ACLU Sues DHS Over Unlawful TSA Searches And Detention (STL $4,700 Incident)

[Bart]

*****

[n4zhg]

Originally Posted by Ari

It isn't really going to matter too much which judge catches the case-- it will end up in the Court of Appeals for the District of Colombia Circuit . While they can be quite deferential to the government, they tend to be very serious about the 4th amendment. For fun, look up the case of USA v. Paul Askew in which an en banc court tossed out a search that most courts would allow. They weren't having any of the "officer safety" excuses-- they saw it for what it was: a search for evidence. I'd hope they do the same with Bierfeldt and find that fishing expeditions are not acceptable at airport checkpoints.

Do you have a link to the en banc decision? All I can find is the original appellate decision. Thanks.

[PTravel]

Originally Posted by Bart

Wow. This advice from a lawyer?

That's right.

Well, if the STSO is attempting to resolve a security-related matter, and the passenger refuses to cooperate, then the STSO cannot clear the individual beyond the checkpoint.

That's a lot better than an STSO referring a matter to a LEO. Exactly what questions could a passenger answer that would resolve a security-related matter? Your only mission is to ensure that ID matches the boarding pass and there are no explosives, guns or knives in the possession of the passenger. What possible questions could you have that would require answering?

At this point, the LEO must be notified to ensure the individual is escorted out of the checkpoint and back into the public area.

I don't care what your policy is. I won't answer any TSO questions, and if that means he won't let me in the sterile area, I'll ask for the GSC and let them sort it out. Under no circumstances would I ever make statements, even exculpatory, to either a TSO, an STSO or a LEO and I advise all of my clients to do the same.

Hmmm. Interesting. I think many judges would disagree with you.

No, they don't disagree with me. They agree completely with me:

[quote]The case law dealing with airport checkpoint
searches teaches that a checkpoint search tainted by
“general law enforcement objectives” such as uncovering
contraband evidencing general criminal activity
is improper. See, e.g., United States v. $124,570 U.S.
Currency, 873 F.2d 1240, 1244 (9th Cir.1989);
Marquez, 410 F.3d at 617 (approving airport screening
search where “nothing in the record indicat[ed]
that [the searching agent] was looking for drugs or
criminal evidence”); Pulido-Baquerizo, 800 F.2d at
902 (holding that the visual inspection and hand
search of a passenger's luggage was constitutional
where it was “used for the purpose of detecting
weapons or explosives and not in order to uncover
other types of contraband”); United States v.
Epperson, 454 F.2d 769, 771 (4th Cir.1972) (holding
that searches “for the sole purpose of discovering
weapons and preventing air piracy and not for the
purpose of discovering weapons and pre-criminal
events” was constitutionally permissible). That conclusion
is further supported by the Supreme Court's
repeated instruction that administrative searches may
not be justified by a desire to detect “evidence of
ordinary criminal wrongdoing.” City of Indianapolis
v. Edmond, 531 U.S. 32, 37-42 (2000) (collecting
cases). Therefore, to the extent that airport administrative
searches are used for purposes other than
screening luggage and passengers for weapons or
explosives, they fall outside the rationale by which
they have been approved as an exception to the warrant
requirement, and the evidence obtained during
such a search should be excluded. $124,570 U.S.
Currency, 873 F.2d at 1243.
. . .

The Court merely holds that where, as here, the evidence
demonstrates that the intrusiveness of a passenger's
search was ramped-up based on a desire to detect
evidence of ordinary criminal wrongdoing, after the
presence of weapons and explosives had been ruled
out, the search can no longer be justified under the
administrative search doctrine and suppression is
appropriate.FN5 $124,570 U.S. Currency, 873 F.2d at
1247.[emphasis added]

U.S. v. Fofana, 2009 WL 1529815 (S.D.OH 2009_

I'm surprised you haven't heard about this case.

I think you're allowing your emotions to cloud your response.

No, Bart. I'm merely reciting the law.

Very unusual since you normally respond with much more clarity.

If you don't think I was clear, do you think the judge in Fofana was?

