By DAVE HOOK.
When did American citizens give up Fourth Amendment rights just because they became pilots?
Over the past year, there have been numerous reports of searches of private aircraft without warrants. The accounts described by the pilots also suggest that insufficient cause was given by the law enforcement agencies conducting the searches. This is a disturbing trend.
My wife and I enjoy watching “Law and Order.” It’s interesting to see the direct link between the search for supporting evidence against someone who has committed a crime and how the prosecution makes use of that evidence in a court of law.
What’s even more interesting is how investigating officials get people to voluntarily waive their rights against search and seizure without a warrant or probable cause. It’s just entertainment television, right?
Here are some lines you might hear when a member of the law enforcement community wants to search your aircraft without a warrant or clearly articulated probable cause:
- “I’d like to search your aircraft.”
- “Mind if I look inside?”
- “If you have nothing to hide, then this shouldn’t take more than a minute.”
- “The last guy didn’t make a fuss. Are we going to have trouble with you?”
- “A law-abiding citizen such as you should have nothing to fear.”
- “Okay, we won’t search your airplane. But we want our dog to sniff outside and around your airplane, okay?”
- “We are conducting a ramp check. Please open up your aircraft.”
Here are some responses you may wish to consider:
- “Do you have a warrant to search my aircraft?” If they have a properly executed warrant, stand aside.
- “Am I under arrest? If so, what are the charges?”
- “I want to leave. Am I being detained or am I free to go?”
- “If this is a ramp check, then who is the FAA inspector?”
Remember, there is a big difference in Part 91 operations between a ramp check conducted by an Aviation Safety Inspector (ASI) of the FAA and an inspection of your airman’s certificate by law enforcement.
The authority for the ASI comes from FAA Order 8900.1, Volume 6, Chapter 1, Section 4. The authority for inspection of an airman’s licenses, medical certificates, authorizations, and photo identification by law enforcement comes from 14 CFR Part 61.3 (l). The ASI should present an identification card, called a FAA Form 110A.
If the person saying they are performing a ramp check doesn’t show it, you should ask to see the FAA Form 110A to confirm that you are undergoing a ramp check by a FAA inspector.
Finally, the most important response to give above all others:
“I DO NOT CONSENT TO SEARCHES.”
I am not a lawyer — and probably most of you are not lawyers, either. But remember this: Anonymous tips and hearsay do not constitute probable cause.
Why is that distinction important? Probable cause is the legal doctrine that allows law enforcement officials to conduct searches without a warrant. A warrantless search conducted without probable cause creates a basis for suppression of any evidence found during the search, sometimes called the fruit of the poisonous tree doctrine.
This is a situation in which you may be wise to have a lawyer you can call or avail yourself of the Aircraft Owners and Pilots Association’s Pilot Protection Services.
For those concerned about their ethnicity and potential targeting, you should know about United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
The U.S. Supreme Court determined that it was unlawful for law enforcement to stop a vehicle because, in this case, the operator appeared to be of Mexican descent. This case law established the requirement for law enforcement to have more than the basis of ethnicity to detain someone. It further required the law enforcement official to be able to clearly articulate those facts used to create a basis for reasonable suspicion. [My thanks to Chase Snodgrass, Presidio County Airports manager and retired U.S. Border Patrol agent, for sharing this reminder of fairness and equality under the law]
There are plenty of bad guys that law enforcement — federal, state, or local— should be pursuing, not law-abiding pilots conducting lawful flights within domestic airspace.
Unless you are clearing U.S. Customs after having arrived from outside of the United States, there is no authority bestowed upon law enforcement that allows for a warrantless search without probable cause. But when you cross the border into the United States, the Customs agent does not require probable cause to conduct a search of you, your passengers, or your aircraft.
Also important to know: Consenting to allowing a trained dog to sniff around your aircraft is just as much a search as if you opened the aircraft door and invited them in. The dogs use their noses like humans use their eyes to peer into your aircraft.
Also, do not hesitate in saying, “I do not consent to searches.” Hesitation has been used as a basis for implying consent. You do not want to voluntarily create a conversation with law enforcement in this situation.
Do not try to be polite in conveying your message by watering down the message with gentle words and euphemisms. Stand your ground. Look an agent squarely in the eye and say, “I do not consent to searches.”
