SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

They are confined in good faith to that purpose; and
Passengers are given the opportunity to avoid the search by
electing not to fly.
(United States v. Davis (9 th Cir. 1973) 482 F.2 nd 893, 913; Torbet
v. United Airlines, Inc. (9 th Cir. 2002) 298 F.3 rd 1087, 1089;
United States v. Marquez, supra., at p. 616; United States v.
Aukai (9 th Cir. 2007) 497 F.3 rd 955.)
A second, more intense, yet random screening of passengers as a part of
airline boarding security procedures, is constitutional. (United States v.
Marquez, supra.)
Once having gone through the initial screening, a person loses his right to
revoke his “implied consent” to being searched and must submit his
person (United States v. Aukai (9 th Cir. 2007) 497 F.3 rd 955.) and his
carryon luggage (Torbet v. United Airlines, Inc., supra.) to a secondary
screening, so long as the selection of those subject to such secondary
screenings is done objectively. E.g.:
Randomly. (Torbet v. United Airlines, Inc., supra; carryon
luggage searched even though it had already gone through an x-ray
examination without incident.)
Because defendant had attempted to board a flight without valid
identification. Per TSA (Transportation Security Administration)
rules, anyone attempting to board a commercial airplane without a
government issued, picture identification, will be subject to a
secondary screening. (United States v. Aukai, supra; defendant
selected for “wanding” of his person even though he had already
walked through the magnetometer without setting off an alarm.)
Per Torbet and Aukai, the first, initial screening, whether
by x-ray of one’s carryon luggage, or of the defendant’s
person having walked through a magnetometer, is deemed
“inconclusive” even though “it doesn’t affirmatively reveal
anything suspicious,” or when it fails to “rule out every
possibility of dangerous contents,” thus justifying the need
for a secondary screening. So long as such secondary
screenings are administered “objectively,” they are lawful.
Note: United States v. Aukai (9 th Cir. 2007) 497 F.3 rd 955, found that
“implied consent” is not a proper theory for upholding airport searches.
Rather, a warrantless, suspicionless search of a passenger, after the
passenger has passed through the magnetometer (or has put his carry-on
© 2011 Robert C. Phillips. All rights reserved
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