IMO, if Patrick Henry and Tom Paine and Sam Adams heard the rationalizations we give to ourselves in the name of safety, they'd shake their heads with disgust...and double their orders of tar and feathers.

I'm not advocating such.

"Wade" wrote:

Like the Third Circuit, we find these search procedures to be minimally intrusive. See Hartwell, 436 F.3d at 180(holding similar search procedures to be minimally intrusive, explaining that the procedures are well-tailored to protect personal privacy, escalating in invasiveness only after a lower level of screening disclosed a reason to conduct a more probing search).

The duration of the detention associated with this airport screening search was also reasonable. Witnesses testified that Aukai entered the checkpoint area at approximately 9:00 a.m. and that the entire search at issue-starting from when Aukai walked through the checkpoint until the TSA's efforts to rule out the presence of a weapon resulted in the discovery of drug paraphernalia-took no more than 18 minutes. Although longer than detentions approved in other cases, see, e.g., Sitz, 496 U.S. at 448, 110 S.Ct. 2481 (average delay of 25 seconds); United States v. Martinez-Fuerte, 428 U.S. 543, 546-47, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (average detention of 3-5 minutes), the length of Aukai's detention was reasonable, especially in light of Aukai's conduct, because it was not prolonged beyond the time reasonably required to rule out the presence of weapons or explosives.10 See Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (stating that a seizure can become unlawful if it is prolonged beyond the time reasonably required to complete [its] mission).

Accordingly, we hold that the airport screening search of Aukai was a constitutionally reasonable administrative search.

AFFIRMED.

I concur in the result and nearly all of the reasoning in the majority opinion. I write separately, however, because I cannot join the majority's irrelevant and distracting references to 9/11 and terrorists. Daniel Aukai is no terrorist and yet, whether in 1997 or 2007, the search that law enforcement personnel conducted of his person falls squarely within the confines of a reasonable administrative search.

The majority holds, and I agree, that once a passenger enters the secured area of an airport, the constitutionality of a screening search does not depend on consent. That legal conclusion rests firmly on Supreme Court precedent and on the government's interest in ensuring the safety of passengers, airline personnel, and the general public. For decades, nefarious individuals have tried to use commercial aircraft to further a personal or political agenda at the expense of those on board and on the ground.1 And the threat continues to exist that individuals, whether members of an organized group or not, may attempt to do the same. In my view, references to a post-9/11 world, maj. op. at 960, do not advance the analysis. Nor is there any legal significance to whether or not an individual is a terrorist. See maj. op. at 960-61. 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 MENACE of air piracy must be met--immediately and effectively. I am therefore announcing the following actions to deal with this problem:

1. To protect United States citizens and others on U.S. flag carriers, we will place specially trained, armed United States Government personnel on flights of U.S. commercial airliners. A substantial number of such personnel are already available and they will begin their duties immediately. To the extent necessary they will be supplemented by specially trained members of the Armed Forces who will serve until an adequate force of civilian guards has been assembled and trained. We will also make antisabotage training available to airlines personnel.

2. I have directed the Department of Transportation to have American flag carriers extend the use of electronic surveillance equipment and other surveillance techniques to all gateway airports and other appropriate airports in the United States and--wherever possible--in other countries. The Federal Government will provide enforcement officers to work with this equipment, to conduct searches when appropriate, and to make necessary arrests. Such equipment and techniques have already helped to reduce the problem of air piracy in many areas.

3. I have directed the Departments of Transportation, Treasury, and Defense, the Central Intelligence Agency, the Federal Bureau of Investigation, the Office of Science and Technology, and other agencies to accelerate their present efforts to develop security measures, including new methods for detecting weapons and explosive devices. At the same time, the Departments of Defense and Transportation will work with all U.S. airlines in determining whether certain metal detectors and x-ray devices now available to the military could provide immediate improvement in airport surveillance efforts. To facilitate passenger surveillance, appropriate agencies of the Federal Government will intensify their efforts to assemble and evaluate all useful intelligence concerning this matter and to disseminate such information to airlines and law enforcement personnel.

4. I am directing the State Department and other appropriate agencies to consult fully with foreign governments and foreign carriers concerning the full range of techniques which they use to foil hijackers. Some foreign airlines--though they are particularly susceptible to hijacking-have been successful in deterring hijackers and in coping with piracy attempts. We want to learn all we can from their experience.

5. It is imperative that all countries accept the multilateral convention providing for the extradition or punishment of hijackers which will be considered at the International Conference which will be held under the auspices of the International Civil Aviation Organization. I affirm the support of the United States both for this Convention and for the Tokyo Convention, which provides for the prompt return of hijacked aircraft, passengers, and crew. I call upon other governments to become parties to these conventions.

I further call upon the international community to take joint action to suspend airline services with those countries which refuse to punish or extradite hijackers involved in international blackmail. For this purpose and in order to consider other ways and means of meeting this new international menace, I have directed the Secretary of State to ask the President of the Council of the International Civil Aviation Organization immediately to convene that Council in an emergency meeting.

6. It is the policy of the United States Government to hold the countries in which hijacked planes are landed responsible for taking appropriate steps to protect the lives and the property of U.S. citizens.

7. An additional indication of our deep concern with the hijacking menace is the request which the United States and the United Kingdom made earlier this week for an urgent meeting of the United Nations Security Council to consider this problem. I am gratified by the unanimous action of the Security Council in calling upon the parties concerned immediately to release all hijacked passengers and crews. I am pleased, too, that the Security Council has asked all nations to take all possible legal steps to protect against further hijackings or other interference in international civil aviation.

These are not the only steps we will take in the coming months to meet the threat of airplane hijacking. But they do provide a decisive program for the immediate future. The Secretary of Transportation will direct this program and take responsibility for preparing further proposals. In this capacity he will work closely with the Secretary of State, the Secretary of the Treasury, the Attorney General, and the Secretary of Defense.

Piracy is not a new challenge for the community of nations. Most countries, including the United States, found effective means of dealing with piracy on the high seas a century and a half ago. We can--and we will--deal effectively with piracy in the skies today.