Pubdate: Mon, 09 Sep 2013
Source: Blade, The (Toledo, OH)
Copyright: 2013 The Blade
Contact:  http://www.toledoblade.com/
Details: http://www.mapinc.org/media/48
Author: David Patch

PRIVATE PILOTS CHAFE AT SURPRISE SEARCHES

4th-Amendment Concerns at Heart of Disagreement

Texas businessman Danny Zimmerman was preparing to fly a private 
airplane from his home airport in San Antonio to Houston - and hoping 
to get out before bad weather moved in - when a plainclothes officer 
walked up to him and flashed a badge.

"He asked to look around, checked in the baggage area," Mr. Zimmerman 
said, adding that the encounter became uncomfortable when the pilot 
advised the lawman that he was carrying a pistol as allowed by a 
concealed-carry license.

"It was right after the Boston [Marathon] bombing, and the excuse was 
to check all the aircraft on the field," he said. The delay ended up 
being about 20 minutes.

Mr. Zimmerman says he didn't think much of it at the time, but three 
months later, he was at Rockport, Texas, after a flight with his two 
young children, his brother, and a nephew when four police vehicles 
surrounded the plane after he parked it near a fixed-base operator - 
an airport business that sells fuel and other aviation services.

The officers had been asked by Customs and Border Protection to 
intercept the plane and check it out, Mr. Zimmerman said, describing 
his own demeanor as "courteous, but still a little agitated."

"They didn't draw any weapons, and they didn't seem to know what they 
were looking for," Mr. Zimmerman recalled. "It was probably only five 
or 10 minutes. They didn't ask to search the plane, and this time I 
wasn't going to give them permission."

Mr. Zimmerman isn't the only private pilot who has reached that 
conclusion after being stopped unexpectedly and searched in recent 
months by law enforcement - searches conducted either by federal 
agents or by local officers whom the pilots believed to be working at 
the feds' direction.

The Aircraft Owners' and Pilots' Association, which represents 
small-plane owners and operators across the United States, said it 
has received dozens of complaints from members "subjected to random 
searches" by Customs and Border Protection, local police, or both.

"None of the stops resulted in anything being found," said Steve 
Hedges, a spokesman for the owners and pilots association.

"In most cases, the pilots were stopped and held while their planes 
were searched. ... I'm told one pilot was asleep in a motel room with 
his wife when agents kicked the door down and took them back out to 
the airport to search his plane, only to find nothing there."

Information sought

The pilots' group has filed freedom-of-information requests for 
documentation about the searches, but Mr. Hedges said the association 
has been told it would take at least six months to get a response - 
if pertinent records even can be found.

In a blog published last month by its editor, Robert Goyer, Flying 
magazine reported extensively on email and telephone conversations 
with an unnamed "law enforcement source ... who is knowledgeable 
about aviation matters" who described his 2009 training to 
participate in a federal drug interdiction program targeting private pilots.

Flying's source said he was taught that pilots were to be treated as 
though they had no right to refuse the search.

"What they taught law enforcement officers and agents was that all 
aircraft can be detained since they fall under the ... authority of 
the FAA [Federal Aviation Administration]," Mr. Goyer quoted the 
source. "This, in effect, gives them complete search authority of any 
aircraft."

Instructors conceded, however, the searches' success rate was 
expected to be low but yield "a big bite" when they succeeded, the 
source told the magazine editor.

Flying said neither Customs and Border Protection nor Homeland 
Security representatives had responded to its requests to confirm or 
comment on that account.

In response to an inquiry from The Blade, Jenny L. Burke, branch 
chief of Customs' media relations division, issued a statement:

"CBP's primary mission is to protect the American public while 
facilitating lawful travel and trade. This includes ensuring that all 
persons and cargo enter the U.S. legally and safely through official 
ports of entry, preventing the illegal entry into the U.S. of persons 
and contraband at and between POEs [points of entry], ensuring the 
safe and efficient flow of commerce into the United States, and 
enforcing trade and tariff laws and regulations.

"We have deployed a multilayered, risk-based approach to enhance the 
security of our borders while facilitating lawful travel and trade."

Ms. Burke did not respond to a follow-up request for explanation of 
how stopping and inspecting aircraft that have not crossed 
international borders is consistent with that mission.

In a separate letter to the owners and pilots association, Thomas S. 
Winkowski, the acting commissioner of Customs and Border Protection, 
said the agency has authority "to inspect a pilot's operating 
certificate and related aircraft documents" on the basis of federal 
code governing the licensing of pilots and registration of aircraft.

"In the course of conducting a pilot certificate inspection, facts 
may arise meriting further investigation or search to the extent 
authorized under the Constitution and consistent with federal law," 
Mr. Winkowski wrote. "Each interaction and event must be evaluated 
independently based on the facts present at the time of the encounter."

Such searches, he continued, could include a "limited search" of a 
person if there is "reasonable suspicion" the person is armed and 
dangerous; a "protective sweep based on reasonable suspicion that a 
person is hidden who intends to impede or harm the law enforcement 
officer," or a search of the vehicle "based on probable cause that 
contraband or evidence is onboard the aircraft."

Cause disputed

The owners and pilots association said that all of the members who 
have made reports to it - 42 confirmed as of Friday - disputed that 
any probable cause or reasonable suspicion existed for the searches 
conducted on their planes. None of the pilots had crossed a U.S. 
border during a recent flight.

