On a public bike and pedestrian pathway, police in Chicago set up a checkpoint at the exit of a pedestrian bridge and tunnel and subject everyone to search of their bags for alcohol or weapons, without reasonable suspicion, probable cause, or a search warrant. Is that legal? This fantastic submission video was sent in by Cynical Zombie and it’s very well done. The footage is great. But the question is better. Here’s what he filmed Chicago police doing earlier this week:
The Fourth Amendment to the U.S. Constitution generally requires a search of a person or property by the government be reasonable. A governmental search lacking a particularized warrant issued by a neutral and detached magistrate upon a showing of probable cause, is presumed unreasonable and therefore unconstitutional. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
However, a warrantless “administrative search” can be held reasonable and constitutional. The burden is on the Government to show that such a search is in furtherance of a specific and legitimate non-criminal goal, is no more extensive nor invasive than necessary to address that goal, does not give discretion to the searching individual, and does not have as a collateral purpose collection of criminal evidence. United States v. Stafford , 416 F.3d 1068, 1074 (9th Cir. 2005) ; United States v. Bulacan , 156 F.3d 963, 967 (9th Cir. 1998) ; United States v. Davis , 482 F.2d 893, 908 (9th Cir. 1973).
For instance, without a warrant, people can be lawfully stopped at road checkpoints for detecting drunk driving, driving without a license, and illegal hunting; government employees and students can be lawfully searched, including through drug testing; closely regulated businesses can be subject to periodic inspection; and airplane passengers can have their luggage opened and their bodies patted down. People can also be detained based only on reasonable suspicion of wrongdoing (“not a particularly high threshold to reach”), United States v. Valdes-Vega , 738 F.3d 1074, 1078 (9th Cir. 2013) (en banc), and can be arrested based only on probable cause (“not a high bar”). Kaley v. United States , 571 U.S. 320, 338, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014). Verdun v. City of San Diego, 51 F.4th 1033 (9th Cir. 2022).
Case law conditions administrative searches on being no more intrusive than necessary, and “consistent with current technology. ” It is only rational to interpret the term “consistent with current technology” to apply to both the object of the search and the means of the search (pat-down, x-ray, etc.). An airport security screening search is constitutionally reasonable provided it “is no more extensive or intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives … [and] is confined in good faith to that purpose. United States v. Aukai , 497 F.3d 955 (9th Cir. 2007) quoting Davis , 482 F.2d at 913.
Where the checkpoint search is intended to detect ordinary criminal wrongdoing, however, the administrative search exception does not apply. Edmond, 531 U.S. at 41; Al-Kidd, 131 S.Ct. at 2081 (“[The] exception [does] not apply where the officer’s purpose is not to attend to the special needs or to the investigation for which the administrative inspection is justified.”). Checkpoint searches that are designed “primarily to serve the general interest in crime control” require a warrant or probable cause. Edmond, 531 U.S. at 42. Whren v. United States, 517 U.S. 806, 811-12 (1996) (“[T]he exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative regulation, is not accorded to searches that are not made for those purposes.”) (emphasis in original). On this point, the Supreme Court was emphatic: “We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Edmond, 531 U.S. at 41 (emphasis added).