Constitutional law.

• Author: Beckley, Jonah

Spectator Attending Athletic Event Voluntarily Consents Under Fourth Amendment to Pat-Down Search at Stadium Entrance--Johnston v. Tampa Sports Authority, 490 F.3d 820 (11th Cir. 2007)

The Fourth Amendment to the United States Constitution protects people from unreasonable searches and seizures by the government. (1) The Fourth Amendment states, "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated." (2) If, however, a person consents to a search by a government agent, no Fourth Amendment violation occurs. (3) In Johnston v. Tampa Sports Authority, (4) the Eleventh Circuit considered whether a football game spectator consented to a pat-down search by presenting himself at the stadium entrance. (5) The court held the spectator voluntarily consented to the pat-down search because he was aware of the search policy and continued to seek admission into the stadium. (6)

The Tampa Bay Buccaneers (Buccaneers) are a National Football League (NFL) franchise who play their home games in Raymond James Stadium (Stadium). (7) The Tampa Sports Authority (TSA), a Florida public entity, owns and operates the Stadium. (8) The TSA is under agreement with the Buccaneers to provide security for all home games. (9)

In August 2005, the NFL mandated that all franchises physically search attendees of NFL games. (10) The NFL enacted this policy to protect spectators because it believed NFL stadiums could be likely targets of terrorism. (11) On September 13, 2005, in response to the NFL mandate, the TSA adopted a pat-down policy requiring searches of all spectators attending the Buccaneers's football games. (12)

Gordon Johnston renewed his 2005-06 season tickets before the TSA adopted the NFL's pat-down policy. (13) Johnston became aware of the pat-down policy before the Buccaneers's first home game and called the office of the Buccaneers to complain. (14) After voicing his complaints, Johnson attended several Buccaneers's games at the Stadium; each time Johnson objected to the search at the entrance point, but ultimately submitted to the pat-down in order to attend the games. (15) Johnston, first in Florida state court, then in federal court for the Middle District of Florida, enjoined the TSA and the Buccaneers from continuing the pat-down policy. (16) Johnston's victories were, however, short-lived. (17) The Eleventh Circuit reversed the district court, lifted the injunction, and held the district court clearly erred when it found Johnston did not consent to the pat-down search. (18)

Spectators attending sporting events have a reasonable expectation of privacy. (19) A spectator's expectation of privacy is reasonable because the Fourth Amendment applies to all gatherings, large or small, and personal security rights are among the most sacred and protected common-law rights. (20) Even when a reasonable expectation of privacy exists, an individual's voluntary consent can make a search valid under the Fourth Amendment and will foreclose analysis of the reasonableness of the search. (21) Whether voluntary consent has been established is a question of fact determined by examining the totality of the circumstances. (22) In United States v. Blake, (23) the Eleventh Circuit suggested several factors that courts should consider in the totality of the circumstances analysis, including the presence of coercive police procedures, an individual's awareness of a right to refuse, and the individual's level of intelligence and education. (24) Searches conducted without consent, and absent a warrant or individualized suspicion, are per se unreasonable unless they fall into a narrow, judicially tailored, special needs exception. (25)

To examine whether consent is truly voluntary in situations where the government conditions a benefit or privilege on the relinquishment of a constitutional right, courts invoke the unconstitutional conditions doctrine. (26) The unconstitutional conditions doctrine prevents the government from conditioning benefits on the relinquishment of a constitutionally protected right. (27) More broadly, the government, as the Eleventh Circuit recognized in Bourgeois v. Peters, (28) may not pressure citizens to surrender their rights. (29) The Supreme Court, however, has not provided firm guidance in applying the unconstitutional conditions doctrine, and established rules and principles remain elusive. (30)

Courts have consistently held that pat-down searches by government agents of attendees at large events violate the Fourth Amendment. (31) Some courts have reasoned that the individual's consent to the pat-down search was not, in fact, voluntary. (32) Other courts held that it was unconstitutional for the government to condition public access on a pat-down search and then claim the attendee voluntarily consented. (33)

In Johnston v. Tampa Sports Authority, the Eleventh Circuit reversed the district court's decision and allowed the TSA to resume pat-down searches of spectators. (34) The court held that the TSA's search did not violate the Fourth Amendment. (35) The Eleventh Circuit considered the totality of the circumstances and concluded that Johnston voluntarily consented to the pat-down searches. (36) The Eleventh Circuit never analyzed the reasonableness of the pat-down search policy because it held that the district court erred in finding Johnston's consent was involuntary. (37)

In concluding Johnston voluntarily consented to the pat-down search, the Eleventh Circuit considered the Blake factors. (38) The court reasoned that Johnston was fully aware of the search and willingly chose to submit to it. (39) The court noted that the screeners did not coerce Johnston or threaten him physically or otherwise and that Johnston was a well-educated man fully aware of his right to refuse the search. (40) To quell concerns of an unconstitutional condition, the court distinguished between having a right to attend the game and having a privilege to attend the game. (41) The ticket, a revocable license, gave Johnston a mere privilege, which could be terminated at the Buccaneers's discretion. (42)

In Johnston v. Tampa Sports Authority, the Eleventh Circuit strayed from the apparent judicial consensus and delivered a blow to the Fourth Amendment. (43) The court failed to consider whether the search policy was reasonable and instead decided the case under the consent exception. (44) The court's conclusion that Johnston voluntarily consented to the pat-down search is contrary to the holdings of other federal and state courts. (45) Further, the determination of consent in Johnston is incongruent with the language, spirit, and holding of its own decision just three years earlier in Bourgeois. (46) The earlier Bourgeois decision cautioned that allowing mass suspicionless searches could lead to searches at a variety of large events, including sporting events, contrary to the Fourth Amendment's requirement of "searches based on evidence-rather then potentially effective, broad, prophylactic dragnets...." (47) Under the unconstitutional conditions doctrine, the Bourgeois court analyzed the government's conditioning of access to a public event upon submission to a search, regardless of whether the individual relinquished a right or a...