Programs: DL PM, UA 1P, HH Dia, SPG Gold, MR Sil, Hertz PC
Posts: 1,145
Quote:
Originally Posted by TSORon
Answering a question with a question is evasion, and can be considered to be refusal to answer, if one chooses to think of it that way. Given that, yes I’d say he was looking to make a problem, looking for trouble.
TSOs, such as yourself, are acting under the color of government authority. I am unaware of any law which states that I am required to answer ANY question posed by any member of the TSA. My refusal to answer cannot even be used as justification for Reasonable Suspicion or Probable Cause in a law enforcement investigation, and your position is light-years below LEO authority.
In this particular case, as has been addressed on multiple occasions, monetary instruments are NOT weapons and are, in the opinion of many on this forum and elsewhere, outside of the purview of the TSA. Asking a single question about money places the TSA in a bad position, as that steps BEYOND the regulated activities permitted by the TSA per the CFR and, quite likely, pushes the TSA Administrative Search into the criminal search realms, which have significant 4th, 5th and 6th Amendment implications. In light of the Fofana decision, methinks that TSOs should tread VERY LIGHTLY in pursuing any investigation or questioning not directly related to aviation security.
__________________
Proud member of Uncle Sam's Misguided Children - 1990-1995.
A male TSO asking a female passenger at the checkpoint, "Hey baby, you're hot, how about you going to bed with me?" is not harassment?
Quote:
Originally Posted by TSORon
Answering a question with a question is evasion, and can be considered to be refusal to answer, if one chooses to think of it that way. Given that, yes I’d say he was looking to make a problem, looking for trouble.
"What color is your car? I have two cars, which one?" So that conversation is "evasion, and can be considered to be refusal to answer"? I didn't realize that one is "looking to make a problem, looking for trouble" by asking what their legal rights are.
__________________ We cannot defend freedom abroad by deserting it at home.
Asking a question is not harassment, period. Asking a question "may" be considered to be interrogation, but only if one chooses to think of it as such. Answering a question with a question is evasion, and can be considered to be refusal to answer, if one chooses to think of it that way.
As Bierfeldt asked, where is the statutory authority for your implicit claim that a passenger is required to answer any questions whatsoever? As I read the relevant codes and regulations, a passenger's responsibility is limited to presenting his person and accessible property for inspection. If a passenger chooses to answer any questions that are asked in order to simplify that inspection, he or she may, but I don't see any requirement to do so
Last edited by RichardKenner; Jun 28, 09 at 10:55 am.
Reason: typos
Abandon the 4th and 5th and your 5th and your water bottle, all ye who enter here
Quote:
Originally Posted by TSORon
Answering a question with a question is evasion, and can be considered to be refusal to answer, if one chooses to think of it that way. Given that, yes I’d say he was looking to make a problem, looking for trouble.
I.A.N.A.L., but some good ones reside in TSS who might find holes in this civilian view of the world. From reading, it seems to me that the TSA administrative search is for WEI. Screeners do not allow pax to touch their bags during a bag search, but require them to stand by, which I would interpret as the TSA does not wanting any input from pax during the screening, which would include verbal.
When the TSO, having received no specific training in "contraband identification", spots what they consider the ebil "contraband", they hold the pax's belongings hostage and call LEO.
(I know, they are not pax but pre-pax, however under "DoYaWannaFlyToday?™" and if arrested the person might not be a pax today. "Pax" is just quicker to type than "A person who has presented themselves for the Screening Experience™ at a TSA airport checkpoint, brought to you by the Department of Homeland Security as the front line in the Perpetual War on Terror, Shoes, Water and Toothpaste and Remember 9/11™--It just cost you a $2.50 fee to pay for this Experience" )
The pax is not offerd the option to collect their belongings and exit the airport. The TSA search is supposed to be pass-fail, either the pax may enter the sterile area, or not. Not would be to turn around and take a prohibited item back to the car, or to place it in a checked bag, or mail it home, an option I though all pax were supposed to have for things they do not want to have confiscated "voluntarily surrender", like that 7.1 inch screwdriver, which is not illegal to own or possess in the pre-checkpoint part of the airport, unlike 7.1 grams of meth, but just prohibited past the checkpoint
By holding the bags hostage and not telling pax he may leave, he is being detained. Mendenhall, 446 U.S. 544 (1980) Justice Stewart stated: “We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (I wish Bierfeldt had known to ask "Am I free to leave?" several times throughout his recorded interrogation. That would have nailed this case, IMHO.)
