May 16, 2013
By Jim Moore
The first search by federal agents in tan jumpsuits was comparatively unobtrusive, a brief delay in Oklahoma that all but passed from Gabriel Silverstein’s mind by the time he landed in Iowa City four days later, on May 5. That fuel stop, one of many made during a business trip from New Jersey to California and back in the Cirrus SR22 that Silverstein shares ownership of, proved much more troubling: Federal agents called out the dog.
A search lasting more than two hours produced nothing incriminating. Silverstein was free to go, but he and his husband of nine years, Angel, were on their own to re-pack luggage, the contents of which had been emptied along with the rest of what could be removed from inside the aircraft. Though more needs to be learned to understand the true legality, or constitutionality, of that search, agents told Silverstein he had no choice.
“I was told they had every right to do this,” Silverstein said in a May 14 telephone interview with AOPA Online. “They were proceeding with it whether I agreed or not. There was nothing to find, there never would be anything to find.”
AOPA is working with other pilots subjected to similar searches, and working with Silverstein to learn more about the methods and authority granted to agents who identified themselves to Silverstein only as “Homeland Security,” and offered no official identification (Silverstein did not ask for it, specifically), though one did present a business card identifying him as member of Customs and Border Protection, a division of the federal Department of Homeland Security. They searched every, bag, box, and accessible crevice of the Cirrus, Silverstein said.
“Based on what we know so far, this appears to have been an extraordinarily intrusive search,” said AOPA Manager of Aviation Security Tom Zecha.
AOPA is working on several fronts to address an increase in similar encounters with law enforcement, balancing the need for security with the need to preserve the freedom to fly and our constitutional rights against unreasonable searches.
‘This is certainly alarming’
Silverstein said in a May 14 email that he recognized the federal agents’ uniform insignia in a photo on the Department of Homeland Security website that shows a staffer of Customs and Border Protection’s Air and Marine Operations Center, which has expanded in recent years a wide electronic net called the Air and Marine Operations Surveillance System:
“AMOSS utilizes extensive law enforcement and intelligence databases, and tracking and communications networks to provide a single display that is capable of tracking over 24,000 individual targets,” the agency reports in an online fact sheet.
The agency monitors FAA and military radar systems, according to the website, and reports its capabilities and role in marine and air “interdiction” have expanded since the terrorist attacks of Sept. 11, 2001.
Details of the methods used to select aircraft for search remain unclear. A spokesman for the Department of Homeland Security, the parent agency of Customs and Border Protection, requested additional time to respond to detailed questions submitted by AOPA Live, which is reporting on Silverstein’s search in conjunction with AOPA Online.
Zecha said Silverstein is not the first pilot who has contacted the association to complain about a similar search in the apparent absence of any reasonable cause for suspicion.
“This is the most recent occurrence that we’ve heard about, but it’s very similar to others we’ve seen since about 2010,” Zecha said. “It does raise a considerable amount of concern.”
Law enforcement officials have adopted, in many cases, a heavy-handed approach.
Silverstein’s experience followed less than a year after a particularly troubling incident in 2012 in which a glider pilot was arrested by police in South Carolina after flying over a nuclear plant at 1,518 feet msl. (There was no charted restriction on the airspace.) AOPA coverage of that incident sparked a national outcry from pilots, and local officials soon conceded that an opportunity to “de-escalate” that situation had been missed.
In 2010, a Texas pilot spoke out about a mysterious search similar to what Silverstein experienced, in which the Department of Homeland Security was involved.
Silverstein said AOPA’s coverage of the glider pilot’s arrest, and the association’s subsequent efforts to clarify the rights and responsibilities of pilots and law enforcement, were part of the reason he decided to tell his own story. AOPA maintains an ongoing dialogue with various federal agencies, and members of Congress, seeking to balance security with freedom.
AOPA counsel Kathy Yodice said the limits of government authority in a post-9/11 world have not yet been well-established.
