Airport Searches*

Airport Searches: When are they Legal?

We all know that when we fly out from the airport, we have to have our luggage checked, and we’ll have to pose inside full-body scanners. Perhaps because of these measures, people may believe that their rights related to search and seizure do not apply in airports. Moreover, people may believe that, should they be stopped by federal or state police without cause, they have no way to fight for their rights.

The short answer is, that’s not right – you still have rights, even in an airport. That said, your rights are altered when in an airport. Here, we discuss a few of the nuances about airport searches, and offer some tips for travel.

What are the rules for airport searches?

Depending on where you are, the rules shift some for how airport searches work, exactly. That’s because while the United States Supreme Court has passed some rulings related to airport searches, many of the decisions which control airport searches are determined on the circuit level. Which circuit will apply depends on where the airport is.

No matter where you are, the United States Supreme Court has stated that your Fourth Amendment rights do still exist in airport, in cases such as Torres v. Puerto Rico and United States v. Place. However, every circuit has recognized that there are some exceptions which apply to airports, and these allow some of the searches you might already be used to; searches at airport security checkpoints (think TSA) are fine. Many circuits consider these “administrative searches” which put simply are searches which are okay if they are for specific purposes and remain limited in scope.

In the Eleventh Circuit – which is the Circuit that Georgia, Florida, and Alabama are in – the Court has stated that passengers in search areas, even if they withdraw their consent, can be searched. In United States v. Herzbrun, a man trying to board a plane, who voluntarily entered an airport security checkpoint, could not revoke his consent. In other words, if you go into a security line at the airport in the Eleventh Circuit, the airport is allowed to scan your things, and you cannot back out once you start.

That said, if police want to search your luggage, they will need probable cause – that is, they need reason to believe that a crime was committed, and evidence of that crime will be found in your luggage. Police may require a warrant to search your things, but they are allowed to detain your luggage to wait for a warrant once they have probable cause, seen in United States v. Place.

What if you’re flying in, rather than out?

This depends on where you are flying in from. If you are arriving from another place in the United States, your rights are the same as ever. However, if you fly in on an international flight,  the rules apply to you as if you were crossing the border, which means the United States may have expanded search capabilities.

Once again, the exact laws which will apply depend on the circuit you are in. In the Eleventh Circuit, we use the rule established under United States v. Pulido, which asks whether there is statutory authority for Customs and Border Patrol to make a search, and then if there are constitutional concerns that apply to the search.

Right now, there is a case pending at the Eleventh Circuit asking whether or not Fourth Amendment protections apply to electronics when brought in internationally. (That case, if you are interested, is United States v. Tunick.) However, if you are flying in to somewhere in the Eleventh Circuit – again, Georgia, Florida, and Alabama – you may be automatically subject to a search of your phone even without suspicion, depending on the outcome of the case.

What can I do if I am getting ready to fly?

Take a couple easy steps when flying to ensure you minimize legal trouble:

• Check airport rules, and check your luggage. Make sure you don’t bring anything that could get you into trouble. If you’re flying internationally, make sure you aren’t bringing contraband that could get you in trouble flying out or flying in – a few years ago, several Americans were detained in Turks & Caicos for having brought bullets.  And currently, there is a Georgia man in the news who accidentally had ammunition in his bag in Jamaica. 
• Double check your electronics. Make sure there is nothing compromising on your electronics which could get you in trouble, should they be searched.
• If you are stopped, remain courteous with airport authorities. Do not offer reasons they could use to detain or search you further.
• If airport authorities seek to search your bags outside of a security checkpoint, do not consent to a search. Make sure your denial of consent is audible, and if possible, make sure there is a witness to the search. If police search your things without your consent, do not physically stop them. Simply make your refusal to consent known, make sure the search is witnessed, and take careful notes of the circumstances of the search.

What do I do if I’ve been illegally searched?

If you believe you have been illegally searched at an airport, contact us. Conaway & Strickler, PC may be able to help you determine if you have been illegally searched, and if there are any ways to vindicate your rights.

*Guest post written by Andrew Paul Smith, future Emory Law 2027 graduate