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

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

Thu, Jun 27th 2013 10:35am — Tim Cushing

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.

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

53 Comments

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Anonymous Coward, 27 Jun 2013 @ 11:06am

If they are doing a border search they DO need at least some reason to believe that the person actually left the country. But the officials were interested because he stopped in... Colorado. Colorado is not a border state. It's nowhere near Mexico OR Canada. And they stopped him in Iowa, also not a border state. It would have been physically impossible for him to have crossed a border without being many hours late to his destination.
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Baldaur Regis (profile), 27 Jun 2013 @ 11:08am

Goons need on-the-job training without the risk of getting shot at. What better than harmless citizens? Innocent citizens are preferred - no paperwork after the exercise.
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That One Guy (profile), 27 Jun 2013 @ 11:14am

Re:
... how sad/screwed up is it that 'These are training exercises' is one of the saner(comparatively) possibilities here?
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Ninja (profile), 27 Jun 2013 @ 11:17am

Wow, just wow. If you told this story to a person 20-30 years ago he'd laugh out loudly of your sheer lunacy. And yet here we are, the US a total Police State with clear Orwellian developments everywhere.

I wonder if in 20-30 years ahead we'll look back and see 9/11 as the day America snapped and Orwell became reality.
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Ninja (profile), 27 Jun 2013 @ 11:19am

Re:
Marijuana county seems to be located in Colorado ;)

Ahem. It's not about crossing the borders, it's about a rogue Govt in a complete paranoid mode afraid of its own citizens and freedoms that should be in place. Big Brother is watching.
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fogbugzd (profile), 27 Jun 2013 @ 11:20am

These situations demonstrate the high cost of the the war on drugs. Just start calculating the hourly cost of manpower and other assets like aircraft and SUV's. And they would have been satisfied with a few grams of pot? It is insanity beyond anything that happened during prohibition.
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That One Guy (profile), 27 Jun 2013 @ 11:29am

Re:
20-30 years? Try now, it's been obvious for years that america lost the 'war on terror' in that first opening salvo, and has then proceeded to use it as an excuse for ever increasing government powers, all of course to 'protect people from the terrorists'.
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Anonymous Coward, 27 Jun 2013 @ 11:31am

there is some serious shit going on in the USA atm, guys. someone seems to have a serious hard on for throwing weight around and presuming everyone is guilty of some wrong doing and is going to justify what the officers are doing by trying to get innocent people to incriminate themselves for no reason other than allowing officers to say 'told you so!' the more this goes on, the more it is going to go on and continue to go on. who is deciding these stops and searches need to be conducted? who is deciding that every single person is a criminal and up to no good? whoever it is, they have a serious mental problem!!
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Anonymous Coward, 27 Jun 2013 @ 11:34am

Re:
It goes to show that the War on Drugs is not actually a war on drugs. It is a war on the public itself. The same goes for the War on Terror. The day will eventually come. People can only be subjected to this sort of abuse for so long before they will eventually band together and fight back.
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Anonymous Coward, 27 Jun 2013 @ 11:35am

How's that rule of law thing working out for you now?

The US government has turned into one huge gaping puss-cunt with moldy curtains.

Budgets need to be cut... yesterday.

Not looking so united now are you, bitches? Pussy thugs with badges and broomsticks and lighting-fire at their desire.

"We have the right to search you." at will, what the fuck are you going to do about it? Nothing. Because you can't, because secret.

Seriously, what the fuck is going on right now?
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Rob, 27 Jun 2013 @ 11:46am

Re: Re:
People can only be subjected to this sort of abuse for so long before they will eventually band together and fight back.

Dude, have you seen some of rumors about the iPhone 6?
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Kiwini, 27 Jun 2013 @ 11:51am

Re: WTF
"Seriously, what the fuck is going on right now?"...

Yes indeed. :)

It's just another symptom of our failed government abusing it's own rules in order to remove and/or frighten any competition.

Rome is burning, and Nero has departed for a vacation, again.

It's time for a re-set.
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Rob, 27 Jun 2013 @ 11:59am

Re:
"Budgets need to be cut... yesterday."

