TSA Highway Searches In Tennessee Are Unconstitutional
The Homeland Security News Wire, which claims to be “a leading e-information service, delivering daily digital reports, in-depth analysis, news, and researched background on the day’s developments in homeland security, reports today,
Last week in an effort to improve security on U.S.highways, the Transportation Security Administration (TSA)establishedcheckpoints at truck weight stations in Tennessee.
Working with the Tennessee Department of Homeland Security, TSA deployed Visible Intermodal Prevention and Response (VIPR) teams across the state to inspect vehicles. The teams included surface transportation security inspectors, transportation security officers, behavior detention officers, and explosive detection canine teams.
“People generally associate the TSA with airport security, and after 9/11 that was our primary focus, but now we have moved on to other forms of transportation, such as highways, buses, and railways,” said Kevin McCarthy, the TSA federal security director for West Tennessee.
The federal statute upon which this program is based is 6 USC 1112.
According to Larry Godwin, the Deputy Commissioner of the Tennessee Depatment of Homeland Security (TDSHS),
Everything from Wal-Mart merchandise to illegal drugs and illegal immigrants are transported through this area. Current interdiction units are doing a good job, but further coordinated inspections will only strengthen their efforts. If we prepare for the worst, then we are ready for almost anything.
The Channel 5 report concludes:
The random inspections really aren’t any more thorough than normal, according to Tennessee Highway Patrol Colonel Tracy Trott who says paying attention to details can make a difference. Trott pointed out it was an Oklahoma state trooper who stopped Timothy McVeigh for not having a license plate after the Oklahoma City bombing in the early 1990s.
Tuesday’s statewide “VIPR” operation isn’t in response to any particular threat, according to officials.
Representative Ron Paul released a statement yesterday stating, in part:
“If you thought the ‘Transportation Security Administration’ would limit itself to conducting unconstitutional searches at airports, think again,” Paul said in a statement. “The agency intends to assert jurisdiction over our nation’s highways, waterways, and railroads as well.”
“Disarming the highways and filling them full of jack-booted thugs demanding to see our papers is no way to make them safer. Instead, it is a great way to expand government surveillance powers and tighten the noose around our liberties.”
In Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), by a vote of 6-3, the United States Supreme Court held that the use of sobriety checkpoints in which police stop vehicles on the public highways to check for alcohol or drug impaired drivers does not violate the Fourth Amendment prohibition against unreasonable searches and seizures. The Court described the procedure as follows:
Under the guidelines, checkpoints would be set up at selected sites along state roads. All vehicles passing through a checkpoint would be stopped and their drivers briefly examined for signs of intoxication. In cases where a checkpoint officer detected signs of intoxication, the motorist would be directed to a location out of the traffic flow where an officer would check the motorist’s driver’s license and car registration and, if warranted, conduct further sobriety tests. Should the field tests and the officer’s observations suggest that the driver was intoxicated, an arrest would be made. All other drivers would be permitted to resume their journey immediately.
In an opinion written by Chief Justice Rehnquist, the majority concluded that,
In sum, that balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program.
In City of Indianapolis v. Edmond, 531 U.S. 32 (2000), in an opinion by Justice O’Connor, a 6-3 majority held that drug checkpoints set up by the City of Indianapolis violated the Fourth Amendment stating,
The primary purpose of the Indianapolis narcotics checkpoint is in the end to advance “the general interest in crime control.” . . . We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary purpose of investigating crimes. We cannot sanction stops justified only by the generalized and ever present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.
Of course, there are circumstances that may justify a law enforcement checkpoint were the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route . . . The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction. While we do not limit the purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control.
As Justice O’Connor noted in her majority opinion, the Fourth Amendment requires “individualized suspicion” to justify an investigatory stop. The test, which the Supreme Court established in Terry v. Ohio is whether the law enforcement officer had a reasonable suspicion to believe that a person has committed, is committing, or is about to commit a crime. The test is objective. That is, the suspicion or hunch must be based on an articulable set of facts that would warrant a reasonable person to suspect that a suspect had committed, was committing, or about to commit a crime.
The generalized searches that are being conducted by the TSA clearly are not based on a reasonable suspicion that anyone they stop is engaged in terrorist or any unlawful activity. I also do not see any evidence that the searches are being conducted “to thwart an imminent terrorist attack”, or to make our roads safer, which was the motive for the constitutional DUI checkpoint searches in Sitz. Therefore, I do not see any meaningful difference between the unconstitutional searches being conducted in Edmond and the searches now being conducted by the TSA.
Finally, after the Supreme Court decided Sitz, many state supreme courts relied on provisions in their state constitutions similar to the Fourth Amendment to hold that the DUI checkpoints approved in Sitz were unconstitutional. Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Texas, Washington, Wisconsin, and Wyoming have done so or outlawed them, according to Wikipedia, and Alaska and Montana do not use them.
The TSA and its parent organization, the Department of Homeland Security, are out of control and need to be stopped. These searches are outrageous and unnecessary. They appear to be primarily motivated by a desire to control people by conditioning them to accept humiliating intrusions into their privacy and snitch on their fellow citizens.
This is not acceptable.
Cross posted from my new law blog