Private pilots chafe at surprise searches: 4th-amendment concerns at heart of disagreement

 Published: 9/9/2013

BY DAVID PATCH, TOLEDO BLADE

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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