So what exactly creates probable cause?
May 3, 2009 | 9:09 am
#196
Join Date: Aug 2004
Posts: 4,704
If the disclosures were mandatory there would be no need for a shield law. The fact that the government can't force a business to turn over records without a warrant is the whole purpose for the shield laws. (Note: certain businesses have statutory requirements that force records inspections without a warrant, such as firearms dealers.)
Think about it, most companies would be more willing to give the police business records without a warrant if they knew that they were suit proof when doing so.
You company may respond with "get a warrant" but most do not and are not required to.
In your mind you think that company records are in some way statutorily required to remain private when it comes to a law enforcement request.
If that were the case any information gathered by that police officer by that request would not be permissible because the officer has knowingly caused the company to break the law.
Think about it, most companies would be more willing to give the police business records without a warrant if they knew that they were suit proof when doing so.
You company may respond with "get a warrant" but most do not and are not required to.
In your mind you think that company records are in some way statutorily required to remain private when it comes to a law enforcement request.
If that were the case any information gathered by that police officer by that request would not be permissible because the officer has knowingly caused the company to break the law.
We get information all the time from private companies. TK is right - if it were protected information then the evidence would be excluded. Defense attorneys would quash that ricky-tick. They would if they could, but they can't so they don't. It's not protected information.
I could not use evidence that your lawyer provided me. It's protected. It would be excluded. I can use evidence the airline provides me. It's not protected. Big difference.
May 3, 2009 | 9:17 am
#197
Join Date: Mar 2009
Posts: 1,972
If the LEO has come across someone with monies and no form has been filed (or they refuse to answer whether or not it has been met) then they have every need to know what's going on. Not disclosing such monies is a criminal violation, and they're LEOs. Although the first option would probably always be a call to CBP to give them a heads up.
What's the difference between that case and carrying a lot of cash? In both cases, it's perfectly legal unless I didn't do something (in one case, buy it and in the other mail in a form).
May 3, 2009 | 9:26 am
#198
Join Date: Mar 2009
Posts: 1,972
If it's been dropped in the mail just that day then you're right - I can't prove it (of course it says that travelers are supposed to file the form with Customs at the port of entry or departure....). I'd would detain you long enough for questioning and notification to CBP. I'd ask things like what kind of questions were on the form, how many pages was it, etc. Things you should know if you really filled it out. Then I'd watch to see how nervous you were, other little tells. If I believed you, off you'd go. Ten minutes tops. If I didn't, off you'd go still but with me forwarding all the information I had to the appropriate agencies.
May 3, 2009 | 9:52 am
#199
Join Date: Jun 2007
Location: washington dc
Programs: ual, aa, hertz, starwood, hilton
Posts: 398
Strictly speaking, you are correct. TSA officers do not have the authority to detain anyone. However, they DO have the authority to deny access beyond the checkpoint to anyone who has not been properly cleared through screening. This is not detention because that person can turn around and leave the screening area towards the public side. However, if, for example, that person had a knife and left before the supervisor was able to resolve the matter, the airport LEOs would stop the individual and they would detain/arrest the individual. LEOs have the authority to detain people involved in unresolved security matters. If it turns out that a crime was committed, then they can arrest them.
And yes, it is a deliberate process spelled out in the SOP.
And yes, it is a deliberate process spelled out in the SOP.
However, I am still stuck on Bart's interpretation above. Leave out the knife. Assume I am Steve Beirfeldt, and I just don't want to have a confrontation about $4,700 in a lock box. Rather than deal with the screener and the St. Louis Airport cop, and rather than politely asking "Am I legally required to answer your question?", I choose to go seek out the airlines GSC and get his or her help in navigating the security checkpoint.
If I calmly, Beifeldt-like, collect my things, explain this search is over and I am now going to confer with the GSC, and start walking back toward the public side of the airport, what will happen next? What will the screener do, what will the screener's supervisor do, and what will the LEO do?
