Introduction

The world over the past few decades has been subjected to numerous acts of terror, some of which happened during or in conjunction with a sporting event. Consequently, sports spectators in the United States have moved from being subjected to limited visual inspections of persons and bags for alcohol, contraband, and projectiles, to physical searches of persons for possible weapons, to advancing facial recognition technology and requests for personal identification.

As the level of security has increased, it has also simultaneously and systematically eroded Fourth Amendment rights against unreasonable searches and seizures. Therefore, the questions become: a) What is the appropriate legal standard when it comes to searching spectators when they enter a sporting facility or arena? b) since the events of September 11th brought terrorism to the doorsteps of the United States, what, if any, rights and freedoms are U.S. citizens, and more particularly, sport fans willing to trade for a sense of security when attending an event? And, c) if the public is willing to trade civil liberties for safety, the federal and state courts, the gatekeepers and protectors of the populaces’ constitutional rights, what balance must be reached between privacy rights and protections from unreasonable searches and seizures and the government’s need to reasonably limit some personal civil liberties in an effort to ably protect and provide for the health, safety, and well-being of the citizenry.

The Fourth Amendment

The Fourth Amendment to the U.S. Constitution prevents the federal government from conducting “unreasonable searches and seizures”¹ upon its citizenry. It is an individual’s right and is designed “to safeguard the privacy and security of persons against arbitrary invasions by government officials,”² and reflects the belief that “searches conducted in the absence of reasonable and particular suspicion were intolerable in a democratic society.”³ The Fourth Amendment also requires that all government searches be reasonable⁴ or conducted pursuant to a warrant supported by probable cause.⁵

The U.S. Supreme Court has consistently held that per the Fourth Amendment, “a search conducted without probable cause or a warrant issued upon probable cause is ‘per se unreasonable’... subject only to a few specifically established and well-delineated exceptions.”⁶ These recognized, limited, exceptions include: exigent circumstances demanding immediate action that render obtaining a search warrant futile,⁷ circumstances establishing a special need beyond the need for normal law enforcement,⁸ certain situations that the Court has identified wherein an individual has a diminished expectation of privacy;⁹ and an individual’s consent, whether expressed or implied.

The Necessity of State Action

To prove that a Fourth Amendment right has been violated, a person must first show that either the search or seizure was conducted by the government (local, state, or federal) or a government actor. In other words, there must be ‘state action’ to move forward on a cause of action against a party for breaching a constitutionally protected right. Although there are no hard and fast rules for determining what is and what is not state action, attribution is considered fair when an individual is either deprived of a constitutionally protected right, or when the depriving individual is himself/herself a state actor.¹⁰ Thus, if the plaintiff is unable to prove the presence of state action, then the Fourth Amendment’s protections are inapplicable.¹¹

It is without a doubt that searches conducted by officials of publicly owned sporting facilities constitute state action. However, when sports facilities are privately owned, the presence of state action is less obvious. Therefore, stadium and security managers of ‘privately-owned’ facilities must be aware of the various instances when ‘state action’ will ‘trigger’ regardless of ownership. Managers of ‘private’ facilities must be mindful that when a city or regional sports authority is responsible for implementing or conducting the search, the fact that the authority is a public agency is relevant,¹² since said search can be interpreted as being conducted pursuant to the public purpose of assisting law enforcement.¹³ In addition, if the search is conducted by or merely observed by the police, it may be considered ‘state action’.¹⁴

Based upon case precedent, it seems that in most instances spectator searches conducted at sporting facilities will ‘trigger’ ‘state action’ because the stadiums are either publicly owned or privately owned and receive some form of public financing, have a police presence, or have security that can be interpreted as being for the purpose of assisting law enforcement.

Exceptions to the Fourth Amendment

1. Exigent Circumstance

Exigent circumstances are situations that would cause a reasonable person to believe that warrantless entry into a building or other structure was necessary to prevent either physical harm, the destruction of relevant evidence, or the eventual escape of a criminal suspect. The U.S. Supreme Court has found “A variety of circumstances may give rise to the exigency sufficient to justify a warrantless search, including the need to provide an emergency assistant, to engage in ‘hot pursuit’ of a fleeing suspect or to enter a building to put out a fire and investigate its cause.”¹⁵ Since none of the articulated circumstances are directly relevant to the sport industry, the industry, for the most part, cannot avail itself of an exigent circumstances exception to a person’s Fourth Amendment right against unreasonable searches and seizures.

