Air travelers are expected to identify themselves truthfully to law enforcement officers and “screening” personnel at checkpoints and in “secure” areas of airports. But the reverse isn’t true, apparently, for the police and other personnel carrying out airport “screening”.

Members of drug interdiction “Task Force Groups” (TFGs) comprised of state and local police and agents of the federal Drug Enforcement Agency (DEA) have been representing themselves to air travelers in “secure” areas of airports (beyond the TSA checkpoints) as conducting “secondary inspections”. In fact, these TFGs were conducting warrantless, suspicionless searches for illegal drugs that can be seized and generate forfeiture revenue for the agencies participating in the TFGs.

When these searches were reported (sometimes no records were kept), they were represented as having been “consensual”, even though the use of the term, “secondary inspection” could reasonably have been interpreted by travelers as implying that the TFG members were conducting airport security “screening” to which travelers were required to submit. Similar misrepresentations may have been made at train and bus stations and other transportation facilities where TFGs operate as part of the DEA’s “Jetway” drug interdiction program.

The misrepresentations by DEA agents and other law enforcement officers were revealed in a report by the DEA Office of Inspector General (OIG), which has the role within the DEA that an “internal affairs” office might play in a local police department.

The OIG’s investigation was prompted by to two separate complaints by African-American women who believed that they were singled out for questioning and for requests to submit to searches by TFG members because of their race.  Most of the report, and most of the commentary since its public release, has focused on whether the DA and other TFG participants engage in racial profiling.

The DEA had collected data on the race of those who were questioned by TFG participants and/or asked to “consent” to searches.  But the OIG was unable to determine whether those statistics were indicative of racial profiling without having data on the demographics of those travelers who weren’t questioned or searched.  Rather than collect that additional data, the OIG abandoned any attempt to use the data already collected to assess possible racial profiling by the DEA and TFGs.

There’s been less attention paid to the OIG’s findings regarding misrepresentation by DEA agents and other law enforcement officers as to what they are doing in “secure” areas of airports and other transportation facilities, and whether travelers are required to submit to their suspicionless, warrantless searches. According to the OIG report:

Some TFG members conduct cold consent encounters and searches in a manner that may be misleading.

… [O]ur  review identified two practices in which TFG members conduct cold consent encounters and searches in ways that may either misrepresent themselves or the ability of the traveler from whom  cash is seized to contest the seizure.

In our interview with a member of a TFG, he described how he conducted cold consent encounters at airports, stating that he approached  passengers in the gate area (after they had passed through Transportation  Security Administration security) and said that the TFG was conducting  “secondary inspections.”  When we asked the supervisor about the use of the  term “secondary inspection,” he stated that he thought it was acceptable.

We find this troubling because the traveler encountered may reasonably interpret this to mean that they are required to consent to the encounter and/or a search when that is not the case.  A Jetway manager told us that using the term “secondary inspection” sounded like something the Transportation Security Administration might say to a traveler that could  cause them to believe hey were being “detained.”  He also told us that claiming to be conducting a “secondary inspection” was not taught in the  Jetway curriculum, which by contrast instructs attendees to display their  credentials and accurately identify themselves by stating, for example, “I am  a police officer with the X police department and am working as part of a DEA narcotics interdiction group.”  Clearly and properly identifying themselves and stating the purpose of the interview is one way that Jetway teaches attendees to keep a cold consent encounter from becoming an investigative detention, for which reasonable suspicion is required.

In addition, statements that can be interpreted to mean that the encounter is not voluntary could jeopardize the voluntariness of the consent and, therefore, any resulting seizure and or arrest.

Given that law enforcement officers at airports are representing themselves as conducting “secondary inspections”, we asked the TSA the following questions:

1. How can a traveler determine whether they are required to answer questions and/or submit to search of their person and/or possessions by someone who approaches them in an airport (or whether it is a consensual encounter in which the traveler can ignore the questioner)?
2. How can a traveler authenticate a person who approaches them in an airport, to distinguish bona fide TSA employees authorized to conduct nonconsensual “secondary screening” from imposters, thieves, or law enforcement officers requesting consent (who can lawfully be ignored)?
3. What questions should a traveler ask to determine whether a requested airport search is consensual, whether consent is required as a condition of travel, or whether consent can be withheld without denial of transport?

“TSA employees conducting screening at the checkpoints and/or the gate areas will be in TSA uniforms. They will also have a TSA badge, with their photo on it and an airport ID as well. If a passenger is in doubt, they can always contact law enforcement at the airport for further assistance,” was the unhelpful reply from TSA spokesperson Ross Feinstein.  The TSA had no further comment on the rest of our questions.

The practices uncovered by the DEA OIG mean that travelers cannot, and should not, assume that anyone in uniform who approaches them in an airport, even if they claim to be conducting “secondary inspections”, is conducting “screening” under the authority of the TSA, to which travelers might be required to “submit”.

The TSA could scarcely been more hypocritical than to insist that travelers provide the TSA or its contractors with satisfactory verification of their identities, but to provide no means by which a travelers can authenticate the credentials of anyone in an airport who accosts them and claims to be acting on behalf of the TSA.

There are plenty of people in all sorts of uniforms passing through airports.  The nonprofit DEA Educational Foundation, which supports the DEA Museum, sells a variety of official-looking hats, jackets, sweatshirts, and other attire emblazoned with the DA’s name, logo, and even badges that identify the wearer as a DEA “Special Agent”.  We’ve been in airports where novelty “DEA” and “FBI” hats and clothing were for sale in airport gift shops and worn by many travelers.

Don’t rely on the police or the TSA to tell you your rights. You are never required to “consent” to a search. If you are required to “submit” to a search, it can (and probably will) be conducted without your consent.  Unless law enforcement officers or other personnel satisfactorily identify themselves as conducting screening under authority of the TSA, or unless they tell you that you are being detained on the basis of reasonable suspicion of commission of a crime, travelers can legally ignore, refuse, or walk away from their questioning or requests for searches.  If you aren’t sure, ask “Am I free to leave”?  If they say, “no”, demand that they tell you as soon as you are free to leave, tell them you don’t consent to any searches, ask for a lawyer, and invoke your right to remain silent. If you have any photographs or other materials that you intend to distribute to the public, tell the police this and remind them that 42 USC 2000aa protects these materials against most searches including searches as part of TSA screening for domestic flights.