Devil's Advocate
 

Based on TSORon's original question on the "TSA and the law" thread I have decided to play Devil's Advocate in hopes of getting his questions answered.

Ground Rules:

• I am playing Devil's Advocate, I may or may not believe in the righteousness of the arguments I put forth.
• Stick to the topic, if this goes well I will create other threads for other topics. Example this first thread is about the legality and constitutionality of referring someone to a local LEO for having a "large" amount of cash or other legal "contraband", do not bring up obviously illegal items like dope, or kiddie porn.

Game on.


Large amounts of cash.

It is common knowledge that nefarious individuals tend to keep large amounts of cash on hand to prevent the tracking of income by law enforcement. When a TSO discovers a “large” amount of cash while performing a search the TSO has every right to question the PAX to the nature of the cash to determine if the PAX needs to be referred to a LEO. The TSO is acting in his capacity as a Federal Officer.

Your turn.

TK, that's strictly an American prejudice. Most other cultures don't find anything suspicious about using cash. That's one of the reasons that the Americans have become so hated in Iraq -- for the first few years, at their numerous checkpoints, they would regularly confiscate "large amounts" of cash (typically anything from 2 - 100K USD) because, in their view, such quantities of cash could "only" be for people funding the insurgency, forgetting in their narrow cultural prejudices, that the Iraqi banking system was barely functioning, so if you were buying a house or a car, you brought cash.

But of course that is true in many places where the banking is functioning well. I remember when I was living in Poland and I went to a travel agent and booked a package holiday. The agent asked how I would pay and I said "cash" and pulled out 4000 USD. The guy just looks at me and says, "An American, paying in cash! Unheard of!", because Americans have this propensity to use plastic money.

I notice this also on the internet. If you buy something on line and the only payment options you are given is credit card, it's almost always an American website. Non-US websites will usually have an option to pay by bank transfer as well. I've actually called up U.S. merchants and asked to pay able to submit payment by bank transfer and some of them just simply refused to accept cash.

Non-Americans travelling in the U.S.A. who are accustomed to using cash (I was just in the U.S.A. for 10 ten days and took 15 000 USD with me), run into problems from the TSA, because these guys, like the U.S. soldiers in Iraq, are so provincial that the idea of people who do things differently from them is simply inconceivable. They run around with their plastic money believing cash is something only criminals use.

What you are saying is what would be suspicious in one culture may not be suspicious in another.

In America carrying a large amount of cash is suspicious because most "normal" people, as you point out, use either check or plastic.

So if a large amount of cash is suspicious to the average person, why would it not be an indicator to a TSO that something illegal might be happening and a referral to a LEO is prudent.

I think me switching sides has wonked the forum. :D

Anybody else getting strange forum layouts?

Because that individual may be visiting the U.S.A. from somewhere else and may not be aware of the prejudice against cash in the U.S.A., or even if they are aware, they may not want to adopt the American way of paying, just as Americans overseas often insist on using their credit cards. Having such a preference should not result in their being subjected to heightened harassment at security checkpoints, any more than wearing a full beard or a turban should.

Looking for cash, in any amount, is outside the job description of a TSO. Cash is not a danger to air travel, as such it is none of the TSA’s business.

The layout's okay but you switching sides is really messing with my head (at the end of a very long day!). :eek:

Okay, I'll play anyway. TSA screeners, although Federal employees, are not detectives or general purpose crime-stoppers. They have no basis to decide when a sum of money becomes "suspicious." They are charged only with keeping dangerous things off aircraft, and only because aircraft are considered vulnerable in ways that other infrastructure isn't.

Giving government employees permission to involve police based on a vague suspicion (unless directly related to their job of keeping dangerous things off aircraft) becomes absurd if you apply this to any other scenario. Say a TSA screener named Fred lives next door to Barney. Barney comes home in a new sports car one day. Fred might "suspect" that Barney can't afford the car and might therefore be involved in some illegal business. Should Fred call the police in his official position as a gov't employee and report Barney?

I hope you'd say no. And note that in this case, Fred probably knows a lot more about Barney - what kind of job he has, what kind of purchases he usually makes, whether his kids are in college, etc - than Fred would know about a passenger who comes through the checkpoint. If anything, Fred is in a better position to be suspicious of Barney's sports car than of some person's cash. Still, the answer is no.