2. Special Needs Exception

A special need arises when some unique condition makes compliance with the warrant and probable cause requirements of the Fourth Amendment impracticable. To be accepted by a court of law, the purported special need must be both “substantial”¹⁶ and “real and concrete.”¹⁷ Once the government has proven the existence of a substantial and concrete special need, it must next show that its special need is so important as to outweigh the intrusion upon the individual’s privacy rights.¹⁸ If the government’s special need in circumventing the warrant process outweighs the individual’s privacy interest, then the court will allow the warrantless/suspicionless search based on the exception. However, if the converse is true, and the individual’s privacy interest is greater than the government’s interest in conducting the search, then the court will not recognize a special needs exception.²⁰

To date, the U.S. Supreme Court has found special need exceptions in the following narrowly tailored and distinctive situations: airport and courthouse safety,²¹ national border patrol,²² fixed road checkpoints for driver verification and sobriety tests,²³ supervision of parolees and probationers,²⁴ and middle and high school student drug testing.²⁵ 

When analyzing whether the special needs exception to the Fourth Amendment should be expanded to include various sport industry facilities and arenas, the first question is would such an attack be substantial. The answer to this question is an easy one: there is no doubt that a terrorist attack at a live sports contest would be considerable because most arenas and stadiums can hold anywhere between 16,000 and 85,000 spectators, which number increases when you include facility workers, players, coaches, and other behind-the-scenes personnel. Therefore, any attack would be significant based upon the potential number of injuries and the possible loss of life, which together could total hundreds, if not thousands.

Yet is the threat of a terrorist attack occurring at a sporting event in the U.S. ‘real or concrete’ to qualify for a special need exception? The legal standard emphasizes that it is not enough that the potential harm be severe, yet remote. There are compelling arguments that the threat of a terrorist attack at a sporting event is of great concern. Such are based, in part, on the fact that the sports hold a cultural significance in society and have been somewhat instrumental in the growth and economic prowess of the franchise cities.²⁶ Additionally, there is a potential terrorist risk because the professional sport properties here in the United States represent “a very symbolic target because it is so associated with the globalization of the American economy and the American culture.”²⁷

But the concern for the sport industry when it comes to a special need exception to the Fourth Amendment is whether a threat of an attack against an arena, stadium, or other sporting event is considered ‘real or concrete’ from a legal perspective. To date, only the limited ruling in the matter of Johnston v Tampa Bay accepts that a threat is real enough to justify denying a person his or her constitutional rights just to attend a sports event.²⁸ So, in jurisdiction not controlled by Johnston, since guesses, conjectures, general sentiments, and suppositions are not enough, and tangible and definitive evidence is needed to find that a threat is “real and concrete” the sport industry may have a difficult burden convincing a court of law (not public opinion) that suspicionless searches at sport stadiums and events are sanctioned with a special need exemption to the Fourth Amendment. All the sport industry, arguably, has at this time is a “generalized threat of terrorism to large gatherings,” which may not be enough to survive a constitutional challenge that a threat be “real and not simply hypothetical.”²⁹

3. Diminished Expectation of Privacy Exemption

Every citizen of the United States is entitled to and has an expectation of privacy in certain areas or aspects of his or her personal life. But does a sport fan have an expectation of privacy when entering a stadium or sporting event? The determinative test to answer this question was established in the U.S. Supreme Court case of Katz v. United States.³⁰ In Katz, the Court held:

The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment Protection. But what he seeks to preserve as private, even in the area of accessibility to the public, may be constitutionally protected.³¹

The Court went on to state, “[w]herever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.”³² With its holding, the Court took an important step and recognized privacy as a central meaning of the Fourth Amendment.³³ In addition, and most importantly, Justice Harlan’s concurring opinion laid out what has come to be known as “the right to be left alone,”³⁴ while also articulating the following two-prong test as a way to determine what behavior constitutes a search: “first that a person has actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognized as reasonable.”³⁵ If both requirements are met, then the behavior is deemed to be a violation of an individual’s Fourth Amendment right. This reasonable expectation of privacy test is now the baseline used to determine how and when the Fourth Amendment is to be applied,³⁶ and the standard by which most searches are judged. Therefore, the question becomes for those involved in the sports industry: Can an enhanced security policy that touches upon Fourth Amendment issues survive the Katz two-prong privacy test?

