Unwarranted Aircraft Searches Violate Pilots’ Constitutional Rights
In the summer of 2012, Robin Fleming, a seasoned glider pilot, took to the skies for an afternoon of heavenly flight. His flight turned into a voyage from hell after he flew over a nuclear power plant in Hartsville, South Carolina. Mr. Fleming was informed over UNICOM radio that local authorities wanted him to land immediately. When he did he was met by local officers, who questioned him, handcuffed him and threw him in jail – where he spent the night. His offense? Flying over “a secret no fly zone” (which of course was not marked on any aviation map, nor mentioned in any TFR or NOTAM).
When the 70 year old glider pilot’s case went to trial the charges were dropped against Mr. Fleming provided he agreed not to sue for illegal arrest. Clearly, the officials involved had overstepped their bounds and arrested him on specious grounds.
In the months since the Fleming incident, General Aviation pilots have been under growing scrutiny by Customs and Border Patrol, Home Land Security and the FBI. There has been a dramatic increase in the number of pilots who have been stopped on ramps, questioned and detained for hours and in most cases for no apparent reason at all (in legal parlance that would be without “probable cause”). To be clear, none of these incidents have been standard issue FAA ramp checks. They go way beyond the standard “show us your pilot’s license, your medical and your aircraft’s ownership and certification documents.” These are unwarranted searches of aircraft for no apparent reason.
At first, these infractions were the subject of outrage and concern from the Aircraft Owners and Pilots Association (AOPA). Recently, however, these GA stops have been getting more mainstream media attention from such notable publications as The Atlantic Monthly and the Los Angeles Times.
What’s at stake here is the 4th amendment right to ask for the reason you’re being stopped and why your property is being searched and to request to see the warrant issued for such a search. Put simply, if there’s no warrant, there’s no justification for the search; yet in case after recent case, neither reason nor warrant has been provided.
Hey, What’s Going On Here!
Here is an example of a typical improper aviation search scenario. Someone is flying a long cross country, perhaps from California to points East. Sometimes it’s a business trip; sometimes it’s a personal flight, perhaps to visit a college with a son or a daughter. Along the planned route, the aircraft lands at a local airport to make a fuel stop. As the aircraft taxis to the ramp, it is suddenly surrounded by local police or government officials (often Border Patrol personnel even though the plane has landed hundreds of miles from any national border).
The pilot and passengers are told they fit a “profile” and that they are under suspicion of a crime, though the actual legal breech is often not mentioned. The pilot, passengers and flight are detained for several hours while the officials conduct what amounts to an illegal search of the aircraft. The pilot suddenly finds himself in what amounts to an episode of Law and Order and he or she is too shocked to demand their right to know why they’re being treated in this manner…
Can They Do That?
Searching a house, a car, a boat, a plane or any private domicile or vehicle requires a reason which amounts to probable cause. Grand Juries cannot indict people without probable cause. Law enforcement officials cannot search anyone’s property without probable cause.
According to the 4th Amendment of the Constitution, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things be seized.”
Is Anyone Paying Attention?
Now that we’ve got the legal stuff out of the way, you should know that the Aircraft Owners & Pilots Association (AOPA) has been monitoring this situation very closely and has on several occasions cited the Freedom of Information Act to demand Border Patrol and other law enforcement agencies release reports on these incidents.
AOPA recently had a sit down with Custom and Border Patrol Authorities and AOPA was assured that CBP was curtailing these unwarranted searches. We’ll see.
In the meantime, the problem has made its way into national newspapers and periodicals. As it has, it sparks debate concerning individual rights versus public safety. Since the attacks on 9-11, public safety and anti-terrorist proponents have insisted that stopping terrorist attacks justifies infringing on some personal liberties. However, this also means ignoring the rights granted to us by our Constitution. Naturally, individual right proponents cry foul every time this happens.
What Pilots (Who Are Not Constitutional Lawyers) Can Do?
Are all stops and searches illegal? Of course not. If a law enforcement agency suspects you and your aircraft are involved in criminal activity and they have reasonable cause to back their suspicion, they can and should get a warrant for a search. The problem according to AOPA is that only 3% of the Customs and Border Patrol monitoring activity is producing proof of any real criminal or terrorist activity. These paltry results in no way justifies this kind of heavy-handed use of government force.
If you are the subject of a ramp stop and the official on hand says they want to search your aircraft, there are several things you can do and say. Here is a summary from www.AviationPros.com:
If stopped by Homeland Security, DEA, Border Patrol, ICE, FBI, FAA, local sheriff’s department, local police, they all have the right to ask for your pilot’s license, medical documents and aircraft registration, AND only these documents without a warrant.
When stopped you should:
- Ask which authority they represent and demand to see badges and identification.
- Get names and phone numbers of agencies as well as the names of immediate supervisors.
- If possible take pictures of proceedings even if told not to and before your camera is confiscated.
- Do not resist! Ask to make a phone call. It is your right!
- Stay as calm, cool and collected as possible – even polite. Answer all questions.
- If they ask if they can search your aircraft JUST SAY NO! They know they legally cannot force you to consent to a search without a search warrant. However, be aware that they may still ask you to voluntarily agree to a search.
Please note that if crossing a U.S. border or even flying close to one, the odds of a search will go up for completely legal reasons. According to AviationPros.com avoid stopping at “international airports” as much as possible – if not for the added cost of landing fees, but the added chances of a search.
Our rights as American citizens are very important to us. Countless lives have been sacrificed protecting those rights. We should not give them up so easily. Yes, there are enemies who wish us harm, but if we start giving up our liberties for the blissful stupor of security we will have done more damage to this country than any single terrorist attack and that truly diminishes America – the beacon of freedom the rest of the world yearns to follow.
Pilots are citizens. Unless law enforcement has probable cause to suspect them, pilots should demand their rights as Americans and as Pilots. We should be able to fly about freely in our own country.
Just as this piece was being written, U.S. Customs and Border Patrol informed the Aircraft Owners and Pilot’s Association that they are backing away from making the kinds of unwarranted GA stops we have been discussing here. They say they will take a different approach to stops which they say have been largely drug-related. We hope so and certainly hope that this new approach will be more in line with Constitutional rights. Kudos to AOPA President Mark Baker for going right to the source of these stops and demanding immediate action.