Detained by the Feds: What Should You Do?
Should you allow a search? Answer questions? Allow a ramp check?
By Robert Goyer / Published: Jun 18, 2013
As I’ve written about very recently, there are alarming reports of incidents of pilots being detained — though not arrested — by federal agents, who then search the subjects' airplanes. According to a law enforcement source we interviewed who went through the training for such interdictions, the stops are being made in a shotgun approach (lots of pellets, very few hits) to finding drugs. The agency behind the stops, the Department of Homeland Security’s (DHS) Customs and Border Protection arm, is looking for drugs but hoping to find other things, presumably evidence of terrorism. If there have been any such successful interventions, we haven’t been able to discover them. The end result is what amounts to, in our mind, harassment of pilots on a national scale. For more perspective on that, read John King’s timely take on this subject.
According to our anonymous law enforcement source, the feds simply want to have their way with pilots and are willing to lie to them to get access to their airplanes. They also typically arrive on scene with assault weapons trained on the pilot. Bear all of this in mind for the next part.
So the one question we’ve overwhelmingly gotten from our readers after learning about the chilling details of these stops is very simply: What should they do if it happens to them?
Great question. We are not lawyers, but in this case even the lawyers don’t seem to know. We wish we had a good answer. We don’t, but at least we’ve got good company.
AOPA, which is in the business of providing its members with such answers, essentially says that they don’t know either. In Jim Moore’s story on the subject in AOPA eBrief, he quotes AOPA counsel Kathy Yodice: “We’re trying to sort this out so everybody can understand their roles.”
The problem really isn’t in understanding roles, however; it’s in understanding how involved the DHS and the Transportation Security Administration are in the process and if they feel as though this is an effort to weed out terrorists. If so, regardless of what the law says, pilots essentially have no rights in the matter.
That said, our Constitution still exists and its Fourth Amendment protects us against unreasonable searches. Not all searches, mind you, just ones that are more hopeful than justified.
Do the cops need probable cause to search our airplanes? According to most readings of the law, yes they do. So if you do not consent to a search, and if they do not have a warrant, then you should be okay. Please remember that they might very well have weapons trained on you — we haven’t heard any reports of laser target lights being trained between the eyes, but you get the idea. It has to be unsettling to say the least.
Another tactic the police will use in initiating a search of your airplane might very well be having a dog take a few sniffs. If they then “hit” on something in the airplane, well, that’s probable cause. Can dogs be training to “hit” on command? Give my dog a piece of bacon and he’ll dance for you.
If they have a warrant or if they claim probable cause, the police can search your airplane.
Based on our anonymous source’s knowledge of the program, the interdiction was conducted possibly based on an anonymous tip or a profile, both of which are bad sources of probable cause. Still, when it comes to probable cause, it's their call, not yours.
If, however, the police want to ramp check your airplane, well that’s a very different story. You are well within your rights to ask if they are FAA inspectors and if they have the proper forms and authorization to conduct such a search. If the answer is no and they still insist, well remember that they have the guns.
Remember, if the police don’t have probable cause, theoretically, they can’t conduct a warrantless search of your airplane. Then again, when they say that they do have probable cause, there’s little you can say at that point. Any objection you raise would be dealt with later and in a court of law. And if you’ve got nothing in your airplane, well, there’s not going to be any trial. Which will leave it up to you to pursue your legal options, a costly and time consuming affair with an unknown chance for success.
From what little we can learn about these detentions, the tactic is a failed one. They don’t produce results, they cost a bundle and they unfairly — I’d say “illegally” — stop citizens just going about their business, which they should be able to do without government harassment or the threat of government harassment. Most importantly, as far as we can tell, these stops are unconstitutional, targeting and detaining people without probable cause and searching their vehicles without a warrant (in cases when consent was withheld).
It’s time to let our voices be heard.
We welcome your comments on flyingmag.com. In order to maintain a respectful environment, we ask that all comments be on-topic, respectful and spam-free. All comments made here are public and may be republished by Flying.