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.”