Liberty and the Pursuit of Happiness - Part 2

William,
I would agree completely with your assessment right up to the part where the agent made the thinly-veiled threats regarding the vehicle search. Given that neither the pilot flying the aircraft nor the passenger matched the description of the suspect they were looking for, why ask to search the plane?

That was clearly a fishing trip, and in my mind completely unnecessary once it became apparent neither of the plane’s occupants were of interest in the matter at hand.
Agents often make the implication that you will somehow become of greater interest and increase suspicion on yourself if you refuse to allow a search, or that “it will go easier on you” if you cooperate. These are, in fact, lies. The truth is your status as a suspect in the eyes of the law does not change if you exercise your constitutionally-protected rights. Indeed, proof that police used your choice to exercise your rights as evidence of wrongdoing is grounds for dismissal in court. Further, aside from making his/her job easier, cooperation with an investigator will change nothing when it comes time to pursue charges if the authorities discover contraband.

The accuracy of drug-sniffing dogs is coming more and more under fire in the courts of late, despite a recent (2005) Supreme Court ruling that an alert by a detector dog constitutes probable cause. Unfortunately, it seems the court either ignored or was not made aware of factual studies and logic in its ruling. The reality is some dogs are better than others, and even the best dog with the most sensitive nose is only as good as his handler. There is a complete lack of standardization and/or testing when it comes to dog and handler training, which means dogs and handlers trained by one agency might be much better than those supplied by another. Additionally, there is mounting evidence that the dogs (surprise!) are strongly influenced by their handlers’ demeanor and behavior. In other words, if the handler is sure there are drugs present, the chance of an alert by the dog greatly increases.
There are many other problems with using a detector dog alert as probable cause which you can read about here. In fact, this investigation by the Chicago Tribune of data supplied by suburban Chicago police departments pegs detector dogs’ accuracy below 45%.

Why am I so concerned about this issue? Because the “probable cause” generated by a detector dog alert can cause a great deal of trouble even if a subsequent search turns up no evidence of illegal activity. In at least one case a citizen’s property—including $17,500 found during the detector dog-triggered search—was confiscated under Indiana state forfeiture law based entirely on a detector dog alert. Forfeiture law is a natural outgrowth of the 1970 RICO (Racketeering Influenced & Corrupt Organization) statues, which was a law created to allow government to go after mob profits. It eventually led to the Comprehensive Crime Control Act of 1984, which lowered the bar for civil forfeiture. To seize property, the government only has to show probable cause to believe that it was connected to drug activity, which is the same standard cops use to obtain search warrants. It was intended to motivate law enforcement to seek civil forfeiture, and it’s worked spectacularly. Indeed, many departments count on forfeiture as part of their funding. The problem for us ordinary folk is even if the owner of seized property isn’t charged with a crime, the property can still be held until the owner “proves” the property wasn’t used as part of criminal drug activity.
Obviously, this can lead to all kinds of problems when we’re talking about expensive assets like an airplane, which is why tactics such as threats to bring out detector dogs are as infuriating as they are successful in acquiring suspect cooperation. Many, including me obviously, believe these tactics, in conjunction with civil asset forfeiture laws, give law enforcement way more power that it should have when it comes to civil rights.

If it were me, and I had the time – since I know I have nothing to hide – I would force their hand, make them bring out the dogs and go through the motions. The only way we’ll ever get law enforcement to change the way the courts view the use animals in this regard is to generate enough data proving the inaccuracy of detector dogs. Only such data can lead to a ruling that the use of detector dogs impinges on Constitutional rights.
There is a good write up on this in the last LOBO News which you can download and read here.

-- Mark
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Here is a copy of a fax CBP sent. See if you can find the mistakes! I am a bit surprised they believe they can detain you if you do not have your pilot logbook onboard. LOL!!!!

Jeff

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i passed the copy to a friend and here is what he wrote back:
I just called that number, 866-247-2878.

I was handed off to Tony Martinez <sp> who said he was an aviation
enforcement specialist at the Air and Marine Operations Center in Riverside,
Calif.

Based on the beeping I heard on the line, I assume the telephone call was
recorded.

He wanted to know who I was and who I represented or was "with."

I gave him my first and last name and said I'm simply a pilot in Florida.

The Reader's Digest version of our conversation, taken from memory:

I explained I had some questions about a document -- the one in question --
and read its title to him.

He asked where I got the document.

I said someone gave it to me. More importantly, I added, several of the six
document requirements are almost certainly incorrect, mentioning #5 (pilot's
logbook) and #6 (Form 337). I pointed out these aren't FAA requirements.

He said Form 337s are paperwork for modifications to the aircraft and must
be in the aircraft.

I said I thought the only Form 337 that must be carried in the aircraft was
one for the installation of extra fuel tanks.