Carrying cash through an airport and buying a new car are both indications of unusual financial dealings that might - or might not - be linked to something illegal. Neither threatens the safety of an aircraft. Neither should be any of Fred's business.

Let's go further. Fred quits the TSA and gets an gov't office job. He's still a federal employee. Should any employee of the US gov't be able to call the police in their official capacity and report anything they think is unusual? Is that the society you want to live in?

As it turns out, Barney's rich uncle died and left him some money on the condition that he buy a car with it. Why should Barney have to explain that to the police (or provide proof) just because Fred is a busy-body?

What if it's not money? Fred, now a senior gov't consultant, works from home a lot these days. He notices that Barney's wife Betty usually leaves the house at 8:30 and returns at 4. (Fred spends a lot of time looking out the window. And Betty is hot. ;)) On Thursday, he doesn't see Betty at all. Or again on Friday. Should Fred call the police in his official gov't capacity because he suspects that Barney has killed Betty and buried her in the backyard? (TK - I'm sticking to your ground rules. Fred has only observed someone coming and going; the "obviously illegal" part is only in Fred's mind.)

With a fertile imagination (read, paranoia), almost anything can be suspicious. It's natural to think "I wonder what that's all about?" But TSA screeners using their position to satisfy their curiosity, in the guise of "helping out law enforcement," leads to some very ugly intrusions into people's lives and privacy.

That is a prejudice too: All cash transactions for more than 12,500 euros undergo mandatory registration all over the EU. In some countries (Italy, for instance) they are simply forbidden.

The TSA begs to differ, Assisting Law Enforcement. When you read the stories they show that the TSA is making an effort to raise awareness by their employee about suspicious non safety behaviors or items.

The TSOs DO have a basis to decide when a sum of money becomes suspicious, the amount was in that directive that Blogger Bob was kind enough to grace us with. According to it any monies totaling $10k or above is to be referred to a LEO as contraband.

You need to prove to me that keeping dangerous items off the plane and out of the sterile area is the TSOs ONLY charge.

The ground rules are there mainly to keep other TSA issues out of the thread. Giving analogies is within the rules and welcomed.

Shouldn't we use a ready work force to help with the safety and security of not just the aircraft but also the general population?

Show me where that limitation is placed in stone.

A firefighter's job description does not include giving oxygen to an animal but the papers are filled with stories of that very thing. I do not hear people complain that saving a kitten is outside a firefighter's job description, even though we pay for the firefighters, equipment and consumables.

Would we be so forgiving with a foreigner's ignorance of our ways if they were walking around naked or killing someone's goat?

Or what if they were killing goats naked? Please, that's a silly analogy and you know it. And I think if some Brazilian model travelled to the U.S.A. and dressed the same way she would at Copacobana then, yes, I think her fellow beachgoers would mostly be "forgiving";)

The issue of the inherent suspiciousness of "large amounts" of cash goes to the issue of whether or not "unusual" = "suspicious". Some people think they have some sort of natural right to be a busybody, and that anyone doing anything "unusual" is under some sort of obligation to explain themselves. Hence, when these people work as TSOs, they think it's their job to alert to "unusual" amounts of cash, "unusual" ID cards, "unusual" itineraries, etc. etc.

As I've said before, freedom to do only what is "normal" is no freedom at all. The real barometer of society's freedom is exactly that -- how they deal with "unusual" people.

*****

You are going seriously equate a firefigher saving a kitten with a TSO deciding to act a as a surrogate LEO? :D

There is nothing inherently wrong with a TSO, when confronted with a potential situation that might require the assistance of a trained LEO, from bringing them in. Like when someone is carrying more than 10,000 dollars in cash. I realize that in other cultures, that might be normal, but in the US it isn't, and LEO's should definitely be called in. It is no different than me calling the VA State Police when I see a driver who is acting like he/she is operating a vehicle under the influence.

When you look at the TSA assisting law enforcement page, most of the stories are about TSA finding illegal items that pose a danger to aircraft in the ordinary course of inspecting carry on baggage or a pat down search. Again, I want the TSO to be looking for those items. That is their job. Finding other contraband like drugs - OK, if you are going to be stupid and pack illegal drugs on your person or in your carry on, you deserve to get stopped.