May 3, 2009 | 10:02 am
#200
FlyerTalk Evangelist
Join Date: Mar 2008
Location: DFW
Posts: 30,990
If it's been dropped in the mail just that day then you're right - I can't prove it (of course it says that travelers are supposed to file the form with Customs at the port of entry or departure....). I'd would detain you long enough for questioning and notification to CBP. I'd ask things like what kind of questions were on the form, how many pages was it, etc. Things you should know if you really filled it out. Then I'd watch to see how nervous you were, other little tells. If I believed you, off you'd go. Ten minutes tops. If I didn't, off you'd go still but with me forwarding all the information I had to the appropriate agencies.
Since you seem to be so expert on FINCEN Form 105 why do you think they put the mailing address in the instructions on how and where to file?
May 3, 2009 | 10:15 am
#201
Suspended
Join Date: Jul 2007
Location: Doha, Qatar
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They can "provide information" but they cannot reveal private information without a lawful order.
Apparently, you believe you can stop people on the street and detain them until they have satisfied you that they haven't broken any laws, so I would say you don't know what you can do.
Now you're jumping a TSO finding cash, to RS, to an "investigation" that warrants sharing of information collected under the scope of the Privacy Act, all without anything that provides any evidence of a crime?
Now you're trying to conflate the case of guy actively attempting to conceal cash, "willfully" attempting to smuggle it, and make false statements to a federal officer with the situation of most travellers who are over the limit who have no clue about the requirement and make no effort to conceal it. The actions in the link you provided are criminal, but they are entirely different from the situation we are discussing here. And please note, that even in this case, the court gave the guy his money back.
And refuted above.
Do you really believe this? That LEO agencies cannot share information with one another when necessary to further an investigation? If so, you're wrong. If I have RS to believe the monies may be undeclared, CBP can indeed share with me, as a LEO, that is pursuant to an investigation.
It's a criminal violation with penalties of incarceration up to 5 years and a $250,000 fine as well as possibly having all the monies seized (if a nexus to smuggling/organized crime can be made).
Here is the code violation. And here is the code for the criminal penalty.
This guy would argue differently.
Here is the code violation. And here is the code for the criminal penalty.
This guy would argue differently.
And refuted above.
Last edited by polonius; May 3, 2009 at 10:29 am
May 3, 2009 | 10:17 am
#202
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Ding, ding, ding. We have a winner.
We get information all the time from private companies. TK is right - if it were protected information then the evidence would be excluded. Defense attorneys would quash that ricky-tick. They would if they could, but they can't so they don't. It's not protected information.
I could not use evidence that your lawyer provided me. It's protected. It would be excluded. I can use evidence the airline provides me. It's not protected. Big difference.
We get information all the time from private companies. TK is right - if it were protected information then the evidence would be excluded. Defense attorneys would quash that ricky-tick. They would if they could, but they can't so they don't. It's not protected information.
I could not use evidence that your lawyer provided me. It's protected. It would be excluded. I can use evidence the airline provides me. It's not protected. Big difference.
May 3, 2009 | 10:27 am
#203
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If it's been dropped in the mail just that day then you're right - I can't prove it (of course it says that travelers are supposed to file the form with Customs at the port of entry or departure....). I'd would detain you long enough for questioning and notification to CBP. I'd ask things like what kind of questions were on the form, how many pages was it, etc. Things you should know if you really filled it out. Then I'd watch to see how nervous you were, other little tells. If I believed you, off you'd go. Ten minutes tops. If I didn't, off you'd go still but with me forwarding all the information I had to the appropriate agencies.
Funny, but I have never responded to any officer's questions with anything but questions of my own, or by noting that I'd rather take my chances with him than have my lawyer kick the s**t out of me later for being stupid enough to answer a cop's questions, and I've never been delayed by more than a few minutes, so I rather doubt you have the powers you imagine you do.
May 3, 2009 | 11:15 am
#204
Join Date: Jul 2008
Location: Florida
Posts: 3,006
From FINCEN Form 105 (PDF Warning)
WHEN AND WHERE TO FILE:
A. Recipients—Each person who receives currency or other monetary instruments in the United States shall file FinCEN Form 105, within 15 days after receipt of the currency or monetary instruments, with the Customs officer in charge at any port of entry or departure or by mail with the Commissioner of Customs, Attention: Currency Transportation
Reports, Washington DC 20229.
