AOPA Pilot Magazine - February 2014 - 69

to enforce the rules rests entirely with the FAA. Agency
representatives say they haven't asked CBP or any other
agency to conduct stops or document checks.
What's more, there must be probable cause or reasonable suspicion of illegal activity for the officers to go
beyond examining documents. Officers can ask pilots to
consent to a search, but that consent must be given voluntarily, and the pilot can set limits as to the extent and
duration. Warrantless searches can be made without pilot
consent if the officers have reason to believe someone
aboard the aircraft is armed and dangerous, someone hidden inside intends to impede or assault the officers, or
the aircraft is carrying evidence of a crime or contraband
such as drugs. That's a fairly high standard to meet, and
officers and agents involved in the reported stops don't
seem able to articulate the conditions they're using to
justify their actions.
AOPA'S RESPONSE

With that in mind, AOPA has created a kneeboardformatted page, "What To Do If Stopped by Law
Enforcement." Some pilots who've followed the guidelines-which are available online (www.aopa.org/
CBPguidelines) and which were inserted in the August
2013 AOPA Pilot-report that CBP agents who stopped
them simply left when they refused to consent to a
search. But that doesn't make the stop itself any less of
a problem.
The good news is that AOPA's pursuit of this issue
seems to have put CBP on its best behavior-at least temporarily. And although the number of new incidents has
slowed since AOPA began asking tough questions, the
association has received no satisfactory explanation for
the incidents, or guarantee that they will stop for good.
AOPA and members of Congress want definitive
answers, but thus far CBP has been less than cooperative.
AOPA queries made under the Freedom of Information
Act received only cursory, standardized answers. In one
case AOPA was told that CBP couldn't locate any records
of a specific stop and search. But a local law enforcement
agency involved in the stop did produce records, including a notation that the stop was made at the request of
another agency.
"CBP and DHS have put up a lot of roadblocks, but
these kinds of tactics won't stop us from getting to the
bottom of these incidents," said AOPA President Mark
Baker. "We're working with our friends in Congress and
we're prepared to do what it takes to get answers for our
members."
When AOPA shared its concerns about pilots' Fourth
Amendment rights with GA advocates in Congress, they
took action. Rep. Sam Graves (R-Mo.), co-chair of the

House General Aviation Caucus, requested an inspector general investigation into the incidents by both the
Department of Transportation (DOT) and DHS. The DHS
Inspector General's office said it doesn't have the capacity to start a review now but will do so when resources
become available. Graves has thus far received no formal,
written response from the DOT Inspector General's office,
but his office has been in touch to see if the IG will launch
an investigation in light of DHS's refusal.
Additionally, eight senators-all members of the
Senate General Aviation Caucus-sent a letter to the
acting head of DHS demanding that the agency provide records of all CBP stops of general aviation flights
since 2009. The letter, spearheaded by Sen. Pat Roberts
(R-Kan.) and Sen. Jim Risch (R-Idaho), also demanded
that DHS provide explanations of the "reasonable suspicion" that led to each stop and the "probable cause" that
resulted in a search. DHS missed the senators' deadline,
so the lawmakers followed up, reiterating their demand
for information.
Other members of Congress also have been involved
after being briefed by AOPA, either writing their own
letters to DHS and CBP officials or raising the issues
in meetings with President Obama's DHS and CBP
nominees, who must be vetted by the Senate before
confirmation.
With AOPA and Congress raising questions about
CBP's actions, the agency has moved to reclassify the
records of its Air and Marine Operations Surveillance
System (AMOSS) to exempt them from the Privacy Act,
making them unavailable for public review. The timing
seems suspicious, especially given the fact that AMOSS
has been in existence since 1988 and, while some of its
records have long been exempt from the Privacy Act, the
move to expand those exemptions came about only after
AOPA and Congress started investigating.
Baker and Mead are seeking face-to-face meetings
with top CBP and DHS officials to discuss the incidents,
but they warn that the whole thing may have gone too
far to be resolved with simple discussions; a legislative
solution may be needed. The association also is considering taking more forceful legal action.
"AOPA exists to protect the freedom to fly, and that
includes ensuring that pilots are granted the same constitutional rights as everyone else," said Baker. "We
won't let this go. We need answers-and certainty that
the rights of general aviation pilots will be respected."
AOPA is asking members who are stopped by federal or
local law enforcement to report the incidents using AOPA's
online form (www.aopa.org/enforcementform).
AOPA
EMAIL elizabeth.tennyson@aopa.org
www.aopa.org/pilot AOPA PILOT | 69

http://www.aopa.org/CBPguidelines http://www.aopa.org/CBPguidelines http://www.aopa.org/enforcementform http://www.aopa.org/pilot

AOPA Pilot Magazine - February 2014

Table of Contents for the Digital Edition of AOPA Pilot Magazine - February 2014