Square Pegs, Round Hole: The Fourth Amendment and Preflight Searches of Airline Passengers in a Post-9/11 World

I. INTRODUCTION September 11, 2001 marked a day of tragedy on which thousands of people lost their lives. As a result, the dangers of hijacking became a heightened subject of concern for America. The detection and detention of would-be hijackers is now a greater priority than in prior times, and the government has implemented many new measures-such as increased security at airports-to accomplish this goal.1 However, these increased security measures,2 often in the form of precautionary, suspicionless searches made without warrants, lead to a hard question regarding personal privacy and the right to travel. Are these preflight passenger searches constitutional under the Fourth Amendment?3 This Comment shows that a new Fourth Amendment approach is necessary to justify warrantless preflight searches of passengers boarding airliners because the prevailing approach is based on the misapplication of a set of exceptions to the Warrant Clause in the Fourth Amendment.4 Part II outlines how the history culminating in the adoption of the Fourth Amendment shows the need for judicial review of government search decisions and that a warrant-preference standard should be applied in determining which searches and seizures are constitutional under the Amendment. Part III discusses how courts have misapplied exceptions to the warrant requirement-including the stop-and-frisk exception, the consent exception, the Katz privacy balancing test, and the border search exception-in attempts to justify preflight passenger searches, and explains why these attempts ultimately fail. Part IV calls for the creation of a sui generis exception to the Warrant Clause in the Fourth Amendment that resolves the irrationality and inconsistency in the courts' current justification of the searches. In addition to creating a rational justification for the searches, this approach would allow security in airline travel while being narrowly tailored to ensure that searches necessary to public safety are not misapplied to other situations in conflict with individual constitutional rights. II. JUDICIAL REVIEW AND THE FOURTH AMENDMENT The language of the Fourth Amendment to the Constitution is inherently ambiguous.5 While the Amendment specifically forbids "unreasonable searches and seizures,"6 it outlines parameters for proper search warrants but does not specifically describe when such warrants are required. As a result, some authorities have argued that a warrant-preference standard is not required by the Fourth Amendment and that only a general reasonableness standard is required to determine the constitutionality of searches and seizures.7 However, this Part will outline how the history culminating in the Fourth Amendment demonstrates the importance of judicial review of searches by law enforcement officials-and consequently a warrant-preference standard-in the Amendment. In many ways, the Fourth Amendment is one of the most vague provisions in the Bill of Rights. The phrasing of the Fourth Amendment creates problems with its practical application because the Amendment does not give guidelines to determine which searches and seizures must be made pursuant to a warrant.8 The problem comes, in part, because the "warrant" clause of the Amendment is not directly tied to the "reasonable" clause. While the Fourth Amendment begins by stating, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"9 and ends by stating that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,"10 it never directly states that a warrant is a requirement for a reasonable governmental search and seizure.11 Thus, because the Fourth Amendment prohibits "unreasonable searches and seizures"12 and does not technically preclude "reasonable" searches made without a warrant,13 some scholars and judges have proposed that the constitutionality of searches and seizures should be determined according to a general "reasonableness" standard. …