Court says TSA engaged in unlawful search. (Fofana)
Jun 24, 2009, 9:13 pm
#121
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LOL. No such conspiracy exists, my friend.
I think it boils down to a much simpler, less flashy and more boring explanation: poor editing.
The SOP may make sense to those who wrote it, but the real test is to run it past a sample of officers at a few airports ranging from the major hubs to the small jerkwater towns to make sure they understand it.
Otherwise, it's just another PowerPoint Ranger assault.
I think it boils down to a much simpler, less flashy and more boring explanation: poor editing.
The SOP may make sense to those who wrote it, but the real test is to run it past a sample of officers at a few airports ranging from the major hubs to the small jerkwater towns to make sure they understand it.
Otherwise, it's just another PowerPoint Ranger assault.
Jun 24, 2009, 9:34 pm
#123
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I'm not sure it's that simple. As you say, putting anything in the SOP about law enforcement referral for things that aren't prohibited items "opens the door" to expanding an administrative seach into "general law enforcement". If you say "if you happen to see something that might be illegal, you must notify <whoever>", it's just too easy for this to become "while you're there, look around and see if you can find something illegal" in the mind of a TSO. The latter is clearly unconstitutional. The former is right at the border, but what makes it cross it in my mind is the "slippery slope" of its interpretation and the normal human tendency to "want to please".
What I would like to see is language like "You are legally obligated to search for prohibited items in the least intrusive way that can accomplish that goal. If, incidental to such a search, you observe an item that may be illegal, you must presume that such object is legal unless, without doing a more intrusive search, it's clear that it isn't. If you observe an item that you're certain is illegal, your role is the same as any private citizen: you may, but are not required to, report it to law enforcement."
I believe that the problem occurs when there's a requirement for a TSO to report suspicious but non-prohibited items, because it's just too easy for that requirement to become a mandate to search for such items.
What I would like to see is language like "You are legally obligated to search for prohibited items in the least intrusive way that can accomplish that goal. If, incidental to such a search, you observe an item that may be illegal, you must presume that such object is legal unless, without doing a more intrusive search, it's clear that it isn't. If you observe an item that you're certain is illegal, your role is the same as any private citizen: you may, but are not required to, report it to law enforcement."
I believe that the problem occurs when there's a requirement for a TSO to report suspicious but non-prohibited items, because it's just too easy for that requirement to become a mandate to search for such items.
Private citizens are required by law to report certain illegal acts to law enforcement.
Title 18,4 Misprision of felony
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
Jun 24, 2009, 9:38 pm
#124
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The situations I'm talking about are, for example, items smuggled inside of electronic devices such as a portable radio. On the x-ray screen, the operator cannot tell if the suspicious substance is a bag of heroin or plastic explosives. What the operator does know is that whatever it is, it is something that has been concealed inside of an electronic device. It needs to be checked out.
If, on the other hand, the TSO sees a pipe and the outline of a baggie with something organic inside of it, and the TSO believes it may be drugs, then I submit that the TSO has no authority to stop the bag for a search.
I'll throw one more scenario in for you: if the x-ray operator sees a tube of toothpaste inside the bag, it is a valid bag check due to the 3:1:1 limitation on liquids, gels and aerosols. The TSO who conducts the search then opens the bag, spots the tube of toothpaste but sees a ziplock baggie containing what appears to be a white powdery substance. That TSO needs to notify the supervisor to allow the LEO to make a determination whether or not a crime has been committed.
I train my screeners to never refer to such items as heroin, marijuana or anything other than what it actually looks like: green leafy substance inside a resealable plastic bag; white powdery substance residue inside a pipe, etc. The reason is simple: only an LEO can determine through an authorized field test whether or not the substance meets certain criteria to be categorized as a controlled substance. A lot of the former LEOs argue with me, and I remind them that they are no longer LEOs.
I know some in here take exception with this, but there you have it.
If, on the other hand, the TSO sees a pipe and the outline of a baggie with something organic inside of it, and the TSO believes it may be drugs, then I submit that the TSO has no authority to stop the bag for a search.