If they continue and search your aircraft, then call your lawyer at the first opportunity. Continue to remind the searchers that you object to the search, but be polite and non-aggressive about it.
You don’t stop being a law-abiding citizen by standing up for your rights under the U.S. Constitution. You don’t have to be nasty or mean in how you give your message. Be polite, firm, and don’t waiver. ou are the same law-abiding citizen after you stand on your rights as you were before. They made the decision to challenge you.
I am willing to put my money where my mouth is. FREE for the asking, I have created 3-inch by 2-inch stickers that state the following: “No warrant? The pilot and owner of this aircraft do not consent to searches.”
Those interested in receiving these free stickers have only to send me an email at Planehook@hotmail.com with your mailing address, and I will mail you two stickers. The stickers are printed in black and white in English. They are intended for exterior application in plain view of the primary entry/exit and cargo doors of your aircraft, but place them where you want. And remember: “I do not consent to searches.”
nopaper no search
No Paper – No Search? Really? Are you freaking kidding me? When you have half a dozen guns pointed at your head, how you gonna stop them? They do whatever they want to do, paper or not. No Paper-No Search? Whatever man. I’d like to see you try to stop them.
Great article, Dave! I look forward to receiving the stickers.
I bet the real smugglers read these storys and are laughing their asses off.
Please keep in mind that the use of a dog around the outside of the vehicle (plane) is not considered an “unreasonable” search by many states. However denying to provide concent for the K9 won’t hurt. If they do not need your concent they will just do it anyway, and a few minutes of research after the fact will reveal if you have any cause for legal complaint.
It has been my experience that you can say “I don’t consent to searches” all you want, but they will just slam you face down on the tarmac at gunpoint and search anyway, and after not finding anything will still try to find any little thing they can write you a citation for just for no other reason than to cover their ass to justify the search. And they know you ain’t gonna do anything about it because it will cost at least $4-5K just to get a lawsuit started, and they know most of us ain’t gonna spend that kind of money to pursue doing anything about it, especially if they let us go on our merry little way after they get done having their little adrenalin rush.
After 20 years law enforcement experience, and I can relate a half dozen instances where officers were charged with “violating civil rights” which carries some pretty severe penalties. For an employee of a law enforcement agency to “detain” someone, he must be able to articulate probable cause to believe a crime has been committed. Mere suspicion or that a person fits a certain “profile” is not sufficient. Being “detained” because you flew your airplane in a certain direction, without talking to ATC, or ANY other lawful exercise of your pilot license, is NOT probable cause to believe a crime has been committed. If I am subjected to this type of harassment, I will provide the documents required by law and nothing else. I will assert my right to remain silent and as Dave suggests, firmly state that I do not consent to any search of any kind, of my airplane, or my person.
It has long been held in many states if not all, that looking at what is in plain sight is not a search, but I’m not sure that letting a K9 team sniff around your airplane is “in plain sight”. That may well depend upon state law in the jurisdiction you happen to be in, but the party who suggested asking for all the training and arrest records for the dog and its handler made an excellent suggestion. You never know but what you may find evidence of wrongdoing that makes the agency vicariously liable for the unlawful actions of its agent.
Every person subjected to this kind of harassment should file a civil lawsuit for false imprisonment, file charges with the FBI for a violation of civil rights, and provide all available information to your Senators and Congressmen, both state and federal. Surely we can find an attorney or two that would like to make a few million dollars suing the local, state and federal agencies who perpetrate this nonsense.
Lets get with it folks, we have a country to save and a Bill of Rights to preserve. I served in a combat zone to preserve our rights. Don’t let me down.
I thought that this was going to be an intelligent conversation but it has quickly degenerated, so I am unsubscribing.
It just goes to show you that if you give the government an inch, they will stretch it into a mile. We have been letting the government into our livesmore and more with each passing generation. And, of course, we keep hiring people with a thug mentality into the law enforcement field. DON T THINK JUST SWING THE BILLY CLUB! PACK THE JAILS! THE LAWYERS NEED TO STEAL YOUR MONEY!
