conducted in february of two thousand and three when he asked to leave the airport and our position has been since that time that the search was illegal did not serve any of those purposes such as they are and therefore was conducted without probable cause or reasonable suspicion or any kind of enjoy individualize act could you help me on side of the security line and it really doesn't matter if an individual decides he'd rather not fly once he's on the other side of the magnetometer he could bring something he could have something he leave it there for somebody else to pick up why isn't that part of the special needs of the government to preserve safety in flying that be able to check them out have is what we call a sterile area in between that and that inner and when you are finally released to go out into the main boarding areas of the airport that's considered the sterile area so between the magnetic meter and when you collect all of your items assuming you're not selected for secondary screening you are within an area that's protected and surrounded by law enforcement and things of that nature i suppose it could happen it's not what the special need or if congress wants to pass legislation that deals with us d turner detecting these types of situations that it can do that our position is that congress honor it is but it's far less than the police officers standing away from the individual who is in his vehicle as i understand at that point if there is an odor of alcohol bloodshot eyes slurring or own and i think it's a pretty strong distinction in our case our cases like airport search cases the the whole idea of airport screening primary screening alarm there's case law in other circuits and then you get to kill back the layers of the onion to find the metal objects that when the person removes the metal object you want to make and they don't alarm you can't go any further so the circuits out there that say that and in the sense of i'm not saying they should walk away scot free what i'm saying is that in terms of the permissible scope of the search for airport screening purposes it's the alarm and say you know i wan position to permit that in other words but if there is an individual i suspicion it's kind of like a terry stop layered on to the screening process and the question then for me at least in you know on your boarding pass do you take some part of the firmament of action to determine what this person is about that would be somewhat suspicion suspicious if you have no nothing other than a request to link under united states versus point and then you can access why wouldn't it be reasonable to construe that entire area as part of a single search in other words that is a contained area and it might be a different question if you leave that area as some of the cases have situations but why isn't that really a can part of a continuous search within that contained area because first of all not everybody is selected for secondary screening within that continue area some people just walk right through and there's many different permutations of that search if we consider it as beginning at the magnet night neta meter and continuing through the sterile area any number of things can happen but it doesn't all go if it really is a single search processes and it can end for some says that different people depending on the circumstances are subject to different aspects of the search isn't it true that within that little area your basic subject of the control of the officers within the contained area correct you are subject to the control if we take your point when we have to analyze every little thing it's a search in other words some places don't even make you take off your shoes so let's say you go through and now you want to take off your shoes is that search you know take off your jacket that's the search go to secondary screening when you look at your luggage you would have each one of you would have us analyzed each one of these as an independent search is that your position or my position is that at any point during this screening process which begins with the magnetic meter and continues to release into the general boarding area which i concede is a hard sell they are passenger a potential passenger who has made changed his or her law talks about the magnetic meter as the primary then there is any possible permutation of secondary screening secondary screening can range from wandering around the outside of a person's leaves at nine o five and i think it's fair to assume that the flight left at nine o far there is testimony from the very first t s a officer that she recalls seeing that boarding pass and the person coming through and in her report she wrote nine o'clock so i have a five minute window right there in terms of he sent over according to her testimony he says i'm going to rush my planes leaving she sends him to secondary because he has no id right and that's my question ever he puts you into a higher category of brass that the airport that would justify the secondary search i think that i understand your question however in light of the fact that  a does in fact permit people to fly without photo id it's songs they're willing to undergo the secondary search that the government agency has needed determination that that a secondary search will satisfy any concerns they might have preventing danger once someone is aboard the aircraft do they also have a legitimate justification for their administrative or special needs searches to protect people within the airport that's far that's absolutely correct because from the time the inception in day this is time thirty five years ago or so when we were developing this case law and statutes on anti hijacking they did talk in terms of airport bombings and they're more airport bombings and in fact in hawaii twice now we've had people ran into our try to drive into airports and sixty so yes that's a valid concern but that is what our position is that it's a jungle on force i have a question when you're going to have a question when you're done there's a practical component to all this besides still legal component and obviously people have to know what's going to happen to them as they cross the threshold and also t s a people have to know what they can and cannot do you know what you know what are the rules and then we have we have we have cases now if if we just assume for a moment that crossing that threshold if it's you know where you go and whether it's the mag whatever you call that magnetometer to make the meter or whatever to fit once you cross that if that was the point that you were consenting to that search and any secondary searches and  an unrestricted search of my