Steve Palmer [00:00:00]:

All right, Lawyer talk, off the record, on the air, question and answer style. Taking questions and comments from all our listeners and a great one today. I think this is something everybody's at least thought about.

Troy Hendrickson [00:00:10]:

This from YouTube. Mr. Cabimarrow, when @ the airport, why can't TSA randomly pull you out and go through your things, even though there is no probable cause? You are picking up your bags and walking out and they flag you for eval. Why is that legal?

Steve Palmer [00:00:23]:

Doesn't that seem, it just seems like you shouldn't be able to do that. It just, it just feels like I'm being violated. And you are, but you're not. Or at least you do feel like you're being violated and you are being violated on some level. But it's not a constitutional problem or it's not a Fourth Amendment problem yet. I learned this way back in law school. There's a case going way back called Florida vs. Royer, which I'll get to in a second.

Steve Palmer [00:00:45]:

I think it was, what, 80 something or other. Don't hold you to it. Don't hold me to the year. So generally speaking, we have two types of encounters. And for you legal experts out there, maybe you can debate me, but we have two types of encounters. We have the kind of encounters that require justification under the Fourth Amendment. And then we have the kind of encounters that are called consensual encounters. Things that aren't searches or there's not direct government contact.

Steve Palmer [00:01:13]:

This airport security thing is along those lines. So on some level, we consent to the process when we buy our ticket and we choose to travel. And the big distinction here would be we don't have to get on an airplane. You can choose not to get on an airplane. So if you're worried about getting searched when you're getting an airplane, it's not like it's a secret. You know, you're gonna, your stuff's gonna get X rayed, you're gonna go through the metal detectors and you may get flagged with your. That's happened to me where I get the little card and everywhere I go they're pulling me out and they have to look through my stuff. But that, that would be something akin to a consensual encounter.

Steve Palmer [00:01:51]:

And the U.S. supreme Court has so held the other. There's a couple other things at play, and the primary one would be there are some exceptions about border security and customs. Customs and border security. So those things are at play too. Now, it's not always the case that those types of encounters don't violate the Fourth Amendment. And that's that Florida versus Royer case where it was more than that. Actually, I think there were detectives actually went to the airport and they followed some guy in.

Steve Palmer [00:02:20]:

They, they pulled him out of line, they put him in a room, they searched all his stuff. That became a Fourth Amendment encounter. That required justification under the Fourth Amendment. So that was like the real. That was a police seizure with a custodial component to it that required the Fourth Amendment validation. The other thing is the police can't use airport security as a mirror pretext to search somebody they couldn't otherwise search. So let's say they're following somebody and they say, all right, well he's going to the airport. We'll just wait, we'll let them do it.

Steve Palmer [00:02:59]:

Now you might be crossing over the line of creating a Fourth amendment problem.

Troy Hendrickson [00:03:04]:

Because you're like making them an agent. Pretty much like we need you to do some of our work for us.

Steve Palmer [00:03:08]:

That's right. Yeah, that's right.

Troy Hendrickson [00:03:10]:

Was it the cleaning lady in the hotel?

Steve Palmer [00:03:12]:

The hotel cleaning staff? Sort of.

Troy Hendrickson [00:03:14]:

It's a government cleaning lady.

Steve Palmer [00:03:15]:

Yeah. So you can't just use it as a pretext. And this might is also sort of akin to traffic checkpoints. You know, if everybody's getting checked and the police follow a pattern that's one, published in advance and two, not random. In other words, not discretion or not within some sort of police discretion. So we have this policy where we're going to stop every car or every other car or every third car. And we've posted in some sort of public forum that there's a police checkpoint for drunk drivers on a certain night at a certain place at a certain time, that's okay. Now as soon as they make it, as soon as, as soon as they, the, the, the checkpoint becomes discretionary.

Steve Palmer [00:04:01]:

Meaning. Well, I just had a funny feeling about that guy. He was only the second I was going to pull over the third, but he just looked a little funny to me. And then. So we're going to pull him over. They can't do that. They can't do that.

Troy Hendrickson [00:04:12]:

And she talks about in a follow up comment on here because someone else brings it up. So one of the commenters was this Power Max. He pretty much talks about the consensual.

Steve Palmer [00:04:20]:

So a consensual encounter.

Troy Hendrickson [00:04:21]:

Yeah, that's right. Power Max. You're basically a lawyer now.

Steve Palmer [00:04:24]:

Another, another good example of a consensual encounter. If you're pulled over on the side of the road and you're changing your flat tire and the police come up behind you, and that's a consensual encounter. They haven't stopped you. You have. That has been held to be something akin to a consensual encounter. So even though they pull behind you, they put on their sirens or their lights and they come up and say, what's going on? That doesn't typically require any justification. Same kind of thing.

Troy Hendrickson [00:04:46]:

Okay. But then she is talking about you being cleared by customs. They got your documents, bags. You're basically leaving the airport. They stop you. This kind of feels like the Florida case where you've gone through TSA and everything. Now they're coming up.

Steve Palmer [00:05:00]:

That scenario might be a little bit different, and we'd have to research that one. But you're right, that one feels a little different, because who consented to that? After going through security, this is like a little bit extra, and it sort of rings like somebody wants to search you for a reason, and they're using as a pretext the airport security to do it.

Troy Hendrickson [00:05:19]:

Yeah, that checks out.

Steve Palmer [00:05:21]:

All right, look, great question. Keep them coming. LawyerTalkPodcast.com you can submit a question right there in our interface or keep them on the comments. We'll do our best to cover them right here. Lawyer Talk podcast off the record, on the air. Until next time.