Originally Posted by clrankin (Post 11632082)

OK, we've had a lot of talk, especially this past week, about probable cause-- primarily around what creates it and what doesn't. I think it would be a service to those of us on this board, and the flying public in general, to hold a candid and frank discussion about this issue.

I'd like to specifically target this issue around probable cause as it relates to TSA checkpoints, and I'm hoping that those with practical experience or solid legal knowledge will chime in on this. (Opinions from the peanut gallery cannot be stopped, I suppose, but I really intend this thread to solicit feedback from those who know what they're talking about on the matter.)

To start the discussion off:
- Can we get a legal definition, with a relevant example or two, of probable cause? I think that many of us who play armchair attorney here (myself included) think we know what it is, but do we really know?

- How does obtaining probable cause relate to questioning by TSA? I understand that you have a right to not answer questions asked to you... how does answering or not answering bolster a TSO's position if s/he decides a referral to an LEO is warranted?

- What exactly are your rights at a checkpoint? I've read a lot of assertions from a lot of people-- some sound knowledgeable and some sound like they're on a power trip. What can and can't a passenger do if questioned? What is advisable? (Note that these two questions may lead to substantially different answers.)

Originally Posted by Boggie Dog (Post 11632597)

Not so long as they're within the limits of the original justification for the search. If they're looking for items that are dangerous but in places that can't hold them, then that would be an invalid search. You can only look in those places that can legitimately hold the item(s) in question. If so, and they discover something illegal but outside their purview, then they are within the law to call over LEOs.

Originally Posted by spotnik (Post 11635040)

On the other hand, there is a difference between "I refuse to answer that question" and "F*** you, I don't have to talk to you." or even the ever-so-popular, "Go SPOT someone else." Depending on the individuals you encounter, the difference may be important.

Originally Posted by PTravel (Post 11635764)

law dawg, I want to clarify something:

Anyone can call over a LEO if they see something suspicious. I have just as much "authority" as a TSO to do so.

The relevance of turning up something illegal in the course of an administrative search is whether such evidence would be admissible against the person who brought it to the checkpoint. The Supreme Court has answered that question: yes, it will.

I don't think anyone here is concerned with bringing illegal substances through the checkpoint. Rather, they are concerned about knowing the extent of their rights and the limits of the TSO's authority when it comes to something that is perfectly legal, like the $4,300.

The answer is short and sweet: TSO's have no right to seize anything, even for the short time it takes for a LEO to walk over. TSO's have no authority to compel the answers to questions.

All TSOs can do is deny entrance to passengers and/or their belongings to the sterile area.

Originally Posted by Trollkiller (Post 11635415)

I think the key to this whole thing is this "TSA may ask questions about items that might have implications to aviation security."

If a TSO sees an electronic item that they are not familiar with, I think it is completely within their right to ask what it is and how it works as the device may have safety implications.

If a TSO sees something that they feel may be criminal like kiddie porn, white powder or cash, the TSO needs to STOP and call a LEO. The TSO can then relay to the LEO their concerns.

At no time should a TSO question anyone about non safety related items or subjects. All questioning about criminal matters need to be handled by those trained to do so. (note: I am not saying they can't chat in a friendly manner)

Let's play what if. Assume for a moment that the Ron Paul money man was in reality a drug dealer. Assume the money was from a drug sale. Assume when the Ron Paul money man asked if he was required by law to answer the question he was told by the untrained TSO that he was.

If the Ron Paul money man at that point said it was drug money and that in turn triggered a search of his vehicle, person and checked luggage, that untrained TSO just blew the case and the dealer walks.

His "confession" would not be admissible as he was not read his rights before being questioned by the TSO under color of law. His confession would not count as a spontaneous utterance as he was being directly questioned to the nature of the money at the time of his utterance.

The search would be tossed because it is fruit of the poison tree. The police officer may have probable cause due to the confession but the confession is invalid and the officer should know that it is invalid and therefore not reliable and therefore is not strong enough to induce probable cause.

If the checked luggage has already been screened the officer could not rely on the TSA's administrative search for a look in the bag.

Originally Posted by law dawg (Post 11632626)

law dawg, I want to clarify something:

Anyone can call over a LEO if they see something suspicious. I have just as much "authority" as a TSO to do so.

The relevance of turning up something illegal in the course of an administrative search is whether such evidence would be admissible against the person who brought it to the checkpoint. The Supreme Court has answered that question: yes, it will.

Originally Posted by law dawg (Post 11639154)

Again, correct, but the perception of authority is, often enough, just as good as having it on paper. If people think they have to wait at the checkpoint, they will.

Originally Posted by Trollkiller (Post 11635415)

I think the key to this whole thing is this "TSA may ask questions about items that might have implications to aviation security."

If a TSO sees an electronic item that they are not familiar with, I think it is completely within their right to ask what it is and how it works as the device may have safety implications.

If a TSO sees something that they feel may be criminal like kiddie porn, white powder or cash, the TSO needs to STOP and call a LEO. The TSO can then relay to the LEO their concerns.