But I guess you're human like the rest of us, so I'll just have to live with the little nick on the pedestal I put you on.

Sorry, but you're embarrassing yourself, Bart. Once TSA has ascertained that a passenger is not carrying guns, knives or explosives, the administrative search is [u]over[/o]. That's the law.

All I'll say is this: if the police officer is able to legally detain the individual, then the police officer will do so. If not, then the police officer won't.

Obviously. Police officers have the power to detain and arrest. And if the police officer is called over after a passenger has been cleared of possession of guns, knives or explosives based on contraband-related additional searching (or "suspicions") by the TSO, the arrest and/or detention is unconstitutional, i.e. illegal. Seriously, TSA hasn't briefed you on this yet? Fofana was decided a couple of weeks ago.

Hopefully, the people who read this will think things through if ever put in a situation like this and not resort to foolish acts simply because they read it from you or me on FlyerTalk.

I'm sorry, Bart, but I've had to say this many times: your understanding of the law as it applies to TSA procedures is often wrong. No one has to take the advice of either of us. They need only read the opinion of the district court judge that I've cited above.

....by the TSO. Agreed.

Right.

By a police officer? Well, I think a whole bunch of them would disagree with you.

Please read the opinion in Fofana again. If the administrative search is over, the TSO cannot summon a LEO based on "suspicion," only if they have actually uncovered contraband DURING the course of the administrative search AND only while looking for explosives, knives or guns. If a LEO conducts a search based on the TSO's suspicions that arise in any other context, the search is unconstitutional, the arrest illegal, and the evidence so obtained inadmissible.

But this is to be expected. If you, PT, aren't questioning the motives and actions of police officers at every turn, then you wouldn't be much of a lawyer. (That's a compliment!)

I'm not questioning the motivations of anyone, least of all LEOs. I am stating that, per Fofana, TSOs conduct unconstitutional searches and referrals to LEOs. This has nothing whatsoever to do with motivations (the TSO in Fofana wasn't "ill-motivated"), and everything to do with the constitutional limits of the administrative search performed by TSA.

Well, you disappoint me by getting wrapped around the axle over semantics. (Ooops, wait a minute, you are, after all, a lawyer.) I'll explain it this way: while it may be easy to lie to a supervisor or any other official about why a person initiated the search, it's a whole different story when you have to raise your right hand and swear to it. I would think you would be the first to say how a witness stand changes everything, even for someone who has the intention of lying.

I don't agree with that. I prepare my witnesses thoroughly before they testify. From my perspective (and the perspective of any competent lawyer), a trial is nothing more than a play -- the script is laid out before hand, the actors are rehearsed, and there are very, very few surprises. Trial is not like the old Perry Mason television show, where witnesses suddenly breakdown and confess.

Agreed. Just an example of how a question can shake even an honest person.

And that is why no one should ever answer questions by a TSO or LEO. You can only do yourself harm, even though you are completely innocent of any wrong-doing.

Who the hell died and made you god of the internet?

No one. However, the State of California has made me a lawyer which means, unlike you, I'm in a position to give both legal opinions and explanations of what does and does not happen in court.

And why don't you say the same to others who aren't TSA employees yet post all these comments about the hows and whys about TSA?

I say the same all the time on FT, and on the other websites on the internet that I frequent, and have made quite a few enemies as a result (including a particularly unpleasant moderator, but that's another story altogether). Everyone likes to give legal advice. Only lawyers are competent to do so.

By the way, sport, I was the witness on the witness stand who responded to that specific question. The impressions I shared are mine. And I am qualified to do so.

And you should have been properly prepped by the City, District or U.S. Attorney before you got anywhere near the witness stand. If they failed to do so, they were incompetent. However, as you note, you have given your experience based on one time on the witness stand. I have given my experience based on examining hundreds of witnesses.

Never said anything differently. In fact, we're in full agreement here.