To satisfy the first prong, does a sports fan have a reasonable expectation of privacy upon entering a sports facility or stadium? There is a strong argument that a fan does 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.³⁷ In addition, courts have consistently held that pat-down searches of attendees at large events violate the Fourth Amendment.³⁸

Second, per Katz, an NFL spectator’s expectation needs to be one that society is prepared to recognize as reasonable. Kimberly Schimmel, in her article Major Sports Events and the Global Threats/Responses, cites the negative effects to liberty and free movement in and around major sports events:

Congratulations, local citizens! Your city has just won the right to host the next major sporting event! ... Oh, and you can also expect to be surveilled, digitally scanned, corralled, barricaded, patted-down, have your city permanently reconfigured and militarized, your traffic patterns altered, and your domestic legal structures ignored. Enjoy the games!³⁹

ESPN’s Tim Keown echoes these concerns by describing the general discontent and irritation with attending NFL games because the “hassle/ cost/ indignity/ danger of attending” games diminishes the positive atmosphere provided to fans.⁴⁰ This may be true, but the question is – does society as a whole agree with the fans who believe that their privacy rights are being violated when entering a stadium to watch a sporting event? Yes, it may be an inconvenience to be corralled, barricaded, video scanned and surveilled – but isn’t that just the cost of feeling safe as you watch your favorite team pummel its opponent? Or is it too much? Has the sport industry gone too far when it included policies to allow for upper body searches? Is a strict bag policy, wherein fans are only allowed “small, clear plastic or vinyl bags or one-gallon plastic freezer bags”, asking too much? And finally, is the search of all cars, trucks, and buses something society would agree is a reasonable intrusion upon someone’s privacy right just so he or she can view a game? All while keeping in mind that a refusal of any of the above mandates will result in not being allowed to enter the stadium, even though a very expensive game-day ticket has been purchased.

Arguably, what has happened since the tragic events of September 11th is that there has been a ‘conditioning’ of the spectator to believe that what they are experiencing is only a minor, inconsequential imposition – a relatively non-intrusive breach of a constitutional right. Initially, fans were only subjected to limited, visual inspections of persons and bags for alcohol, contraband, and projectiles.⁴¹ But gradually, over time, facilities have incrementally increased the infringements to that of body and weapons searchers,⁴² to bag searches, to that of facial recognition and other forms of scanning, to requests for personal identification which could lead to immediate criminal status and background checks and finally to that of unwarranted searches of vehicles, all as prerequisites for entry to the stadium.

Capitalizing on the fears exacerbated by the events of September 11th, sports fans have been trained in slow incremental stages, so that now these escalated intrusions are just expected norms. Spectators have become so accustomed to and acclimated with these encroachments on their civil liberties that they now have unquestionably a “diminished expectation of privacy” when attending a sporting event. People have stood by watching their Fourth Amendment rights slowly being “Mission Creeped” away in the name of safety. Subjecting fans to an increasing series of visual and body searches, video scans, and other privacy “breaches” has created the “expected norms” for spectators when they enter a stadium or event. There has been a slow and systematic acclimation of fans to these various infringements, so that these relatively minor breaches on civil liberties, increased subtly over time, are valid and possibly lawful because a spectator is now left with a “diminished expectation of privacy” when attending a sporting event.

4. Consent – Expressed or Implied

Fourth Amendment rights, like many of the other constitutional rights, may be waived, and one may consent to a search of his person or premises by those who have not complied with the Fourth Amendment.⁴³ The U.S. Supreme Court has insisted, however, that the burden is on the government or government actor to prove the voluntariness of the consent⁴⁴ and awareness of the right of choice.⁴⁵ Reviewing courts must determine, on the basis of the totality of the circumstances, whether consent has been freely given or has been coerced.