He said I should contact the FAA with my concerns.

I said this is a Dept of Homeland Security guide, not an FAA document, so I
didn't think the appropriate action was to contact the FAA.

He said he was more concerned about where I got the document.

I explained I was worried I'd be confronted by law-enforcement officers at
an airport and would run into problems because I wasn't carrying all the
documents listed in the guide.

He said this was a "guide" and "they'll be talking to us." Further
back-and-forth made me realize he meant the officers would be in real-time
contact with Martinez's facility during such a confrontation.

I said this might not be the case, and I mentioned the John and Martha King
incident and one recently at a St. Louis airport, where the police thought
the aircraft was carrying a federal fugitive when in fact it contained a
lieutenant colonel in the Air Force Reserves who flew F22s.

I asked who in the DHS I should contact to get the guide corrected. He said
I could send my input to his facility.

He again mentioned his concern about my having a copy of the doc.

How do we push back against this? AOPA seems too distracted selling wine to
act on our behalf.

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I travel internationally - a lot... and I managed to get on the "Terrorist List"... have been detained, inconvenienced a jillion times... my company makes parts for turbine engines, border people ask me all the time if I have plans and designs on my computer... but guess what... it's ok. It is a small price I have to pay as a US citizen to help keep the bad guys out of our great country.

If a member of law enforcement is seeking drugs, fugitives, guns, bombs or whatever, I know I have nothing to hide and I wouldn't think of giving law enforcement a hard time or hold them up in any way.

I am surprised that the guy in this story is in the armed forces he should know better.

To tell the truth, I'm not sure I would have handled the "IV-P" situation any differently than Lt Col Bob Rickard did; as it is, he's a personal friend of mine from our F-16 days at Luke AFB and, as a fighter pilot, I think he responded quite well to what was an obvious BS setup. He kept his composure because of his training in confronting threats from any direction and made sure the agents on scene knew he was on top of his game.

It's a sad bi-product of our society's direction since 9/11, but the truth is, like with the Kings, the "authorities" can be led astray by bad poop or bad leadership; even back in the '60s this sort of stuff was happening as Rinker Buck details in his delightful book Flight of Passage with a cantankerous cop in Yuma. I have to agree this looked like a "phishing trip" from the get-go. Don't let that start eating at you or you'll wind up spending more hours on conspiracy-theory websites than you do on healthy, positive-thinking, and helpful sites like this one. Don't start down that road.

Stay on top of your FAA regs and requirements; know your rights and continue to fly your airplanes for the fun and enjoyment as always. I wouldn't short-change the AOPA: They (WE!) have legal-beagles (attack dogs? :rolleyes:) too and our GA pilot compatriots in congress can "scrutinize budgets" of agencies dabbling in inappropriate actions. Try writing them with stories like these: You'd be surprised what even a freshman congress member can do with a "hot lead!"

There's no harm in calling in the local news media when something this egregious happens, and the light of day can do a whole lot of house cleaning; I'll refer once more to the Kings and the Bob Hoover affair several years back as supporting evidence. While this isn't the sort of thread we normally address in these forums, it's as pertinent as the mechanical and flight-training "how-to" stuff we usually chat about and serves to heighten our awareness of what ELSE is "out there" waiting to bite an unwary pilot.

So, Guy Buchanan, thank you for bringing this issue across the community from the Lancair crowd to us; tell "Bobaloo" Rickard "hi" from me and that I'll still cover his six...but from a much lower altitude! ;)

"E.T."
Semper Viper!

What about those of us flying as a Light Sport Pilot, and we don't have an FAA Medical Certificate, we are flying on our current Drivers License.

More on aircraft inspections from the Lancair List:

Jeff, et al,

Examining the AMOC document and aside from obvious errors:

Items 1-4 are fairly correct.

5. The clear intention of Title 14 section 61.51 1 Presentation of Required Documents has to be taken in context - While the pilot must respond to a "reasonable request" to produce a pilot's logbook, this section further and specifically states that the logbook of a student, sport or recreational pilot must be carried in the aircraft. There is no such specificity for other pilot licenses.

6. The claim made here is correctly clarified later in that Title 14 section 91.417(c) only requires a 337 be carried if it refers to a fuel tank installed in the cockpit or baggage area.

***Caveat*** is more interesting. Reasonable detention is open to interpretation. It has been held that detaining someone stopped for a traffic violation until drug dogs could be obtained was not reasonable……….. This is probably why is says "Canine Unit on the scene."