Once LEO is called, I maintain, and hope the Bierfeldt court rules, that from that instant forward a formal police criminal investigation is under way. Thus the normal LEO interaction rules apply.
I gather the first level is stop and identify. Pax is already detained(stopped) by TSO's refusal to release his bags, and the ID and BP have already been shown. I think it would be hard to claim that the pax could "back up" on the legal tree and not show ID to the LEO. (Bierfeldt did provide his info, you hear the radio warrants check in the background, this guy is as clean as they come.) Many of the fine points of stop-and-identify, Terry Stop, and arrests revolve on the suspects need, or requirement, or right of refusal to identify themselves. (Source; My Wiki law degree.) Moot point, ID has already been given and blacklighted and louped by a highly trained TDC, far more complete inspection than a beat cop performs on the ID of a drunk on the sidewalk at 2 AM.
The next level for a street LEO interaction s the Terry Stop rules, or frisk for weapons. Duh, hopefully TSA just did that with an x-ray and WTMD and ETD and WBI, a heck of a lot more thorough search than a hand frisk by a beat cop on the street at 2 AM. Again, in the LEO arrest ladder, we are beyond that. Established beyond a doubt for all involved to know: pax has no weapons, explosives, or incindiaries.
LEO is called and knows he is probably called because the TSO has suspicion of a crime. As soon as the TSO says "I saw something that was not WEI but something you need to check " the LEO has "reasonable suspicion" of a possible criminal activity. (This is the way it works in practice--the 4th Amendment issues of turning an administrative into a criminal seach is a whole nuther issue.) From that instant the pax is not required to say anything, as Miranda kicks in.
"The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says may be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent him or her.
Once LEO arrives, the already detained pax has only two paths: being released or arrested. As a potential arrest looms, the pax has a right to remain silent.
Perhaps TSORon does not consider asking questions to be "interrogation"? Does he want refusal to answer to be "evasion" which leads to "obstruction of a Federal Tinbadged Screening Officer in the performance of his BrownBlue Shirt duties" which leads to "arrest and prosecution" in his mindset?
I await the new "Miranda Rights, the TSA/TSORon Edition™" "You have the right to remain silent, but any refusal to answer our questions WILL be considered evasion and you will be prosecuted for it in a court of law."
__________________
J. Edgar Hoover. Pg. 203 A Study of Communism: "Travel: Internal passports are required for identification and travel."
By holding the bags hostage and not telling pax he may leave, he is being detained. Mendenhall, 446 U.S. 544 (1980) Justice Stewart stated: “We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (I wish Bierfeldt had known to ask "Am I free to leave?" several times throughout his recorded interrogation. That would have nailed this case, IMHO.)
I mentioned the Mendenhall test earlier in the thread, and I think that is the correct test.
From the complaint:
Quote:
18. Once Mr. Bierfeldt’s bags passed through the x-ray machine, a TSA agent carried the laptop bag to a separate table a few feet away and instructed Mr. Bierfeldt to follow. The agent searched Plaintiff’s bag and eventually removed the money box. The agent then stated that he intended to look through the box. Mr. Bierfeldt politely queried the agent about his intentions, including whether the agent was detaining his personal property. Instead of answering Mr. Bierfeldt’s questions, the agent picked up the money box and began walking away from the table. He ordered Mr. Bierfeldt to follow. Based on that order, and because Mr. Bierfeldt did not want the box containing the Campaign’s cash proceeds to be removed from his supervision, he felt compelled to follow the agent. The agent did not seek or obtain Plaintiff’s consent to take custody of the cash box.
19. The agent led Mr. Bierfeldt to a small enclosed room near the screening area. The room was separated from the concourse by a closed door. A second TSA agent was stationed inside the room.
20. At this point, Mr. Bierfeldt understood that he and his belongings were being detained by the TSA. Plaintiff activated a feature of his cellular telephone that functions as an audio recorder. Mr. Bierfeldt had never before made an audio recording of a conversation or an encounter with law enforcement. However, he believed in this instance that he faced the possibility of infringement of his constitutional rights, and he wanted to document any violations.
