Here's a general question to throw out there, hoping to gather some educated advice for the FT community at large:

Question: Given all the prospects of CAPPS II, Son of Patriot Act, and general harassment, what are our options as citizens (and I assume, as non-citizens) if we are detained by the TSA or their police sidekicks during the screening process or at an airport in general? I'm thinking this would apply to something like a positive reading on the EDT machine or some other sort of "infraction" that goes beyond an individual's own "line in the sand" or friendly discussions with screeners and their supervisors.

Specifics:

1. What is our status at that point? Under arrest? Detained? What is the difference between the two? Do they have to advise us of our Miranda rights?

2. Do we have to answer questions? Do we have to produce identification? Can we refuse to answer without a lawyer present? Can we just simply leave and fly AMTRAK?

3. If one decides to request a lawyer, how do you go about finding one? Is it smart to have something pre-arranged, or, will the authorities appoint a public defender for the initial questioning period?

4. What about Privacy Act and FOIA requirements for disclosure of personal info?

5. Anything I've forgotten?

6. Are there reputable web sites or other reference materials out there?

Again, I'm posing these questions for the legal professionals among us. I'm assuming that one or more of us FTers in the very near future could be up against these types of situations as extreme as it might sound.

While some or most of us would simply cut our lossses and figuratively say, "Thank you, sir! May I have another?", there are also some who just might be willing to set themselves up to challenge the system with the right advance planning.

For me, I wouldn't mind having some knowledge in my hip pocket if (when?) the day comes when I've had enough.

I am not a lawyer, don't play one on TV, and don't want to be one. But I'm generally interested in individual rights and am interested in this discussion. A few thoughts below on what I've heard "through the grapevine" (mostly FT and personal airport encounters)

I think most of the responses depend on how much of a hurry you are to get to desitnation and how much crap you are willing to put up with. I.e., on days I'm in a hurry I'll just cooperate. But if going home and in no hurry, I'm more likely to try to "exercise" the system.

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1. What is our status at that point? Under arrest? Detained? What is the difference between the two? Do they have to advise us of our Miranda rights?

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My understanding is that TSA does not have the authority to detain you (or touch/restrain you beyond a screening). I take that to mean that I always have the option to walk away from TSA as long as walking away means leaving the secure area and not flying that day. I'd be very temped to try this after a EDT alarm instead of giving them my home address and phone number like is required.

Cops getting involved is different. Most stories I hear about people being put in little rooms at airports involve cops. No miranda rights unless you're arrested though. Most of these stories never involve an arrest either, just denial of boarding and hours of detention with no recourse. You should ask the cop what your status is, i.e. if you're free to go. In a car stop, the indicator for your status ("free to go") is usually when you get your license back. I don't think they're allowed to lie to you with regard to if you're free to go.

I don't think you ever have to answer questions (unless compelled by a judge in a case not against you). What are they going to do if you don't, arrest you? If they do that, then you most certainly don't have to answer questions. They may imply that if you don't answer questions that they will arrest you, and they may be able to lie about that. Anyone know about that?

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4. What about Privacy Act and FOIA requirements for disclosure of personal info?

From what I hear, most TSA staff and maybe supervisors are not briefed on this, which I think is a huge mistake. I intend to test the Privacy Act stuff if I ever set of the EDT (as they ask for your home address, etc.) My guess is that the reaction will be based on the mood of the TSA folks and the perceived bad-attitude of the pax (i.e., are they being curious or belligerant). LEOs (and TSA) may be well intentioned, but they generally don't seem to like folks who are overzealous of their rights.

As for needing ID, there's a whole website somewhere about flying without it. In their examples, people flew with commercial (rather than govt.) IDs like grocery-store cards. Supposedly you can do it, but it will lead to many questions and automatic secondary screening. The website even says there's a special flag for folks without ID. And many ticket agents and TSA folks may not understand and refuse you passage.

Friend of a friend forgot she had a derringer in a bag. TSA didn't catch it on the outbound flight, but did on the return. detained for a couple of hours, $250 fine, but now ( a couple months later) is being hailed into court.

Any ideas as to what might happen there?

Interesting questions.

I am a lawyer, and although I do not specialize in criminal or constitutional law, I will try to answer your questions. Some of them call for involved answers and I may not have the time to answer all of them now, but I will do my best to do so over the next few days.

Your status will very much depend on how the police handle it. Although I am not sure, I do not beleive that TSA can detain you or compel you to answer questions. They can, of course, deny you access to your flight.

In all likelihood, the police officer will want to ask you questions. Depending on what TSA found, he or she may or may not have enough information to arrest you. You do not have to answer any questions regardless of your arrest status and can request a lawyer at any time. Of course, refusing to answer questions will make you more suspicious in the eyes of the police officer.

Most likely there is, by virtue of the TSA finding something, reasonable suspicion and, under Terry v. Ohio, the officer can frisk you at this point, but can only feel the outside of your clothes and only search anyhting that could be deemed a weapon.

Also, the police officer can at this point, in all likelihood, inspect your bags at this point as you have given implied consent for this search by virtue of attempting to fly. I know not all of you buy into implied consent, but trust me, it is a valid concept in American law and most definately applies in this scenario.

The officer cannot place you under arrest without probable cause, which is a higher legal standard than reasonable suspicion. Depending on what TSA has found, probable cause to arrest could exist right away. If not, it will come about after searching your bag, the frisk and the interview. At this point, he or she should read your your Miranda rights, but Miranda only applies to custodial interogation, so there may be some wiggle room for the police officer. You do not have to speak and a request for an attorney must be granted right away. Once under arrest, the officer can do a more thourough search of your person, including a strip search. This is done under the guise of protection for the officer. Anything found as part of this search can be used against you in a subsequent criminal proceeding.