I beleive the words “I do not consent” in legal terms are refusing to allow ancient maritime law use ownership of a person as a corporate entity for chattle (collateral of a corporation that is actually a person). The natural human is the real person, and a person created by documents (birth certificate) using all capital letters becomes the second duplicate entity that does submit by virtue of any signed documents such as birth certificate, driver’s lisence, etc. I have heard of some native tribes in Canada using the words “I do not submit” and then being dismissed. Though the principle is the same, I have not heard of this statement being successful in the US. It’s unfortunate that this type of occurance is happening and it is important for citizen’s to be aware of their rights as well as it is important for law enforcement to do their jobs. I think regardless of what might be happening it goes back to politics, it’s no surprise that many US funded covert missions clearly break US law (research CIA contractor Southern Air Transport) but when Capitol Hill wants it to appear that they are doing something then they rattle random cages so to speak and thus the word gets out and it looks like they’re actually working on a problem. No one goes deep enough (with any level of saftey) to discover government is usually the root cause of the problem, and it all generates money within the system and all the overlap and competition it produces. It’s hard to say exactly but there are many kinds of people with many ideas in many positions all over the world that are in a constant and dynamic flux for their own ends, this could be something else later down the road, who knows… One thing is certain, that with growing financial might as America has enjoyed dramatically since at least the post war era is now being challenged by the nations that are working to supply cheap goods and labor. These nations are now by virtue demanding more freedoms while we in the US become more and more dependant on government and as a result are seeing our freedoms being slowly eroded over time.
Let’s not forget, video record your interactions with the police also! That way they won’t lie in court and if they do you can protect yourself with your own video.
Police are “allowed” to lie, why not have proof incase you are wrongly searched.
And we wonder why we are losing the pilot training war. Had this been in effect in MY early years I would not have continued to become a pilot, an owner of a C-140 or a BE-35. It is 1984 now.
I’m going to keep this brief, I teach law and was a police chief. I tell my students, if you are stopped by the police remember two things, “Am I under arrest”, and “Am I free to leave?”. The police must answer, if you are not under arrest and you are free to leave then leave. Do not consent to a search. If the police have probable cause then they could search without a warrant. Most searches are without consent and without basis. The same applies to a dog sniffing around. Too many officers have a dog that apparently indicates something invisible to anyone else enabling them to search without warrant. Don’t consent. I have nothing to hide but I will not consent to any search. I have rights given to me by the amendments and I will not dilute them or give them away and you shouldn’t either.
It’s the Patriot Act. Did all of you that object to this practice also vote in the Republicans that passed it? Oops! Sometimes you get more than you ask for.
Dan your comment demonstrates an extreme lack of the facts on who voted on the Patriot Act. 98 senators and 357 Reps voted ‘yea’. This is an overwhelming majority of both political camps we voted for. I am in favor of voting all of them out and starting over, hopefully by a process of weeding through the political BS and getting the facts right.
Oh for the love of god, yes of course, BUSH did this!
Honest to god, you people on the left are just the saddest people on the planet. Get a clue.
We asked for it in the aftermath of 9/11, and got it, in response to the threat from foreign terrorism, like the sort that brought down the World Trade Centers. You’ve conveniently ignored the fact that Bush left office in 2009. It’s 2013, five years into the Obama administration, when we’re seeing the raw, blatant abuse of that power. And don’t forget the Obama administration’s misuse of the IRS as an attack dog to go after the administration’s perceived “enemies.” The ones they’re sending after us have different initials-FAA and CBP. So I guess we have you to thank for asking for this? ….OOPS!
If a Dog alerts and causes a search but you know that you have no drugs, and they find no drugs, can you ask about the dogs credentials? Can you ask for the dog to be removed from service? Can you also ask the officer if they signaled the dog? That might cause problems but I seem to recall that if you ask an officer if they ARE a police officer they are required to answer you or you cannot be prosecuted. Thoughts?
False positives are common with K9s. They don’t ever miss the smell, but sometimes they smell it when it’s not there. If you really want to push some buttons after one of these searches, using the “Freedom of Information Act”, contact the Law Enforcement agency providing the animal, ask for the Dogs full history and full training records, the officers history and full training records and copies of all crime reports/arrest reports that officer has submitted based on the animals performance. Take that to the ACLU along with your story, and let them have a field day.