The problem is our spending priorities? Isn't that like saying a house that burned down needs painted? Because is does, after all. The paint mostly all came off and got charred in the fire. And right, the rest of the structure is a smoking ruin.
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Anonymous Coward, 27 Jun 2013 @ 11:59am

I had this issue over the weekend while traveling by highway from GA to KY. I was pulled over and questioned on the side of the highway for an hour before finally agreeing to my vehicle being searched right there. It was made clear that my agreeing to the search was the only way I was going to be allowed to leave anytime soon. The officers searched the interior of my car, the trunk, the under body, under the hood and even took a few things apart during their search. It was a very scary experience considering I was only given a warning for failing to signal a lane change, yet one of the officers loaded his weapon as he was getting out of the K9 unit.
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Anonymous Coward, 27 Jun 2013 @ 12:01pm

Re: Re:
He crossed a border between states. Maybe Colorado is now considered a rogue state.
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That One Guy (profile), 27 Jun 2013 @ 12:10pm

Re:
If you travel that section of road regularly, might want to add the number of a law firm to your phone, as I'm betting the 'we're not charging you with anything, but the only way you're getting out of here is if you consent to a search' would make dollar signs light up in any decent lawyer's eyes, and would make the police suddenly remember an appointment elsewhere.
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weneedhelp (profile), 27 Jun 2013 @ 12:12pm

Re:
"If you told this story to a person 20-30 years ago he'd laugh out loudly" - Or called a crazy conspiracy theorist, ;)
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Applesauce, 27 Jun 2013 @ 12:13pm

Civil Forfeiture - follow the money
If they find (or claim to find) a stem or seed, Civil Forfeiture kicks in and they get to keep your aircraft. The department gets to keep (and sell) it. A plane is worth big bucks. Profit!!!
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Anonymous Coward, 27 Jun 2013 @ 12:14pm

Re: Re:
I kept being asked 'Why are you nervous if you're doing nothing wrong?' Perhaps because I was pulled over for no reason and a cop loaded his gun in front of me.. js!
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Dogbreath, 27 Jun 2013 @ 12:16pm

Reminded me of this scene from "Hunt for Red October"
Capt. Vasili Borodin: I will live in Montana. And I will marry a round American woman and raise rabbits, and she will cook them for me. And I will have a pickup truck... maybe even a "recreational vehicle." And drive from state to state. Do they let you do that?

Captain Ramius: I suppose.

Capt. Vasili Borodin: No papers?

Captain Ramius: No papers, state to state.

Oh my, how things sure have changed from the end of the Cold War. Makes me miss the good old days.
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Anon, 27 Jun 2013 @ 12:19pm

policing for profit
This is standard 'Policing for Profit.' That's how it's done these days. If these CBP agents were even halfway competent they would have planted a little cannabis on the plane, to give them an excuse for seizure. I'm frankly surprised they didn't do that.
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Anonymous Coward, 27 Jun 2013 @ 12:48pm

Re: Re: Re:
"I'm nervous because you bitches can absolutely ruin my life at the slightest provocation... And I have weed in my ass crack."
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Anonymous Coward, 27 Jun 2013 @ 12:56pm

Re: Re: Re:
No their must be a secret FISA interpretation of the law that says that a border search can be conducted without a warrant at ANY border, not just the US Border, so crossing an interstate border now qualifies.
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Anonymous Coward, 27 Jun 2013 @ 12:58pm

Re: Re: Re:
What do iPhones have to do with this?
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That One Guy (profile), 27 Jun 2013 @ 1:03pm

Re: policing for profit
Pilot probably got back a little too soon.
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Anonymous Coward, 27 Jun 2013 @ 1:07pm

Re: policing for profit
I think they only really only do that sort of thing when the get a really live one that gets really sticky on standing up for their rights. They really are just fishing to find something not looking to take property from people that aren't really doing anything wrong. They just don't care about respecting those people's rights either. Besides, people who can afford to own and fly their own planes generally have enough money to have a good attorney on retainer to sue the crap out of them for that sort of thing and make a real fight of it.
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Anonymous Coward, 27 Jun 2013 @ 1:27pm

Re: Reminded me of this scene from "Hunt for Red October"
One of my instructors in college referred to the cold war as the "good old days." I never understood what was good about the constant threat of nuclear annihilation.
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The Real Michael, 27 Jun 2013 @ 1:32pm

Re: Re:
More the order of a conditioning exercise. Their superiors want to make sure that their agents will blindly follow orders, no matter how unconstitutional.
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Dogbreath, 27 Jun 2013 @ 1:36pm

Re: Re: Re: Re:
No, no, no. You have it all wrong.

