Let's clarify that. A TSA employee can ask to see anything -- as can the guy standing in line after you. You, of course, are free to refuse to show it to either of them. The TSA screener can call for an LEO; so can the guy behind you -- the only difference being that the TSA screener can refuse to let you into the sterile area until the LEO shows up.

I may be wrong but I don't think the screener would ask to see the FinCen Form 105. He would call the LEO. Personally, if I had the FinCen Form 105 on me, and knew that I would be waiting for an LEO to arrive, I would probably offer it to the screener just to get through the whole process.

Actually for the Department of the Treasury. CBP collects the forms at prots of exit/entry and then transmits them to the Financial Crimes Enforcement Network (FinCEN), a part of the Department of the Treasury.

Let's be clearer. ;)

There are two separate concerns, here.

One relates to the First Amendment, the other relates to the Fifth Amendment.

Yes, screeners have First Amendment rights and can ask whatever they want. However, the whole rationale against self-incrimination under the 5th Amendment is the idea that questioning by the government can, in many cases, be coercive. It certainly is when a policeman questions after you've asked to have an attorney present. However, when a government agent says, "Answer my questions or you're not flying today," it is, in my opinion, just as coercive and, therefore, violative of the 5th Amendment.

Accordingly, in this regard, I don't think the TSO has the right to ask any substantive questions. "Nice day, isn't it?" is okay. "Is this a bag of marijuana?" clearly is not okay. In my opinion, however, neither is, "Why are you flying to Omaha?"

I believe that a police officer does not have to tell me my Miranda rights until such time as I am under arrest, isn't that right? Indeed, if an LEO sees me with an unlit, hand rolled, cigarette but has no reason beyond its looks to suspect that it is marijuana he is free to ask me if it is.

I am free to ignore his question and walk away.

The TSA screener, who can not arrest me, is therefore free to ask whatever he wants -- and I am free to refuse to answer.

I think free in this case should be used loosely. You're free to refuse the answer, and the TSO will be "free" to deny entrance to the sterile area. Thus the way that TSA is making it out with the cash, they're practically conditioning entry into the sterile area upon waiving your 5th amendment rights if asked.

PTravel can feel free to correct me if I'm wrong and I won't take offense. :)

You guys are going to be in big trouble when TSORon gets back to this. He has the right to determine what he'll do after your interview at his CP, based on your co-operation/attitude as measured by your willingness to answer his interview questions.
He staffs an airport professional security check-point, doncha know, where your alleged rights matter not a whit.

But where does this take us? What can a TSO possibly ask that results in entry denial?

I see typical dialog going as:

TSO: Are you leaving the country with those funds?
Pax: No
Now the TSO has to go further to the clearly impermissible area, ie where did you get the money? What is your "final" destination? Did you commit a crime to get that money? etc.

or:

TSO: Are you leaving the country with those funds?
Pax: Yes
TSO (puffs up): Well will you submit the appropriate IRS froms prior to leaving the country?
Pax: Yes
Again the TSO has to go further to the clearly impermissible area, ie where did you get the money? Did you commit a crime to get that money? etc.

It's very telling to me that these discussions, at least from TSA's perspective, always hinge on cash. The same regs apply to any instrument that moves funds across the country's borders, and I'm sure Goalie knows many obscure instruments that can achieve this, but you never hear the TSO's salivating over a bearer bond or a cashier's check as they do over cash. IMHO, the TSA fascination with the flash of cash either comes from a wrong-headed presumption of guilt or an attractivenss for the sticky-fingered amongst the ranks.

That's correct, and anything you say before being Mirandized is, generally, not going to be admissible.

Yep.

And he's free to detain you and examine the hand-rolled cigarette that was in plain sight. That is "reasonable suspicion."

A policeman who asks substantive questions pre-Mirandizing is going to get a stern lecture from his sergeant. A TSO has no business asking coercive questions because they perform absolutely no useful function.

No, I agree with you. That's why, if a TSO denied me entrance to the sterile area for refusing to answer something like, "Why are you going to Montana?", I get the GSC and let him or her sort it out. Though, I imagine, just the mere fact that I was going to Montana would probably call my mental stability into question. ;)

Montana has good skiing. ;)

I was under the impression it is OK to mail the form before you leave the country. If that is correct, the the LEO can't really see it. And if I already gave it to CBP it's also gone. So, basically the LEO has to take my word for it.

In all my 40+ years of international flying I don't think I have ever seen a Boarding Pass with the whole itinerary printed on it. Most airlines do not staple all BPs together. And if someone would do that, I would very quickly separate them and give you the single BP you need to do your job.

And yes, I am a security professional. A card-carrying ASIS member at that.

That's my experience as well.

And there is where you step off the path of knowledge. I posted links to the relevant laws and acts of Congress. I hope you read them, but it does not seem so.

So far so good. We have an understanding.

Correct, he cannot TELL you to open it, but there is no law prohibiting him from asking you to open it. You still retain the right to say no.

Also correct, as far as it goes. The same applies here to the TSO as it does to the previous example of the law enforcement officer and the trunk, he can ask you about it. Must you answer? No, of course not. Can he call a LEO? Sure he can.

Once again the LEO cannot demand you answer his questions. Cannot force you. But he can ask, and he can run background checks, NCIC checks, TSA lists, and a whole host of other things if he so chooses. Because he has Reasonable Suspicion. Just as the LEO did in St. Louis. With that he might be able to generate Probable Cause, and thereby find authorization for a more in-depth discussion. I’m sure PTraveler wont agree, but this is the way it has been done by police officers since the age of computers began.

Constitution trumps Congress. It doesn't mean that Congress can't pass unconstitutional laws. It just means they have to be reviewed and can be stricken down.

On what grounds? He won't give up his rights and tell me what I don't need to know? I'm telling! :rolleyes:

So pretty much, you just confirmed that TSA is really just a big LEO fishing expedition. Best to say nothing.

You guys really are like the mob: won't talk? We'll beat it out of you. And we'll find something to make your life hell while we're here.

And where does the reasonable suspicion come from? I've sat in court rooms where judges say that silence CANNOT be construed as suspicion or guilt - it CAN'T be held against anyone. And considering that the guy in STL was on a domestic itinerary and had less than $5k, there was no reasonable suspicion. It was a TSO trying to make a guy's life hell. :td:

You don't see how that goes against the "freedoms" you claim to protect?

God help us all.