I have a big problem with TSO's acting like wannabe cops is when a passenger is carrying less than 10,000 dollars. That is not inherently illegal, and TSA shouldn't be snooping around this kind of private conduct. Carrying 9,000 cash isn't going to pose a safety threat to the airplane, so what business is it of TSA?

I also take great offense to BDO's walking around looking for "suspicious behavior" that does not relate to aviation safety. If a TSO wants to catch drug smugglers, they should join DEA or ICE. Besides, most BDO's I've observed are pretty poorly trained and supervised.

The government already pokes its nose into our private lives too much. When I go to the airport, I want them to ensure that no one gets on the plane with a weapon or explosive. I don't want yet another government agency taking it upon themselves to monitor my behavior if I'm not carrying a weapon or explosive device.

As soon as TSA demonstrates they can do their "day job" with any kind of real efficiency, then they can talk about branching out. Otherwise, they need to focus their efforts on what they are supposed to be doing.

Well, I guess they could ask the traveler about their travel plans. However, in my case (and others on this forum, I suspect), all they would get out of me is the destination FROM THAT AIRPORT.

IOW, I just flew to Japan recently, through BWI (means a connection somewhere). If the TSO at BWI had asked about the large sum of money I had with me and what my destination was, I would have told him that the money was NONE of TSA's business and my immediate destination is shown on the B/P I showed to get through the C/P. The TSA has NO business knowing what my final destination is, EVER.

Disagree, TSA has no role in the reporting of cash movement. FINCEN Form 105 clearly states to who and when to report the movement of cash into or out of the country. TSA is not on the form anywhere.

So you equate that someone carrying more than $10k dollars is doing something illegal. $9,999.99 is legal in your mind but $10,000.01 is suddenly illegal.

Would you please reference the Code that states this?

Again, TSA has no role in the reporting of cash movement.

There are plenty of laws currently on the books; Currency Transaction Reports (FINCEN Form 104), Report of International Transportation of Currency or Monetary Instruments (FINCEN Form 105), Suspicious Activity Report (multiple form numbers), and last if not least FINCEN 314 Reporting where law enforcement agencies require financial institution to report on accounts without warrants of any kind, brought to you courtesy of the Patriot Act.

No, we have enough government poking their noses into citizens personal business, we don't need the addition of TSA!

As a US citizen, I don't need a provision of the US Code to authorize me to report a suspected crime.

I realize 10,001 is over the line, and 9,999 isn't. When it comes to trying to define a bright line, the devil is in the details.

Here's how I see it.

If TSO sees a large wad of cash in the possession of a passenger, I don't want the TSA to become a criminal investigator and detain the person at the checkpoint. If the TSO believes it may be, from observation, a sum that does trigger legal scrutiny, and the passenger is departing the US on an international flight, what the TSO should do is NOT detain the passenger, but record his/her name, let the passenger leave if he/she has otherwise finished screening, and then notify a LEO.

IOW, act just like a citizen who sees a potential crime in action.

Let me ask you this. If the passenger drops a wad of cash, and blurts out words to suggest - or stupidly admits - to carrying over 10,000 AND he/she is going international, would you forbit the TSO from detaining the passenger?

I don't want TSA doing things that aren't within their mission. That said, we shouldn't want a TSA employee to ignore an obvious illegal act.

It is not a crime if it is reported appropriately. The TSA has NO WAY of knowing whether the FinCen form has been completed and turned in to Customs, and no legal authority to require the passenger to answer questions pertaining thereto. Therefore, it is not an "obvious illegal act" and the TSO should MHOB.

Okay, I was behind the guy with the cash. Now it is my turn through the checkpoint. I have some moths in my carryon luggage that I may or may not have a PPQ 526 permit from APHIS to allow interstate transport of my moths. Will the TSO check with the USDA about my creatures?

No amount of cash is going to make an aircraft fall out of the sky.

In the past, I’ve travelled with large amounts of cash from working with non-profit 501(c)3 organizations at fund raising activities. I never carried the cash in a lock box because, well they look like the kinds of things you put a lot of money in (besides, you can jimmy them open with one of TSORon’s Prohibited Butter Knives™ anyway). So at the events the cash was carried in an inconspicuous soft-sided insulated container, the kind you would put your lunch in. When it was time to fly home, the container went inside my carry on bag. Oh, the horror of Artful Concealment!

