having our rights gradually taken away from us, so that we will gradually be lulled into submission and silence about the government’s bullying, so the government can do it again whenever it wishes, “in an emergency”. 2) Obama has shown he likes to agitate and stir up the people; he enjoys pushing the people’s buttons. 3) It truly is the lazy way out. DHS under Napolitano does not want to have to do the really hard work, and making us go through a strip search is just plain easier for her, rather than her having to think, and really work on something that would be fair to us, actually keep us safe, and be lawful. 4) Finally, I believe the more pressing reason we are getting a thumbs down on the Israeli system, has to do with the union, under which the TSA employees are contracted. The Israeli security system of behavioral profiling would undoubtedly affect some TSA jobs. Maybe the Israeli system uses only professional behavioral profilers, like FBI types. Maybe under the Israeli system either some or all of the TSA grunts at the Airports would lose their jobs. Obama would never allow that, no matter what we had to go through. So, once again we may very well be in a situation where our liberties and interests are being sacrificed to special interests (unions) and Obama’s friends.
So, I ask, where is the outcry about what is happening today? I have heard of no plans for a march on Washington D.C., no major anger, no write-in/call-in campaigns; I have heard nothing of panic or urgency. I do not advocate panic, and I surely don’t want the anti-government types, (you know the ones who don’t believe in hair, and stock pile weapons) to become violent, surely not. However, at the same time, when this edict comes down from those in the ivory towers, suddenly oppressing us without warning, and we are told to get used to it, and when this edict that suspends a major protection afforded us in the Bill of Rights, is forced on us, and we find we are being treated like criminals, and threatened with arrest just for questioning the legality of it, do you not wonder if there is anything this current administration will not try regarding suspending our rights if it determines in its vast wisdom that our rights under the Constitution need to be suspended because we have too great a population for a lesser restrictive measure or __________ (you fill in the blank), and its looking out for us, what it is doing is for our own good?
So, I ask you, if we do not show our mettle here, where? If not now, when?
People of America, Take a Stand, Now! Put the Obama Administration On Notice By Taking a Stand Against Its Open and Blatant Disregard for the Law. Put the administration on notice that it won’t get away with usurping and/or working around or disregarding our Constitution in the next two years, so it better not try!
Let the government know who is boss. WE THE PEOPLE tell the government what they can and cannot do. REMEMBER . WE THE PEOPLE RUN THE COUNTRY.
The Obama Administration is breaking the law. We the People must bring this lawlessness to a halt immediately.
We know our government has other options for airline security, and they simply refuse to use the options they have available to them. I reiterate, we must tell our government what kind of security measures we want installed as our airline safety protocol. We are the best defenders of ourselves and our families. We are the best managers of our safety, and it is our right to make the government follow the law of the land, and to put in place the directives we wish to have put in place. Ours is a government of and by the people, thus we must insist that our government listen to us and use other options for airport security, such as the Israeli system, and also that our government much use systems for security at our ports, train stations, bus terminals and subway facilities, which are equally efficient, have been shown to work and are lawful. Our government must refrain from conducting unlawful searches and seizures and arrests of the good law abiding people of America. Even if they do not currently have other options ready to go, they must move to those options, that we know are available to them now, because harassing the good citizens of The United States by searching them unlawfully, without an affidavit showing probable cause and without a warrant issued thereto, is absolutely no longer an option. We must let Mr. Obama know , the TSA, and other of the extended federal government know it is not exempt from the Constitution and laws of the United States. The government and its representatives cannot choose breaking the law as an option. It must get back in line with our Constitution and mind the law immediately.
If our government refuses to abide by our Constitution, and uphold its precepts, we the people, being the source of directives and control of what our government can and cannot do, must insist that Barack Obama be impeached for breaking his oath to support and defend the Constitution and committing crimes against the people of the United States of America.