person in my things just because i walk through the net a meter but then decide i don't want to fly i'm entitle to notice at least what i'm going to be facing five making that actually helps in that case because no one's being singled out and it says that what we're supposed to do is balance the individual's privacy expectations against the government's interest to determine whether it's impractical warriner individualized suspicion what i'm thinking is when you consider the individual's interest in privacy it's helpful for him to have a clear line like the magnet discovers he accidentally left his gun in his pocket they'll say oh i got to run back out to the car stick it in the trunk it seems like that's helpful both for the individual privacy because he has a real clear line and also for airline security because it prevents trips like just leaving a plastic bag with the ammo or some other component on the chair in the security area and then and having the individual leav and confederate pick it out seems like it is just real simple to administer it helps the individual make his privacy decision at a time when he knows this is the time and it from tricky ways as well as correct ways of getting weapons on airplanes i don't understand really what the problem is with making the magnetometer the bright line i don't think there's a problem i agree that  a needs guidelines and passengers need guidelines and the marshals and the police officers that are inside the airports need guidelines those weren't present in this case so what we're talking about is the due process requirement here at a minimum that i know what's going to happen when i walk through that magneto me and randomness so what if the guy is already at the gate he's got all through the security he's sitting at the gate and t s a get to him so they go up and say we want to talk to you some more we got this tip and he says well i don't feel like talking you are changed my mind i'm not going to fly at all as if you can as an airport screening search but at some point in any of these cases mine are more humble hartwell any of these other cases what happened was exception of some form of suspicion arose something happened in those cases actually that could qualify as a form of suspicion sufficient to detain perhaps for a little while if i might offer anecdotal i had two clients who were arrested and convicted in detain you know triple c in hawaii and their i d s were removed and lost by the state and they both flew back to the united states without identification have a good reason for thinking it's closer work absolutely i'm not saying they don't have a good reason what i'm saying is that the reason to take a closer look evaporates when the person decides to leak and has not otherwise take take your possessions and go home you know get to go home this search for purposes of airport screening if you like not to board stops being a screening not to board you should be committed to me there after normal law enforcement investigative techniques and protect the people that need to be protected from that type of activity thank you special needs search in particular the special needs where the safety needs of commercial air travelers and that's what justified the secondary screening about car instead it was relevant but only as a threshold matter it wasn't relevant at the moment assuming that a terrorist may be able to beat the initial magnetometer and there will be a need for secondary screening in that case for instance the bomb they bring on board hypothetically might have a low fares contact that could be picked up either by the hand screening device which is more sensitive or more likely but that's not respond that's not responsible question because you're saying they need to screen some more in order to keep them off the aircraft but you have pathetically says i'm wrong home i'm not going on the aircraft so i think your answer has to be if you're still going to justify based on special needs rather than some individual ised suspicion based on his behavior becoming refusing and so on just the special needs has to include not merely safety of board the aircraft but safety  rationale all the way where it seems to lead that would mean that someone couldn't even turn around before they get through the screening because once they're in the airport and they're able to you look at the screening starts you come up to that space and you see that people are taking off the shoes and jackets and whatnot and going through searches so we think there's a there's a visible difference between a fixed checkpoint which is obviously being run in a routine fashion and just because you've entered the checkpoint constitutionally we think when you're when you present yourself for screening at the checkpoint the visible checkpoint that's the drop dead point so that it's going to put you have to contact employees who are looking at your at your id and your and your boarding pass make sure that they match typically those are contract employees to the in you meet somebody initially to make sure there's a match up that's typically an airline employee it doesn't have to be it can be contracted out but that's almost realize now that we do need to charles we need to terrence your ear that's pleasure because once you get on a plane once a hijacker hijacked a plane they have a weapon of mass destruction it's not just a relatively enclosed space where it's relatively easy to individualized suspicion of any kind is it revocable i believe that it is a radical but it is what it does it is consent in that case sort of forms the basis for your expectation of privacy and your you might have a greater expectation of privacy in your underwear then you do and say a hand one going around your body and a quick pat down with the back of her hand if it's below the belt so in my in my hypothetical that person would not be able to say i'm just earlier with opposing counsel whether there was one search to search or this multiple searches presumably even you think that at some point and said that any additional future search would have to have a separate typically at the end of the secondary which would normally take less than three minutes to complete it can ask a late as this case shows can go on and become a clearly criminal matter can there are there are times when the search could go behind the checkpoint and it goes right up to the airplanes because there are so my question is is it your position that it's a continuous you're in a continuous search risk from the sign that says search all the way to you board the airplane or does this initial search have some definite and we think you get into the terminal and sit down with your