There exist a lot of questions about whether the searches
are properly authorized because the reported searches were conducted by armed Customs
and Border Protection agents at airports a significant distance away from the
U.S. border such as in Iowa City, IA. The
Aircraft Owners and Pilots Association (AOPA) along with the Experimental
Aircraft Association (EAA) have both demanded official responses from officials
at the highest level of DHS with no response.
The affected airmen and AOPA have filed Freedom of Information Act
requests to no avail. The purpose of the
demand for official responses is to identify the legal basis upon which the
searches are being conducted to assess whether or not the searches comply with
the Fourth Amendment’s warrant requirement or whether the searches qualify for
one of the exceptions. The searches, as
they are reportedly being conducted, amount to harassment by government
officials who wrongly believe that constitutional protections do not apply to
GA pilots.
To date, none of the airmen have been arrested in connection
with the warrantless searches. As a
result, without legal action in the courts by the government agencies no one
has been provided with the right set of circumstances to challenge or question
the DHS’s expansion of searches before a sitting Judge. Regardless of whether or not the government
takes subsequent action, if the right set of circumstances come to pass, there
may exist an opportunity to challenge the actions.
If you, as an airman encounter a situation where a law enforcement official endeavors to search the aircraft without a warrant, then there are some suggested steps for you to follow to protect your rights. First, ask the law enforcement official(s) to explain the purpose of their search. Next, request to see the law enforcement’s official identification and make note of their name, badge number, and agency. Third, in response to a request for documentation, provide the information specified in the Federal Aviation Regulations (FARs) to officials from the following: the FAA, the NTSB, Federal, State, or local law enforcement agencies. For example, a private, commercial, or ATP pilot must present their pilot certificate, medical certificate, and a photo id[1]. Additionally, the pilot must present a valid aircraft registration upon request. The fourth recommendation is for you to ask the official to identify the authority for the search. Ask if you are under arrest. If you are not under arrest, then ask if you are being detained and if you are free to go. Next, if the law enforcement official states that they are going to search the aircraft and its contents over your objection, then you should plainly state that you do not consent to the search, but that you will not interfere. It would also be prudent to alert the law enforcement official that disassembly of any portion of the aircraft may render the aircraft unairworthy[2].
If feasible
and allowed to do so, then take steps to document the search such as with a
camera of cell phone. Make a detailed
written report as soon as practical to preserve the sequence of events as close
as possible to how they transpired. Each
situation is unique and it is not the intent of Higa & Gipson through this
blog entry to provide legal counsel on a specific factual scenario. If you find yourself presented with this
frightening circumstance in California, then contact Aviation Attorney Ronnie
Gipson to discuss the situation at (415) 692-6523 or by email at gipson@higagipsonllp.com.
[1]
Code of Federal Aviation Regulations § 61.51(i) (1) (WEST 2013).
[2]
Portions of the recommended steps were adopted from AOPA’s brochure titled,
“What To Do If Stopped by Law Enforcement” dated June 19, 2013, and appearing
on the Internet at http://www.aopa.org/-/media/Files/AOPA/Home/News/All%20News/2013/June/CBPGuildelinesKneeboard.pdf
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