Search and Frisk

Millimeter Wave Scanner

TSA image from a Millimeter Wave Scanner

Are graphic scans and intimate pat-downs a “reasonable” search under the Fourth Amendment? As a quick reminder, the Fourth Amendment reads:

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.

The million-dollar question here is what is an unreasonable search? The answer to this question will likely answer the question posed in the opening sentence. The most likely reason given to justify the searches at airports (which now include scans and pat-downs) is the prevention of terrorist acts. This could be anywhere from terrorists hijacking a plane to a bomb disguised as an innocuous object (like a printer cartridge) detonating while in flight.

Is the prevention of terrorist acts a reasonable justification of warrantless searches? It is interesting to note that the same reason used to justify searches and pat-downs at airports could also be used to justify similar security measures at our nation’s major metropolitan areas. Imagine a person walking down 6th Street in downtown Austin having to be subject to random searches and pat-downs. In light of the failed Time Square car-bombing attempt, this could be deemed reasonable. A woman with a bomb in her briefcase could cause terrible and catastrophic harm. A man with an AK-47 in his guitar case could unleash unthinkable carnage.

If our society accepts the premise that revealing body scans and invasive frisks are necessary to ensure security while flying, it should not come as a surprise if one day the government employs similar checkpoints in other parts of public travel. These other areas could include subways, buses, trains, and even personal vehicle and pedestrian travel. One should keep this in mind when determining if a body scan or pat-down at the airport is a “reasonable” search.

For further readingTerry v. Ohio.

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1 Comment

  1. They’ve already dropped hints about putting these scanners and procedures into federal buildings and train stations next.


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