It’s been more than a month since the “Don’t touch my junk” video was an Internet sensation, but even as the TV talking heads move on to other matters, there are some serious safety concerns that remain and need to be readdressed. Remember, some District Attorney Offices warned TSA agents to not be “sexual” with pat downs or they may face criminal charges. What are the ramifications for police officers?
First off, if a TSA agent — or any law enforcement officer — conducts a search in a sexual manner, then I for one am OK with a criminal investigation into the manner of the search. The test of the 4th Amendment is the balance of the need for the government's intrusion against the person’s right against "unreasonable" searches and seizures. The courts have ruled that the scanning of an airline passenger before entering the terminal was reasonable based on the minimal intrusion against the need for the safety of air travelers.
These court decisions came before the increased intrusions of the new scanners but they were also pre-9/11 (worldwide terrorism, validated and credible threats against the entire US population). With the latest in weapon technologies (large, non-metallic knives, for example) and explosive technologies (those using non-metallic blasting caps, for example), a magnetometer is about as helpful as a divining stick is to find water. In other words, there are new rules to the game on both sides of the equation. It will be interesting to see how the courts rule on this issue with the “new rules” in play.
One Significant Distinction
It is understood that a pat/frisk by a TSA agent of an airline traveler in an airport terminal is done under different circumstances and may use different methods than a law enforcement officer with an armed and dangerous suspect in the field.
Absent consent, a law enforcement officer must be able to articulate specific facts in order to conduct a pat/frisk search. A subject can be searched by the law enforcement officer without their consent and cannot decide to just leave of their own accord when that law enforcement officer has:
1.) lawfully arrested, or
2.) lawfully detained and has reasonable suspicion that is armed and dangerous.
A TSA agent does not need individualized reasonable suspicion to believe the person is armed and dangerous to conduct a non-consensual screening of an airline traveler. If the traveler does not consent to the screening, they do not fly. An airline passenger first and foremost has the option of not traveling on the airplane, which of course is not a “right guaranteed” by any stretch of the imagination. If the traveler chooses to fly, and subsequently refuses to go through a scanning device, the only option for the TSA agent is to conduct a pat/frisk search of the person to complete the screening. Therefore, the pat/frisk is not being forced upon the traveler without a choice.
Please note that the remainder of this article focuses on searching the crotch area since the now-famous “Don’t touch my junk” incident dealt with a search of the person’s crotch. However, many of the principles discussed would apply a search to the female breast area.
A voiced concern has been that because of these warnings, some law enforcement officers may misinterpret the message and not thoroughly search the crotch area of a suspect even when it is wholly appropriate to do so. Remember that, absent consent, if an officer has a reasonable suspicion that the lawfully detained person is armed and dangerous (or in a search incident to arrest) that person may be searched for weapons. If a weapon could be concealed in the crotch area, you may search the crotch.
There’s History of Concealment in “Junk”
In 1997 the Department of Justice, Federal Bureau of Investigations and the National Institute of Justice published “In the Line of Duty: Violence Against Law Enforcement.” This study included interviews with offenders that had assaulted officers. When asked where the preferred area to carry a handgun was, the crotch area was selected by 36 percent of those who answered.
In 2006, the same group published “Violent Encounters.” In this study, they interviewed offenders that had assaulted officers. Two of the offenders admitted that they carried their handgun in the crotch area. Both offenders stated that the handgun was not discovered when they were searched. They were able to recover the handguns and use them to assault the officers later.
In both publications the authors give several reasons, as explained by the offenders, as to why they prefer to carry handguns in the crotch area. One reason that is offered is that officers do not do a proper search of the area due to being apprehensive and/or a fear of complaints. I am concerned that new fears of being prosecuted may add to those feelings.
Officer Safety is Paramount
If searching the crotch is reasonable based on the totality of the circumstances, search it. Make sure your search is thorough enough to discover a weapon if one is hidden in the crotch. The scope of the pat/frisk involves searching the outer clothing of the person for weapons. The purpose of the pat/frisk search is so that the officer may be safe while conducting his/her business around someone who he/she feels may be armed and dangerous.
Officers should be mindful of how they were taught to search the crotch and follow those approved techniques. Any reputable trainer will have considered these issues prior to instructing their students on how to search “sensitive” areas. Factors to consider might include, but are not limited to:
• the availability of a same sex officer to conduct the search
• using the back of the hand in “sensitive” areas
While there are no guarantees in life, and most certainly no guarantees in police work, an officer should be fine if he or she:
1.) sticks to the scope and purpose of the search
2.) conducts him/herself in a reasonable manner
3.) follows the established agency guidelines to accomplish the search
What do you think? Add your comments here.