And that is exactly why no one should ever answer a TSO's or LEO's questions. I don't think LEOs routinely lie. I do think, however, that they are experienced enough to know how to frame their testimony so that they can present that part of the truth which is necessary to obtain a conviction. There's an excellent set of videos floating around YouTube by a criminal law professor from, I think, Regent Law School (I won't comment about that). I'd recommend that you find them and listen to them. He gives an excellent, cogent explanation, complete with examples, of why someone should never, ever answer questions by a LEO without a lawyer present. The same applies to a TSO or STSO.

Goes back to my previous point: if a TSO lies about the circumstances that prompted a search, it is likely that the truth will come out on the witness stand either through contradictory testimony, admission or other methods that will either cast doubt on the credibility of the witness or establish that the witness has lied.

If the defendant has competent counsel, yes. If not, no. Do you think someone even wants to get to the point where they have to retain counsel to defend them in a criminal proceeding? The odds are, if they keep their mouth shut, the worst that will happen is that a TSO won't let them through to airside and they'll have to go to another checkpoint at some other part of the airport and clear there. As soon as a TSO says, "what's this in this baggie?", it's time to clam up and say nothing.

Either way, my point is that a TSO risks a lot by trying to commit perjury on the witness stand.

I doubt TSOs think far enough ahead to consider giving testimony under oath. At least, based on my personal experience, some TSOs have no qualms about lying to their supervisors if they think it will save their behinds. Most pax aren't lawyers and most pax don't know the law, much less the constitutional limits on a TSO's authority. From what I've personally observed, many TSOs are either ignorant themselves, or bank on the ignorance of passengers, and routinely violate SOP and/or the law by exceeding their legal authority.

I never said witnesses never lie. I said that if they do and get caught, then they'll end up in a world of hurt, especially if that witness is a federal employee.

See above. By the time they're on the witness stand, they're in a world of hurt regardless of what they do. If they tell the truth, they'll be fired and worse -- they may be liable for filing a false police report, and may incur both civil and criminal liability. Given the education of the average TSO, do you seriously think they wouldn't lie at that point in the hope of covering their behinds?

Regardless, that is irrelevant to my point: Never, ever, ever answer questions by a LEO or TSO, except the most innocuous. Never explain yourself. Never excuse anything you've done. If the LEO or TSO is in "investigation mode," keep your mouth shut, except to say, "I want my lawyer present."

[Combat Medic]

Originally Posted by Bart

Well, honey, perhaps it would give you an idea that TSA, in spite of all its imperfections, is in the same fight. You know, junior, it takes a lot of support personnel to make the front line infantryman successful in combat. It appears to me that you failed to learn that lesson.

I don't expect you to embrace TSA. But to post ridiculous little comments about how TSA is attacking the Constitution reveals a lot of ignorance. I expect more than that from you.

This being the Fourth of July, however, I'll end this wishing you the best and thanking you for your service.



----Mary

Its OK that you expect more from me Mary, I expect more from my federal government. I expect a federal government that follows its own rules before it expects me to follow theirs. I expect its employees to understand that their agency's SOP is far below the country's founding documents.

I also fail to understand what impact an organization's logistical tail has to do with this discussion.

Your agency does strip a person of their rights and I don't care about your assertions to the contrary.

You are very welcome.

-Mike

[PTravel]

Originally Posted by Bart

LOL. OK. If you say so.

Yes, Bart. I do say so. Why do you think that is funny?

By the way, I train my officers to resist fighting back. Two wrongs don't make a right.

You train your officers to escalate a physical confrontation that they started? You're not serious.

Here's the codicil to my advice to never, ever answer questions posed by a TSO. If a TSO ever touches you outside of the administrative search, e.g. to detain you, you have been the victim of a battery and are justified in using proportional force to defend yourself. If a TSO trained by Bart continues to commit a battery, lay them out while screaming for a LEO at the top of your lungs.

Here's the law, Bart: TSOs are not privileged to touch anyone outside of the administrative search. They may not grab anyone, they may not physically restrain anyone -- ANY offensive and unpermitted contact is a battery. If you think otherwise, you had better consult TSA's legal counsel real quick because you and your TSOs stand a very good chance of finding yourselves locked up on criminal assault charges AND with a broken nose to boot.