The U.S. Appeals Court, Eleventh Circuit in Johnston, however, found unequivocally that all spectators have a diminished expectation of privacy and that, based upon this diminished expectation, they implicitly and voluntarily consent to a search by availing themselves at the gates of a stadium. Therefore, since spectators have voluntarily consented to the search, they cannot claim a violation of their constitutional rights. The Court based its decision upon the “totality of the circumstances” analysis, but concluded that a plaintiff in this matter, being a well-educated man, implicitly consented because he was fully aware of the search, that the screeners did not “coerce” him or threaten him physically or otherwise.⁴⁶ This Appeals Court found that the Plaintiff consented to the search, even though he repeatedly objected and filed a lawsuit seeking a declaratory judgment to end the practice. This Court’s interpretation is drastically different from previous U.S. Supreme Court findings as to what constitutes consent, where such must be “free from duress or coercion.”⁴⁷

In the U.S. Appeals Court’s legally truncated voluntary consent finding, it failed to analyze the reasonableness of the search, while also failing to adequately consider an individual’s reasonable expectation of privacy, the intrusiveness of the search, the level of suspicion, and the sports industry’s interest in conducting the search. Instead, the Court based its finding on the fact that advance notice was provided to the ticketholder and that these advanced notices included “preseason notice, pregame notice, and notice at the search point itself.”⁴⁸

Following this logic, if prior notice of the search is present and the public can choose between acquiescence to the search or declining the benefit, the court does not have to consider the constitutionality of the search or the expected level of privacy. The U.S. Appeals Court, through its decision, has implied that all an entity has to do to avoid violating a person’s constitutional rights, is to put up a sign in advance, and by doing so, all of your legal liability and exposure will fade away.

Through its holding, the U. S. Appeals Court Eleventh Circuit weakened the Fourth Amendment by ignoring the plaintiff’s objections and gave insufficient weight to the coercion implicit in requiring submission to a search in order to obtain entrance into the stadium. The Court also failed to consider the reasonableness of the search policy under proper Fourth Amendment standards – one such standard being the unconstitutional conditions doctrine. Per the unconstitutional condition doctrine, consent is not voluntary or implied if the government conditions receipt of a right or a benefit on the relinquishment of a constitutional right.⁴⁹

The Unconstitutional Conditions Doctrine

No legal precedent has ever been established that supports the proposition that a person who chooses to attend a sporting event consents to any security measures that a league, team or other promoter may choose to impose. In fact, federal and state courts have consistently held that searches of attendees at large events violate the Fourth Amendment.⁵⁰ Some courts have reasoned that the individual’s consent to the pat-down search was not, in fact, voluntary.⁵¹ While others, however, have held that it was unconstitutional for the government to condition public access on a pat-down search and then claim the attendee voluntarily consented.⁵²

When deciding whether or not a spectator’s consent is considered voluntary in situations where the government conditions a benefit or privilege on the relinquishment of a constitutional right, courts invoke the “unconstitutional conditions doctrine”. Under this doctrine, a court must analyze the conditioning of access to a public event upon submission to a search, regardless of whether the individual relinquished a right or a privilege, and was established to prevent the government or government agent from conditioning benefits on the relinquishment of a constitutionally protected right.⁵³ In other words, the government may not pressure citizens to surrender their rights.

Fortunately or unfortunately for the sport industry, any consequences surrounding the unconstitutional conditions doctrine because the doctrine has “[n]ever been fully explained by the U.S. Supreme Court. Furthermore, when making an exception to the doctrine, the U.S. Supreme Court usually simply ignores the doctrine.”⁵⁴

Conclusion

In the United States, where privacy is a fundamental freedom that receives constitutional protection, the question thus becomes for the American public – what, if any freedom(s) are fans and spectators willing to trade for a sense of security. And if the public is willing to trade civil liberties for safety, the federal and state courts, as the gatekeepers and protectors of the populaces’ constitutional rights, must reach a balance between privacy rights, with that of the need to reasonably limit some rights in an effort to ably protect and provide for the health, safety and well-being of the citizenry. All the while keeping in mind what one of our country’s most respected forefathers, Benjamin Franklin, stated, “they that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”⁵⁵