B. Shippers or Mailers—lf the currency or other monetary instrument does not accompany the person entering or departing the United States, FinCEN Form 105 may be filed by mail on or before the date of entry, departure, mailing, or shipping with the Commissioner
of Customs, Attention: Currency Transportation Reports, Washington DC 20229.
C. Travelers—Travelers carrying currency or other monetary instruments with them shall file FinCEN Form 105 at the time of entry into the United States or at the time of departure from the United States with the Customs officer in charge at any Customs port of entry or departure.
An additional report of a particular transportation, mailing, or shipping of currency or the monetary instruments is not required if a complete and truthful report has already been filed. However, no person otherwise required to file a report shall be excused from liability for failure to do so if, in fact, a complete and truthful report has not been filed. Forms may be obtained from any Bureau of Customs and Border Protection office.
A. Recipients—Each person who receives currency or other monetary instruments in the United States shall file FinCEN Form 105, within 15 days after receipt of the currency or monetary instruments, with the Customs officer in charge at any port of entry or departure or by mail with the Commissioner of Customs, Attention: Currency Transportation
Reports, Washington DC 20229.
B. Shippers or Mailers—lf the currency or other monetary instrument does not accompany the person entering or departing the United States, FinCEN Form 105 may be filed by mail on or before the date of entry, departure, mailing, or shipping with the Commissioner
of Customs, Attention: Currency Transportation Reports, Washington DC 20229.
C. Travelers—Travelers carrying currency or other monetary instruments with them shall file FinCEN Form 105 at the time of entry into the United States or at the time of departure from the United States with the Customs officer in charge at any Customs port of entry or departure.
An additional report of a particular transportation, mailing, or shipping of currency or the monetary instruments is not required if a complete and truthful report has already been filed. However, no person otherwise required to file a report shall be excused from liability for failure to do so if, in fact, a complete and truthful report has not been filed. Forms may be obtained from any Bureau of Customs and Border Protection office.
May 3, 2009 | 11:19 am
#205
Join Date: Jul 2008
Location: Florida
Posts: 3,006
You can sue for any reason. A crook can sue and win if they hurt themselves while breaking into your house.
May 3, 2009 | 11:31 am
#206
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Sorry dude you misread the instructions. You don't mail when you are carrying the cash only if you received the money or are mailing/shipping the money.
From FINCEN Form 105 (PDF Warning)
From FINCEN Form 105 (PDF Warning)
I'd love to see an attempted prosecution for dropping the form in the mail instead of filing it at the airport. I'd say the words "dismissed with prejudice" would figure in there somewhere.
May 3, 2009 | 11:34 am
#207
Join Date: Aug 2004
Posts: 4,704
So if I'm wearing an expensive watch on the street and you ask me if I've stolen it and I refuse to answer (which is what I should do in such a situation), you "have every need to know what's going on" and I have to prove that I bought it someplace?
What's the difference between that case and carrying a lot of cash? In both cases, it's perfectly legal unless I didn't do something (in one case, buy it and in the other mail in a form).
What's the difference between that case and carrying a lot of cash? In both cases, it's perfectly legal unless I didn't do something (in one case, buy it and in the other mail in a form).
In an airport, especially in an international terminal, there's an above average chance that someone is going to leave the country with a sum of money that is prohibited without notification.
If it was on the street, it may be unusual and another rung in the build up to PC, but it's not the same context as in an airport.
May 3, 2009 | 11:38 am
#208
Join Date: Aug 2004
Posts: 4,704
The only proper answer for a passenger to give when asked if he filed the form is to refuse to answer without a lawyer present. Any other answer puts the person in potential legal jeopardy. You previously stated that CBP can talk to you if you have reasonable suspicion that the money was undeclared. But if all you have is the money itself and a complete refusal to answer any questions about it, how do you develop that RS?
For instance, vehicles used in alien smuggling cases can be seized even though no criminal charges are filed. People can get their vehicles back, but they have to file to do so and there's a penalty.
May 3, 2009 | 11:40 am
#209
Join Date: Aug 2004
Posts: 4,704
Since you seem to be so expert on FINCEN Form 105 why do you think they put the mailing address in the instructions on how and where to file?