I tell them to protect themselves by stepping away or fending off physical strikes. I tell them that Kung-fuing a passenger is not self-defense.

We're talking apples and oranges. TSOs can defend themselves if they, themselves, are the victim of a battery. However, if they commit a battery, their victim is privileged to defend himself with proportional physical force.

You have to keep in mind that a significant number of people I train are former police officers, prison guards, military police, Army RANGERS, Special Forces, Navy SEALs or just plain ol' martial arts experts. No need to complicate the matter further even when self-defense force is legally justified.

I don't care what they were. If they commit a battery, they're going to jail and anyone who is their victim is absolutely justified, legally, morally and ethically, in defending him or herself.

Seems to me, PT, that you just want to be contrary. I'm used to that by now, I guess. Again, I hope people think things through before resorting to physically attacking a TSO.

Bart, I explain the law and, usually, in the context of correcting you. You stated that anyone who uses physical force in response to an attempt at physical detention by a TSO would be violating the law and should, instead, call for a supervisor. Wrong on both counts. It is not against the law to defend oneself against a battery committed by a TSO, and it is ridiculous to call for anyone other than a LEO if one takes place.

Good thing is that a lot of what's posted here is just plain ol' hot air, eh, snake?

Well, there is indeed a lot of hot air. And there are also solid explanations of the law by an attorney.

[Bart]

*****

[polonius]

Originally Posted by halls120

This question reminds me of something one of my professors told us in law school. She said that if every person audited by the IRS demanded to exercise their right to have their case heard in Court, the system would grind to a halt. She said IRS counts on people settling before it gets to a court stage, and would be paralyzed if they had to litigate every case.

I wonder what would happen if travelers all started carrying a small baggie of baby powder in their carry on luggage. Can you imagine what would happen at the security checkpoint?

This is my personal frustration. As I've noted before, I've made about six trips by air to the USA since the TSA was implemented, and have managed to jangle their chain to the point where they brought in LEOs and threatened me with arrest every single time (although, not every single flight, some of these U.S. visits were to 5, 6 or more cities). They can do nothing about it, even though they continuously threaten to. I follow up with formal complaints, and then when they try to ignore the formal complaints I get my congressperson's office involved. Some day, one of them will cross a line, and then I will sue.

If just 10% of the travelling public would do the same thing, the whole system would grind to a screeching halt, and they would be forced to change. But although many people gripe and complain about the TSA, when they get to the airport they invariably decide to bear their anger and frustration in silence, and as a result, the system continues to creak along, and the TSA is able to maintain the pretence that its policies are legitimate.

[pmocek]

Originally Posted by Bart

1. Body language, confidence, consistency, logic and microexpressions.
2. No.

re: #1: You didn't answer my question. Did you mean to say that the person's word is not useful, but his body language (including small facial expressions), his display of confidence, the consistency and logic of his responses are useful? If so, of what use are they in performing your job of determining whether or not he is carrying weapons, explosives, or incendiaries?

re: #2: If you're not going to vary the thoroughness of your examination of the substance based on the person's responses, then what use are they to you? In other words, if you are able to determine whether or not the substance is a weapon, explosive, or incendiary without questioning the person about his property, and you are not going to reduce the need for you to examine the substance by questioning the person, then why would you question him?

Earlier, you wrote:

If the passenger acted nervous, or evaded answering any questions, then, like it or not, you have an unresolved security issue.

I don't understand how someone's words and actions can affect whether or not his suspicious-to-you substance is "an unresolved security issue". It seems that you're saying that a certain level of cooperation with your interrogation would, like it or not, result in you having a resolved security issue.

Your statement suggests to me that your opinion of whether or not the substance is a weapon, explosive, or incendiary will vary based on the words and actions of the owner of that substance. Is this the case? If so, then it would be wise for anyone who wishes to carry a white powdered explosive past you and onto an airplane to act confident and answer your questions. Do you feel that you are improving air travel security by allowing people with suspicious substances to slip through with a less-thorough search if they confidently comply with your questioning?

