Monday, November 15, 2010

Dicta in Aukai case in 2007 hits home in Tyner "groin check" video

Back in 2007, there was an en banc decision of the Ninth Circuit Court of Appeals, United States v. Aukai, wherein the judges affirmed Daniel K. Aukai’s conviction for possession of more than 50 grams of methamphetamine with intent to distribute.

Aukai had attempted to board an airplane without ANY photo ID. MetNews discussed what happened:

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.

The facts pf Aukai relate to a situation wherein a potential airline passenger has NO PHOTO ID. [Text in case: "Because Aukai's boarding pass had the “No ID” notation, Motonaga directed Aukai to a nearby, roped-off area for secondary screening."]  

CA9 described cases on "administrative search." As discussed by MetNews:

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.

Text from the Aukai case itself: The constitutionality of an airport screening search, however, does not depend on consent, see Biswell, 406 U.S. at 315, 92 S.Ct. 1593, 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.6  Such a rule would afford terrorists 7 multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found.   This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks.   Likewise, given that consent is not required, it makes little sense to predicate the reasonableness of an administrative airport screening search on an irrevocable implied consent theory.

Metnews discussed the concurrences in the Aukai case:

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 majority addressed this matter in footnote 6, which stated in part:

Here, the search procedures employed included the completion of secondary screening on a passenger who had stated he no longer wished to fly.   The concurrence may well be correct that as an original proposition, the present threat of terrorism is not necessary for this procedure to be reasonable under the Fourth Amendment.   That had not been our circuit's law prior to 9/11;  an intending passenger could refuse to be searched at the airport if he stated he had changed his mind and no longer wished to fly.   See Homburg, 546 F.2d at 1352.   The adoption of a contrary rule based on a factual situation not present-elimination of the historical fact of 9/11 and the lack of an organized terrorist threat-would be speculative.   Since we must decide “cases and controversies” only, we should decide only whether the secondary search of Aukai was reasonable under the Fourth Amendment under the circumstances presented and state why.   That is what we have strived to do.   What search procedures will be “reasonable” when terrorists are no longer threatening us, or when technology is developed that eliminates the present threat, should be decided when, if ever, that happy day dawns.   We should also be wary to eliminate historical facts such as 9/11.   Orwell warned us:  “Who controls the present controls the past․” George Orwell, 1984, Book Three, Chapter II (1949).

Aukai was a drug dealer, not a terrorist, and his search must be justified as such. All the judges agreed that the search of Aukai fell squarely within the confines of a reasonable administrative search.

**In 2010, we have the Tyner matter. As discussed by KUSI:

John Tyner, a 31-year-old software programmer, was headed to South Dakota for a vacation when TSA officials directed him to a full-body scanner in the airport security line.

He refused the full body scan and opted for a traditional scan and pat down.

However, he did not agree to a "groin check," which led TSA agents to eventually deny him the ability to board his flight. According to Tyner, he was escorted from the security area and was given a full refund for the ticket at his airline's ticket counter.

After getting the refund, Tyner was approached by a TSA official who said that he must submit to the full screening process before leaving. Tyner says he was threatened with a civil suit and a $10,000 fine if he left the airport, but he was also told that no one was forcing him to stay. He then left.

Tyner recorded the entire event on his cell phone's video camera, which he turned on after being directed to the scanner.


Allen also referred CNS to a 9th Circuit Court of Appeals 2007 decision that supported the TSA's ability to complete a security screening even if a passenger declined to fly.

"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," the court noted, said Allen.

***As an aside, one chemical pathway to (controlled) methamphetamine employs a Birch reduction, and amateur chemists sometimes use lithium from lithium batteries.
***Cross-reference on methamphetamine (crank): Winter's Bone.


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