bag we think there is room for reasonable suspicion after you get points past the checkpoint where these types of searches are sort of advertised that they're going to be done so so however we believe that we have constitutional authority over everything and a lower expectation of privacy is that i'm talking about that not clear and it's jurisprudence didn't involve drop dead points in time so that they they've certainly backed away from that but they certainly allowed an hour or two would be fine here we're talking minutes do we need to get past relatively little it's just a bare minimum you're talking a lot about things that i'm not asking about oh i want to focus i'm thinking there can be serious issues past the checkpoint person's gotten through the checkpoint  it strikes me that that's an interesting case but it's not this case we have to decide you know we believe that fourth amendment jurisprudence one really allow us to decide that case here because we need to look at that specific circumstances of the cases in front of us even on a problematic basis so we don't think that cases is this case and you know might be for another day we typically don't do suspicion less searches in the sterile area past the checkpoint so it's not even clear that that case is going to come up  we don't need to decide it really does the rule doesn't need to cover that now let me ask you about something a little bit different you let off your argument talking about consent and i know a lot of the cases are worded in terms of implied wrong when i read national chris free versus following rav i don't really see the role of consent there and there's the role of knowledge every treasury employee knows who's going to get your test before he gets a promotion to a gun in say skinner which is the railroad employees search cases this spring court simply assumes that the employer plays would probably know the terms of their employment engagement it doesn't require any any facts about answer that that x ray they have little blobs so that the people can't see your face but they show your whole body not if it's someone is going through and they in they say oh my gosh i'm going to be subject to that i don't want to do that well what the op here is that if you opt out of the magnetometer that sort of thing you probably will be wanted you might be able to opt out even of the wanting but you would be subject to a full pat down search at that point so it that some people much more comfortable with but my understanding was if you choose not to walk into the booth to have them come to say look i would rather have a warm but i would i would rather stand there a reasonable they can say well you know it's a lot easier just to strip search everybody than we really know if they have anything would that be permissible we do think we could search every single person you think you c how much surveillance they could be there for five hours looking everything over but they can still leave without being searched you think gone through the checkpoint they get to the boarding area and they get an emergency call you know their kid is sick they can leave without further search even though you know so the only the only question seems to be focused on the primary first the secondary whether that's a single search to which you've consented period or whether there is any boykin the action where if you if there's no individualized suspicion or where are asked whether you can at that point leave and i still am not sure that i understand why it is that if you've passed successfully through stage one and there's nothing about you that is suspicious whatsoever you've just gone through and you're standing there and you decide i know that i've been selected deter terrorists then layered screening allows us to do that we believe that if you knew that you could just test the initial magnetometer or perhaps even beat it and then withdraw should you should you be subject to secondary search for whatever they can proceed from there well in this case it's not clear that they're going to be a passenger their interest in keeping him off the airplane is not on your honor that we believe that the interest is not gone because we have this deterrent interest we believe that at that point you can't just say there's no further interest in going ahead with the search that's an unlimited rationale that fresh now could let you do anything to anyone at anytime anywhere and has now arrived at this the court would have to and somebody else could be in there who is going to get on the plane take a take a bomb or something on a plane and i think gate area we also have to protect people there again it's another place where people are if a bomb went off there there would be a lot of plane we certainly treat dozen different things here it's a checkpoint there's a checkpoint search and it has different layers that we think are appropriate to screening terrorist and in particular deterring terrorists i'm sorry let me ask you this i found it are interesting and safety is not exhausted by finding the things that would trigger them from the wand it may very well be that there are hard objects that we now know are in the pocket that are not the do not the argument well we would append the deterrence rationale that we push that we think if you could say just no i don't want to do it at this point when you realize you're going to be secondarily searched we would be asking terrorist attacks they're locking this way so that is the argument but we also believe that there's a strong deterrence rationale helps all my correct that so long as it stays a special needs search you can only look for things that are going to be dangerous time very briefly thank you i just want to point out something that that at least with respect to the facts of my case in determining terrorists and stopping them from probing the workings of an airport is that a search the other thing is that the t s a is website states that a person at any point in the screening process withdraw its consent to information that's the website information i suspect that it comes from regulations however i believe the regulations are secret and we're not allowed to see them i suspect that some of you folks might have seen them during the gilmore versus excuse what i'm trying to point is that you have consent and does it have anything to do with the expectation of privacy under these facts when you tell an entire nation an entire world that you may not that you may leave at any point during the screening process when you tell people that if they have religious and cultural needs that's another part of the t s a website that you may elect to be searched in a different way or