By Michelle Babin
It is the facility manager’s responsibility to keep patrons safe. However, at what cost? Should spectators be expected, indeed forced, to give up their constitutional rights in order to attend an event? Does this spell out the erosion of our constitution and rights as Americans? Some argue that by allowing this form of unquestioned examination, we are sending the wrong message to the youth of America. Youth are being inconspicuously told that they should not have the expectation of privacy and that they are not free of suspicionless searches and seizures.
Application of the Fourth Amendment: Search and Seizure
Due to the fact that suspicionless searches at sport venues have only recently been brought to the collective conscience of our society, there are few journal articles that relate to this specific topic. However, there are many articles and case law that pertain to the Fourth Amendment, which is the basis for those fighting these kinds of searches.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (http://caselaw.lp.findlaw.com/data/constitution/amendment04/)
“Probable cause” appears to be one of the main contested points of the Fourth Amendment. Over the years, the Supreme Court has allowed for a very narrow definition of probable cause. There are currently three exceptions that may be applied to a warrantless search. These exceptions are exigent circumstances, a special need that is beyond the normal parameters of law enforcement and when individuals have a diminished expectation of privacy.
How Search and Seizure Applies to Sport Venues
Whether or not suspicionless searches should be permitted, or are even constitutional, skates on a very tenuous slope. Is the facility where the searches are being conducted public or private? Are the security or facility personnel government or private? Even if the answers to these questions are private, was the search done at the request of law enforcement (Blitz, 2004; Hoekstra, 1996)? Answers to these questions could help to determine the legality of searches being conducted at sporting venues.
For years, there have been no clear, cut answers as to the legality of suspicionless searches at sporting venues. Recently, the U.S. District Court for the Middle District of Florida ruled against these searches in Johnston v. Tampa Sports Authority (2005). In this case, the NFL ordered searches of all spectators attending NFL games. In keeping with this dictate, the TSA conducted searches. There were also signs posted stating that spectators would be subject to search. Johnston, as a season ticket holder, objected to this search each and every time yet consented to the search in order to attend the games. He then sued the TSA for violation of his Fourth Amendment rights (Claussen, 2006).
Johnston certainly would fall under the category of being coerced. Had he not consented to the patdowns, he would have had to leave the game. The TSA was willing to refund him the price of his season tickets, but then for future seasons, he would be put at the bottom of the list for seating priority. Due to the fact that he was suing the TSA, he continued to consent to the searches with the possibility of the searches being withdrawn on constitutional grounds.
In McConnell v Hunter, searches may be conducted if they are given voluntarily and without coercion. This is decided by the “totality of the circumstances” (Hoekstra, 1996, p. 132). However, when faced with the possibility of walking away from the patdown, and thus not attending the game for which he held season tickets, Johnston submitted to the searches. In a similar situation, subway searches were conducted in New York on mass transit passengers. As passengers approached the checkpoint, they could submit to the search or turn around and not take the subway. However, passengers did have the option of leaving that particular checkpoint and entering at a different station (Keeley III, 2006). Obviously, Johnston did not have this option since all spectators were subjected to patdowns.
Another aspect of this case is that the TSA can face heavy liability if it does not enforce the NFL’s mandate. According to David Banker, an attorney assisting the NFL regarding the TSA case, the TSA is expected to comply with the NFL’s mandate. The recent finding against the Port Authority of New York and New Jersey to safeguard the World Trade Center in 1993 does not bode well for the NFL if there were to be a terrorist attack that the NFL did not try to protect against (Rondeaux, 2005).
As Americans, we have the expectation of privacy. Some argue that the moment you go to a public venue, you have no expectation of privacy. It is often quoted in the Supreme Court that “The Fourth Amendment protects people not places (Blitz, 2004, p. 1363). Your conversations can be overheard, your picture can be taken and you can be viewed in the presence of your colleagues.
After 9/11, the fear of terrorism caused the implementation of security measures the likes of which Americans had never seen before. Beyond the security measures at the airports, sporting venues have seen a progressive increase in these measures from the bag searches and wand searches of the 1996 Atlanta Olympics and 2002 Salt Lake City Olympics (respectively), to the patdown searches at the 2005-06 National Football League games. Video surveillance has already been utilized at the 2001, 2002 and 2006 Super Bowl. A survey conducted after 9/11 showed that 86% of Americans favored anti-terrorism technology (Claussen, 2006). Some may even argue that due to the possibility of terrorism, suspicionless searches need to now be permitted.
The Department of Homeland Security (DHS) provides grants to colleges and universities with the intent of providing a more secure environment at sporting venues. Several universities have taken advantage of these grants. Florida has even installed surveillance cameras. The Infrastructure Protection Division (IPD) works to identify terrorist targets which includes sporting venues. The DHS undersecretary of preparedness, George Foresman, has specifically listed the Super Bowl and the Final Four as sites where the IPD may become involved (Gardiner, 2006).
As Bryan Conley states in the Suffolk University Law Review, “The Fourth Amendment embodies a value judgment by the Framers that prevents us from gradually trading ever-increasing amounts of freedom and privacy for additional security…We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over” (p. 1). Conley goes on to make the point that the possibility of terrorism cannot and should not be the basis for decision-making regarding the Fourth Amendment. As Lord Chatham stated to the British House of Lords in January 1770, “Unlimited power is apt to corrupt the minds of those who possess it: and this I know, my lords, that where law ends, tyranny begins!”
Based on the current state of affairs, many experts that sport venues refrain from patdown searches until there is a clear cut decision as to the legality of these searches. Currently, case law does not provide for suspicionless searches. Although sport venues can get away with bag searches as long as they do not alter the contents of the bags, it would be in the best interest of facilities to stay away from more extensive searches. Public universities, in particular, need to be wary of such searches since they are part of the state government (Claussen, 2006). Furthermore, as the pain and the threat of terrorism slowly pales from the events of September 11, 2001, it is unlikely that suspicionless searches will stand up to Fourth Amendment scrutiny until the threat of terrorism is a reality for sporting venues, i.e. an actual catastrophic event occurs.
