Agreed. The purpose of the search cannot be for cash or drugs. However, if other suspicious items are found, TSA is obligated to report it to the LEO. If the LEO has an investigative interest, the LEO takes over.
The problem with the excess of $10k cash is that it only applies to international flights and only if the owner has no intention of declaring that amount. IIRC, the owner must make the declaration at the point of debarkation in the destination country, but I could be mistaken.
It's a gray area that tends to get a lot of TSA officers confused.
I'm all for clarification, to include deleting this portion from the SOP and leaving it as a general guideline to refer matters that do not fall under TSA administrative search procedures to the LEO. Makes life a lot easier.
The problem lies in the TSA teaching, encouraging or demanding that TSOs "keep their eyes open" for anything that is not related to airport/airline safety.
If a TSO sees something that they PERSONALLY feel is suspicious, THEN they are allowed to call in a LEO and be safe under the administrative search "exception".
If the TSO sees something that the TSA deems suspicious but that item is not related to airport/airline safety and they involve a LEO, they are no longer safe under the administrative search "exception".
[quote=Bart;12008234]The problem with the excess of $10k cash is that it only applies to international flights and only if the owner has no intention of declaring that amount. IIRC, the owner must make the declaration at the point of debarkation in the destination country, but I could be mistaken.
It's a gray area that tends to get a lot of TSA officers confused.[/QUOTE]
Do you not see the the reason for the negative public perception of your agency? TSA claims a few hours of training and Instant Psychology PhD aka BDOs are created. TSOs come with Calibrated Chemical Analysis Eyeballs that can tell the difference between cannibis and catnip in an instant.
But; The whole cash rule: "Unlimited dollars domestic, unlimited dollars international declared*, under $10,000 international undeclared*."
That's it, eleven words. Yet your own "lot of TSA officers confused" show by your own admission that a large part of TSA's 44,000 TSOs cannot be trained on those eleven words. I bet there are far more words on "Proper display of the LEO Impersonation Tinfoil Badge on the Blue Shirt" that they must memorize or face demerits, yet you claim the Grade A hires cannot learn the eleven words of the currency rules. Sad. Pathetic. And paid for with my tax dollars and Remember 9/11™ fee.
*(note: declared to CBP, not TSA, and often at a point in the airport past the TSA checkpoint. So even if the international pax with $20K truthfully answers "no" if you invasively ask "have you filled out a declaration form?", no crime has been committed YET and in all likelyhood the pax plans to stop by the CBP office between the checkpoint and the gate. No crime unless he steps into the jetway with his undeclared cash.)
__________________
J. Edgar Hoover. Pg. 203 A Study of Communism: "Travel: Internal passports are required for identification and travel."
If you're referring to the TSA training program, you're dead wrong. If you're talking about what TSOs pick up on the floor, then you have a valid point.
But I am right, as you admit below.
Quote:
Originally Posted by Bart
Actually, the TSO notifies the supervisor. The STSO determines whether or not this should be referred to the LEOs. The STSO has a better understanding than the TSO whether or not the LEO will have any interest in the matter based on shift briefings, TSA management directives, the SOP, past dealings with LEOs and other similar information.
Even though I understand involving a supervisor instead of directly contacting a LEO, this move COULD taint the referral because it is no longer the TSO's personal feeling of suspicion.
The STSO is a person of authority at the TSA and as such should have knowledge not available to a "lowly" TSO. If the TSO is unsure if an item is suspicious and seeks the STSOs opinion on the item, and the STSO is the determining factor on the LEO referral the search may be tainted.
Example: A TSO finds an object that the TSO knows is not a WEI but they are unsure what it is, so they involve a STSO and the STSO recognizes it to be possible drug paraphernalia and based on the STSO's experience,training or suspicion refer it to the LEO, the search is tainted.
Quote:
Originally Posted by Bart
The way I train officers is like this: if you're searching for a pocket knife that was detected on the x-ray machine and discover a plastic baggie containing a green leafy substance, you advise the passenger about the pocket knife being prohibited and options for disposal, and then you notify the supervisor to determine what to do about the green leafy substance. However, if you're on the x-ray and see what appears to be a bong and nothing else that would otherwise be a prohibited item, then you must clear that bag.
If you are telling your officers what is suspicious (green leafy substance) and it is NOT related to airline/airport safety, you have tainted EVERY search that officer makes in the future.
If the TSA encourages (Eagle Eye award, bonuses, rewards) the finding of non airline/aircraft safety related items, the searches are tainted.