Unfortunately, the courts have ruled that there is no training standard for dogs used in searches.
Half Brother Barry saw how popular the closing of Meigs Field was in Chicago. The lesson learned was you can stick to anyone in General Aviation and no one else will give a damn. If we don’t, we’re through. If this crap ever happens to me, after I refuse to be searched I’ll remind them, we’re the guys who look out for anything suspicious. WE ARE THE GOOD GUYS, DAMN IT.
I Bet that what the bad guys say and think “WE ARE THE GOOD GUYS, DAMN IT”so how do we know..
Dear Richard,
I was first entered into the government data base with my fingerprints after high school when I trained as a Machinist at NASA Ames Research Center. The second time was after college for the security clearance at Northrop as an Engineer on the B-2. They already know who I am.
Anyway, these are just training exercises to practice for when the shit really hits the fan. Iran is going nuclear. The 47%ers ( and growing every minute ) along with the law school, social manipulators have screwed the pooch. What I find fascinating is the second bunch knows exactly what they are doing. 2 + 2 = 5
First thing I’m going to do is get some of those stickers Dave is giving away. Second thing is to subscribe to AOPA’s legal services. Thank you Dave!
If you do not give your consent to a search can you then just “fly away” or do you risk that they can/will hold you where you are till they have a got a warranty?
Dear Mr Welk,
Even the pickiest, most overregulated airports will let you depart with only an annual inspection. No warranty required.
I was getting gas at a station (driving a car) and when I came out to pay there were two officers. The truck was locked and they asked if they could search it. I told them if they had probable cause then they didn’t need my permission. Two hours of harassment later (after a trip to the police station for a drug test in handcuffs) I was given my keys (yes, they politely moved my truck for me since I was handcuffed in the back of a cruiser) I was release and went home. Nothing ever came of it but buyer beware, you are dealing with people of authority who carry weapons and have several (questionable) means of persuasion. Bottom line, they’ll get the same answer I gave before. You don’t need my permission if you have reasonable cause or a warrant. And yes, a couple of hours in handcuffs is worth it.
I have been in law enforcement for 34 years in CT. State law here allows police officers to look inside “vehicles” through windows and open doors. Using a canine trained in drug detection to walk around “vehicles” is also legal under this “plain-sight” doctrine. If an officer sees anything illegal or the canine alerts to a drug, this constitues probable cause to search further without the consent of the owner. So, you can say that you don’t consent to having someone look into your aircraft or having a dog sniff your plane but, if the police officer is there legally, you probably won’t be able to stop him/her from doing these things.
Also, “flight” from a police officer can sometimes be considered a prima facia indication of guilt by some courts, so it’s probably not a good idea to try to taxi or fly away from officers who want to question you.
Pilots may try to tape any conversations with law enforcement officers but should be warned that this might anger officers. Just remember that they are only human, also…
They may be human, but they need to remember they are also subject to US law. While I generally applaud and support LEO efforts, they should be darned sure they remember this: The badge confers more responsibility than authority.
The problem here is that CBP is performing a subtle show of power and exerting themselves in places they do not belong.
Look closer at the problem and not the argument of us versus them.
This has never been an issue until recently.
Ramp checks are performed by an FAA official and not law enforcement.
If a LEO shows up on a ramp, it should be for a specific reason. Beyond that. It’s can be considered harassment.
Airports are already protected by several layers of law enforcement and other security.
As a business owner, EMT, and CFI, I find this to be harmful to more than pilots, but also all of the businesses on the field.
This will surely come to a fast end once an Aviation Lawyer gets a so-called ramp check.
Unless they have permission to be on the airfield they have no right to look inside a vehicle. I believe you are wrong any way. Just because a person is a “Land” local cop does NOT give him the right to stop a plane, search a plane without a warrant or especially request a plane to land. The badge is a joke in this situation. The FAA is in charge not local cops.
If a police officer has probable cause to believe that a criminal violation is being committed within his/her precinct or jurisdiction, it doesn’t matter what kind of vehicle the evidence is within, the officers have the duty to investigate. Now, this does not mean that an officer may initiate a search based on mere suspicion.
