U.S. Constitution Dead or Alive?

Recently I helped a mechanic-pilot friend repair an older private aircraft. He had purchased it from an owner who had just about abandoned it at a local FBO shop after they had told him how much it would cost to make it airworthy after they inspected it, a common event these days it seems. He spent a week or so working on the aircraft, doing the usual annual work. He got it flyable, flew it around locally to check it out, and after that was satisfied and proceeded en route to the East Coast. The following stories deal with pilots but since many pilots are also mechanics, like myself and my friend, I offer this piece as an alert to all.

His first stop was in Texas at the major airport and he parked at the FBO for servicing. He told me that just after he parked he was immediately set upon by people who said they were U.S. officers and they were inspecting him and his aircraft for contraband. They said they were Department of Homeland Security (DHS) officers and they were soon followed by local sheriffs and other police. The FAA also showed up. Needless to say our pilot was terrified of these very intimidating guys. They said that he somehow fell into the profile trap.

The pilot did not know how he was singled out in this “profile” for an inspection…there were other aircraft coming and going. He had not filed an IFR flight plan so that ruled out a tip-off from ATC. He may have been on flight following, but it is still a mystery. He was subsequently detained overnight at his own expense in a motel because he had neglected to have a copy of his sales document with him. His aircraft was otherwise legal.

He voluntarily permitted a casual look-around search. They expected him to roll over and allow them to take his airplane apart to search. That did not happen. My friend knew his rights and refused to be intimidated. He got safely on his way the next day after he showed the FAA his paperwork pertaining to the sale, which had arrived overnight by fax.

I read another similar story about a guy flying his Bonanza from the West Coast to the East Coast not too long ago. He was similarly questioned when he landed for servicing en route and asked if they could search his aircraft. He refused. These guys also were DHS guys, black SUVs, no markings, common license plate. They were armed when approaching the pilot but did not draw their weapons.

They were also backed up by the sheriff and other local cops who also showed up at the scene.

The third case I ran into was a another similar story from a local pilot who I knew who was en route to Oshkosh. He was on his way in his C182 to a Midwest city and was treated in a similar fashion at a remote small airport where he stopped for fuel. He was also flying East to West, which seems to be a “profile” item for an automatic stop, when other unknown profile items are present. Again these were DHS officers. These people are all new at this game and are obviously learning their trade at general aviation pilots’ expense and inconvenience.

The pilot also pointed out that they are also very uninformed about general aviation flying and the rules we fly by, but he said they fake it and try to appear knowledgeable but turn out to be in error when it comes to the rules. He said further that they are ill-informed about the paperwork and details of private cross country flying. We can only speculate on the number of aircraft en route to Oshkosh that have been investigated this year.

Finally, the most recent story I ran into was written up in a popular publication. It has been traveling around the internet and is another real scary episode for the pilot concerned. Find it on the internet and read it. He also refused to allow DHS officers to search his airplane; they did not have a warrant. Keep in mind that the 4th Amendment to our U.S. Constitution is still black letter law.


The Fourth Amendment

“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 to be seized.”

Some pilot organizations including AOPA, are presently attempting to put a stop to these type of random attempts to investigate and search general aviation aircraft whenever they see fit. I have been informed that these officers, whether they be Homeland Security, DEA, Border Patrol, ICE, FBI, FAA, sheriff department, local police, (did I leave out anybody?) all have a general right to ask for your pilot documents and medical certificate and to see the aircraft registration.

However, when you address them, you should ask whose authority they represent and demand to see their badges and identifications. If possible, you should also ask for names, phone numbers of the agencies, and their immediate supervision. Many recommend that you take pictures with your camera although they may object and attempt to take your camera away. Don’t fight with them, you will lose, just try to make a good record for future use. And by the way, they will not allow you make any phone calls.

Above all keep your cool, be polite, calm, and answer their questions as best you can, when and if they ask if they can search your aircraft simply say no. They know better and should not pursue it any further. They will also ask for your voluntary permission to search and you can obviously say yes or no; under the law they can’t force you. If they have evidence of contraband on your aircraft, they will have already procured a search warrant from the appropriate authority and show it to you.

They may also ask if they can look into your aircraft from outside, and they most likely have done that already without asking you and/or search around it with the aid of dogs. Simply say that you do not consent to any kind of a search visually, or with dogs, or any other detection devices.


Administrative inspections

Keep in mind that administrative inspections, e.g., health departments, housing authorities, Federal Aviation Administration, and similar organizations also have a type of right to inspect. We can usually expect some sort of ramp inspection during our flying career by FAA people but certainly not DHS swat officers. Inspection without a warrant as an adjunct to a regulatory scheme, such as FARs, for the general welfare of the community and not as a means of enforcing the criminal law, is well established.

You should contact one or more of the pilot organizations and through your Congressman, or woman, the various aviation committees and inform them of as much of the details as you can recall. Above all, include the time and place of the incident and who was present.

With enough pressure brought to bear on this rogue organization, that is just learning its trade at your expense, maybe these random inspections will cease, and they can hone their policing skills some other way. We don’t need anymore black-suited swat teams harassing our citizens. Keep in mind that the Homeland Security team has only recently been established by the President and is a growing army of people with extensive equipment to conduct full-scale military actions.

One final important point when you’re flying East to West or West to East, across portions of our wonderful country, or North to South or South to North, close to the U.S. border, try to avoid stopping at any “international” airports. The reason being that no matter how close or far from a border, that airport is considered as a “functional equivalent of a border” and that it is assumed you crossed it. There is practically no way to prevent a search at a border.


Legal searches

We also have to keep in mind that not every search without a warrant is invalid under the Fourth Amendment. Actually, a moving vehicle (aircraft that can be moved quickly) can be searched and in fact seized without a warrant, if, and it’s a big if, there is probable cause for the search.

For example, if a pilot was detected with alcohol on his or her breath (DUI), a limited search incident to a valid arrest for the DUI or any other alleged crime is permissible, but there could be difficulty with the scope of such a search. If the search showed evidence of a crime in “plain sight,” it could also be seized at the time of the arrest and search.

Border crossing inspections and search as mentioned above are all legal with little argument to be made against them; i.e. stay away from international airports for fueling or overnights, unless weather or other problems exist.

The Fourth Amendment created a huge body of law surrounding it; there are many interpretations of the various parts of the 4th Amendment. It keeps armies of lawyers working.

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He is a USAF veteran. Send comments to aerolaw@att.net.