Quote:
Originally Posted by Bart
Again, the only time a TSO is at risk for no longer being "safe under the administrative search exception," as you put it, is when the TSO knows that there isn't a prohibited item in the bag but conducts the search either on behalf of an LEO or because the TSO is specifically looking for drugs, excessive cash, etc.
The TSO is the Fofana case admitted that she was required to look for non safety related contraband by policy.
Quote:
THE COURT: Do you have a protocol, a written protocol, that directs you or requires you to check for contraband? Let me be more precise: contraband that you do not believe either to be a weapon or explosive device?
*7 THE WITNESS: You're asking if we have a written-
THE COURT: Yes.
THE WITNESS: In our SOP, as I stated, there are
procedures. There are things we look for that are
suspicious that are contraband.
Was she lying, badly trained, or just flat out mistaken?
Has there been a recent change in the SOP that would eliminate those requirements?
I have a very basic question about all of this. If I'm walking down the street, and someone sees that I have something that might be illegal, they are perfectly free to summon a LEO to investigate. However, do they actually have any right to detain me pending the arrival of said LEO, or am I free to walk away?
If I'm free to walk away, than what right does the TSA have to detain me if they've already cleared me of having any prohibited items? Can't I just walk away at that point?
I would just walk away TSA never has nor ever will be LE and has no rights to detain someone. TSO detains me or touches me then a LEO would be needed cause that TSO would be going to jail for unlawful inprisionment and/or assault/battery (depending on the states statues) and i will defend myself accordingly.
I think the TSO believed she was following proper procedure, and I think it can be successfully argued that she was indeed following proper procedure. However, I think the procedure itself may be unclear. I think her testimony demonstrates this point.
I think that the way in which she applied the SOP in this case was unconstitutional. The judge agreed-- or I agree with the judge would be the better way to put it. The question is to find out if the TSA SOP is either (1) unconstitutional in and of itself or (2) so vague that it is bound to result in unconstitutional actions.
I think the courts need to come down and say that a search is unconstitutional once a TSO stops looking for WEI and starts looking for anything else.
While we are discussing this, understand I am not laying blame on you or the screeners that are trained poorly. The TSO in the Ron Paul dude's case was an [insert dirty word here] and I think there is no argument on that. His [insert dirty word here] behavior is all his own doing and he is solely to blame for it. (unless that behavior was encouraged or allowed)
Quote:
Originally Posted by Bart
Nope. If you're referring to the Basic Screener Training Course, the curriculum is pretty rigid. Instructors must stick to the curriculum and cannot deviate from it. Quality Assurance inspectors randomly sit in on these courses to make sure nobody strays from the curriculum. And the reason is quite simple: whenever someone flunks out, the first thing that is looked at is how the course was administered. Sorry, but this is one aspect that is very tightly supervised and controlled.
The saving grace to the administrative search "exception" is the fact you are not looking for things outside the NARROW scope of the stated intention of the search.
If you tell your officers that a green leafy substance is automatically suspect, (by statement or inference) you have tainted the search. There are hundreds if not thousands of green leafy substances that may be in a bag that are not prohibited by law or airline policy. You have in fact trained your officers to look for things outside the scope of the administrative search for WEI.
Quote:
Originally Posted by Bart
If that's your opinion, I'll note it and respect it as such. However, I don't know of any court decisions that ruled according to your logic. What makes this particular case different is that the amount was less than $10k, it did not involve an international flight, and the searching TSO admits that she was focused on the cash amount rather than looking for a prohibited item.
The item has to rise above curiosity of the TSO to suspicion by the TSO. By knowing what the object is not (WEI) and not having a strong, justifiable suspicion that the item is illegal, the TSO has no right involving a LEO or involving a STSO that may in turn involve a LEO. (The TSO is involving a LEO by proxy.)
Quote:
Originally Posted by Bart
Interesting. Again, I teach the TSA curriculum which has already been vetted by TSA headquarters. No court cases have ruled according to your rationale.
There in lies the problem. The fox has designed and approved the construction of the hen house. The TSA HQ is NOT trying to protect the PAX (in the Constitutional and legal sense) they are trying to protect the TSA (in the budget and growth sense)
It is of no advantage to the TSA HQ to tighten the SOP or training to be sure there is no Constitutional consequence. It is better strategically for the TSA HQ to allow as much as possible until the court tightens them up.
How many illegal searches were preformed before the Fofana case that were never brought to light because the PAX did not have an illegal item or if they did have an illegal item the defense cost would outweigh the penalty cost?
If simple possession of pot gets you a $1000 fine, it would be cheaper to pay that fine than fight it.