References

1. U.S. Const. amend. IV.
2. United States v. Kincade, 379 F.3d 813, 851 (9th Cir. 2004).
3. Id. at 852.
4. Brigham City v. Stuart,126 S. Ct. 1943, 1947 (2006) (noting that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.”‘).
5. Katz v. United States, 389 U.S. 347, 357 (1967) (“Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.”).
6. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); accord United States v. Santa, 236 F.3d 662, 668 (11th Cir.2000).
7. Terry v. Ohio, 392 U.S. 1. (1968).
8. Wheaton v. Hagen, 435 F. Supp. 1134 (1977). (Airport searches based on a history of bombings and hijackings).
9. Bourgeois v. Peters, 387 F.3d 1303 (2004) (Border searches and open field searches).
10. Lugar v. Edmondson Oil Company, 457 U.S. 922, at 937 (1982).
11. Flagg Bros., Inc., 436 U.S. at 156.
12. Johnston v Tampa Bay 490 F.3d at 824.
13. Id.
14. Id.
15. Missouri v.McNeely, 569 U.S. 141(2013).
16. Chandler v. Miller, 520 U.S 305 at 318, (U.S. Ga. 1997).
17. Id. at 319.
18. National Treasury Employment Union v. Von Raab, 489 U.S. 656 at 665-66 (1989). (“Where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.”).
19. Id. at p. 665.
20. Id. at p. 665.
21. Chandler, 520 U.S. at 323 (“Where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable’ – for example, searches now routine in airports and at entrances to courts . . .’).
22. See Almeida-Sanchez v. U.S., 413 U.S. 266 (1973) (holding that vehicle searches of travelers crossing an international boundary may be conducted even if officials do not have any reason to suspect that a given vehicle contains illegal aliens or smuggled objects); U.S. v. Villamonte-Marquez, 462 U.S. 579 (1983) (holding that authorities may board any vessel that is in waters that provide “ready access to the open sea” for inspection of documents without suspicion of wrongdoing).
23. See Delaware v. Prouse, 440 U.S. 649 (1979) stating in dicta that stops of a predetermined number of vehicles at a fixed checkpoint, if done for the primary purpose of verifying driver and vehicle information, would be constitutional); Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) (holding that police may establish fixed checkpoints on highways to test for drunkenness and stop all drivers even though police have no particularized suspicion about any one driver).
24. See Griffin v. Wisconsin, 483 U.S. 868 (1987) (holding that parolees and probationers may be subjected to warrantless searches by the officials responsible for them, without probable cause, provided the search is conducted pursuant to a valid regulation governing the parolee or probationer).
25. In Vemonia School Dist. v. Acton, 515 U.S. 646 (1995), the Supreme Court allowed a public-school district to require suspicionless drug tests of every student that wished to participate in an interscholastic sport. In Bd. Of Educ. Of Indep. School Dist. No. 92 v. Earls, 536 U.S. 822 (2002), the Court expanded Vernonia to allow random drug-testing of all middle and high school students that sought to participate in any “competitive extracurricular activity,” including band, choir, and clubs such as Academic Team, and Future Homemakers of America
26. K.S. Schimmel, Protecting the NFL/ Militarizing the Homeland: Citizen Soldiers and Urban Resilience in Post-9/11 America, International Review for the Sociology of Sport 47, no. 3 (2012): 342, doi:10.1177/1012690211433479.
27. R.H. Fallen, et al., Panel I: Legal Issues in Sports Security, Fordham Intellectual Property, Media and Entertainment Law Journal 13, no. 2 (April 2003): 366, http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1257&context=iplj.
28. Johnston v Tampa Bay, 530 F.3d at 1324.
29. Chandler, 520 U.S., at 995.
30. Katz, 389 U.S., at 347.
31. Id. at 351-352.
32. Id. at 359 (quoting Osborn vs. United States, 385 U.S. 323, 330 (1966)).
33. D. Alphran, Changing Tides: A Lesser Expectation of Privacy in the Post 9/11 World, 13Rich. J.L. & Pub. Int. 89 at 100, (2009).
34. Katz, 389 U.S., at 350; see also at 361 (Harlan, J., concurring).
35. Id. at 361.