I'll throw one more scenario in for you: if the x-ray operator sees a tube of toothpaste inside the bag, it is a valid bag check due to the 3:1:1 limitation on liquids, gels and aerosols. The TSO who conducts the search then opens the bag, spots the tube of toothpaste but sees a ziplock baggie containing what appears to be a white powdery substance. That TSO needs to notify the supervisor to allow the LEO to make a determination whether or not a crime has been committed.
I train my screeners to never refer to such items as heroin, marijuana or anything other than what it actually looks like: green leafy substance inside a resealable plastic bag; white powdery substance residue inside a pipe, etc. The reason is simple: only an LEO can determine through an authorized field test whether or not the substance meets certain criteria to be categorized as a controlled substance. A lot of the former LEOs argue with me, and I remind them that they are no longer LEOs.
I know some in here take exception with this, but there you have it.
Are TSO instructed on what looks suspicious?
Example, do you tell your trainees that white powder in a pipe or a green leafy substance is suspicious and requires a supervisor or LEO?
EDIT: by "you" I mean trainers, not specifically you.
Last edited by Trollkiller; Jun 24, 2009 at 9:45 pm
Jun 24, 2009, 10:01 pm
#125
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It shouldn't be.
The intent is to address those situations when an administrative search stumbles upon something that should be referred to law enforcement for final resolution. Pretty simple when it comes to things such as illegal drugs (surprising how often people attempt to smuggle drugs through the checkpoint!). The gray area comes with undeclared cash in excess of $10k on international flights. I think some TSOs and STSOs get snagged up in the letter of the law without fully realizing the spirit of the law. It results in messes such as this case.
The intent is to address those situations when an administrative search stumbles upon something that should be referred to law enforcement for final resolution. Pretty simple when it comes to things such as illegal drugs (surprising how often people attempt to smuggle drugs through the checkpoint!). The gray area comes with undeclared cash in excess of $10k on international flights. I think some TSOs and STSOs get snagged up in the letter of the law without fully realizing the spirit of the law. It results in messes such as this case.
Are TSO's mind readers?
It simple is beyond the scope of a TSO's duties to interrogate a person about items that are no threat to aviation.
Jun 24, 2009, 10:07 pm
#126
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From Wikipedia: See United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977) at 1227 ("The mere failure to report a felony is not sufficient to constitute a violation of 18 U.S.C.A. § 4." ). Active concealment is required.
Jun 24, 2009, 10:07 pm
#127
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Until I board that plane leaving the country, I haven't done anything illegal even if I am carrying $100K cash in a briefcase.
So why is the TSA bothering anyone with large amounts of cash on their person?
Jun 24, 2009, 10:12 pm
#128
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Do you think that allowing what you "know" to be an illegal item would constitute "active concealment?
Jun 24, 2009, 10:14 pm
#129
Join Date: Mar 2009
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I'll throw one more scenario in for you: if the x-ray operator sees a tube of toothpaste inside the bag, it is a valid bag check due to the 3:1:1 limitation on liquids, gels and aerosols. The TSO who conducts the search then opens the bag, spots the tube of toothpaste but sees a ziplock baggie containing what appears to be a white powdery substance. That TSO needs to notify the supervisor to allow the LEO to make a determination whether or not a crime has been committed.
What's the legal difference between viewing a white power as potentially illegal (since it might be a controlled substance), viewing an iPod as potentially illegal (it might contain an illegally-downloaded song), or viewing a magazine as potentially illegal (it might contain kiddy porn)? I don't believe the bounds of an administrative search don't permit that making of that determination. I think this is one of the fundamental issues that the courts will have to settle.
Jun 24, 2009, 10:30 pm
#130
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That is exactly the scenario I spelled out a couple of weeks ago regarding PHX T4. The CBP desk is after TSA security but before one boards the British Airways flight to LHR (among other international flights leaving from that area).
Until I board that plane leaving the country, I haven't done anything illegal even if I am carrying $100K cash in a briefcase.
So why is the TSA bothering anyone with large amounts of cash on their person?
Until I board that plane leaving the country, I haven't done anything illegal even if I am carrying $100K cash in a briefcase.