I'd say he was detained based on objective standards imposed by the Mendenhall test, particularly in light of the new TSA uniforms which are officially designed to "promote esprit de corps within the workforce while instilling trust and confidence in the public." http://www.tsa.gov/press/happenings/tso_uniform.shtm
The TSA website highlighting the features of the new uniform shows how it is made to look more like a police uniform, though that is not the stated purpose. http://www.tsa.gov/evolution/innovation.shtm
This seems to play in favor of detention when one applies the Mendenhall test.
Quote:
23. Shortly thereafter, a police officer entered the room. He was in uniform and carried a firearm, and he identified himself as Officer Shelton. He stood between Mr. Bierfeldt and the door, which was closed. Eventually a second police officer, also displaying a firearm, entered the room.
(emphasis added) Also from the complaint.
Even clearer then. Police officer with gun standing between you and a closed door. Detention. Case closed.
If you are not free to leave or a reasonable person would not feel free to leave you are seized within the context of the 4th amendment.
A court ruled that you can not leave once a screening has started until you are dismissed by the TSO or LEO. (sorry don't have the case off the top of my head)
Because of that ruling we are seized during the screening process, the only question is when does that seizure become unreasonable and thus a violation of the 4th.
Are you prepared to answer how much currency will bring down a plane now?
Why should I CM. The concern is not about bringing an aircraft down but following procedure. You want to take up your argument with Congress, not the TSA or its workers.
Why should I CM. The concern is not about bringing an aircraft down but following procedure. You want to take up your argument with Congress, not the TSA or its workers.
The argument is with the TSA, not Congress. The TSA makes the rules, the Congress made the TSA.
Because of that ruling we are seized during the screening process, the only question is when does that seizure become unreasonable and thus a violation of the 4th.
And Fofana gave the insight as to what HQ thinks: the x-ray might not pick up a potential weapon in between the bills.
__________________
Excuse me stewardess, I speak jive.
TSOs, such as yourself, are acting under the color of government authority. I am unaware of any law which states that I am required to answer ANY question posed by any member of the TSA. My refusal to answer cannot even be used as justification for Reasonable Suspicion or Probable Cause in a law enforcement investigation, and your position is light-years below LEO authority.
Oh gee, that’s nice. (Barracks Lawyers, ya gotta love them)
I don’t believe there is such a law either DD, but then again I don’t believe there is a law that states you have a right to fly on a commercial aircraft either.
Quote:
In this particular case, as has been addressed on multiple occasions, monetary instruments are NOT weapons and are, in the opinion of many on this forum and elsewhere, outside of the purview of the TSA.
Opinion. Hmm, well we all know what is said about them…
Quote:
Asking a single question about money places the TSA in a bad position, as that steps BEYOND the regulated activities permitted by the TSA per the CFR and, quite likely, pushes the TSA Administrative Search into the criminal search realms, which have significant 4th, 5th and 6th Amendment implications.
Also opinion. Interesting how some folks can assume that their opinions are equal to actual facts.
Quote:
In light of the Fofana decision, methinks that TSOs should tread VERY LIGHTLY in pursuing any investigation or questioning not directly related to aviation security.
The Fofana decision is being made a great deal of here, but if one actually reads it they will find that is closes no doors, causes no wide ranging issues, and may very well be overturned on its reciently filed appeal.
In the Fofana documents (http://www.rebelmodel.com/tsa/Fofana.pdf) it is bovious to me that the TSO need only have stated an obvious fact, that she did not know what was in the envelopes, and therefore felt the need to open them. The fact is that she did not “know” what was in them, only that she had a very strong opinion what they contained. THAT will be where the case falls down.
The Fofana decision is being made a great deal of here, but if one actually reads it they will find that is closes no doors, causes no wide ranging issues, and may very well be overturned on its reciently filed appeal.
Interesting how some folks can assume that their opinions are equal to actual facts.
TSORon also said:
"The concern is not about bringing an aircraft down but following procedure. You want to take up your argument with Congress, not the TSA or its workers."
Interesting that you believe Congress sets procedure....
) 
