The Department of Justice orders the DEA to stop searches at the airport

The Justice Department ordered the Drug Enforcement Administration (DEA) to suspend most searches of passengers at airports and other mass transit hubs after an independent investigation found that DEA task forces were not documenting searches and were not properly trained, creating a significant risk of constitutional violations and lawsuits.

The deputy attorney general ordered the DEA on Nov. 12 to stop searches known as “consensual encounters” at airports — unless they are part of an existing investigation into a criminal network — after seeing the draft of the Department’s Office of Inspector General of Justice. (OIG) that highlighted a decade of “significant concerns” about how the DEA uses paid airline informants and lax criteria to flag passengers for drugs and cash.

OIG investigators discovered that the DEA paid an airline employee tens of thousands of dollars over the past few years in proceeds from cash seized as a result of tips. However, the vast majority of these airport seizures are not accompanied by criminal prosecutions. This led to years of complaints from civil liberties groups that the DEA was abusing civil asset forfeiture — a practice that allows police to seize cash and other assets suspected of being linked to criminal activities such as drug trafficking, even if the owner is never arrested. or accused of a crime.

The MEMORANDUMreleased publicly today by the OIG, found that failures to properly train agents and document searches “create substantial risks that DEA special agents (SAs) and task force officers (TFOs) will conduct these activities improperly; impose undue burdens and violate the legal rights of innocent travelers endanger the seizure of assets and seizure activities and waste law enforcement resources; ineffective interdiction actions’.

The OIG memo and directive is a victory for advocacy groups that oppose civil asset forfeiture, such as the Institute for Justice, a public interest law firm that is in litigation. a collective process challenging the DEA’s airport seizure practices.

Dan Alban, a senior staff attorney at the Institute for Justice, says the OIG memo “confirms what we’ve been saying for years and confirms the allegations in our ongoing class action lawsuit against the DEA for precisely this type of abusive practice, where they target travelers based on information innocuous about their travel plans, then interrogate them and search their bags in what they call a “consensual encounter” that isn’t really consensual. in the high security environment of an airport”.

The OIG launched an investigation earlier this year, following that of the Institute for Justice launching a video taken by an airline passenger who was detained and had his luggage searched by the DEA at the airport. The passenger, identified only as David C., had already passed through a Transportation Security Administration (TSA) checkpoint and was boarding his flight when he was approached by a DEA officer who asked to search his carry-on luggage . When David refused to give permission, the agent stated that he was holding the carry-on and David could either board his flight or consent to a search.

David missed the flight entirely and eventually consented to a search of his carry-on, which revealed no drugs or cash.

The DEA agent told David that he was suspected of illegal activity because he had booked his flight shortly before take off. “When you buy a last-minute ticket, we get alerts,” the officer explained. “We go out and talk to those people, which I tried to do to you, but you wouldn’t let me do it.”

OIG’s subsequent investigation found that David was one of five passengers flagged that day by an airline employee who was paid by the DEA to flag travelers’ itineraries if they met certain suspicious criteria.

According to previous OIG audits, common red flags for passengers are “traveling to or from a source city known for drug trafficking, purchasing a ticket within 24 hours of travel, purchasing a ticket on a long-haul flight with an immediate return, purchasing a ticket ticket and traveling without checked baggage.”

Today’s OIG note noted that “it is not uncommon for travelers, including business travelers and last-minute tourists, to purchase tickets within 48 hours of a flight.”

This DEA’s practice of obtaining passenger information from transportation companies such as Amtrak and major airlines was the first disclosure in 2014, with more information published in a 2016 inspector general auditor.

By combining a network of snitches, strict criteria for searches, and a low bar for civil asset forfeiture, DEA task forces have been able to seize an enormous amount of money from airline passengers despite the fact that it is perfectly legal to fly into the territory domestic with large amounts of cash.

In 2016, a USA Today investigate found that the DEA seized more than $209 million from at least 5,200 travelers at 15 major airports over the previous decade.

A 2017 report by the Department of Justice’s Office of Inspector General finder that the DEA seized more than $4 billion in cash from people suspected of drug activity in the previous decade, but $3.2 billion of those seizures were never linked to criminal charges.

That 2017 report warned that the DEA’s airport seizure activities undermine its credibility: “When administrative seizure and seizure do not ultimately advance an investigation or prosecution, law enforcement creates the appearance and risks the reality that it is more interested in seizure and confiscation. cash rather than furthering an investigation or prosecution.”

But the DEA’s cash seizures based on weak suspicions without evidence continued.

The Institute for Justice launched its class action in 2020. The suit alleges that the DEA has a practice or policy of seizing currency from travelers at US airports without probable cause only if the dollar amount is greater than $5,000. This practice, the lawsuit claims, violates travelers’ Fourth Amendment rights.

One of the lead plaintiffs in the suit, Terrence Rolin, a 79-year-old retired railroad engineer, had his life savings of $82,373 seized by the DEA after his daughter tried to take him a flight from Pittsburgh intending to deposit is in a bank. After the case became public, the DEA returned the money.

The DEA seized $43,167 from Stacy Jones, another plaintiff in the Institute for Justice lawsuit, in 2019 as she tried to fly home to Tampa, Florida, from Wilmington, North Carolina. Jones says the money came from the sale of a used car, as well as money she and her husband planned to take to a casino. give returned the money after she also contested the seizure.

Likewise, in 2021 DEA returned $28,000 to Kermit Warren, a New Orleans man who said he was flying to Ohio to buy a tow truck when agents seized his life savings at the airport.

In all of these cases, DEA agents initially determined that the money was related to drug trafficking.

Last year, Sens. Ron Wyden (D–Ore.) and Cynthia Lummis (R–Wyo.) incentive The Department of Justice to prohibit the DEA and other federal law enforcement agencies from using travel employees as sources to obtain Americans’ travel information without a warrant or subpoena.

The Justice Department directive stops “all consensual encounters at mass transit facilities unless they are either related to an existing investigation or approved by the DEA Administrator under exigent circumstances.”

Alban says the Justice Department’s directive will curtail most abusive “consensual encounter” searches, but won’t stop TSA screeners from flashing cash at security checkpoints.

Additionally, Alban says, only legislation can permanently stop the DEA from abusing asset forfeiture, noting a The 2019 bill was passed by Congress that prevented the IRS from summarily seizing small business bank accounts.

“It’s this kind of reform that’s really needed,” says Alban, “because at any moment this directive could be overturned, and then the DEA will go back to its usual practice of targeting travelers at airports.”

The DEA did not immediately respond to a request for comment.