So why is the TSA bothering anyone with large amounts of cash on their person?
The $64,000 question is why did TSA declare United States currency contraband. What kind of sick mind would do such a thing?
This stance TSA takes on cooperation is troubling too.
I figure if I present myself and my stuff to the screeners, and take a pat down since I object to a Strip Search, that I have fully cooperated by any reasonable definition.
Where I'm going, why I am going there and why I need a certain amount of cash exceeds the reasonable questions test in my mind.
I work in the financial services business and FBI briefs tell me that the less others know about my personal life the safer I am. I see no reason to trust a TSO with this type of information any more than any other person. I have no intent to help someone gain information that could be used against me or my family.
If some TSO is not happy with that then they might just as well call a LEO right off and save us all a bunch of time.
Jun 24, 2009, 10:31 pm
#131
Join Date: Mar 2009
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The factual basis of defendant's plea does not demonstrate the existence of "concealment," an essential element of the offense of misprision. The record of defendant's plea fails to reveal that he took " affirmative steps to conceal the crime of the principals." United States v. Daddano, 432 F.2d 1119, 1124 (7th Cir. 1970), cert. denied, 402 U.S. 905, 91 S.Ct. 1366, 28 L.Ed.2d 645 (1971); Neal v. United States, 102 F.2d 643, 649-650 (8th Cir. 1939). The mere failure to report a felony is not sufficient to constitute a violation of 18 U.S.C.A. § 4. Lancey v. United States,356 F.2d 407 (9th Cir.), cert. denied, 385 U.S. 922, 87 S.Ct. 234, 17 L.Ed.2d 145 (1966).
The point is that 18 USC 4 makes it illegal to "conceal and does not ... make known" (emphasis added). It doesn't say "or". conceal means to take some affirmative action to hide something.
A TSO would be guilty of violating 18 USC 4 if, for example, he saw drugs in a passenger's bag that he had opened, saw an LEO heading his way who might be able to see the bag, and pushed the drugs back into the bag to conceal them from the LEO. But just not reporting it isn't a violation.
Jun 24, 2009, 10:34 pm
#132
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Drugs and child porn come to mind.
If one is not taught about this then the only other possible option is through personal knowledge.
How one gained that knowledge would be an interesting line of questioning.
Jun 24, 2009, 10:45 pm
#133
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No, I don't believe so. I found the case here. It says
Lancey v. US can be found here and goes into more details (though it also contains issues not relevant here). It has the quote "Mere silence, without some affirmative act, is insufficient evidence".
The point is that 18 USC 4 makes it illegal to "conceal and does not ... make known" (emphasis added). It doesn't say "or". conceal means to take some affirmative action to hide something.
A TSO would be guilty of violating 18 USC 4 if, for example, he saw drugs in a passenger's bag that he had opened, saw an LEO heading his way who might be able to see the bag, and pushed the drugs back into the bag to conceal them from the LEO. But just not reporting it isn't a violation.
Lancey v. US can be found here and goes into more details (though it also contains issues not relevant here). It has the quote "Mere silence, without some affirmative act, is insufficient evidence".
The point is that 18 USC 4 makes it illegal to "conceal and does not ... make known" (emphasis added). It doesn't say "or". conceal means to take some affirmative action to hide something.
A TSO would be guilty of violating 18 USC 4 if, for example, he saw drugs in a passenger's bag that he had opened, saw an LEO heading his way who might be able to see the bag, and pushed the drugs back into the bag to conceal them from the LEO. But just not reporting it isn't a violation.
Jun 24, 2009, 10:53 pm
#134
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I think it boils down to a much simpler, less flashy and more boring explanation: poor editing.
The SOP may make sense to those who wrote it, but the real test is to run it past a sample of officers at a few airports ranging from the major hubs to the small jerkwater towns to make sure they understand it.
Otherwise, it's just another PowerPoint Ranger assault.
The SOP may make sense to those who wrote it, but the real test is to run it past a sample of officers at a few airports ranging from the major hubs to the small jerkwater towns to make sure they understand it.
Otherwise, it's just another PowerPoint Ranger assault.