But guess what? I never received the Steve Bierfeldt treatment. The private security firms that were operating the checkpoints had no need or desire to justify their existence by publically patting themselves on the back every time they found a petty criminal that posed no danger to commercial aviation.

4th amendment. Advocate, I'll grant your devil its administrative search for weapons, explosives an incendiaries, but beyond that, you need a warrant.

Advocate, you need to prove your own case. Asking us to prove that your secret directives and SSI rules and procedures give your TSOs no more charges puts an impossible burden on of proof on the side of the angels. That makes this game not the devil's advocate, but merely the devil's whack-a-mole. Citing the devil's own disclaimed PR is the role of the devil's advertiser. The burden of proof must be on the devil's advocate--the devil doesn't get to win by default.

correct but try telling them that :mad:

emphasis mine i beg to differ...first off, and just being super picky, but currency is either above or below the threshold of $10,000 u.s. or it is not-it can't "appear to be" ;). second-if a pax is flying internationally and has currency (or currency equivalent) exceeding $10,000 u.s, it is not the tso's job to determine anything-that job belongs to customs and it is their job to determine if the pax in question has filed fincen form 105, period. if a pax has u.s. currency (or currency equivalent ) exceeding $10,000 u.s. and they produce documentation that fincen form 105 has been properly filed, they must by law be sent on their way by customs without any further questioning or interference (but try telling that to the customs officer). if a pax is flying domestically, it does not matter how much u.s. currency (or currency equivalent) the pax is carrying-period & end of story. sorry for sounding like such a hard a$$ but this has been my career for 30 years and i simply cannot see why something so simple can get so effed up by folks who have no business, let alone any authority, to act on it.

btw, glad to see someone else likes to use the "richard reference" ;)

Killing goats naked is a sign of a good weekend. The analogy is not silly when you think about local customs and beliefs. In America a large sum of money is considered suspicious, ask any cop.

TSOs are not just busy bodies but are trained busy bodies. In their training to find "artfully" concealed items the TSA encourage and train TSOs to notice unusual and therefore suspicious actions or items. Do we ask them to turn a blind eye to potentially illegal activity?

Unusual people belong at the bus station not the airport.

Yes. 4th amendment again.

Counterassertion:

TSA encourages its TSOs to use their administrative search powers to bypass the warrant requirement of the 4th amendment. One unchallenged example from TSA's website:

LEO's and CBP may consider money contraband but thats their decision to make not ours. We have the authority to search your property at the checkpiont, LEO's do not. If I find drugs in a backpack I have to physically remove them from the backpack and hold them up to the LEO for inspection, he can't reach into the bag. So our organizations work together. -- TSOWilliamReed


This TSO knows a LEO "can't reach into the bag" because it would be an illegal search, so the TSO can act like the hands and eyes and do these illegal searches for them.

I don't see how you have determined that $10k cash is reason for concern. It is not illegal in and of itself.

If dropped and observed by a TSO no difference. It is not a responsibility of TSA to control cash regardless of amount. No illegal act was observed, no action is needed.

TSA will not be ignoring an illegal act if they do not act on large sums of money since there is no law stating carriage of any sum is illegal.

The only requirement is to file proper forms with the Port Officer when leaving or entering the country.

I asked about legal code because from other comments you have made on this blog I thought you were in some area of law enforcement. Perhaps I am wrong.

Cash, in and of itself, poses no threat. Maybe the guy won big in Vegas and wants to buy the entire plane a major drunk as they fly to the Cayman Islands. Its within his rights, and what he does with his winnings is non one's business but his own. Dont the bills say "for all debts public and private"? Nothing there about "as long as its less than $10k." He has it when he gets on, but not when the aircraft lands. 10k+ when be boards, no threat, no law breaking, but one heck of a group hangover at the end and he's broke again

Two can play the devils advocate thing, and while I may not support this argument I can certainly entertain the idea of limits.

I have a friend who has a gem business in Thailand. One of his partners buys gem rough from the mines and pays in local currency. Luckily he has armed bodyguards and his own plane, you wouldn't know what to think if you saw bundles of foreign currency weighing 60 kilograms coming through your checkpoint.

emphasis mine kinda says it all right there, doesn't it? ;) but just in case.....from my ealrier post

When an agency like TSA has such severe tunnel vision I see little hope that they will ever understand the finer points of currency reporting.

