On Aviation Liberty

[MooneyMitch]

Authored by John King.

 

http://www.flyingmag.com/pilots-places/pilots-adventures-more/guest-opinion-aviation-liberty

 

[201er]

Great point! So what's the ultimate consensus? Does law enforcement have the right to search airplanes without a warrant based on FAA regulation? Any lawyers here? What happens if you deny a search?

 

From what I heard FAA ramp checks are non-obligatory and can be turned down. Shouldn't it be the same if not even more so with local law enforcement?

[jetdriven]

Great point! So what's the ultimate consensus? Does law enforcement have the right to search airplanes without a warrant based on FAA regulation? Any lawyers here? What happens if you deny a search?

 

From what I heard FAA ramp checks are non-obligatory and can be turned down. Shouldn't it be the same if not even more so with local law enforcement?

You must submit to an FAA ramp check if asked. The DOT issues the certificate you hold and administrative law governs that.  The inspector is a designee of the Administrator who is authorized to conduct the inspection.  You can decline the inspector access to the interior of your aircraft, however. Nothing new here, its been the same since the Federal Aviation Act of 1958. 

[RJBrown]

A warrantless search is not legal. Never give permission. If they force it they are breaking the law. There is a limit to what the FAA can ask to see. Aircraft logs and pilot logbooks are excluded from a ramp check. They can ask for those documents required to be on board. An aviation lawyer posted this:  http://www.aerolegalservices.com/Articles/RampCheck.shtml

 

Flying an airplane does not waive any constitutional protections we all have. They have no more right to enter your plane than they have to enter your home.

If questioned refuse to answer any questions without a lawyer. Once the lawyer is there don't answer questions.  

[Marauder]

So, what did the Pilot's Bill of Rights bring to this? Anything?

[Bennett]

I started a new thread this morning about AOPA's "What to do if stopped by law enforcement" information sheet. Two pages that fit on an 8.5" x 11" sheet of paper. I reduced it to 90% in

landscape mode for printing, and by this afternoon I will run them (two copies) though my laminator to keep in my flight bag and airplane. I've also added the names and phone numbers of

aviation attorneys I know should AOPA legal services not be available.

http://www.aopa.org/-/media/Files/AOPA/Home/News/All%20News/2013/June/CBPGuidelinesKneeboard.pdf

[Z W]

I am a lawyer.  I do both some criminal defense and some prosecuting of criminals, although honestly I'm mostly a civil lawyer.  I do  some aviation law.

 

No government agency can search your aircraft without a warrant, generally speaking.  There are exceptions to this rule.  For example, they may search it if you give consent.  They may search it if they have probable cause to believe it contains evidence of a crime, and there are exigent circumstances that would prevent them from being able to delay and get a warrant.  They can search if there is contraband (e.g. drugs) in plain view from the exterior of the plane.

 

Law enforcement always prefers to search by consent.  When you consent, you waive your 4th amendment rights and any claims you may have.  Anything they find can and will be used against you.  Any civil claims you may have for violation of your rights are gone.  They are actually trained to use intimidation and clever wording to get people to consent to search.

 

Assuming you do not consent, if they detain you and search your aircraft anyways, there are two different areas of the law that come into play.  

 

First, if they find any evidence of criminal activity (i.e. drugs), they have to prove that the evidence was legally obtained, without violating your 4th amendment rights.  If they can't do that, then under what's called the "exclusionary rule," the evidence they found cannot be used against you in court.  Generally that means you walk, after you hire a good attorney and he or she does a good job.

 

Second, if you were not breaking any laws, and nonetheless they detain and search you, you may file a civil suit against the agency and/or officers that did it for money damages.  This is the "penalty" they have for violating your rights.  There are no other consequences for them.

 

Your plane is not generally under the "jurisdiction" of the FAA and it cannot be searched at will.  That might be true for charter operations or commercial flights, but for your 4-seat Mooney on a personal Part 91 flight, you have a reasonable expectation of privacy in your plane.  That's why the FAA can't search the interior during a ramp check.

 

The FAA can ramp check you, but you are only required to produce the required documents (AROW, anyone?) along with your pilot's certificate, medical, and photo identification.  It's an administrative inspection designed not to implicate your 4th amendment rights.  Some lawyers, like myself, have questioned whether the CFRs that permit Part 91 ramp checks are constitutional, but I'm not aware of a court decision on point, so for now it stands.

 

The Pilot's Bill of Rights gives you some additional rights in the event of an administrative action to restrict or terminate your pilot's license.  It does not effect what happens out on the ramp.