If you think the arrest was unwarranted, there is little you can do at this point. However, any evidence found as a result of the search can be excluded under the Wong Sun doctrine (otherwise known as the "fruit of the poisonous tree" doctrine"), but this comes into play after indictment.

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<font face="Verdana, Arial, Helvetica, sans-serif" size="2"> 2. Do we have to answer questions? Do we have to produce identification? Can we refuse to answer without a lawyer present? Can we just simply leave and fly AMTRAK?

As discussed above, you do not have to answer questions, but refusing to do so could arouse more suspicion. You can request a lawyer at any time, but unless you are under arrest, they don't have to comply immediately. You will have to show identification if asked because of the airport factor (implied consent again). On the street, you do not, but refusing will arouse suspicion.

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<font face="Verdana, Arial, Helvetica, sans-serif" size="2"> 3. If one decides to request a lawyer, how do you go about finding one? Is it smart to have something pre-arranged, or, will the authorities appoint a public defender for the initial questioning period?

If you request a lawyer after being arrested, they must provide one if you cannot afford one. If you can afford one, they will not pay for one, but will, I think, get one for you if you are from out of town. I reccomend that everyone have an attorney they can call for emergencies like this. I am happy to give you my number if you want, but will expect compensation if I need to fly somewhere to represent you. I'm not very experienced, but I am cheap.

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<font face="Verdana, Arial, Helvetica, sans-serif" size="2"> 4. What about Privacy Act and FOIA requirements for disclosure of personal info?

There is no federal privacy law that applies to arrests. In fact, there is no codified right to privacy in the Constitution. The notion of a privacy right comes from the Bill of Rights taken as a whole (or at least key amendments). That said, if you are going to be charged, the prosecution must make everything it has against you available for your review and inspection. It is allowed no surprises at trial. In an interrogation, they do not have to let you know in advance with what they plan on cronfronting you.

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<font face="Verdana, Arial, Helvetica, sans-serif" size="2"> 5. Anything I've forgotten?

Be polite, but be firm with your rights. At least until you get a lawyer, you are your only advocate. If arrested, do not fight it, but do not speak, regardless of what the police might say to you.



[This message has been edited by PresRDC (edited 09-29-2003).]

These are some very good answers as to what you should do and pretty much cover it but lemme give you some advice from a screener standpoint. If you are at the point of being arrested, it is 99% of one of the following: 1. You have physically assaulted or verbally threatened a screener (verbally usually just gets you detained, not arrested as in handcuffed, they just escort you down to the police office). 2. You have a weapon of some type that is not allowed in the bag (I.E. Explosives, explosive devices, guns in carry-ons, undeclared weapons in check luggage(usually only detained and fined) things of that nature) or 3. You make a threat towards an airport or plane....you get the drift. You will not be detained, persay, if you alarm the ETD. When an ETD alarms, they usually just ask for your boarding pass and ID to jot down the info in the alarm book. You can refuse to give them that information, but will not be allowed to board the aircraft and would probably be viewed as suspicious and probably followed by local PD. We haven't had this situation yet so I can't really say what exactly what happened. We are not briefed on passengers refusing info because supervisors take care of those situations. Actually at our checkpoints there is a notice that states passengers can refuse screening but will not be allowed to board the aircraft. I cannot vouch for other airports, only my own. Even though every airport with TSA there has the same SOP, you know the inconsistancies. At our airport, the airlines will usually let someone board who may not possess a gov't issued ID but another valid ID. TSA does not check tickets and ID's at our airport(GSO, NC) except when you alarm on the ETD. At that point, if you did not possess a valid ID and the airline checked you in we would get them involved to get your information. We rarely have complaints at GSO, mostly just from FF's who want us to put in a FF lane for monday mornings and thursday evenings because our lines get really backed up. Other than that we are generally commented on frequently because we have very knowledgable employees who are professional and curteous. Hope that helps.

Great answers from everyone and Fenito again hit it on the nose.

But to confirm, TSA cannot detain you. The supervisor ask for boarding pass and ID when a alarm goes.

Screeners may check your boarding pass for the SSSS or when you alarm while carrying tickets through.

Screenerx and Fenito were correct. As a supervisor I do have the authority to refuse you passage thru the checkpoint. If that happen then the LEO will escort you out. Then the airlines may refuse to let you fly It is a case by case. Most of the time all we want to do is get you on your way any most of the time thing only take a few minutes to clear up

Anyone: link?

I had a little more time to do some googling today:

Most of these say that if you don't have ID, you become an automatic SSSS. If the airline doesn't refuse you boarding (which I agree that the airline, as a private company, should have the right to do), you can fly.

http://www.wired.com/news/privacy/0,1848,54464,00.html

http://permanenttourist.com/4paths/fly-without-id.html

http://www.theadvocates.org/celebrit...n-gilmore.html

Interesting stuff. Thanks.

Remember, you could go blind.

To answer my own question, the friend of a friend had her day in court, was handcuffed, spent the day in a cell, and has to return to court again in another month. Note that the original incident was not in her hometown, so that will entail another out of state trip.

Just for our knowledge,were did you get this authority to refuse people through the checckpoint?

Supervisors can refuse someone passage through the checkpoint. If they deem the passenger to be a threat to the flight in any manner, whether it be irate or potential terrorist(just using examples). The supervisor themselves cannot force the person to leave but they can tell them they are not passing through the checkpoint and if they refuse to leave the checkpoint then the supervisor gets the LEO involved.

They should definitely not have that kind of authority.

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"Give me Liberty or give me Death." - Patrick Henry