At no time should a TSO question anyone about non safety related items or subjects. All questioning about criminal matters need to be handled by those trained to do so. (note: I am not saying they can't chat in a friendly manner)

Let's play what if. Assume for a moment that the Ron Paul money man was in reality a drug dealer. Assume the money was from a drug sale. Assume when the Ron Paul money man asked if he was required by law to answer the question he was told by the untrained TSO that he was.

If the Ron Paul money man at that point said it was drug money and that in turn triggered a search of his vehicle, person and checked luggage, that untrained TSO just blew the case and the dealer walks.

His "confession" would not be admissible as he was not read his rights before being questioned by the TSO under color of law. His confession would not count as a spontaneous utterance as he was being directly questioned to the nature of the money at the time of his utterance.

The search would be tossed because it is fruit of the poison tree. The police officer may have probable cause due to the confession but the confession is invalid and the officer should know that it is invalid and therefore not reliable and therefore is not strong enough to induce probable cause.

If the checked luggage has already been screened the officer could not rely on the TSA's administrative search for a look in the bag.

Originally Posted by PTravel (Post 11635782)

Except that it's not. See Cohen v. California. I have a First Amendment right to tell government agents what I think of their job. This means I am under no obligation to be polite and, unfortunately for you (because you seem like a nice guy), taking action premised solely on the basis of what is said has a chilling effect on speech and, almost certainly, would be viewed as unconstitutional.

Originally Posted by spotnik (Post 11640609)

I'm sorry I was not clear in my post. No decision should be made solely on the basis of what is said. The passenger's property, demeanor, tone, and body language all play a part in the outcome. If I have an issue that needs to be referred to a LEO, the entire situation will usually be considered. In my experience, LEOs are far more interested in hearing about crude and abusive speech, as part of a larger incident, than they are in hearing about calm and polite assertions of rights.

The same principle holds for any concerns raised while transiting the checkpoint. The oft bemoaned fact is that, as the regulations currently stand, TSA considers your cooperation (or appearance of cooperation), honesty, and credibility when they decide to let you proceed through the checkpoint into the sterile area. If you want to be a jerk or tell a TSO where to shove his employment, you have every right to do so. If you are traveling with items that present a potential problem for aviation security, the items, as well as your demeanor, actions, and speech, will be considered in the final result.

Originally Posted by polonius (Post 11641073)

Understood, but if they are considering these thing honestly, then they honestly need to recognise the fact that someone who is attempting to smuggle a weapon on board is going to be as polite and low-key as possible. Assertive and abusive language should therefore be looked upon as an indication that someone has nothing to hide, and politeness and consideration should be eyed with suspicion.

The fact that they instead react to abuse by intensifying the level of scrutiny and dragging out the "inspection" process is simply yet another re-confirmation that their exercises of authoritay have much more to do with petty abuse of power than they do with keeping air travel safe.

Originally Posted by law dawg (Post 11640727)

I wanted to clear up one thing. While it has been correctly noted here that TSOs are not held to a probable cause standard, they are very much held to the scope of the search standard. IOW, they can't be looking in places that could not hold the prohibited items prescribed in the search parameters. If they find something within that scope that is not a dangerous item, they can refer that to a LEO and the search would be valid. If they went outside those parameters and found something, that evidence would be excluded. Although you'd still take a ride downtown, as it were. :)

Originally Posted by polonius (Post 11641073)

Understood, but if they are considering these thing honestly, then they honestly need to recognise the fact that someone who is attempting to smuggle a weapon on board is going to be as polite and low-key as possible. Assertive and abusive language should therefore be looked upon as an indication that someone has nothing to hide, and politeness and consideration should be eyed with suspicion.

The fact that they instead react to abuse by intensifying the level of scrutiny and dragging out the "inspection" process is simply yet another re-confirmation that their exercises of authoritay have much more to do with petty abuse of power than they do with keeping air travel safe.

Originally Posted by law dawg (Post 11640727)

I wanted to clear up one thing. While it has been correctly noted here that TSOs are not held to a probable cause standard, they are very much held to the scope of the search standard. IOW, they can't be looking in places that could not hold the prohibited items prescribed in the search parameters. If they find something within that scope that is not a dangerous item, they can refer that to a LEO and the search would be valid. If they went outside those parameters and found something, that evidence would be excluded. Although you'd still take a ride downtown, as it were. :)

Originally Posted by polonius (Post 11641073)

Understood, but if they are considering these thing honestly, then they honestly need to recognise the fact that someone who is attempting to smuggle a weapon on board is going to be as polite and low-key as possible. Assertive and abusive language should therefore be looked upon as an indication that someone has nothing to hide, and politeness and consideration should be eyed with suspicion.

The fact that they instead react to abuse by intensifying the level of scrutiny and dragging out the "inspection" process is simply yet another re-confirmation that their exercises of authoritay have much more to do with petty abuse of power than they do with keeping air travel safe.