It's clearly in the secret interpretation of the Commerce Clause.

After all, the pilot might be (based on no tangible or credible evidence whatsoever) buying legal drugs in one state and selling them in another where it is illegal, so there is no need for a warrant because of [REDACTED BY NSA AT THE REQUEST OF DHS IN THE INTEREST OF NATIONAL SECURITY (BECAUSE WE DO NOT WANT YOU TO KNOW THAT WE ARE USING A SECRET LAW THAT IS LEGAL. WHY? BECAUSE WE MADE IT UP AND WHAT WE SAY IS THE LAW, IS THE LAW!)].
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The Real Michael, 27 Jun 2013 @ 1:40pm

Re: Re:
That's what the establishment is preparing for. That's the primary reason why they want so badly to disarm us. 'Gun control' is a misnomer -- guns are inanimate objects. What they really mean is 'people control.'
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Anonymous Coward, 27 Jun 2013 @ 1:59pm

Re: policing for profit
They have to meet their quota so they can get their bonus.
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Gothenem (profile), 27 Jun 2013 @ 1:59pm

Re:
Perhaps he flew over Molossia?
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justok (profile), 27 Jun 2013 @ 2:21pm

Re: Re: Re: Re:
it's new and shiny, dude.
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Dogbreath, 27 Jun 2013 @ 2:28pm

Re: Re: Reminded me of this scene from "Hunt for Red October"
It was just that, a threat and nothing more. You knew who your enemy was and could destroy them at the proverbial push of a button and also knew they could do the same to you, but both sides were locked in a stalemate. No one really had the upper hand. MAD (Mutually Assured Destruction) it was called. Simpler times.

For the most part it kept us from getting into even bigger wars like WW I & WW II. Everyone knew that WW III (now with Nukes) would really be the war to end all wars, because it was unlikely anyone would survive for very long, even in fallout shelters. Even the U.S. Congress would spend its remaining days in the Greenbrier nuclear bunker until their supplies ran out.

In other words, no one in a position of that much power was crazy enough to slit their own throat. These days, it seems more likely that someone crazy with little to no power will get access to nukes and use them in a suicide run, anywhere at anytime.
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Anonymous Coward, 27 Jun 2013 @ 4:44pm

Re:
In 20-30 years?
I think we can safely say that now.
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MikeTheKnife (profile), 27 Jun 2013 @ 4:47pm

Drug searches?
I've long suspected one of the hidden agendas for the Patriot Act was to enable drug sweeps. According to the first paragraph here:
"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. "
Since when did we start including drugs as a legitimate reason to burn the Constitution?
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Rekrul, 27 Jun 2013 @ 4:50pm

Re:
It was made clear that my agreeing to the search was the only way I was going to be allowed to leave anytime soon.

That's exactly what they're hoping for; That people will choose compliance over being inconvenienced. They had no legal right to search your car without reasonable suspicion of a crime. Check YouTube for videos of people refusing to cooperate with these Gestapo tactics.
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Anonymous Coward, 27 Jun 2013 @ 5:53pm

If it's a constitution-free zone the person who is being searched could conduct a search of their own.. It could be done to every agent there because they have zero constitutional rights as well.
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Hans, 27 Jun 2013 @ 6:39pm

Bread and Circuses
Because as long as you're happy with the new iPhone, you don't care about anything else:

http://en.wikipedia.org/wiki/Bread_and_circuses
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Anonymous Coward, 27 Jun 2013 @ 6:57pm

Re: policing for profit
Just 'cause I'm from the CBP
Punk pilots are afraid of me
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GrrlGeek1972, 27 Jun 2013 @ 7:15pm

Old White Guys get empathy
Most of these guys are older, richer, and whiter than the average citizen of this fine country. They probably think that "stop and frisk" is fine police work, and "strengthening the border" is appropriate immigration policy. Now that it is their ox being gored, it's a whole different story.

