THE FOURTH AMENDMENT IN THE POST 9/11 PERIOD

Kathy Parker was flying from Philadelphia to North Carolina on business. She was flying out of Philadelphia International Airport. As she was going through the metal detectors a TSA agent selected her carry on baggage for an in depth inspection.

Her personal items were spilled out on the inspection table for everyone to see. (The agent asked if the diet pills work?) Checks, in her purse, made out to her and her husband were inspected. The agent claimed that they were in sequential order and they called over the Philadelphia police since the agent claimed that sequentially numbered checks were evidence of embezzlement. For some reason the agent thought that she had emptied her bank account prior to filing for divorce so the agent called her husband to find out if they were going through a divorce.

My bet is that the agent was trying to get a job as a police officer and she was trying “to crack a big case” to show that she was deserving. Of course she found nothing.

But the issue is not what was found but the change that has occurred in out society. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.

Of course generally the Fourth Amendment only applies to searches but in this case TSA is working as an agent of the government and is subject to the Fourth Amendment.

Here Parker’s personal belongings were seized and inspected without probable cause, without an affidavit, and without the permission of a judge.

The Fourth Amendment was added to the Constitution in reaction to the British writs of assistance. The writs of assistance were general search warrants issued to assist customs agents find smuggled goods. They were issued without probable cause that evidence of illegal behavior could be found in a specific location. James Otis a Boston lawyer, one of the earlier patriots, developed a reputation by fighting the writs, as did John Hancock a Boston merchant who was the president of the Continental Congress and signed the Declaration of Independence.

The question in the post 9/11 period is how much of the rights fought for in the Revolution are we willing to surrender in order to obtain security. Can we feel safe without searching the diet pills and the personal papers of a 43 year old business woman taking a domestic flight? I’m sure that Otis and Hancock as well as James Madison and who wrote the Bill of Rights based on George Mason’s Virginia Declaration of Rights would have found the risk de minimus and worth taking in order to preserve our fundamental rights.