Melissa Rudinger, the association's senior vice president of 
government affairs, said one search involved a law officer who 
removed an "inspection plate" from an aircraft in order to peer 
inside its structure. That, she said, is "something they're really 
not supposed to do," as those portals are intended only for access by 
qualified mechanics.

Otherwise, she said, the searches did not include any teardown or 
dismantling of airplanes.

The National Association of Business Aviation, which represents 
corporate aircraft operators and owners, said it had received no 
complaints from its members about improper searches.

The owners and pilots association said it was not aware of any pilots 
from the Toledo area being involved in any protested searches.

Staff at fixed-base operator companies at Toledo's airports also said 
they were not aware of any such searches involving local pilots.

Scott Trumbull, the general manager at Suburban Aviation in Whiteford 
Township, said he believed some pilots there might be unhappy with 
federal law enforcement in general, but declined to refer any for 
comment and predicted none would speak for fear of retaliation.

David Brodsky said he and an uncle flew in March in his uncle's plane 
from Concord, Calif., to Boonville, Mo., near Mr. Brodsky's home in 
Columbia, Mo. The trip included a fuel stop in Pueblo, Colo.

Upon arrival in Boonville, he said, a police officer came over to the plane.

"I didn't really think much of it," Mr. Brodsky recalled. "But all of 
a sudden, four unmarked cars came out of nowhere and surrounded the airplane."

The local police reported having received a call from the Border 
Patrol that "we were under suspicion of transporting large amounts of 
marijuana," he said.

The only thing that could have remotely suggested the flight might be 
involved with drugs, Mr. Brodsky said, was that it originated in California.

Mr. Brodsky said the police started asking what he considered to be 
"stupid questions," such as asking why anyone would have reported him 
if he weren't up to something.

Having heard through owners and the pilots association about other 
pilots' experiences, Mr. Brodsky said he described those reports to 
the officers.

The pilot said he asked if he was being formally detained, and the 
officers said he wasn't, so he told them he needed to put the plane away.

No search was performed.

"They think people are flying pot out of California," Mr. Brodsky 
said. "They're casting a wide net and hoping to catch something - and 
trampling people's civil rights in the process."

Mr. Zimmerman said that during both of his police encounters, those 
officers, too, mentioned they suspected the plane "had been involved 
in drug trafficking."

But the circumstances of his travels, he said, made that highly 
unlikely: Mr. Zimmerman flies from a major, controlled airport, never 
makes private flights out of the country, and habitually files flight 
plans from which he doesn't deviate.

Air-traffic controllers "knew who I was and where I was going."

The plane involved was on a "dry lease," with others having access to 
it, but its flight logs and engine hours were inconsistent with any 
unsavory activity, Mr. Zimmerman said.

The pilot said he intends to "comply, be courteous" with future 
lawman requests, but won't consent to any searches.

"At that point, I'll get legal counsel if they do," he said.

"I don't think there's any reason why a U.S. citizen should be 
searched, or ask to search, unless they [law enforcement] have a 
warrant or probable cause," he said.

Gabriel Silverstein, a national land developer from New York who also 
professes to fly on flight plans as standard procedure, said the Iowa 
state troopers who detained him in Iowa City this spring were more blatant.

"It was, 'We are inspecting your plane,' not, 'May we search your 
plane?' " Mr. Silverstein said.

Later in the two-hour encounter, he said, one of the lawmen advised 
him to confess to possessing "a little personal-use dope and it'll be 
all over and easy."

Mr. Silverstein said he was hardly about to make such a confession, 
considering that he refrains from drinking coffee, much less anything illegal.

The Iowa City stop was the second for him in four days. Mr. 
Silverstein also had been visited by two Customs agents in Hobart, 
Okla., during a fuel stop on the outbound leg of a business trip from 
New Jersey to California and back with his husband.

They checked his paperwork and quickly inspected his baggage while he 
fueled the plane, he said.

His flight home had included a fuel stop in Colorado before the stop 
in Iowa City.

Mr. Silverstein said the Colorado stop seemed to be of particular 
interest to the agents because that state has recently liberalized 
its marijuana laws.

Terror fight

As a New Yorker, Mr. Silverstein said he believes in a strong 
counterterrorism effort, but in this instance the authorities have 
overstepped their bounds.

It has now been nearly 12 years since the Sept. 11, 2001, terrorist 
attacks, he said, but law enforcement's attitude has become, "We're 
still going to use that to have unrestrained, undocumented authority 
to do whatever we want to."

The searches, Mr. Silverstein said, were "a pretty clear and blatant 
violation of the Fourth Amendment," though he considers other pilots' 
experiences, about which he has since heard after publicizing his 
own, to be "far more disturbing."

He likened the campaign to the "stop-and-frisk" tactics the New York 
Police Department has used during the past decade to check 
pedestrians for weapons or drugs - a practice a U.S. district court 
judge ruled earlier this month is unconstitutional, although city 
officials have vowed to appeal.

"They're actually ruining their own case" against actual criminals by 
establishing a pattern of questionable behavior, Mr. Silverstein said.

Mr. Brodsky said the airplane searches suggest to him a 
law-enforcement apparatus that is losing its bearings.

"When they got all this Homeland Security money, well, there are only 
so many terrorists out there to fight," he said, so it was 
predictable that it "would be turned on our own citizens."
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MAP posted-by: Jay Bergstrom