Why Do Airline Passengers have Less Constitutional Rights than Criminal Suspects?

I. Introduction

The implementation of new screening procedures at airports has recently drawn protest among both civil liberties groups and airline passengers, sparking a national debate over whether the Department of Homeland Security’s new screening methods violate an individual’s right to privacy. As a recent article in the New York Times describes, a passenger going through an airport security check point is met with the option of passing through a scanner that creates an image of the passenger’s nude body or submitting to a full-body pat-down by security officials—this, in contrast to the former method of merely passing through a stationary metal detector. While there may be sound public policy reasons for heightening security to protect passengers against terrorist threats, does the need to protect against an unknown and remotely possible threat provide sufficient justification for abrogating the privacy rights of ordinary, everyday citizens? If so, to what extent are we willing to tolerate this invasion of privacy to protect against the threat of terrorism? To the extent that criminal suspects have more constitutional rights than everyday airline passengers?

II. The Body-imaging Scan

The airline passenger is first met with the option of passing through a body scanner, where an image of the contours of a passenger’s nude body appears on a Homeland Security official’s computer screen. The purpose behind the body scanner is to reveal weapons that may be beneath the passenger’s clothing. However, civil liberties advocates have criticized this procedure as being an invasion of the passenger’s privacy and some are now suing. The Supreme Court, in Kyllo v. United States, 533 U.S. 27 (2001), grappled with a similar invasion of privacy in the context of one’s home. In Kyllo, police officers used a thermal imaging device to determine that the defendant was using high-powered lights to grow marijuana in his home. See id. at 29. The defendant challenged the search as being unconstitutional under the Fourth Amendment. See id. at 30. The Supreme Court held that where “the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.” Id. at 40. The Court reasoned that one has a reasonable expectation of privacy in one’s home, and that by using the thermal imaging device to circumvent the warrant requirement normally needed to search one’s home, the search violated the defendant’s reasonable expectation of privacy in his home. See id. at 34. The body scanning device at airport checkpoints and the thermal imaging device used in Kyllo have similar purposes: the body scanning device penetrates the passenger’s clothing to reveal the intimate contours of the body; the thermal imaging device penetrates the walls of the house to reveal the intimate activities of the home. The Supreme Court has consistently condemned, most notably in Bowers v. Hardwick, 478 U.S. 186, 207 (1986), the intrusion of the government into the privacy of one’s home. Why then, is it constitutionally unacceptable to use a thermal imaging device to penetrate the walls of the home but constitutionally acceptable to use a body-scanning machine to penetrate clothes on the body? Several Circuit courts, including the Sixth Circuit in Daughtery v. Campbell, 33 F.3d 554, 556 (6th Cir. 1994) have condemned the similar practice of strip searching prison visitors because of the severe violation of their personal privacy (“A strip search, regardless of how professionally and courteously conducted, is an embarrassing and humiliating experience…Consequently, reasonable suspicion must exist before a strip search is authorized for prison visitors.”). The Daughtery decision rests on the principle that a strip search offends our most basic expectations of privacy. Most would agree that we have a greater expectation of privacy in our body than we do in our homes. Any passerby could peer through a window into one’s home, yet most only reveal their bodies to spouses or loved ones. Yet where it is unreasonable to use a thermal device to penetrate one’s home, it is currently “reasonable” when the Department of Homeland Security uses a device that is even less available to the general public than a thermal imaging device to penetrate the area in which we have perhaps the greatest expectation of privacy—the flesh beneath our clothes.

III. The Full-Body Pat-down

If the passenger declines the body-imaging scan, she must submit to a full-body pat-down search. Even though this is now a routine procedure at airport check-points, outside of this context, the full-body pat-down is usually only employed by police officers in pat-down searches of criminal suspects. The 1968 case of Terry v. Ohio, 392 U.S. 1 (1968), squarely addressed the constitutionality of pat-down searches of individuals in public. In Terry, police officers observed three individuals pacing up and down the street and peering into a specific store window twenty-four times. Id. at 23. Suspicious that the individuals were casing the store to rob it, the officers approached the men and patted them down for weapons. Id. at 6-7. During the frisk, the officer felt a lump in the defendant’s coat and removed a pistol and arrested the man for unlawful possession of a weapon. Id. at 7. The defendant challenged the admissibility of the weapon into evidence, arguing that the officer’s seizure and search was unconstitutional under the Fourth Amendment. Id. at 8. The Supreme Court agreed with the defendant that the Fourth Amendment was implicated, reasoning that the stop by the officers constituted a seizure because the defendant was not free to walk away, and the pat-down constituted a search because “it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is no a ‘search’.” Terry, 392 U.S. at 16-17. A search and seizure under the Fourth Amendment must be reasonable to be constitutional. See U.S. Const. amend. IV. A balancing test is employed to determine the reasonableness of the search, weighing “the need to search (or seize) against the invasion which the search (or seizure) entails.” Terry, 392 U.S. at 21. In balancing these two factors, the court held that the search was valid under the Fourth Amendment because an officer’s need to protect himself from a suspect’s weapons outweighed a suspect’s right to privacy. Id. at 26. However, the court narrowly crafted its rule to require the officer to have “reason to believe that he is dealing with an armed and dangerous individual” before seizing and searching the individual. Id. at 27 (emphasis added).

