In response to a scathing report by its Office of the Inspector General (OIG), the US Department of Justice has directed the Drug Enforcement Agency (DEA) to suspend most of its suspicionless “consensual” questioning and searches of travelers at airports and in other transportation facilities, pending an internal review of these practices.

For years, DEA agents, sometimes in partnership with local law enforcement task forces, have been searching travelers in ways that make travelers think that they are being detained and are legally required to submit to searches and answer questions.

The OIG report stops short of calling for an end to these “consensual” searches and interrogations, but is pausing them indefinitely. According to the report, “the Deputy Attorney General (DAG) issued a memorandum directing the DEA to suspend the program until an assessment is completed, identified concerns addressed, and the DAG approves resumption of tbe program.”

Much of the OIG report concerns procedural and training issues. The DEA has failed to keep its previous promises (1) to train its agents on travelers’ rights before sending them into airports to stop, question, and interrogate travelers, without probable cause to suspect them of crimes, and (2) to keep records of these “consensual” encounters with travelers.

The lack of records makes it harder to tell whether DEA agents have been engaged in profiling on the basis of race or national origin.

The OIG also found that DEA agents didn’t wear body cameras. If you want a record of what happens, film the police yourself if you are stopped, questioned, or searched.

Even in the absence of demographic data about which travelers were stopped, searched, and questioned, or bodycam recording of these interactions, the OIG found evidence of continuing disregard for travelers’ rights:

[P]roceeding with such interdiction activities… creates substantial risks that DEA SAs [Special Agents] and TFOs [Task Force Officers] will conduct these activities improperly [and] impose unwarranted burdens on, and violate the legal rights of, innocent travelers.

The goal of these “consensual searches” is to find and seize cash, not drugs, from travelers. Rather than being based on suspicion of crimes, they are based on suspicion of carrying cash. Airline staff are given a cut of the seized cash to finger passengers to be stopped by DEA agents in the hope that they will “consent” to searches so that any cash that is found on their person or in their luggage can be seized:

During the investigation, we learned of a DEA office that has a Limited Use CS [Confidential Source], who is an employee of a commercial airline, and has for several years been paying the CS a percentage of forfeited cash seized by the DEA office from passengers at the local airport when the seizure resulted from information the CS had provided to the DEA.

Specifically, we learned that for the past several years this CS has sent the DEA office information from the airline’s reservation system identifying passengers who purchased tickets to certain U.S. cities within 48 hours of the travel so that the DEA could, among other things, approach those passengers at the airport and seek their consent to search their carry-on luggage….

The OIG’s review of DEA records revealed that the CS who provided the information to the DEA task force that day has received tens of thousands of dollars from the DEA over the past several years for seizures resulting from information the CS provided of travelers with tickets purchased within 48 hours of their flight.

We are unable to determine the total number of travelers the DEA has searched over the years as a result of information provided by the CS, or the number who have refused to be searched following consensual encounters with the DEA at the local airport, because the DEA office in question kept records of such interactions only when they resulted in a seizure of money or contraband.

We believe that the information our investigation has uncovered thus far regarding the DEA’s transportation interdiction activities at this airport illustrates several potentially significant—and in many cases longstanding—systemic issues and possible legal risks. Among them are whether the DEA’s multiyear payments to a Limited Use CS could result in a finding that the CS is acting as an agent of the DEA, thereby
rendering the CS a government actor for Fourth Amendment purposes. It also raises questions as to whether CSs employed by private transportation companies may be violating state law by providing passenger data to the DEA (in the absence of a subpoena) in the increasing number of states that tightly regulate business use of consumer data.

The most important takeaway for travelers from the OIG report is the reminder that — even in airports that police treat as though they were Constitution-free zones — police don’t have the right to detain you without reasonable suspicion that you have committed a crime. You don’t have to answer their questions or consent to being searched:

During consensual encounters, passengers have the right to decline to engage with the DEA SAs or TFOs or have their bag searched. If the law enforcement officer does not already possess at least a reasonable suspicion that a crime has been or is being committed, the law enforcement officer lacks the necessary legal basis to detain the passenger or their property.

The OIG also found that DEA agents didn’t wear body cameras. If you want a record of what happens, film the police yourself (or have a freind or traveling companion film them) lf if you are stopped, questioned, or searched.