[PTravel]

Originally Posted by Bart

You've decided to take this to the extreme. I'll let you play alone.

There are times when you're pretty rationale. Today isn't one of them.

I'm sorry that, rather than discuss this substantively, you'd prefer to turn ostrich. I've taken nothing to an extreme. I've explained the law, and nothing more. You don't seem to disagree with my explanation, nor have you explained why you think a TSO who violates the law should be reported to his supervisor, rather than a law enforcement officer.

[halls120]

[quote=PTravel;12014185]
No, they don't disagree with me. They agree completely with me:

The case law dealing with airport checkpoint
searches teaches that a checkpoint search tainted by
“general law enforcement objectives” such as uncovering
contraband evidencing general criminal activity
is improper. See, e.g., United States v. $124,570 U.S.
Currency, 873 F.2d 1240, 1244 (9th Cir.1989);
Marquez, 410 F.3d at 617 (approving airport screening
search where “nothing in the record indicat[ed]
that [the searching agent] was looking for drugs or
criminal evidence”); Pulido-Baquerizo, 800 F.2d at
902 (holding that the visual inspection and hand
search of a passenger's luggage was constitutional
where it was “used for the purpose of detecting
weapons or explosives and not in order to uncover
other types of contraband”); United States v.
Epperson, 454 F.2d 769, 771 (4th Cir.1972) (holding
that searches “for the sole purpose of discovering
weapons and preventing air piracy and not for the
purpose of discovering weapons and pre-criminal
events” was constitutionally permissible). That conclusion
is further supported by the Supreme Court's
repeated instruction that administrative searches may
not be justified by a desire to detect “evidence of
ordinary criminal wrongdoing.” City of Indianapolis
v. Edmond, 531 U.S. 32, 37-42 (2000) (collecting
cases). Therefore, to the extent that airport administrative
searches are used for purposes other than
screening luggage and passengers for weapons or
explosives, they fall outside the rationale by which
they have been approved as an exception to the warrant
requirement, and the evidence obtained during
such a search should be excluded. $124,570 U.S.
Currency, 873 F.2d at 1243.
. . .

The Court merely holds that where, as here, the evidence
demonstrates that the intrusiveness of a passenger's
search was ramped-up based on a desire to detect
evidence of ordinary criminal wrongdoing, after the
presence of weapons and explosives had been ruled
out, the search can no longer be justified under the
administrative search doctrine and suppression is
appropriate.FN5 $124,570 U.S. Currency, 873 F.2d at
1247.[emphasis added]

U.S. v. Fofana, 2009 WL 1529815 (S.D.OH 2009)

I'm surprised you haven't heard about this case.

Bart has trouble confronting facts that aren't in his favor. In the above cases, the judges very clearly point out the limits of a lawful administrative search.

Originally Posted by PTravel

I'm sorry, Bart, but I've had to say this many times: your understanding of the law as it applies to TSA procedures is often wrong. No one has to take the advice of either of us. They need only read the opinion of the district court judge that I've cited above.

"often" wrong? You are being quite kind to our good friend Bart.

Originally Posted by PTravel

And that is why no one should ever answer questions by a TSO or LEO. You can only do yourself harm, even though you are completely innocent of any wrong-doing......I say the same all the time on FT, and on the other websites on the internet that I frequent, and have made quite a few enemies as a result (including a particularly unpleasant moderator, but that's another story altogether). Everyone likes to give legal advice. Only lawyers are competent to do so.

Originally Posted by PTravel

And that is exactly why no one should ever answer a TSO's or LEO's questions. I don't think LEOs routinely lie. I do think, however, that they are experienced enough to know how to frame their testimony so that they can present that part of the truth which is necessary to obtain a conviction. There's an excellent set of videos floating around YouTube by a criminal law professor from, I think, Regent Law School (I won't comment about that). I'd recommend that you find them and listen to them. He gives an excellent, cogent explanation, complete with examples, of why someone should never, ever answer questions by a LEO without a lawyer present. The same applies to a TSO or STSO.......As soon as a TSO says, "what's this in this baggie?", it's time to clam up and say nothing.

