Do TSA’s Threat-Spotting Tips Threaten The Fourth Amendment?

TSA_searchHave you ever thought about who could be a potential threat in an airport?

Well, according to the Transportation Security Administration that’s pretty much anyone who’s breathing.

The TSA has kept its Screening of Passengers by Observation Techniques, or SPOT, checklist out of the public eye for quite a while, but on Friday The Intercept published the 92-point checklist after a disgruntled TSA source divulged it.

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The list of “observation techniques” shows how TSA agents are taught to use a scoring system to rank passengers according to potential threat levels including exaggerated yawning, excessive complaints about the screening process, widely open staring eyes, looking down, whistling while approaching the screening process, rubbing or wringing of hands, exaggerated or repetitive grooming gestures…

A former manager told the Intercept that the signs the guidelines say to watch for “are ridiculous.”

“These are just ‘catch all’ behaviors to justify BDO [Behavior Detection Officer] interaction with a passenger,” the former manager said. “A license to harass.”

Since the SPOT program started in 2007, it has cost more than $900 million, the GAO noted.

Although the outrage of innocent victims and those who are worried about becoming victims of government sponsored abuse is palpable, what is not being discussed is that the TSA doesn’t have any constitutional authority to search you at all.

You see, the Fourth Amendment specifies that before any government authority can search or detain you there must exist what is known as “probable cause.” Probable Cause only exists where a two-pronged test is met. The scenario goes like this: A government agent must have “reasonable suspicion” 1) that a crime has been committed; and 2) that the person to be searched or detained had something to do with the commission of the crime.

In the case of TSA airport searches, since no crime has been committed, neither prong of the two pronged test is met. Therefore, no search or detention is permitted by the Constitution, which is the supreme law of the land.

So while we argue about the SPOT checklist, the plain truth is that when there is no evidence of a crime, NO search is constitutionally permissible and every time you are searched at an airport, no matter how it’s done, you are the victim of a crime committed by your government.

Learn more about your Constitution with Jake MacAulay and the Institute on the Constitution and receive your free gift.

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Jake MacAulay serves as the Chief Operating Officer of the Institute on the Constitution (IOTC), an educational outreach that presents the founders’ “American View” of law and government. The former co-host of the syndicated talk show, The Sons of Liberty, he is an ordained minister and has spoken to audiences nation-wide, and has established the American Club, a constitutional study group in public and private schools.
Jake MacAulay
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