United States v. Aukai ( 2007 )

GRABER, Circuit Judge,

with whom HAWKINS and WARDLAW, Circuit Judges, join,

specially concurring:

I concur in the result and nearly all of the reasoning in the majority opinion. I write separately, however, because I cannot join the majority’s irrelevant and distracting references to 9/11 and terrorists. Daniel Aukai is no terrorist and yet, whether in 1997 or 2007, the search that law enforcement personnel conducted of his person falls squarely within the confines of a reasonable administrative search.

The majority holds, and I agree, that once a passenger enters the secured area of an airport, the constitutionality of a screening search does not depend on consent. That legal conclusion rests firmly on Supreme Court precedent and on the government’s interest in ensuring the safety of passengers, airline personnel, and the general public. For .decades, nefarious individuals have tried to use commercial aircraft to further a personal or political agenda at the expense of those on board and on the ground.¹ And the threat continues to exist that individuals, whether members of an organized group or not, may attempt to do the same. In my view, references to a “posMVll world,” maj. op. at 960, do not advance the analysis. Nor is there any legal significance to whether or not an individual is a terrorist. See maj. op. at 960-61. By relying on those factors, the majority unnecessarily makes its solid holding dependent on the existence of the current terrorist threat, inviting future litigants to retest the viability of that holding.

1 . See, e.g., 4 Cuban Gunmen Hijack Airliner, N.Y. Times, Apr. 17, 1959, at l(reporting the hijacking of a Cuban domestic airliner by four individuals, who forced the pilot to fly them to Miami, Florida); Youth Tries to Hijack Jetliner, N.Y. Times, Nov. 18, 1965, at l(discussing an attempt by a 16-year-old to hijack a National Airlines flight, during which he attempted to shoot an aide to the federal space program); Gunman Is Foiled in Jet Hijacking, N.Y. Times, July 13, 1968, at 1 (recounting an attempt by a lone gunman to hijack a Delta Air Lines flight from Philadelphia, Pennsylvania, to fly to Cuba); Arabs Hijack a Dutch Jet, With 288 Aboard, to Libya, N.Y. Times, Nov. 26, 1973, at l(covering the hijacking of a KLM Air Lines flight over the Middle East); 2 Hijack Soviet Jet, Force It to Finland, N.Y. Times, July 11, 1977, at 1 (noting the hijacking of a Soviet airliner by two armed gunmen, who forced the plane to land in Helsinki, Finland); German Jet Forced to Fly to Istanbul, N.Y. Times, Mar. 27, 1985, at All (reporting the hijacking by a lone gunman of a Lufthansa flight from West Germany); Craig R. Whitney, The Crash of Flight 103, N.Y. Times, Dec. 23, 1988, at A1 (discussing the explosion of Pan Am flight 103 over Lockerbie, Scotland); 4 Injured as Crew on Cargo Jet Fights Off Attempted Hijacking, N.Y. Times, Apr. 7, 1994, at A12 (describing the attempted hijacking of a Federal Express airplane by a disgruntled employee).