Customs and Border Patrol Warrantless Searches

Dating back to at least 2009, Customs and Border Patrol has detained pilots of general aviation aircraft and have conducted warrantless searches.  In a typical scenario, after a routine flight, you land at your destination, taxi to the ramp—and then you’re unexpectedly approached by more than half a dozen armed law enforcement officers, including a couple with rifles in hand. There’s a K-9 unit on scene, and the dog circles the aircraft several times.

fourthamendment

The officers demand to see your pilot and medical certificates. You hand over the paperwork. Then they demand to search your aircraft and luggage. They don’t have a warrant and they can’t seem to tell you why they want to look, so you say “no” to the search. The officers are clearly unhappy with your answer. If you don’t consent to the search, they’ll detain you for 48 hours, they warn. Still unwilling? They threaten to call a “buddy” at the FAA and have your pilot certificate revoked.

The Aircraft Owner and Pilot Association (AOPA) has received 42 reports of unwarranted stops from pilots nationwide, as well as many other reports of law enforcement officials visiting or calling airports and Fixed Base Operators (FBOs) to check up on the activities of both local and transient pilots. Although each report is different, dogs have sometimes been used, and in some cases pilots have been confronted by officers with their weapons drawn. In other instances, aircraft access panels have been removed; and pilots and passengers have been separated, questioned, and detained for as long as three hours. Every one of these flights was conducted entirely within U.S. borders. In no case did the stops reveal evidence of illegal activity, and none of the pilots was charged with any crime.

An internal CBP memo obtained by AOPA refers to the stops of GA aircraft as “zero-suspicion seizures.” And that’s where the problem lies. “We don’t object to law enforcement officers stopping and searching general aviation aircraft when they have a legitimate reason to do so—in other words, probable cause or reasonable suspicion of illegal activity,” said AOPA General Counsel Ken Mead. “But it’s our position that federal law enforcement officers have absolutely no authority to stop GA aircraft without meeting that legal standard.

The answer appears to be that the agency has no such authority. When pressed, the best the agency has managed to come up with is citing the federal aviation regulations, specifically 14 CFR 61.3(l) and 91.203. In case you’re rusty on your regs, the first requires that a pilot present his or her airman certificate and medical certificate, along with photo identification, to any federal, state, or local law enforcement officer who asks for it. The second requires that the aircraft carry airworthiness and registration certificates.

Just what that probable cause or reasonable suspicion might be remains elusive. In a table supplied with the letter, the reason cited for most of the searches is listed as “pilot consent.” But that doesn’t explain what probable cause or reasonable suspicion of illegal activity allowed the officers to stop the airplane or ask to search it in the first place.

To add to the confusion, the list of incidents is incomplete and includes contradictory information. For example, of 95 CBP stops and searches reported by DHS for fiscal year 2011, the letter claims agents found 11 criminal or regulatory violations but the accompanying table actually lists only four. And while the letter to Roberts says CBP found a 12 percent violation rate in its stops, the table of data provided by DHS shows only a 4 percent violation rate. Similar discrepancies were found in the information provided for other years as well.

Pilots report that several of the stops involved drawn weapons and the use of dogs, but in no case did CBP find evidence of criminal activity.

AOPA brought the warrantless stops and searches of innocent pilots to the nation’s attention in May 2013. The association detailed the stop of Gabriel Silverstein who was flying from California back to New Jersey after a business trip and was searched during a stop at Iowa City. Law enforcement officers found nothing incriminating after searching his Cirrus SR22 for more than two hours.

The first search by federal agents in tan jumpsuits was comparatively unobtrusive, a brief delay in Oklahoma that all but passed from Gabriel Silverstein’s mind by the time he landed in Iowa City four days later, on May 5. That fuel stop, one of many made during a business trip from New Jersey to California and back in the Cirrus SR22 that Silverstein shares ownership of, proved much more troubling: Federal agents called out the dog.

A search lasting more than two hours produced nothing incriminating. Silverstein was free to go.

