Recently, I was going through airport security and placed my jacket
and several items in my pockets (keys, some change and my wallet) in
one of the plastics bins to go through the scanning machine.  After I
had been scanned, I went to collect the items at the other end of the
line.  The TSA officer wanted to inspect my brief case (which I had
also put through the machine), and I said that was fine.  After this,
and without any further requests for permission, he proceed to take my
wallet out of the plastic tray and open it, pulling out and reviewing
the cards, notes, and other contents.

I would like to know if this constitutes an illegal search, since the
officer did not have my permission to intrusively inspect that
particular article.  Furthermore, given the private nature of the sort
of material that is contained in peoples' wallets, I would like
understand more about the privacy rights implications.

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Request for Question Clarification by pafalafa-ga on 09 May 2003 12:58 PDT

Lot's of good opinions and information in the comments below.  I think
the bottom line here is that the answer to your question just isn't
known yet.  It won't become known for certain until and unless such a
search was contested in court, either in the form of a lawsuit, or to
contest charges that had been filed as a result of the search. The
court's decision would begin to set precedent on this matter, about
how searches and security concerns are balanced.

As far as I can tell, there is no case law on this that has developed
yet that is specific to your type of situation.

Given the likliehood that there is no definitive answer to your
question just yet, is there any additional information a researcher
could provide you that would serve as a satisfactory answer to your
question?

Any feedback you can give us would help to focus our efforts to best
meet your needs.

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Clarification of Question by mrfrog-ga on 15 May 2003 11:43 PDT

No, actually, I think that the thoughtful comments posted are quite
satisfactory in the absence of relevant case law.  Thank you!

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Request for Question Clarification by jbf777-ga on 15 May 2003 13:16 PDT

You might want to close the question, if you're all set.

Thanks,

jbf777-ga
GA Researcher

I don't have time now to give this question the time it deserves. I
have, however, done some quick research and have two preliminary
conclusions:

1. Anecdotal evidence indicates that such searches of wallets are
common.

2. The prevailing legal view is that warrantless searches absent
probable cause at airports are limited to matters of security. 
Passengers can have their shoes inspected, for example, because it is
possible to hide explosives in shoes.

My off-the-top-of-my-head view is that searches of wallets would be
illegal unless the search is limited to determinining whether the
wallet has explosives in it.

Interesting.

Would it be correct to say that unless there is some probable cause to
assume otherwise, that such a searches would have to be done with the
consent of the person being searched?  One might presume that the
person being searched might have the option to refuse and electing not
to go through security.

The biggest problem with answering the first part of your question is
that we are dealing with new policies and statutes, while most of the
law governing this type of search precedes 9/11/2001. It would be
naive to believe that courts won't hold that our expectations of
privacy at airports have changed since September 11. Before the courts
start addressing these statutes, the best a researcher can do is
present a hypothesis based upon existing case law and court trends.

As for the wallet, here's a story: A police officer was being
cross-examined on the witness stand about having looked inside a
suspect's wallet during a traffic stop, by a defense attorney who
wished to have some contraband found in the wallet suppressed from
evidence. Even the judge seemed skeptical of the police officer's
claim that he wanted to be certain that the wallet didn't contain any
weapons, until the officer removed his own wallet from his pocket and
opened it, revealing a derringer.

Interesting story, certainly.  Actually, I think it is quite
conceivable that a pretty powerful explosive device could be planted
in a wallet, given that the bomb that destroyed PA 109 was inside a
Walkman.

On the other hand, a traffic stop is a different situation from
passing a security check point -- in the former, you don't really have
the option of backing out, in the later, one would hope that you door.

In regard to the caselaw, I'd be happy to see earlier material if more
recent material is unavailable.

I also suppose you could put a pretty good knife in a wallet. If it
were made of the right material, it wouldn't trip normal detection
devices.

Though like the others, I don't know, nor have I been able to find
legal precedent for such an incident as you describe, as an aside -
I've been curious about such for some years.  In 1985 on a family trip
to Washington DC, among other public places we toured the White House
and the Senate/House galleries during business hours when staffers and
Senators/Representatives were at work.  We passed through several
security checkpoints, none of which conducted any thorough search of
bags, wallets, etc., though they did do a cursory look-see.

At the time my eldest son, who holds (and then held) a Black Belt in
Tae Kwon Do, was carrying several throwing stars, a martial arts
weapon, in his wallet.  They can be deadly in the hands of someone
trained and skilled in their use, as he was.  It occurred to me then,
as now, that any suicidal terrorist could quite easily take out a few
Senators with a handful of well-placed throws before being taken down.
Guess my point is that if someone wanted to make a case for a weapon
being concealed in a wallet, they could certainly do so with some
validity to the claim.

Now, just because I noticed the possibility, please don't assume I'm
an advocate of the kind of overly zealous "security" measures
described in this question - just the opposite actually. With regard
to the above, or the policeman with a derringer in his wallet, I say,
So what? Risk is the price of freedom, and absolute security can never
be guaranteed, not even in an absolute police state, let alone a free
society.  The main point is that I do strongly believe it incumbent on
all of us to ensure these draconian "security" measures go no farther,
indeed, are retracted back to pre-9/11 days and further, and protest
them vigorously lest, by our silence, we encourage further such
erosion of our freedoms.

Therefore, I send my best wishes to you, MrFrog, for all success in
protesting what I believe to have been an egregious abuse of your (and
all of our )freedom by the TSA screeners.  Yours is not an isolated
example, and there are worse.

The search was probably leagal under 4th amdmt.  

For a search to be allowed under the 4th amendment, it must be
reasonable.  Federal Courts (aiport security is a federal area) have
interpreted it as follows (Torbet v. United Airlines, Inc., 298 F.3d
1087 (9th Cir. 1998)):

An airport screening search is reasonable if: (1) it is no more
extensive or intensive than necessary, in light of current technology,
to detect weapons or explosives; (2) it is confined in good faith to
that purpose; and (3) passengers may avoid the search by electing not
to fly. To avoid search, a passenger must elect not to fly before
placing his bag on the x-ray belt.

The court continued:

[The plaintiff] impliedly consented to the [search] by placing his bag
on the x-ray conveyor belt...x-ray scan may be deemed inconclusive,
justifying further search, even when it doesn't affirmatively reveal
anything suspicious.

Thus, it seems like if the TSA official was, in good faith, looking
for a weapon, it does not matter that he exceeded the consent you gave
for the search of the briefcase by looking in your wallet.  In fact,
he did not have to ask permission for either search, and perhaps did
so only as a courtesy.  The relevant consent was given by placing the
wallet itself in the plastic bin and running it through the machine.

Thank you for the comments, amf22-ga, byrd-ga and mvguy-ga!

It does seem very plausible that the search was 'reasonable' under the
4th -- of course, it does seem that there must be SOME limits on the
degree of consent that you are giving by choosing to enter the
security area.  I wonder where the 'reasonable' line has moved to now?

Perhaps there should be a sign up at the beginning of the security
area that says:

"By placing your baggage on the x-ray scanner and walking through the
metal detector, you are consenting to a thorough search of your person
and possessions."