 

Everybody wants to know "Should I consent?" and "What do I do if...?".  These are natural questions.  Unfortunately, no lawyer or qualified person should give broad, sweeping, generalized advice like that.  Some attorneys do.  I think it is unwise.  Malpractice insurance carriers hate it.  There are so many exceptions and caveats to all these rules, it would literally take a book and three or more years of law school to explain them all.

 

If you are ever stopped, by any government agency, you do have the right to an attorney, and I suggest you use it.  Do not answer any questions, or consent to anything, until you have an attorney on the phone.  If they won't let you call one, sit down, tell them you are exercising your right to remain silent, and then do it.

 

I've made this offer before, but if anybody would like my personal cell phone number, send me a PM.  I'll take your call, free of charge, and help you assert your constitutional rights in a respectful and accurate manner. 

[201er]

Zane, I'm sure you know what we think would be a good start for you + 199 others like you, but man, that was an EXCELLENT response and much appreciated. But let me ask you this, give what you said, how have they been getting away with raiding and searching airplanes lately???

[Jamie]

Zane, if I wanted to establish a relationship with a local attorney so I can have someone on "speed dial" if this ever happens... what should I look for?

[DonMuncy]

Zane, I'm sure you know what we think would be a good start for you + 199 others like you, but man, that was an EXCELLENT response and much appreciated. But let me ask you this, give what you said, how have they been getting away with raiding and searching airplanes lately???

My best guess is that they do it by intimidating the pilot into consenting, or just going ahead and doing it anyway. Most people, probably including me, would not expend the $ and energy to take them on after the fact.

[Z W]

Jamie:

 

Have you done your estate plan?  Will, health care directive, etc?  If not, find a local general practitioner.  He will advertise for estate planning, criminal defense, personal injury, etc.  He will have at least one attorney in the office that does free consultations.  Go get a free consultation for your estate plan, which you probably need anyways.  Repeat the process till you find one you like, then pay him to set you up.  Now you've got a relationship with a good local attorney.

 

201er:

 

They get away with it because the only remedy, meaning the only consequence, is that the pilot can sue them for violating their rights.  If they get consent, then forget about it, no consequence.  And they are good at getting consent.  Also, generally, whatever money you get is paid by the insurance company, not the officers out of pocket.

 

Assuming the pilot is smart and does not consent, you are looking at suing the federal government.  You have to find a lawyer who will take the case, probably on a contingency fee.  I do, but we are a small group.  They are tough cases, for various reasons.

 

You also are about to file a "tort" and are headed for the dreaded "jury trial" we've all been conditioned to hate.  Many people these days are just morally opposed to it and won't do it.  I know from prior threads about products liability, some are on this board

[Jamie]

I think the video goes into this, but it's probably the classic "Hey... I want to help you here. Cooperation goes a long way." or "It looks worse if you refuse... do you have something to hide?"

 

It's probably better to go into this situation determined that "you might beat the rap, but you won't beat the ride". I'm trying to prepare myself to be arrested (if it comes to that) and have a better shot at defending myself in court rather than hope I can talk my self out of a "ride downtown" and end up in jail -anyway- with a horrible legal position.

 

Keep in mind, I don't have anything to be worried about. But I can see that if you oppose them in any way, they're going to do everything they legally can (and cynically) probably stuff they can't, to get whatever it is they want. Don't help them.

[Jamie]

Zane, you're right... I do need to do that. Excellent advice. Thanks.

[Marauder]

Zane -- wonder if you would take on some pro bono work for some members of the forum? We want to sue 201er for excessive polling. Some of us with Pollish ethnic backgrounds want to sue him as well since we feel he is violating our civil rights as Poles. He doesn't seem to have much in the way of physical property, but I got dibs on his Sagetech, I hear Brett wants his parrot and Alan his inflatable doll (I think he believes he can sell it). Seriously, thanks for the advice...

[fantom]

Zane -- wonder if you would take on some pro bono work for some members of the forum? We want to sue 201er for excessive polling.

If 201 keeps abusing himself, and us, polling all the time, he's gonna grow hair on his wrists and eventually go blind

Seriously, thanks for the advice..

Ditto! What do you think of the AOPA legal plan? (Becca - conrol yourself)

[Z W]

I will check and see how my pro bono portfolio looks for the year. I do not recommend pre-paid legal plans generally, although candidly I have not looked at AOPA's. They lock you in to using their lawyers, who are paid a reduced rate for guaranteed volume of business. That may be fine, or it may be the case that you want to hire a lawyer of your choice that you like and trust. You may want a really good lawyer for your case that refuses to take a reduced rate, because she is very talented and skilled. Also, in my experience, those plans usually come with limits on how much they will pay and what they cover. When you read the fine print they are not nearly what they are cracked up to be.