36. E. Sundby, “Everyman” ‘s Fourth Amendment: Privacy or Mutual Trust Between Government and Citizen? 94 Columbia L. Rev. 1751, 1758 (1994). (Asserted that the Fourth Amendment as a privacy- focused doctrine has not fared well in modem times and no longer fully captures the values at stake.)
37. See Terry, supra (affirming personal security rights under Fourth Amendment); Bourgeois v. Peters, 387 F.3d 1303, 1311 (11th Cir. 2004) (Fourth Amendment provides no exception for large gatherings)
38. See State v. Seglen, 700 N.W.2d 702, 709 (N.D. 2005) (emphasizing intrusiveness of pat-down search in concluding pat-down, without consent, violates Fourth Amendment); Jacobsen v. City of Seattle, 658 P.2d 653, 657 (Wash. 1983) (en banc) (holding police officers’ intensive pat-down search of patrons at rock concert unconstitutional); cf. Jensen v. City of Pontiac, 317 N.W.2d 619, 624 (Mich. Ct. App. 1982) (allowing visual search of containers by security guards at municipally operated stadium, but suggesting pat-down searches would be unconstitutional). In Jensen, the court balanced the public necessity of visually searching the patrons and their property for foreign objects that could be thrown to injure others with the limited intrusiveness of the search. Id. The court contrasted the limited visual search with more invasive searches such as physical pat- downs. Id.; see also Posting of Greg Skidmore to Sports Law Blog, http://sports- law.blogspot.com/2005/10/pat-downs-at-sports-arenas-necessary.html (Oct. 26, 2005 10:02 EST) (highlighting major cases addressing government searches at sporting arenas).
39. K.S. Schimmel, Major Sport Events and Global Threats/Responses, 1 Criminal Justice Matters 88 (June 2012): 20, doi:10.1080/09627251.2012.695502.
40. T. Keown, Check Your Dignity at the NFL Door, ESPN: Entertainment and Sports Programming Network (Sept. 20, 2011), http://m.espn.go.com/wireless/story?storyId=6996681&lang=ES&wjb=.
41. The initial search policy of the 1996 Summer Olympic Games in Atlanta, GA.
42. NFL Mandatory Pat-down Policy, see Johnston, 490 F.3d at 820, 822.
43. Amos v. United States, 255 U.S. 313 (1921); Zap v. United States, 328 U.S. 624 (1946); Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
44. Bumper v. North Carolina, 391 U.S. 543 (1968).
45. Johnson v. United States, 333 U.S. 10, 13 (1948).
46. Johnston, 530 F.3d at 1324.
47. Compare Johnston v. Tampa Bay Sports Authority, 490 F.3d at 825 (concluding Johnston not coerced into submitting to pat-down search by his willingness to enter the stadium), with Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) (requiring consent not to be coerced, no matter how subtle).
48. Johnston, 530 F.3d at 1325.
49. Bourgeois, 387 F.3d at 1324 (11th Cir.2004).
50. State v. Seglen, 700 N.W.2d 702, 709 (N.D. 2005) (emphasizing intrusiveness of pat-down search in concluding pat-down, without consent, violates Fourth Amendment); Jacobsen v. City of Seattle, 658 P.2d 653, 657 (Wash. 1983) (en banc) (holding police officers’ intensive pat-down search of patrons at rock concert unconstitutional); cf. Jensen v. City of Pontiac, 317 N.W.2d 619, 624 (Mich. Ct. App. 1982) (allowing visual search of containers by security guards at municipally operated stadium, but suggesting pat-down searches would be unconstitutional).
51. Wheaton,435 F. Supp. At 1147 (M.D.N.C. 1977) (determining nature of stadium search policy precluded any voluntary consent to search).
52. Bourgeois, at 1324-25 (11th Cir. 2004) (holding no consent where exercise of First Amendment rights contingent upon submission to search); Gaioni v. Folmar, 460 F. Supp. 10, 14 (M.D. Ala. 1978) (holding consent to search is inherently coercive when public access to an arena is conditioned upon it); Collier v. Miller, 414 F. Supp. 1357, 1366 (S.D. Tex. 1976) consent to search); Nakamoto v. Fasi, 635 P.2d 946, 951-52 (Haw. 1981) (concluding conditioning access to facility on submission to search or relinquishment of paid privilege unlawful).
53. Bourgeois, at 1324-25 (11th Cir. 2004) (determining individual’s required submission to government search to obtain admission to protest unconstitutional conditions).
54. R. B. Standler, Doctrine of Unconstitutional Conditions in the United States (2005), www.rbs2.com/duc/pdf.
55. B. Franklin, Historical Review of Pennsylvania: Motto (1759).