“We’re trying to sort this out so everybody can understand their roles,” said Yodice, who has begun to look closely at the legality of the two searches Silverstein experienced, as well as several others that AOPA members have experienced in the last few years. “Pilots are generally familiar with the authority of the FAA to conduct a ramp check, and with Customs’ inspections at the border, but not necessarily so with these searches that we are seeing more frequently on domestic general aviation aircraft.”
“This is certainly alarming, at a minimum,” Yodice said. “We’ll be working to uncover what their authority was, and whether it was properly exercised.”
‘There was intimidation, very clearly there’
Iowa City police confirmed that the May 5 request to dispatch to the municipal airport officers and a dog trained to detect drugs came from the U.S. Department of Homeland Security, and added that under Iowa state law, an indication from the dog alone is enough to establish probable cause for a search, as required by the Fourth Amendment.
Silverstein said about half a dozen local officers arrived after he walked into the FBO with his aviation papers, as the federal agents had requested, for his second “ramp check” in four days. Federal agents in tan jumpsuits soon directed him back outside, where the local police dog was already at work.
“As I approached the plane, the K-9 handler didn’t ask my permission, he informed me that the dog was inspecting the plane and then informed me that I had to open the cargo door, the baggage door,” Silverstein said in the telephone interview. “There was intimidation, very clearly there … it was not a question of may we check your plane, or hey, by the way, just walking around.”
Silverstein, the pilot in command, raised objections and was given three options: wait inside the FBO, wait quietly outside, or be detained in handcuffs. An instrument-rated private pilot and AOPA member, Silverstein is also an active real estate investment banker who has never committed a crime, he said.
‘How are these aircraft targeted?’
The pair had traveled (with an IFR flight plan filed and clearance obtained for each leg) from New Jersey, where the aircraft is based, to California, stopping for fuel, among other places, in Hobart, Okla., where the first search was conducted on May 1. In that case, Silverstein said, a polite pair of agents in the same tan jumpsuits he would later see in Iowa City announced a “ramp check,” a task typically performed by FAA personnel. Silverstein said they reviewed his aviation paperwork, and searched the luggage quickly while he fueled the aircraft, replacing any items they might have removed. He paid them little mind. Silverstein said the conversation was pleasant, though he wasn’t buying their explanation that they just happened to drop into the same nearly deserted airport, with a rusting warbird and a Cessna 182 alone on the ramp when he arrived, and a pair of homeless people taking shelter inside.
“They were clearly there for us,” Silverstein said. “Why, I don’t know.”
Silverstein said the agents in Iowa City urged him to confess to possessing a small amount of marijuana, suggesting such a confession could cut the whole process short. (Silverstein told AOPA he is a teetotaler, and never indulges much less possesses marijuana, nor did he have any reason to believe others had put marijuana in the aircraft.) Silverstein said agents told him they believed marijuana should be legal, but they had to enforce federal law. He said the agents “clearly suggested” they were interested in his aircraft because he had stopped in Colorado, a state that recently legalized possession of small amounts of marijuana. The only thing Silverstein actually saw the dog pay any attention to after the aircraft’s contents were spread on the ramp was a box containing oil and de-icing fluid, a little of each of which had spilled on the box.
Zecha has prepared for Silverstein’s signature a set of Freedom of Information Act requests to various agencies, a procedure that has become troublingly routine as a growing number of pilots report similar experiences. Zecha is gathering as much information as possible about such searches of aircraft and occupants, particularly searches initiated by federal agents who are not affiliated with the FAA. Pilots are asked to provide details of such encounters to AOPA by email, or by calling 800/872-2672.
“Our concern is, how are these aircraft targeted?” Zecha said.
In addition to enlisting the assistance of AOPA, Silverstein awaits a reply from Sen. Charles E. Schumer (D-N.Y.) and hopes the matter will get appropriate attention.
“Whatever background and motivation they had for doing this, they’re exercising and abusing police powers of the state in a way that is absolutely counter to not just the Constitution, but everything general aviation is supposed to do for this country and for this economy,” Silverstein said. “The freedoms that our armed service people defend every day and die for are so critical to this country, and I believe that despite the unfair assault on GA over the last several months in politics, I’m one of the examples of general aviation being a critical infrastructure component to this country’s job growth and economic base.”
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