In Terry, the Court determined that the casing of the store by the suspects provided a basis for a reasonable belief that the individuals may commit an armed robbery of the store, thereby giving officers the reasonable belief that the suspects were armed and dangerous and therefore rendering them subject to a pat-down. Id. at 23. In contrast to the men in Terry who appeared to be casing a store for an armed robbery, airline passengers are simply moving through the terminal on a business trip or on the way to see loved ones. They are typically not exhibiting any of the suspicious behavior that the suspects in Terry were exhibiting. Yet they are required to submit to a pat-down for contraband, despite the Homeland Security Officials having no “reason to believe that [they are] dealing with an armed and dangerous individual.” So while the Supreme Court has determined that an officer on the street must have some reason to believe that he is dealing with an armed and dangerous individual before he can stop and frisk him, a Homeland Security Officer need not possess this belief in order to subject a passenger to a pat-down in the airport. Why does a young criminal suspect on the street, then, have greater constitutional protections against invasions of privacy than an elderly airline passenger?

The answer to that question, some may argue, is found in Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). At question in Sitz is whether a highway sobriety checkpoint program is a constitutional search and seizure under the Fourth Amendment. The Supreme Court, applying the balancing test devised in Terry, weighed the public safety need to keep drunk drivers off the highway against the intrusion into the personal privacy of passing motorists. Id. at 455. The court held that keeping drunk drivers off the road justified the minimal intrusion into a motorist’s travel. Id. Furthermore, the court held that the sobriety checkpoint was the most effective way of advancing the public interest in keeping drunk drivers off the road, based on empirical data which showed that such roadblocks usually led to anywhere from 1.6% of drivers being drunk in the instant case to 1% of drivers being drunk in other roadblock cases. Id. The roadblocks in Sitz are very similar to airport security checkpoints. Whereas the purpose of the sobriety checkpoints is to discover drunk drivers travelling on the highway, the purpose of airport security check points, similarly, is to discover individuals with dangerous contraband travelling on the nation’s airways. Both drunk drivers and terrorists pose a serious threat to public safety, and, according to the reasoning in Sitz, the public safety need to keep drunk drivers off the road and terrorists off airplanes justifies the intrusion into all passengers’ privacy. But does it?

Even if it were conceded that the protection from potential terrorists justifies the intrusion into the privacy of all airline passengers—terrorists or not—the number of potential terror attempts that would be thwarted by the screening and body pat-downs weighed against subjecting hundreds of millions of innocent passengers to the most intrusive search methods at hand might change the analysis. While there may be no publicly available data showing the percentage of potential terrorists discovered at security checkpoints, it is safe to assume that that number is, if not 0% up to this point, infinitesimally small compared to the millions of passengers who fly each day—at any rate, much smaller than the 1-1.6% of drunk drivers found during road blocks. So not only is the percentage of terrorists passing through airports exponentially smaller than the percentage of drunk drivers on our roads, the body scan and pat-down are much more intrusive than peering into the window of a car during a roadblock. Airport checkpoint searches and seizures are therefore distinguishable from the sobriety checkpoints in Sitz, calling into question whether the means used to search all passengers used at the airport is too invasive to justify the extremely remote possibility of discovering a potential terrorist.

Proponents of the new screening procedures would argue, however, that it only takes one terrorist to kill many through an act of terror. And that because we have no way of identifying that terrorist in a mass of passengers, we should treat every passenger as a potential terrorist; we should suspect every passenger of being a future criminal. However, if we suspect every passenger of being a future criminal, we are treating every passenger as a criminal suspect. And if we are going to treat every passenger as a criminal suspect, then, why should we treat them any differently from the criminal suspect lying in wait to rob a store just because they are in an airport and not on the street? If we are to treat all passengers as criminal suspects, we should hold the Homeland Security officers to the same standard as the police officers were held to in Terry. That is, Homeland Security officers at airports should not be able to perform full-body pat-downs of passengers unless those officers have an articulable “reason to believe that [they are] dealing with an armed and dangerous individual.”

IV. Conclusion

The federal government cannot have it both ways. If the government has no reason to believe an airline passenger is committing, or is about to commit, a crime, it cannot treat a passenger as a criminal suspect. If, as is the case now, the government chooses to treat all passengers as criminal suspects, despite no evidence that they are committing, or will commit a crime, it must afford those “criminal suspect” passengers the same Fourth Amendment protections that criminal suspects have on the street. To treat passengers as criminal suspects without affording these passengers constitutional protections is akin to holding prisoners at Guantanamo Bay without the constitutional right to due process. While it may be (questionably) legal to ignore the rights of criminal suspects in Guantanamo Bay, the constitutional rights of Americans on American soil must be observed.