So what if a dog “alerts” when there is nothing there? I trained dogs and can make them ” alert” on a signal or leash command. If it is proven in court that this is being done, there will be law suits
The concern I have which no one seems to be addressing is, “What jurisdiction does a local police or sheriff deputy have on a federally funded, public use, airport? What gives any law enforcement agency the power or authority to search my airplane including some disassembly such as removing seats or inspection panels? Isn’t tampering with an aircraft or rendering it unairworthy a federal offense?
What we may be missing is this…I’d bet a large majority of the pilot community are conservative or lean that way. Soooo, if the IRS is targeting these types, and the pilots do in fact lean to the conservative side, then maybe we are targets due to this. Remember that the IRS was not the only Gov’t Agency that engaged in targeting conservatives. The OSHA, EPA, ATF were also involved and my educated guess tells me that there are a LOT more rogue types in many other agencies and departments as well.
Get Unions out of Gov’t. It is just tax dollars financing the Democratic Party,
I’ll bet that very few of these overenthusiastic police officers are Democrats. You shouldn’t swallow everything that Flush Limbaugh says.
Yeah lets get rid of teachers unions too. A full years salary for half a years work plus full benefits. This is what is bring down the country.
Paranoid is a thought process believed to be heavily influenced by anxiety or fear, often to the point of irrationality and delusion. Paranoid thinking typically includes persecutory beliefs, or beliefs of conspiracy concerning a perceived threat.
I am getting paranoid re the reason my comment needs moderation it is just a factual statement
As a law enforcement officer for over 30 years of service. I have seen a real decline in the quality of personnel being employed with common sense. It seems the younger guys/gals are just following made up rules by some upper management types of haven’t been in the field for over 20 years and don’t have a clue as to what is really going on in the field. The management types are just looking at the statistics and what gov’t grants they can get for more phony baloney programs to keep spending money and being employed, bureaucracy at its finest .
We should all say no to searches and look-see requests. The cops are looking for violations and the laws are getting more and more intrusive every year. Just compare last years penal code book to this year, I bet it has grown a quarter of an inch. Remember, just say no and go on your way, unless you are being detained.
It appears that the Fourth Amendment, among others, has been discarded. I was aghast when going through security at Dulles for the first time after my knee replacement. Even though I informed TSA agents that I had a new knee, it triggered a full body pat down. Actually, it was a full body grope.
FWIW: Laura, your experience seems to be a sex-neutral response. I received a similar grope recently because of my knee brace. I’d be a lot more willing to accept these insults if I thought these procedures actually prevented an incident. I have little confidence that they do…but they do represent al-Qaida’s victory over our constitutional rights, or at least our willingness to demand them.
Timely encouragement to take our rights seriously.
Five time House Speaker Tip O’Neill (whose compromises and congeniality and mutual respect with President Reagan produced progress and are desperately missing in DC demagogues today) said “all politics is local”.
So is law enforcement. For all the lunatic, insurrectionist, right winger paranoia about blacked-out federal Sikorskies following them around the Nation to steal their rights, that loss actually happens daily in their own neighborhoods. Yes, Bush and the Patriot Act led to today’s universal NSA comm surveillance without which we would be near impotent investigating and interdicting terrorists… but it is ramp checks and warrantless taxiway and runway blocking by lowest-common-denominator local cops too often on hunches, out of boredom, for quotas, in response to domestic friction or business-related anonymous “tips”, or in pursuit of career-promoting and luchre-winning drug busts that affect aviators most profoundly and must be challenged every time they are attempted.
Ref “L&O”, aside on TV crime dramas and dogs: “COPS” does illustrate some smart, hard-working, brave officers pitted against truly dangerous criminals (which “First 48” does even better) but desperate to secure departments’ cooperation for embedding, it became bar none the most staged, adoring, cherry-picking farce on TV — edited to coverup gross violations of rights.
For example, it NEVER in its 25+ year history (just dropped by Fox, heading for SPIKE) conceded that handlers often provided cues to dogs to alert and “justify” searches when no actual environmental triggers (other than poverty or minority status) existed… nor followed up to show how many filmed and glorified searches and apprehensions were later thrown out as abusive and unConstitutional.
What it did show hundreds of times was exactly what Dave Hook warns us against = casual surrender by citizens of their most precious rights to imposing authority figures… too often badges with little more behind them than high school bully diplomas and personal prejudices and agendæ.