Excellent, excellent advice. And I'm a prosecutor. Every time you, as a potential defendant, respond to a question from someone in authority, you are giving the potential prosecutor ammunition to use against you.

Originally Posted by PTravel

Regardless, that is irrelevant to my point: Never, ever, ever answer questions by a LEO or TSO, except the most innocuous. Never explain yourself. Never excuse anything you've done. If the LEO or TSO is in "investigation mode," keep your mouth shut, except to say, "I want my lawyer present."

Again, excellent advice.

Originally Posted by PTravel

I'm sorry that, rather than discuss this substantively, you'd prefer to turn ostrich. I've taken nothing to an extreme. I've explained the law, and nothing more. You don't seem to disagree with my explanation, nor have you explained why you think a TSO who violates the law should be reported to his supervisor, rather than a law enforcement officer.

What Bart did - accuse you of being irrational - is laughable in the extreme. Your responses to him were extremely rational, logical and fairly unemotional. Having no substantive comeback to your points, he runs and hides after a weak attack on you. How sad.

[Tom M.]

To the lawyers that post here. I'm not a lawyer so I'm looking for some information and education.

Could you please explain the current practical effect of the Fonfana ruling?

Is it "settled" law now in that Federal District? or is it still up in the air pending outcome of the appeal?

Is the Bierfeldt case in the same Federal district? Can the Fofana ruling be used as precedent if desired?

[halls120]

Originally Posted by Tom M.

To the lawyers that post here. I'm not a lawyer so I'm looking for some information and education.

Could you please explain the current practical effect of the Fonfana ruling?

Is it "settled" law now in that Federal District? or is it still up in the air pending outcome of the appeal?

Is the Bierfeldt case in the same Federal district? Can the Fofana ruling be used as precedent if desired?

Judge Posner in the Seventh Circuit says it best.

But as we have noted repeatedly, a district court decision does not have stare decisis effect; it is not a precedent. It may be a wise, well-reasoned decision that persuades by the quality of its reasoning, but in that respect it is no different from a persuasive article or treatise. The fact of such a decision is not a reason for following it. This conclusion is based not on a disrespect for district judges, but on the sheer unmanageability of a system in which the authority to lay down legal rules is dispersed across a multitude of independent courts.

Midlock v. Apple Vacations West, Inc., 406 F.3d 453, 458 (7th Cir. 2005) (internal citations omitted).

If Fofana is appealed, and the government loses, the holding in that case will be binding only in the Circuit which decided it.

[n4zhg]

Originally Posted by halls120

If Fofana is appealed, and the government loses, the holding in that case will be binding only in the Circuit which decided it.

And SCOTUS is unlikely to hear it unless there are conflicting decisions in two or more circuits. I'm not saying it doesn't happen, but Vegas would be posting long odds (and yes, you can bet on such things in Vegas).

[Tom M.]

Thanks Halls

I think I may understand that!

Is Bierfeldt being contested in the same Circuit?

[PTravel]

Originally Posted by Tom M.

To the lawyers that post here. I'm not a lawyer so I'm looking for some information and education.

Could you please explain the current practical effect of the Fonfana ruling?

Is it "settled" law now in that Federal District? or is it still up in the air pending outcome of the appeal?

District court rulings are not precedent, even in the districts in which they were rendered. Presumably, another judge could come up with a contrary ruling and it will be up to a court of appeals to resolve the split. Once it does, that is the law for the circuit in which the particular court of appeals sits. Other circuits can have conflicting rulings, and the conflict can be resolved only by the Supreme Court.

District court rulings, however, are persuasive, and may be cited in any other court in the U.S. Moreover, the ruling in Fofana does not represent a departure from the administrative search cases -- on the contrary, it is completely in line with them. All Fofana did was apply the existing law to a new and specific set of facts. It is conceivable that another district court judge might choose to reject it, but it is unlikely as Fofana was decided on the basis of a consistent line of cases.