The association is particularly concerned that the stops are being made without proper authority. In some cases CBP Air & Marine Division has said that it is stopping aircraft based on FAA regulations that require pilots to produce certain documents when asked by a law enforcement officer.

But AOPA contends that, while those regulations require pilots to comply after they have been stopped, they do not give CBP or any other law enforcement agency the authority to make a stop in the first place unless there is probable cause or reasonable suspicion of illegal activity. FAA, which does have the authority to conduct ramp checks, has said that it has not sought help from CBP or any other agency to carry out such checks. AOPA requested CBP to investigate why such stops were conducted.

Ten months after completing a top-down review of general aviation enforcement practices, Customs and Border Protection’s (CBP’s) Office of Air and Marine has made changes that are resulting in improved enforcement and a more positive relationship with the GA community.

The review, which was dated Oct. 1, 2014, cited “opportunities for improvement” and resulted in changes to increase accountability; improve training; and use CBP, rather than local law enforcement, personnel for stops of GA aircraft.  As a result of the review, CBP published guidance on pilot certificate inspections for field agents and officers, developed and implemented a standard operating procedure for pilot certificate inspections, and made changes to the way it trains officers and supervisors.

CBP has since stopped the practice. For now, at least.

Why an I writing about this now? Under the current immigration practices, probable cause is again not required by CBP to stop and question law abiding citizens. Recently, former Greenville Police Chief Hassan Aden said he was unreasonably detained, after allegedly being forced to sit in the U.S. Customs and Border Protection detention center for an hour and a half after arriving at JFK airport from a trip to Paris to visit his mother. He made a post on Facebook about his encounter, saying that when he tried to take up his complaints with the CBP, they claimed he was not being detained.

“I was in a room with no access to my mobile phone to communicate with my wife and family about what was happening, my movements were restricted to a chair, and they had my passport, and he had the audacity to tell me I was not being detained,” Aden said.

What is next? Haben Sie Papiere bitte? Haben sie etwas zu verzollen?

 

About Terry Welshans

I grew up in Burbank, California. My dad worked at a company that made sub assemblies for about every airplane made in the 1960-1970 era, so it was only natural that the aviation bug bit me while I was quite young. I hold a commercial pilot certificate and fly as much as I can. I live in Bardstown, Kentucky with my wife, moving here after we retired. I am a Vietnam veteran and a cancer survivor. I like to keep politicians honest, and do so when they open an avenue where I feel they have erred.
This entry was posted in Aviation, Big Brother, Constitutional Law, DHS, Nazis, Terrorism, United States, War on "Terror", War on Drugs. Bookmark the permalink.

2 Responses to Customs and Border Patrol Warrantless Searches

  1. I did some research on Chief Aden. Obviously, he is an American citizen. After retiring from the Greenville NC police department, he went to work for the International Association of Chiefs of Police (IACP), headquartered in Washington DC. Aden served as IACP head of research, programs, and professional services.

    Now it is more interesting. He has become a senior official with the Vera Institute of Justice in DC, where he is a senior advisor on policing. What is the Vera Institute of Justice, you might ask? His job description from their website says, “…[he is] involved in developing and implementing projects that aim to make the practice of policing better informed by community members’ needs.”

    Their mission statement says,

    We work with others who share our vision to tackle the most pressing injustices of our day—from the causes and consequences of mass incarceration, racial disparities, and the loss of public trust in law enforcement, to the unmet needs of the vulnerable, the marginalized, and those harmed by crime and violence.

    Sounds as if Aden signed up with folks the CBP and others in the current Administration may view as “troublemakers.”
    https://www.vera.org/

    If anyone reading this actually believes the CBP people at JFK did not know exactly who Chief Hassan Aden is, I have a bridge in Brooklyn for sale cheap.

  2. wordcloud9 says:

    Thanks Terry and Chuck –

    Clearly, 9-11 has been used as an excuse to shred the Bill of Rights for some time by several federal agencies under the ‘Homeland Security’ umbrella, and that is escalating at a frightening rate under the current Occupant in the Oval Office, and the Teapublicans in the Legislative branch.

    Representative government is hanging by a fraying thread.

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