Airplane piracy increased in occurrence and success in the 1960s, leading to the creation of a 1968 task force that developed a hijacker detection and deterrence system. The system included severe penalties for air piracy, notices to passengers of the possibility of a preboarding search, the use of a hijacker profile to identify ‘‘selectees’’ for further investigation, magnetometer searches, interviews with selected passengers, and frisks or searches of suspected passengers. As the program was originally crafted, passengers who triggered the magnetometer were only searched if they also were selected under the profile and could not provide sufficient identification. As a result of the government’s role in requiring the search and specifying its nature, courts concluded that airport searches, even when performed by privately employed guards, are subject to the Fourth Amendment. In United States v. Lopez, 328 F. Supp. 1077 (E.D.N.Y. 1971), a court relied upon the then recently decided opinion in Terry v. Ohio, 392 U.S. 1 (1968), to deem these initial passenger searches reasonable.
In 1973, the government expanded air piracy prevention efforts by requiring electronic screening of all passengers and their carry-on items. Passengers were subject to heightened screening if they exhibited suspicious behavior or triggered the magnetometer. While subject to the Fourth Amendment, the screening did not require a warrant on account of the extreme risk presented by passengers with weapons; because advanced warning of the search was given; because the search applied to all passengers and generally lacked stigma; and because the search occurred before other passengers and airline employees, thus reducing the risk of police wrongdoing. In United States v. Davis, 483 F.2d 893 (9th Cir. 1973), a court determined that the new scheme was reasonable and fell under the administrative search exception to the Fourth Amendment, provided that an individual could avoid the screening by not boarding the plane. Furthermore, the screening would be unreasonable if the administrative purpose of preventing air piracy was ‘‘distorted’’ by other general law-enforcement objectives, such as drug interdiction or searches for large amounts of currency.
Outside the boarding context, law enforcement agents accost individuals for an investigatory stop based on ‘‘drug courier’’ profiling. Such profiles alone do not grant police justification to engage in an investigatory stop. However, critics have argued that the courts have effectively allowed the profiles to justify a stop. David Cole, in No Equal Justice, argued that the ‘‘drug courier profile is a scattershot hodgepodge of traits and characteristics so expansive that it potentially justifies stopping anybody and everybody.’’
The 9/11 event and the War on Terrorism focused public attention on the need to prevent air piracy, especially because the security regulations in place did not prohibit passenger possession of the box cutters and small knives used to hijack the four planes. Shortly after the attacks, the American Civil Liberties Union changed its 1973 position that the use of magnetometers violated the Fourth Amendment. The Department of Homeland Security assumed responsibility for passenger screening and implemented plans for the Enhanced Computer Assisted Passenger Prescreening System, a program to identify risky passengers, who are then subjected to heightened screening and interviews.
The agency considered a ‘‘trusted traveler’’ system, in which prescreened passengers could avoid the most intense screening. Checked baggage is now matched to passengers and removed from the plane if the passenger fails to board. Additionally, checked baggage is subjected to random electronic and hand searches, and dog sniffs. At times of high terrorism risk as determined by the agency, vehicles approaching airports can be subject to search as well.
CHRIS JAY HOOFNAGLE
References and Further Reading
Cases and Statutes Cited
See also Administrative Searches and Seizures; American Civil Liberties Union; Department of Homeland Security; Electronic Surveillance, Technological Monitoring and Dog Sniff; 9/11 and the War on Terrorism; Profiling (including DWB); Right to Travel; Search (General Definition); Terry v. Ohio, 392 U.S. 1 (1968); Warrantless Searches