Summary of above, vetting by TSA HQ or TSA legal team does not add to the validity of your argument.
Quote:
Originally Posted by Bart
I do not believe she took matters into her own hands. I do not believe she was lying. I do not believe that she was badly trained.
As I've consistently posted throughout this thread, even though I believe I have a crystal clear understanding of the SOP provision, I also know that others may not. I think the TSO believed she was following proper procedure, and I think it can be successfully argued that she was indeed following proper procedure. However, I think the procedure itself may be unclear. I think her testimony demonstrates this point.
If the TSO misinterprets the SOP, she was poorly trained. You know as a trainer that your job is to make your trainee understand EXACTLY the procedure (job) you are training them on. Unclear SOP is no excuse if the TSO is properly trained.
I will make the assumption based on your posts that you understand and convey to your trainees the exact procedure. Unfortunately you do not train every employee.
I think her testimony demonstrates that she was doing her job as she was trained. I do not believe she had nefarious intent.
This falls completely on the TSA HQ and policy creators.
I have a very basic question about all of this. If I'm walking down the street, and someone sees that I have something that might be illegal, they are perfectly free to summon a LEO to investigate. However, do they actually have any right to detain me pending the arrival of said LEO, or am I free to walk away?
If I'm free to walk away, than what right does the TSA have to detain me if they've already cleared me of having any prohibited items? Can't I just walk away at that point?
These are separate issues because that TSO is acting at the behest of the Government.
If I see you walking down the street an you have something that may be illegal I can detain you while I summon a LEO. BUT to do so I must follow the "citizen's arrest" law of the state I am in. I am personally exposed to any liability that stems from my actions.
In short, yes it is legal unless I break the law while doing it. Smartest thing is to just call a LEO and follow if possible unless the crime is so heinous it would be unconscionable not to detain.
As for the TSA, no they can not detain BUT you can't leave until you are dismissed from the screening area.
If a BDO or any other TSA non LEO employee accost you in a non screening area and attempts to detain you are well in you right to use any legal means including force in order to escape.
I think that the way in which she applied the SOP in this case was unconstitutional. The judge agreed-- or I agree with the judge would be the better way to put it. The question is to find out if the TSA SOP is either (1) unconstitutional in and of itself or (2) so vague that it is bound to result in unconstitutional actions.
I think the courts need to come down and say that a search is unconstitutional once a TSO stops looking for WEI and starts looking for anything else.
The courts have ultimately decided in every administrative search case that once the actor starts looking for something outside the narrow scope of the administrative search the search becomes illegal. The only argument outside of that is if the evidence found by that illegal search will be permitted to be entered in as evidence at trial.
The SOP is done in a piece mill fashion to avoid the whole thing being struck down as unconstitutional but rather the individual parts can be struck down without effecting the other parts.
I have a very basic question about all of this. If I'm walking down the street, and someone sees that I have something that might be illegal, they are perfectly free to summon a LEO to investigate. However, do they actually have any right to detain me pending the arrival of said LEO, or am I free to walk away?
If I'm free to walk away, than what right does the TSA have to detain me if they've already cleared me of having any prohibited items? Can't I just walk away at that point?
The TSA has the authority to deny you entry into the sterile areas of the airport. That being said, I suppose you could walk away in a direction that would not take you into the sterile area if you like. We are not going to restrain you in any way, that is something that we are taught in the basic screeners course. We may “block” your path if you attempt to enter the sterile area, but that is all.
Now, the other side of that coin is if you fail or refuse to complete screening once you have started it the TSA has the right to request intervention by a law enforcement officer. Failing or refusing to complete screening is pretty much like stamping “I’m a suspicious character” on your forehead, which of course is going to have all kinds of interesting consequences.
The courts have ultimately decided in every administrative search case that once the actor starts looking for something outside the narrow scope of the administrative search the search becomes illegal. The only argument outside of that is if the evidence found by that illegal search will be permitted to be entered in as evidence at trial.
The SOP is done in a piece mill fashion to avoid the whole thing being struck down as unconstitutional but rather the individual parts can be struck down without effecting the other parts.
The courts have also upheld that if a TSO/LEO finds an illegal item or substance incidental to the search for a specific item then it is allowed as evidence in any criminal court proceedings.
IOW, if I am searching for your tiny little Swiss Army knife in your bag and I find your stash of weed, it is a legal search in every possible way. Off to jail you go (depending on the laws of the state of course).
For those of you who have not checked out TK’s screeners forum, this is an area that might make you want to do so. Its an ongoing topic there with some very interesting views and opinions. I highly recommend that you take the time to look over his efforts.