Clarification of warrant/probable cause:

The Supreme Court has created a special exception to the warrant requirement for a mobile conveyance. Mobile conveyances are cars, trucks, boats, motorcycles, airplanes, riding lawn mowers, golf carts, baby carriages, etc.
There are three requirements that have to be met in order to search a vehicle.
First, the vehicle has to be in a public place. The mobile conveyance exception to the warrant requirement doesn’t apply if a car is in a garage or on the curtilage of a home. Hangar?
Second, the vehicle has to be readily mobile. This means the vehicle must appear to be operational to a reasonable person; however, it’s not necessary that the vehicle be moving or even occupied.
Third, there has to be probable cause to believe that contraband or evidence of a crime will be located in the vehicle.
If all three of those requirements are met the court will excuse the requirement that the officer obtain a warrant.
The mobile conveyance exception excuses the warrant requirement; It doesn’t excuse the probable cause requirement.

Good Luck!

Scott Krueger

Another Lancair List Cross Post:

As most of you on the list know we had an incident in April here in St. Louis where one of our own was "stopped" by local police based on a "tip" from Customs and Border Patrol. Here is an update to that story:

Bob Rickard (who was the individual stopped) and I have received more emails from other Lancair pilots who have been stopped as well based on "tips" from CBP. So this is not an isolated incident. I contacted AOPA, my congressman's staff, and CBP themselves. AOPA's Craig Spence is presently working this issue on our behalf. He already had ascheduled meeting with CBP on Wednesday, so he brought this subject up. He said that CBP wants to be the new "skycop". He conveyed our concerns to them --targeting GA for poloce searches and the issue of the fax that is sent to police agencies justifying detaining pilots. Mr. Spence told them that the fax has errors on it and agreed to help them correct those. On the issue of tracking GA flights and detaining pilots, Mr. Spence said the CBP is not budging. He believes we need to take this to Congressional leaders --he said we are in for a long battle with CBP.

The day after Mr. Spence's meeting I received two phone calls from CBP (so it is true about smelly stuff rolling downhill). The first call was from "Carlos" at CBP HQ. Carlos works in Gen. Mike Kostelnik's office in DC. Kostelnik, a retired AF two star, is the head of the CBP Air and Marine Center. Carlos wanted to know what our concerns were and I repeated that we did not like getting stopped based on bogus information. He wanted to know how I was certain CBP was behind these stops (he implied they had nothing to do with it) and I said it was from information from the local police and the fax AMOC sent to them. (Ah, the truth and evidence is so great) He was pretty agitated during our conversation and said if we were stopped and the police questioned us then we should tell them what they wanted to know. I said I disagreed (Fifth Amendment) . I gave him the specifics of Bobaloos stop two weeks ago and he agreed to look into it. I said that in the best light their intell is either unvetted or their analyis is poor. He disagreed (of course) and gave many other reasons (all bogus) as to why their intel was good. He said it could have been because the aircraft was a prior drug aircraft. I replied that would be pretty difficult since I built it, flew it and then sold it to Col. Rickard. I said that in the worst light --their folks are making up stories to get the local police to stop GA pilots--for the crime of ....flying. Of course he about blew a gasket. I asked him to tell me where CBP got this information about Bob carrying a fugitive. He replied that is a matter of national security and could not tell me.

A couple of hours later I receive a phone call from Tony C. at the CBP AMOC in Riverside, CA asking again about my concerns. Again I expressed the same and while he was very polite and cordial and appears to be a dedicated public servant doing a tough job I reiterated that law abiding GA pilots do not enjoy getting stopped by law enforcement based on seemingly bogus information. Tony said they are just trying to "put their eyes on people"--meaning us. I remarked that there has to be a better way of doing that than surrounding a pilot with 6 police cars and ten officers. He said they have tough job catching bad guys. I said that that they need to do a better job screening their intel. It seemed both he and Carlos went back and forth on whether the intel came from internal sources or external ones. At one point he said people were calling their hotline with tips -- so I challenged him as to how someone would know the Mr. McCrae was on Bob's airplane and then called them in Riverside to report it. The story seemed to change to they had strong intel internally. Never an admission that they screwed up. Just more reasons why their intel is solid. Even at one point denying it is their intel-- "it comes from somewhere else-- they are just the middle man." Tony said they are all ex military and are all pilots so I pointed oujt that the fax has numerous errors and the FARs contains no language allowing detention of a pilot for failing to have his medical or logbook on his person (look for that to change as CBP will probably write criminal regulations re: pilots) . The whole time I could hear a beep every ten seconds or so probably indicating I was being recorded. Althoug Tony was pleasant there was no progress on this issue. None.

I spoke with my congressman's senior staffer as well. I relayed the details of the issue to her and she seemed sincerely interested. She said it is best to generate a letter from our organizations (we are) and forward that with a personal note to all of our congressmen. She said I should be carefull so that I don't become a target.

All for now.

Jeff "Bullseye" Edwards