Pilots Want To Know Why The DHS/CBP Are Searching Their Planes Without Warrants

Privacy

from the warrants-are-becoming-nothing-more-than-a-fond-memory dept

Government agencies continue to operate under the assumption that warrants, reasonable suspicion and the like are luxuries that our nation can no longer afford, not while we’re under constant attack by terrorists and drug smugglers.

The AOPA (Aircraft Owners and Pilots Association) is reporting an increase in DHS/CBP (Border Patrol) searches of small aircraft, including planes that never left the country.

With a growing number of reports from law-abiding pilots stopped by armed federal agents on the ramp, their aircraft searched by federal agents, the U.S. Department of Homeland Security Customs and Border Protection remains silent, and outrage is building.

AOPA is questioning CBP’s authority to conduct the searches, and demanding a response from officials at the highest level. There has been no meaningful response to date from CBP to Freedom of Information Act requests filed months ago by AOPA and affected pilots.

The FOIA requests filed by AOPA date back to February 12th. The CBP told the association not to expect a response until August 12th, at the earliest. The AOPA has given the CBP until July 20th to produce the requested documents or it will be taking its case to court, as well as “advising Congress and congressional committees” about the unexcused delays.

One of the FOIA requests seeks information on the warrantless search of pilot Gabriel Silverstein’s plane, which occurred on May 5th. Silverstein’s plane was actually searched twice by federal agents. The first search was more perfunctory, with DHS agents replacing the normal FAA agents during a routine ramp check. The second, however, was much more intrusive.

[A] 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, but he and his husband of nine years, Angel, were on their own to re-pack luggage, the contents of which had been emptied along with the rest of what could be removed from inside the aircraft. Though more needs to be learned to understand the true legality, or constitutionality, of that search, agents told Silverstein he had no choice.

Although the agents involved identified themselves as only “homeland security,” Silverstein recognized their uniforms’ insignia to be that of Customs and Border Protection. (He also received a business card from one of them which identified that particular agent as CBP.) So, what are CBP agents doing searching a plane in Iowa City, miles from any international border? Silverstein had a registered IFR flight plan, which had received clearance at every stop, detailing every leg of his flight up to that point — a flight that saw him travel from New Jersey to California (and part of the way back) with various stops for fuel, all without leaving US airspace.

The DHS knows but it’s not saying, at least not yet. (Any sobering findings will presumably be heavily redacted.) But judging from the agents’ conversations with Silverstein, it would appear they believed he was smuggling drugs.

Silverstein said the agents in Iowa City urged him to confess to possessing a small amount of marijuana, suggesting such a confession could cut the whole process short. (Silverstein told AOPA he is a teetotaler, and never indulges much less possesses marijuana, nor did he have any reason to believe others had put marijuana in the aircraft.) Silverstein said agents told him they believed marijuana should be legal, but they had to enforce federal law.

Searching a plane without a warrant and finding nothing is not enforcing federal law, no matter how the agent playing “good cop” attempted to portray it. Encouraging a person to falsely incriminate himself is not enforcing federal law, no matter how much the agents would have preferred to be back by quitting time. But on top of this dubious definition of “enforcement” lies an even more dubious definition of “reasonable suspicion.”

He said the agents “clearly suggested” they were interested in his aircraft because he had stopped in Colorado, a state that recently legalized possession of small amounts of marijuana.

If you think that logic is weak, there’s more. The Atlantic details a couple more episodes of DHS/CBP agents vs. private plane pilots/owners. Larry Gaines, flew out of California, landing at a small, rural airstrip in Oklahoma. He was headed to dinner with a friend when he realized he had left his eyeglass case back at the airport. He returned to retrieve it and was greeted by local law enforcement who prevented him from returning to his plane and informed him the DHS was on the way. From Gaines’ account of the event:

2 black Suburbans drove up at some point during this time, plus more Cordell Police and Washita County Sheriffs. All told, there were 3 police cars, 3 sheriff’s cars, and 2 Suburbans with black windows from what I was later told was DEA. The officers/agents in the Suburbans were dressed in what appeared to be riot gear – body armor and helmets, I believe. They had shotguns and at least one German Shepherd dog. One of the local sheriffs was definitely in full SWAT regalia. It was over 100 degrees F. I counted 20 officers, deputies, and agents. Seven were dressed & equipped, literally, for armed conflict…

A large business jet arrived and circled overhead for the next 60-90 minutes. A King Air 200 [a sizable twin-engine turboprop plane] arrived and landed. 2 Border Patrol agents got out.

That’s a lot of “response” for a pilot with a clean criminal record. The agents on the scene were unable to explain their actions with anything more specific than Gaines’ flight fit a “suspicious profile.” Gaines asked for details about the “profile” and received this in reply: “You started in California and flew west to east.”

This almost sounds made up on the spot. After all, flying out of California doesn’t present many options for a pilot who wishes to remain in the Continental US, but still leave the state. But if Gaines fits the “profile” by flying west to east, how does Silverstein fit in? Sure, he left California traveling east before his run-in with federal agents, but it was part of a return flight to New Jersey, which started east to west.

The common thread seems to be drugs. An agent pointedly asked Gaines, “There’s a lot of drugs in Stockton, isn’t there?” (This despite the fact that Gaines’ flight originated in Calaveras. His plane is registered in Stockton.) Silverstein flew west to east, returning to New Jersey, with a stop in Marijuana, CO.

Both pilots returned to their planes to find law enforcement waiting for them. Silverstein found the search to be already underway by the time he got to his plane. Gaines was greeted by local cops, which soon swelled into a small army. Gaines, however, refused to let the agents search his plane without a warrant. The agents backed down only when he agreed to allowing a drug-sniffing dog to walk his plane.

Under what authority these combined forces are searching planes without a warrant is unclear. The DEA would seem to be the most interested party if it’s indeed drugs these agents are looking for. But these two episodes show the DHS/CBP clearly is taking the lead. The latter two agencies aren’t too concerned about warrants or constitutional rights, seeing as the so-called “Constitution-free zone” is still in effect and the DHS has already gone on record as regarding Fourth Amendment rights to be an impediment to innate pureness of an agent’s “hunches” or “intuition.” But in these cases, along with nearly a dozen others, the pilots involved have never crossed a border, breached restricted airspace or otherwise done anything illegal.

It almost appears as though these agencies would prefer private pilots travel like everyone else: routed through TSA agents and safely aboard FAA-tracked airliners. So much for being able to move freely around the country. Traveling within our borders now seems to be as suspicious as making domestic phone calls.

Filed Under: 4th amendment, borader control, dhs, drugs, ice, planes, warrants