PT, I think we're actually for the most part on the same page here perhaps saying it in a different way... By way of the reference I would again point back to my previous (which it seems you may not have read...?), repeated here in part: I'm pretty sure we are in agreement, I never said TSA screeners are LE or have any sort of authority similar to that of real LE. Moreover, I think you may have elevated discretion a bit higher in the process than it should be. From my experience, from the LEO side, you have to (1) know what your actual charge/authority is, (2) have to understand what the elements of (a given) crime are and (3) then you can exercise discretion. For the most part, you learn "1" and "2" in the academy. "3" comes from understanding "1" and "2" and gets honed over time and with experience and after exposure to and a grasp of the realities of the job (to include dealing with prosecutors and judges). Too often, a rookie comes out of the academy thinking police work is about "guilty" and "not guilty" - black and white - and they have to learn it's more like 10% "black," 10% "white" and 80% "gray" and THAT's where discretion comes into play in LE. I have not suggested TSOs have any sort of room to apply anything like the sort of discretion real LEOs have.

Welllll, I thought we were on the same page (grin)...I think we're at least in agreement that the screener in that scenario has the right to be looking in the bag for the thing (radio) that he wanted to make sure THAT wasn't a threat. So far, so good. Now, getting to the next step then, he sees nothing more than the corner of "a plastic bag" sticking out. You didn't say he sees a bag of "white powder" at that point and, I think that's key. At this point in the search, I'm totally in agreement with you, just the corner of a plastic bag, no, there's no justification to remove that bag. I'm not seeing where "discretion" even comes into play, I agree it doesn't apply to the screener here. I agree that if he does lift the next sweater to see the bag or removes that bag and finds it is coke, I think it would easily be excluded at trial. Now, as a practical matter, that doesn't mean the guy won't be arrested. That doesn't mean the TSA won't brag about the "big catch" on their web site. That does mean he'll be paying for bail and for a lawyer to get to the point where it's excluded, but that's another story, right?

Now change it a bit, as you pointed out later, and say he moves the sweater that had been over the radio and it also uncovers a bag beside the radio and it has a white powder in it. If he has the training and experience to be able to articulate that there was a reason to suspect the bag of white powder was either a threat or was coke and the latter meant that there was a felony being committed in his presence, as a TSA screener or not since he was in a place where he had some authority to be and what he saw was, at that point, in plain view, he arguably has a social responsibility to call the LEO over and one might say, as a citizen, he may have the right to make a citizen's arrest for that felony being committed in his presence. But don't single out that passage without reading on...THAT's where LEOs discourage citizen's arrests because the average citizen (and TSA screener) lack that training and experience. Where LEOs are reluctant to follow up on citizens arrests is in situations where that lack of training and experience lead to justified claims of false arrest.

On this next point, with all due respect, it doesn't seem you understood/read what I wrote:

I didn't say a TSA screener has the authority by virtue of his job to make a seizure of an item or person that's not a threat to aviation or that they may deprive you of your possessions. I never suggested under color of "TSA authority" they have the power to arrest or detain in the same way an LEO would. As citizens they do and I think we're in agreement, that's done at their own peril. I'm totally in agreement with what you said and it is not in conflict with what I wrote. IF they found something and were willing to make the citizen's arrest, yes, they could effect that arrest using whatever means necessary (yes, at their own peril) for the minute or so it would take the real LEO to walk typically the 30-40 feet over to intervene. But the reality is that they can, through continued rifling through your bag, "keep" you there while a cohort walks over, gets the LEO and brings them back and then that LEO may then detain you. Those are realities separate from whether or not whatever they found might or might not later be admissible. Whether or not you choose to resist or walk away are "your choices," staying with your bag is "your choice." The screener tricking you into staying with your bag long enough for the LEO to arrive is a reality which goes back to you posting bail, you hiring the lawyer then getting the things found in the search beyond the scope of the current "authority" or articulated justification excluded.

In this respect, later you mention "assault and battery." From a criminal perspective, assault is a lesser included offense, effectively an element of battery. Speaking from primarily a California criminal law perspective, assault doesn't require contact with the "victim," the elements of the crime are where someone makes gestures or does an act that would cause the reasonable person to believe that they are immediately or imminently threatened. Battery carries that threat from imminent to "it happened, there was contact" and is a specific intent crime where there is physical contact intended to harm someone. Unintentional or incidental contact, even if it causes injury, isn't battery. If I swing at you and miss, it's assault. If I land the punch, that's battery.

Now, say, screener X has me and my bag in "secondary," he's run the magic wand and hankie around it and as he's putting the hankie in the "Magic Bad Thing Detector and Easy Bake Oven," I tell him in a calm, low voice: "know what, I think this search is over and I'm leaving the checkpoint to go back to the ticket counter now to talk to the (airline name) Ground Security Coordinator" then I close the bag slowly and deliberately without making any movement toward the screener above the level of the bag I'm closing. What part off that would lead the reasonable man to conclude he was in any sort of imminent danger? On the other hand, if you raised your voice, slammed your hand(s) or stuff down on the "Locard's Exchange Proof Stainless Steel Search, Poker and Picnic Table" and started waiving your arms around like a mad man, I think we'd all agree - being reasonable people - that's another story.

If it was handled as described in the first case, it wouldn't, of course, get to battery and really, from a criminal perspective, I can't see how they would bee able to justify calling it assault. Which leaves the more vague "interference" violation related to 49 CFR 1540.107 and more specifically 49 CFR 1540.109. (I've read here where "distracting" a TSA screener is "nonphysical interference" and conviction carries a fine and I know there was a thread here about it.)

