by Anthony W. Accurso

Voluntary consent allows law enforcement to search property without a warrant, and officials in Georgia are using this loophole to locate cash belonging to airport travelers in Atlanta, which is then seized and used to fund more police operations. Lawsuits filed by two comedians has drawn attention to the practice of seizing cash from travelers leaving Hartsfield-Jackson Atlanta International Airport.

Eric André and Clayton English claim they were racially profiled and subjected to non-consensual searches by Drug Enforcement Agency (“DEA”) agents and police from Clayton County (where the airport is located). They allege officers discovered thousands in cash and “arrested” the money, exploiting civil asset forfeiture (“CAF”) laws to effectively steal from them.

Civil asset forfeiture is a controversial practice where police, usually narcotics agents, seize property—often cash and vehicles, but sometimes houses—that they allege are being used in drug trafficking. These seizures can occur without a person ever being arrested or charged with a crime. This is intentional, because people who are arrested or charged are afforded legal protections that CAF does not provide.

“Cases filed in federal court are styled as USA v. [some amount of] Currency,” reported Atlanta News First. It notes that “passengers must file a claim within 45 days of receiving official notice the government has seized their money or it’s automatically forfeited,” and “most cases never go before a judge.”

How can they do that? you may ask. Most victims of this scheme don’t even realize what is happening until their money has been seized.

The Transportation Security Administration (“TSA”) is required to screen all passengers for weapons, explosives, or other evidence of criminal activity, and all passengers must submit to such screenings or they are not permitted to fly. However, usually immediately after clearing the TSA area, passengers are approached by DEA or Clayton County police agents who then ask to search the person’s bags.

“He just approached me, and asked me for my ID,” said film director Tabari Sturdivant. “He didn’t state who he was. He just asked me for ID, and I thought he was a Delta agent. He had airport credentials on, and so I gave it to him immediately.”

While searching his bags, the agents asked, “Are you high? Have you smoked? Do you have any drugs in this bag? Do you have any money?”

Federal law does not allow such agents to conduct searches of passengers’ bags without a warrant unless a valid exception to the Fourth Amendment’s warrant requirement applies. One such exception is when a person voluntarily consents to a search. The TSA is exempt because a passenger faces the choice of consenting to the search or not getting on the plane. In theory, there are other means to get to a travel destination.

However, the DEA and police—who obviously are not the TSA—are exploiting the environment of an airport to conduct their own searches, which they also claim are consensual. Passengers are already conditioned to submit to TSA and airport staff because they do not want to risk losing hundreds of dollars if they don’t board their flight on time. By deceptively dressing in a manner similar to airport employees, police exploit this environment in a coercive and intentionally confusing manner. They use aggressive communications tactics to control the conversation, peppering a passenger with lots of questions. Often, this will involve more than one agent at a time, creating an imposing out-numbering effect to intimidate a passenger. Given the totality of the circumstances, these are hardly voluntary consent searches.

Because these are technically consensual searches, passengers can refuse at any time. Refusing to answer the questions of anyone not clearly marked with TSA apparel and walking away is an option, but few people know this by design. If the agent prevents the passenger from proceeding—either by asserting law enforcement authority or using physical force or both—they are effectively seizing a person for purposes of the Fourth Amendment without the authority to do so, absent the requisite probable cause or reasonable suspicion, and abandoning the pretense that such searches are consensual.

Agents will also use veiled threats to coerce passengers, according to Atlanta News First reporters who followed and filmed agents conducting such coercive searches. To one brave passenger who initially refused consent to search, an agent said, “you’re going to sign a consent form saying that you’re allowing us to search [your bags], or I’m going to detain them, run my dog on it, and get a search warrant.” Reporters noted the passenger immediately agreed to sign the consent form, rather than risk such hassle.

Agents have incentives to act aggressively and use CAF to seize cash. Forfeiture laws allow them to use seized money—or money obtained by auctioning seized property—to fund their departments. And because this money isn’t from tax dollars, there are almost no restrictions on what it can be used to pay for.

Some states have modified forfeiture laws to prevent some abuses, but federal forfeiture laws are notoriously relaxed. For this reason, local police will obtain a memorandum of understanding to create an ostensible “task force” with federal agents. This way, the seizure occurs under federal law, and the “DEA gives police a cut of the proceeds from money the task force officers seize.”

For instance, the Brookhaven police department, whose jurisdiction is “14 miles away from the airport in a different county, DeKalb,” assigned K9 handler Sergeant David Fikes and his dog to the task force operating at the Atlantic airport. In a little more than a year, Brookhaven received “more than $100,000 from the DEA” from forfeiture proceeds, though Fikes has been party to “the seizure of $1,163,047.” This money pays “for his salary, police car, K9 and other expenses.”

TSA agents participate in, and benefit from, the scheme as well. It is entirely legal to travel within the U.S. with large amounts of cash, but anyone traveling outside the U.S. with over $10,000 in cash must declare it. However, TSA directive 100.4 appears to conflate these scenarios by directing agents as follows: “TSA should notify Customs and Border Protection and/or law enforcement authorities pursuant to its local standard operating procedures that the individual possesses a sum of currency that appears to exceed $10,000.”

Further, a Department of Justice official reported that “TSA officers were receiving kickbacks from DEA for identifying travelers they thought fit some profile that was at a high risk or higher risk of being involved in criminal activity.”

The suit filed by André and English allege that Black and brown passengers are overwhelmingly targeted for these searches. The complaint “quotes from Clayton County Police [records] showing 56 percent of jet bridge stops involved Black passengers, and 68 percent were people of color.” It is hard to get numbers for DEA searches, because the agency stopped keeping race data on its searches 20 years ago, according to a 2015 inspector General report.”

According to the DEA and its task force partners, “Atlanta [is] part of a known drug trafficking route … where traffickers fly from Atlanta, a known drug hub city, to Sacramento, California, a known drug source city.” So, agents believe buyers will fly from Atlanta to California with cash and return to Atlanta with drugs.

Task force agents “find more drugs and make more arrests using drug dogs to sniff checked luggage from arriving passengers,” but “they spend more time checking the carry-on bags of departing passengers—about 60% of the searches.” Police records reviewed by Atlanta News First found that “the drug task force finds far more money on departing passengers” but finds more drugs on arriving passengers. However, drugs must eventually be destroyed, while cash goes back into police budgets.

A 2017 report by the DOJ’s Inspector General commented that the “DEA and its state and local partners risk creating the appearance that they are more interested in seizing and forfeiting cash than advancing a potential criminal investigation.”

Dan Alban is an attorney with the Institute for Justice, a legal organization that helps pursue civil forfeiture cases on behalf of victims. “There is a strong incentive for law enforcement to try to get as much money as it can into what I would call a slush fund,” said Alban. “They can spend the money on whatever they want. And that encourages them to spend the money pursuing more forfeiture dollars. Essentially, it is a self-perpetuating, revenue generating machine.” It is unsettling, but unsurprising, that the traveling public is viewed as walking ATMs by many law enforcement agents at the airport.   

Sources: atlantanewsfirst.com, TSA Management Directive No. 100.4

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