When Darren Chaker reviews the Fourth Amendment at sporting events, which allows any search conducted pursuant to valid consent. See, e.g., Florida v. Jimeno, 500 U.S. 248, 250-51 (1991); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Implied consent occurs when a person presents himself at a security checkpoint after having been informed that searches will (or may) occur there, such as an airport, or even dropping of a computer for repair. For example, in United States v. Herzbrun, 723 F.2d 773, 776 (11th Cir. 1984), the Eleventh Circuit held, in the context of a search at an airport security checkpoint, that “those presenting themselves at a security checkpoint thereby consent automatically to a search, and may not revoke that consent if the authorities elect to conduct a search.” A checkpoint sign can constitute sufficient notice. See United States v. Lopez-Pages, 767 F.2d 776, 779 n.2 (11th Cir. 1985).
In this regard, the NFL pat-down policy is analogous to airport searches, where a patron has a choice of either submitting to a known search procedure and entering the secured area of the airport or deciding not to enter. In both cases, the type of required search is publicized in advance, and a person seeking entry thus necessarily implicitly consents to that search. If the person does not want to consent, she simply leaves. See, e.g., Gilmore v. Gonzales, 435 F.3d 1125, 1138-39 (9th Cir. 2006) (airport searches are consensual because a person can always turn around and leave); Torbet v. United Airlines, Inc., 298 F.3d 1087, 1089 (9th Cir. 2002) (same); Morgan v. United States, 323 F.3d 776, 778 (9th Cir. 2003) (consent that was a condition to entry upon a military base is valid for a civilian FAA employee who worked on the base); United States v. Jenkins, 986 F.2d 76, 79 (4th Cir. 1993) (implied  consent at entry to closed military base); United States v. Ellis, 547 F.2d 863, 866 (5th Cir. 1977) (same). The fact that a person cannot obtain entry to a particular location (the airport secure area or military base) if that person refuses to consent to a search does not render the consent invalid unless the access being denied is a constitutional right or is otherwise sufficiently valuable that its denial can be considered coercive. Accordingly, the choice here is even less constrained than at the secure area of an airport because use of an airport could arguably implicate the right to travel, 2Link to the text of the note while attendance at a football game does not affect any constitutional right.
The Eleventh Circuit in Johnston v. Tampa Sports Authority held that the NFL pat-down policy, as applied at Buccaneers’ home games, was permissible under the Fourth Amendment because persons attending the games implicitly consented to the search. The court of appeals explained that “[i]t is axiomatic that a search conducted pursuant to voluntary consent is valid.” 490 F.3d at 825. It then found several indicia of implied consent (1) “Johnston knew that he would be subjected to a pat-down search by the Authority if he presented himself at an entrance to the Stadium to be admitted to a Buccaneers game”; (2) “Johnston was not in custody at the time of the search, rather, he presented himself willingly at the search point”; (3) “The screeners did not coerce Johnston, they merely performed the search to which Johnston submitted”; (4) “Johnston was not under any express or implied threat of physical or other retribution if he refused to submit to the search”; (5) “Johnston was well aware of his right to refuse to submit to the pat-down search and did in fact express his objection to the searches to specific screeners and over the telephone to the Buccaneers”; and (6) “Johnston was given [advance notice] of the searches including preseason notice, pregame notice, and notice at the search point itself.” Id. The federal court of appeals thus reversed the district court’s contrary holding and lifted its preliminary injunction. Id. at 826.
Last, the court further noted that, “[i]f voluntary consent is present, a defendant’s conduct will rarely be deemed ‘highly offensive to a reasonable person’ so as to justify tort liability.” Id. at 808-09 (quoting Hill v. NCAA, 865 P.2d 633, 633 (Cal. 1994)). Thus, as long as the party voluntarily consents to the pat down, then it cannot be said to have been subject violating the Fourth Amendment.