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Ninth Circuit Court of Appeals Rules Airline Passengers Consent to Full-Body-Pat-Downs

It’s become a common sight. Airline passengers single file through security metal detectors. Seemingly random, Transportation Security Administration (TSA) employees select certain passengers for a hand-wand body scan. Airport security checks flow seamlessly, until some passenger balks. The Ninth Circuit Court of Appeals has held airline passengers have the right to balk against security checks, but if they want to fly, they must consent to some form of a security check. Even if it includes a full-body-pat-down.

When Keith Russell paid cash for a last minute flight from Seattle, WA to Anchorage, AK, and had no luggage to check, an Alaska Airlines ticket agent flagged him to the Drug Enforcement Administration (DEA) agents as a potential drug courier. A DEA check revealed Russell had prior drug and firearm-related convictions, and also had been implicated in a prior drug investigation in Alaska.

Russell gave consent for a DEA agent to search his bag. He also consented to have his person searched and voluntarily spread his arms and legs to facilitate the search. The DEA agent gave Russell a standard operating search, which included lifting up his groin area. When the DEA agent felt something hard and unnatural, Russell was arrested. The police later recovered 700 Oxycodone pills from Russell’s underwear. Russell moved to suppress the evidence.

The district court identified five factors that determine whether a person’s consent to search is voluntary:

1. Whether the defendant is in custody;
2. Whether the arresting officers have drawn their guns;
3. Whether the arresting officers Mirandize the defendant;
4. Whether the defendant is told he has a right to not consent; and 5. Whether the defendant is told a search warrant can be obtained.

At the time of the search, Russell was not in custody, was told he could leave, and no guns were drawn. Though Russell was not told a search warrant would be obtained if he did not consent, there was no need to give him a Miranda warning since he was not yet under arrest. The district court found Russell’s consent (twice) to a full-body-pat-down search was therefore voluntary.

The district court further found the full-body-pat-down search which included Russell’s groin area was reasonable since 1) Russell knew the officers were looking for drugs, and 2) Russell had ample opportunity to object both before and during the search and did not.
Last, the district court noted that narcotics are often hidden on the body in locations that make discovery more difficult, including the groin area. The search did not extend inside the clothing, and it was not conducted by a female officer.
The Ninth Circuit Court of Appeals upheld the district court’s denial of Russell’s motion to suppress.

The Las Vegas law office of Lagomarsino Law did not represent anyone involved in the above-referenced case. The commentary is for educational and commentary purposes only. If you would like to be represented by a Nevada attorney, contact our office for a free confidential case review and receive a response within hours. Call Toll Free 866-414-0400.