BUT, in the "explanation in a calm, low tone and close the bag, I'm leaving the checkpoint now" approach outlined above, say we can eliminate assault, and if the screener's duty is to check me and my stuff before allowing admission to the sterile area, and what I told him is that I no longer want to go into the sterile area, I want to go back "outside" to talk to the airline people, is not his job under 1540.107 over and, if so, how can I be "interfering?" The only appellate case I can find on "interference" is Rendon v TSA where the appellate court's test didn't hinge on freedom of speech but rather that the tone and type of speech coupled with actions and things like voice volume which "caused" the screener to shut down his screening position and call a supervisor and that it reached a point where other people were distracted by Rendon's outburst. Again, NOT what I was suggesting above which would, instead, seem to be promoting the screener's job function by freeing up both the "Locard's Exchange Proof" table and the screener for other, er, important tasks.

So, since there is no objective, published definition of "interference" (what do you bet it's "SSI"), I suppose we're left with the Rendon case description or TSA blog reference. There have clearly been people subjected to the fines by the Administrative Law Judges and the "TSA Decision Makers" (yikes, that's what they're called in the Rendon decision) but details seem to be hard to come by...

The, again, we're in agreement, I think, if handled right, you close your bag and leave the checkpoint, moving away from the sterile area and they have no authority to stop you and no authority to hold your bag. They have no "authority" at that point apart from perhaps letting the nearest LEO know what happened and then, again we agree, that LEO can use discretion and make the call, THEN the LEO has discretion to leave his post at the checkpoint and go conduct your field interview.

Perhaps it's more like "arguably illegal detention" in the practical sense. At the end of the day, he's going to write in his report that he was in the process of gathering some of your belongings and waiting for you to gather the rest of your belongings to begin examining your shoes..." perhaps we're parsing practical as opposed to conceptual...?


We're in agreement and again we're back to the notion of reasonable suspicion to get the LEO to the point where he'd be in a place to see the syringes in plain view. But, if the screener knew the TSA policy that reads you may carry on an "unlimited number of unused syringes when accompanied by insulin or other injectable medication," where is his justification to take them out of your bag in the first place? Say I carry an injectable medication (insulin, B12, it doesn't matter) and 10 syringes in a box in my carry on. They want to go into my bag and they always ask "is there anything sharp in the bag that might cut or stab me?" When I was on the street, before I did a pat down, I asked the same question - from a personal safety perspective, it is entirely reasonable. I would say "yes, there are syringes in there." The TSA web site asks that you identify what med and the syringes. I suppose the request to identify the syringes is reasonable, identifying the med is perhaps beyond the scope but then again there's the idea of identifying the liquid...different debate perhaps.

I'm going to disagree here. He has made a mistake. Filing a false report entails making knowingly false accusations of claims. Moreover, there is no "report" until the LEO completes it. Meaning, if you call the police and say you think the guy next door killed his wife with a machine gun and I rush into that guy's house with the SWAT team and the guy and his wife are asleep on the couch with the TV on and a gangster movie playing, you made a mistake you didn't commit a crime unless you knowingly, using that example, called the police to have them take some action which you knew wasn't justified. That's why, instead of simply rushing in with the SWAT team, the dispatcher would ask you a bunch of questions to get at why you thought she was murdered and the first guy on scene would talk to you about it. If they found you were mistaken - been there, done that - they'd pat you on the head and thank you for being diligent and watching out for Mrs Crabapple next door.

If you made the call, fabricated "observations" took a chicken from the fridge and opened the bag to create a blood trail down the Crabapple's driveway to Mr Crabapple's car...then you'd probably be in trouble.

Eeeeeehhhh..."I think this guy's a drug dealer..." I really don't see that meeting the elements again of a "false report." It's a mistake, and the LEO who questions you about the cash let you go after he did the proper investigation. BUT now you're allowing for the notion that you were detained or allowed yourself to be detained by the TSA screener until the LEO came over to investigate...?

Now then, in that reagrd, what about Steve Bierfeldt? When the screener asked him what the money was for and he asked (note the tone and inflection on the recording: non-threatening) "am I required to tell you that?" might not the screener have whined that was "interference?" If someone has, I'd be interested in seeing it but I haven't seen anything that would indicate he was given an administrative fine for interfering when the screener shut down his position to get LEO involved to get "his answer." Moreover, given the attention the incident drew, IF Bierfeldt were issued an administrative fine for interference, I'm betting it would have made huge news since even the court in Rendon said you are allowed to ask questions:

I think most of it's going to be in how you handle yourself: calmly and professionally or like a raving mad man. Bierfeldt stood up to the unjustified question in a calm and mature manner and I think that's why the last LEO cut him loose so quickly but I've said before and believe strongly that the screener had no justification questioning him about that money and had no authority or justification to hold him in the first place.

And that's the sad truth..er, not that you're a lawyer, that happens in the best of families (insert sly grin here ). Seriously, there's so much shrouded in vague or incomplete directions and statements, secrecy, the mission creep and the lack of anything that resembles professionalism so blatantly obvious at so many checkpoints that those of us who care about the erosion and outright theft of our core, fundamental rights are left pulling what little hair we have left out.

See also post #187: The hypothetical I laid out above to discuss "assult" as opposed to "interferring" is flawed because of where the TSA apparently defines in secret the boundaries of the "sterile area" - which would apaprently include "secondary." I haven't removed or edited the original text here, the mistake is mine and I'll own up to it. In my eagerness to address one subject (assault/interferring), I did so without contemplating the actual boundariees of the "sterile area."