Why Is It Legal to Search Bags Without a Warrant?

Don’t the luggage searches at the airport violate the Constitution?

Adam Freedman
February 1, 2010


I’ve been getting a lot of questions lately about the legality of searches conducted by police and airport screeners.  For example, Brett writes in to ask whether being stopped at a police checkpoint constitutes an illegal search. Another reader, Xin, asks whether a TSA (Transportation Security Administration) search of one’s luggage at the airport would violate the Constitution. And Daniel from New York City writes to complain about that city’s policy of searching the bags of randomly selected subway riders. “Am I mistaken,” he writes, “or does the Fourth Amendment still protect a person in the subway?”

Why Is It Legal to Search Bags Without a Warrant?

These are great questions. And Daniel, you’re not mistaken, the Fourth Amendment does apply to people on the subway generally – but random security searches have been upheld as exceptions to the Fourth Amendment’s requirements. In a minute, I’ll discuss the reasons why these searches are considered lawful and whether you can refuse to be searched.

The Fourth Amendment Usually Requires a Warrant

The Fourth Amendment to the Constitution protects the right of the people to be secure against “unreasonable searches and seizures.”  Generally speaking, that means that neither federal nor state officials can search you, your clothing, your bags, your house, your car--and so on--unless they have a search warrant supported by “probable cause.”

Most of us consider that to be a very good thing. After all, who wants the FBI barging into their house unannounced?  Not that they don’t do a great job, but I’m told they make an awful mess and never use coasters.

Why Are Airport Searches Legal?

But wait. Let’s say you’re at the airport ready to board a flight. Sure, the security lines are long, but don’t you want everyone to go through the metal detector?  And don’t you want all the bags to be screened?  Well, if the TSA had to go to a judge and get a search warrant for every single passenger, your flight would be delayed even longer than it already is. In fact, air travel as we know it simply wouldn’t work.

But of course, the TSA does not have to get a warrant--and that’s because airport searches fall into the so-called “special needs exception” to the Fourth Amendment. This doctrine comes from the Supreme Court’s 1985 decision in New Jersey v. TLO , in which the Court recognized that there are certain “exceptional circumstances . . . beyond the need for normal law enforcement [that] make the warrant and probable cause requirement impractical.”

The special needs exception applies to searches that serve purposes other than the ordinary evidence gathering associated with crime investigations. In other words, the special needs exception doesn’t apply to the Special Victims Unit--or any other crime solving unit.

Airport Screening and Other Random Searches are Allowed

The special needs exception has been used to uphold airport luggage screening as well as random airport searches, highway sobriety checkpoints, border patrol checkpoints, and student searches in school (a topic that I addressed in an earlier article ). Courts evaluate searches on a case-by-case basis, balancing the government’s need for the search versus the extent of the intrusion on individual privacy.

Considering these factors, in 2006 the US Court of Appeals for the Second Circuit upheld New York’s program of random subway baggage searches because it serves a “special need,” namely, to deter terrorists from bringing explosives on to the subway.

Can I Refuse to be Searched?

Once passengers are in the airport screening process, they can’t change their minds about being searched, even if they’ve been singled out for a more extensive search.

Can you refuse to submit to a special needs search?  The answer, I’m afraid, is yes and no. In New York City, you can refuse, but only if you agree to leave the subway. So if you’re in a hurry to get where you’re going, that might not be an appealing option. Likewise, in an airport setting, your only means of refusing a search will generally be to leave the airport and thus skip your flight. And not even that choice is guaranteed.  A number of courts have recently held that once passengers are in the airport screening process, they can’t change their minds about being searched, even if they’ve been singled out for a more extensive search.


So long as you’re polite and orderly, you can certainly try to refuse a random search at the airport, subway, or police checkpoint, but depending on the circumstances, you might not be allowed to refuse, or you might have to forgo whatever travel plans you had for that day. In any event, you should abide by whatever the police or TSA officials tell you. Otherwise, you could get into legal trouble and also cause some serious delays for the passengers behind you in the security line--and with my luck, I’ll be one of them.

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