Saturday, August 11, 2007

Ninth Circuit Clarifies Basis of Airport Screening

Sherman Oaks, California

Daniel Kuualoha Aukai is no criminal mastermind.

When Aukai decided to transport crystal meth from Honolulu, Hawaii, to Kona on the Big Island in 2003 (his first mistake), he decided to fly commercial (his second mistake). He passed through the metal detector without incident, but he failed to produce government-issued photo identification (his third mistake). Consequently, he was subject to a secondary search by a hand-held magnetometer which beeped when it passed over Aukai’s right front pants pocket, where Auhai had left his keys or his change (his fourth mistake). The TSA officers investigated further and found several bags of meth on Aukai’s person.

After a guilty plea (with a limited reservation of appeal rights), the U.S. District Court in Hawaii sentenced Aukai to almost 6 years in jail for possession with intent to distribute methamphetamines and for being unbelievably stupid.

I mention this because the U.S. Court of Appeals for the Ninth Circuit, the federal appellate court for the westernmost United States, ruled on Aukai’s appeal on Friday. Not surprisingly, the conviction was affirmed.

Of interest to frequent travelers is the Ninth Circuit’s ruling that, language in prior decisions notwithstanding, consent has nothing to do with a search at airport security.

An airport search is a “special government needs” search, the court unanimously clarified in a special 15-member panel. The majority opinion read:

“The constitutionality of an airport screening search, however, does not depend on consent, 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. Such a rule would afford terrorists 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," the Court wrote.

"Rather, where an airport screening search is otherwise reasonable and conducted pursuant to statutory authority, all that is required is the passenger’s election to attempt entry into the secured area of an airport. Under current TSA regulations and procedures, that election occurs when a prospective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine. The record establishes that Aukai elected to attempt entry into the posted secured area of Honolulu International Airport when he walked through the magnetometer, thereby subjecting himself to the airport screening process,” the Court continued. United States v. Aukai, Case No. 04-10226 (9th Cir. August 10, 2007) (en banc) (emphasis added).

In footnotes, the Court agreed with the government’s position that a passenger becomes subject to the search upon entering the screening line or upon presenting identification and a boarding pass to a TSA officer prior to screening. Three concurring justices felt that the references to 9/11 were irrelevent to the constitutional analysis.

These legal distinctions are, however, academic to Mensa member Aukai. According to the federal Bureau of Prisons, Aukai was released from custody on July 3, 2007.

In the future, he may prefer to travel by boat.

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Anonymous Anonymous said...


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8:32 AM  
Anonymous Jenny said...

I wish I had known you were going to be in Thailand during my Thai honeymoon. That would have been a nice overlap. We traveled for almost two weeks! email me, I don't know yours: jenredstar at - jenny secord

11:42 AM  

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