WHEN will the right-wingers get it through their heads that if SOME of us have no constitutional rights, NONE of us has constitutional rights?
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Techdirt Lurker, 27 Jun 2013 @ 8:45pm

Re:
I hear these stories often, and I've had similar things happen to me as well, but you need to remember, there is NEVER a good reason to consent to a search, ESPECIALLY if you have nothing to hide. All that does is promote the notion that this kind of behavior is acceptable.

Every time a cop starts in with the "Do you have any weapons, drugs, nukes, dead hookers, etc" it inevitably turns into "Well, do you mind if I have a look?" and the correct answer is always "NO."
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Techdirt Lurker, 27 Jun 2013 @ 8:47pm

Re: Re:
sorry, that is "No, I do not consent to any searches."

and then throw in an "Am I being detained, or am I free to go?"
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Anonymous Coward, 27 Jun 2013 @ 8:49pm

Re: Re:
The people hold the power of the purse therefore it is logical that if the government can't be swayed by a severe reduction in "some things military" then all that is left, given a natural course, is force. Your money or your life. That's kind of how shit works.
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Anonymous Coward, 28 Jun 2013 @ 4:16am

I wonder when people are going to start citing the Castle Doctrine after they shoot "authorities" who are essentially breaking and entering.
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Niall (profile), 28 Jun 2013 @ 5:57am

Re: Re: Re:
Actually, given that no other Western country has guns like you, and nor do they have such an insane government, I could argue your guns are the cause of your problems. Maybe because no-one actually dares protest?
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Anonymous Coward, 28 Jun 2013 @ 6:10am

Re: Re:
Yes the problem is clearly our spending priorities. Your analogy makes no sense at all unless the fire itself is the government and the house is the nation and in that case the problem absolutely was that we gave the fire too much fuel (money) and it got out of control.
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Anonymous Coward, 28 Jun 2013 @ 6:14am

Re: Old White Guys get empathy
Must be easy living in a red vs. blue world. Everything bad is always the other party's fault.
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ChronoFish (profile), 28 Jun 2013 @ 7:49am

Re: Re: Re:
Armed citizens being disarmed by the ATF (or your favorite G-men) is significantly more palatable by the public than UN-armed citizens being harassed by the same G-men.

The government is NOT afraid of armed citizenry. They ARE afraid of a knowledgeable and vocal citizenry.

Politicians would much rather you be armed with your mouth tapped shut than unarmed with a bull-horn in your hand and the freedom to voice your opinion.

Guns and weapons are not going to save "us" from the government. Demand for transparency and an engaged/informed electorate WILL save "us".

Which is why we are doomed (via complacency of our public).

-CF
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jsf (profile), 28 Jun 2013 @ 8:35am

Re:
If they are doing a border search they DO need at least some reason to believe that the person actually left the country.

Actually the CBP doesn't need this at all. Oddly enough their jurisdiction is only limited by you currently being or having passed within 100 miles of the border. If either condition is met they can stop you without any real cause and do whatever they like. The CBP is the least regulated law enforcement agency in the country, because they do not need a warrant in order to do searches.
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nasch (profile), 1 Jul 2013 @ 8:08am

Re: Re: Re: Re:
Actually, given that no other Western country has guns like you, and nor do they have such an insane government, I could argue your guns are the cause of your problems.

You could also argue the problem is the American Bison. Nobody else has those either.
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another mike (profile), 1 Jul 2013 @ 10:16am

Re: Re: Re:
Just ask him by way of reply, "Why are you nervous if you don't think I've done anything wrong?" The response to that will be most telling.
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legal pilot, 10 Sep 2013 @ 6:34pm

Re: Re: policing for profit
You can't just "sue" the fed gov...thet have to viloate your civil rights before a fed court will hear the case
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