TSA has one aim only, to catch someone doing something even if it does not threaten transportation.

You were doing fine until you got to "question." A TSO can't question anything outside their purview (aviation security). If they find something they think may be illegal yet outside said purview yet still within the limitations of their permitted administrative search, they can refer it to local/fed LEOs but they cannot question the pax about it. This is an Exclusionary Rule issue, with possible (probable) Miranda issues attached. They aren't LEOs but they are Fed employees and represent the G, so the Bill of Right protections attach and apply since it's no longer completely an admin issue.

Long story short - they they discover something inside their court precedent approved admin search parameters yet outside their dangerous items mandate/jurisdiction, then they can refer it to other appropriate agencies but that's it, be it drugs, money, whatever. No investigation allowed, however.

Do you know what a large stack of cash looks like on an x-ray? Could it look like a dense mass that would mimic what an explosive would look like? If it does that gives the TSO the legal right to check for explosives. Once the TSO sees the wad of cash, that is suspicious by its amount, he has the right to refer to a LEO without a 4th Amendment violation. In fact the TSO is mandated by the SOP to do so. Failing to refer to a LEO would be dereliction of duty.

Regardless of what the TSA may believe, SSI and secret directives do not usurp law. If the TSA has other charges there should be a law that allows it. You need to find the statutory law or case law that limits the TSA at the airport to one charge when dealing with passengers and/or the sterile area. Failing that and the Devil wins.

The TSA does have more than one charge as it is over all of transportation security and an allowance that is made in one area of transportation may allow allowances made at the airport. (non Devil's Advocate comment: I honestly don't know if it would)

The Devil gets to win by default if the Devil is the authority perceived to be in charge. The Angels must bind the Devil by making him submit to the will of God.

In this case God would be the Constitution and the Bible is the statutory laws. To beat this Devil you need to learn your scripture.

p.s. Being the Devil's Advocate is hard. (please feel sorry for me)

I think Bart explained that TSOWilliamReed is acting way outside of TSA procedure. It sounds like to me that the LEOs at TSOWilliamReed's airport got tired of being called over for "maybes".

It would NOT be an illegal search on the part of a LEO if a TSO explained to the LEO why he suspects that the back pack contains drugs. Example "I was searching this bag and I found what I believe is pot." At that point the LEO has probable cause that a law is being broken and can search the bag.

Before we head off on the drug question, because drugs are illegal, lets kick the cash question some more because the mere possession of cash is not illegal.

Being a Devil's Advocate can really hurt your brains.... trust me I know.

Start digging around and see if you can find case law or statutory law that supports your Devil's Advocate position. I need to do the same for mine but that may not happen fully until this weekend.

Investigation is allowed if it is a good faith effort to clear an item. Illegal items could appear suspicious but legal, like prescription meds, money or a bunch of credit cards in various names.

Without investigating (asking questions) how is a TSO supposed to know that everything is above board?

emphasis mine: pretty much the post of the year afaic ^*

*with no offense meant to our resident tsa folks (even the ones i butt heads with ;)) as it is their job but they have no say as to the rules that come their way

*****

or carry a hard copy of the form and instructions (with the applicable sections of the instructions highlighted). yeah i know, it sounds anal but i have a "tsa forms/instructions" manila folder that lives in my briefcase in case i have a situation where the screener is not correct and i will have them look at the docs. this all started with me having to wear orthopedic shoes but now includes things like a copy of the "bad items list", official tsa complaint/compliment forms, tsa's official civil rights polcy statement and fincen form 105 (it's a hold over from my vegas days)

Since TSO's are highly trained as we have been told so many times I feel no need to justify my actions to a low level government employee.

If they interfere with my movement I will take appropriate action to address that situation.

I am of the opinion that a TSO acting outside of SOP is personally liable. I hope to have the opportunity to test this opinion at some point.

No only will SOP have to be disclosed to mount a defense but a clear ruling on limits will be established.

I would hope others would consider this path if the opportunity is offered.

This is a nation of laws.

But does such lack of cooperation thus create suspicion, and therefore probable cause for further interrogation by a LEO?