While I think the Dramatizations and name calling are a bit over the top, the meat of your comments ring true. This is a very frightening time in our history. My first thought was the trigger to make the dog hit on the airplane. I can see them doing that. No way they are getting in my airplane/car/house etal without a warrant.
What are they looking for when they search an airplane?
Thanks Dave! I like the vernacular! That’s what I’m going to say! “I don’t consent to searches!”
Anything beyond that, well, I got a case of Vietnam combat PTSD that spasmodically jacks the “inspector’s” jaw, lawyers, get ready for a venom bite, not on your briefs, but deep in your cheeks, I’ll take the three hots and a cot, you take nothing I got left, after Obama’s police state!
By all means, object to the police state. Calling it “Obama’s police state” however can only detract from the cause. Yes, things persist under Obama, however your implication is that he brought things here and this is most definitely not the case.
When you unnecessarily bring politics into complaints about an injustice, you alienate a section of those that would otherwise be on your side. My opinion is that it’s best to leave the politics aside and simply express why what is happening is wrong. Without doing that, I feel you only contribute to the broken bipolarization of our government.
mah:
Excellent! Could not have said it better myself. She should have been complaining about the police state long before 2008!
What bugs me most about this instrusiveness by the State against innocent pilots is that the State KNOWS it has the smug might of force and intimidation behind whatever it chooses to enforce and that law-abiding pilots like myself will usually cower before such force and intimidation. The State wouldn’t be so smug or such bullies if they didn’t have such force and intimidating tactics…
I do not know if similar laws apply, but the Coast Guard can search your boat if they deem it necessary and do not need permission. They can board and put you through the search of your vessel.
Last time I was met by Coast Guard they asked politely and we complied. I think it was courtesy as they could have used inspecting game fish as their purpose for boarding. The difference is that the CG folks were polite and NOT carrying AR15s and wearing body armor…
Thanks for the article and your offer, Dave! The whole situation is rapidly spinning out of control, and unless people stand up and demand their Constitutional rights, they will gradually slip away. I would like to see AOPA’s legal department [I’m a dues paying member, so if anyone there reads this, consider it a formal request] comment on your article or write an article of their own to be published on GAN so we have a legal opinion on what we can and can’t refuse.
Interesting article by Dave Hook. It’s too bad he is not trained in the law. GA News, what might be the review of an attorney of …? Preferably someone versed and practicing in aviation and criminal law.
The article was reviewed by an aviation attorney and a criminal investigator prior to submitting for publication.
Dave
I hope you didn’t spend too much money on your aviation attorney.
He forgot 61.51(i), which gives LEO’s the ability to request logbooks and any records required to be kept by Part 61 (Flight review, Instrument currency, 61.58 checks, etc.).
Not that LEO’s are aware of these.
Also, some states (Illinois is one with which I am familiar) have state statutes which mirror some FAA regulations and are enforceable by LEO’s.
Further Order 8900 is not an authorizing document. No FAA enforcement action has ever charged a violation of Order 8900. The regulations and USC give FAA inspectors the authority to do their jobs. The Order merely describes how to go about doing the job.
Zing! Thank you for your writing and advice, Dave! Well done. The only thing I would add is for every single pilot to call his or her Senators and Reps and lay into them about this bull! Start off calm and collected, articulate the point that you are sick and tired of the un-elected bureaucratic layer of government assuming powers it doesn’t have and disregarding the Constitution of the United States (something they swore to uphold and protect), and then move into the shouting, cursing, and screaming. This is unacceptable, and God help me if some two-bit asshat points an AR15 at me and/or my family in our airplane… Act of War.
Dave:
Nice work. My relatives in Germany in the first half of the 20th Century understand. Regrettably not many citizens today seem to be aware of where this history came from.
John
Dave:
Thanks for an excellent reminder of what we all should know. We can’t let ignorance of our rights lead to the forfeiture of same. I hope some legal experts weigh in here in the comments to offer their perspective.
Great article Dave!
“Sorry sir, Don’t mean to be impolite; Harry (other officer) could you give me a pair of latex gloves ? Now just spread your cheeks…………………….. sue? be my guest!