I've been lax in not writing about Steve Beirfeldt, the staffer for Ron Paul's Campaign for America who recorded his run-in with suspicious TSA cops at St. Louis airport. Radley Balko and Scott Greenfield, among many others, already commented on TSA's interrogation of Beirfelt, in which the TSA displayed deep suspicion of his possession of around four grand in cash and characteristic outrage that he would stand on his rights and demand that they clarify their basis for detaining him and whether he was required to answer their questions.
First, the TSA throws its cops under the bus a bit:
A Transportation Security Administration (TSA) employee and members of the St. Louis Airport Police Department can be heard on the audio recording. The tone and language used by the TSA employee was inappropriate. TSA holds its employees to the highest professional standards. TSA will continue to investigate this matter and take appropriate action.
Let's be straight here: this is for-public-consumption bullshit. In the eyes of the law enforcement culture, the only sin these cops committed was getting recorded acting the way cops do all the time. The language, interrogation tactics, pressure efforts, and other behavior displayed in the recording are all relatively mild — in fact they are barely more forceful than you would expect to see when cops know they are being recorded. Most people don't realize that a vast amount of police work depends on surrender — on people not knowing their rights, or voluntarily giving up their rights, or being bullied into giving up their rights. Beirfelt's interrogation is archetypical — when he invokes his rights by asking the basis of his detention, whether he is free to go, and whether he is required to answer questions, cops suggest that he is being obstructionist, suspicious, and immature, and threaten to take him off to jail. That's the stick that induces most people to give up their rights: the credible threat that whether or not the cops have any evidence against you, and whether or not you did anything wrong, you'll spend the night (or a few nights) in some hellhole and there won't be a damn thing you can do about it. Lurking nearby are the threats — unspoken, but understood — that you might "trip" and hit your face on a door, or that a police officer might later testify that you took a swing at him. The carrot, on the other hand, is the cops' suggestion that if you ignore your rights and give them whatever they want, you can be on your way — a suggestion that may or may not be true, depending largely upon the whim of the cops present.
Having apologized for its cops acting the way cops act all the time and will continue to act with the full knowledge of their superiors, the TSA goes on to suggest that it was right to detain Beirfeldt:
Movements of large amounts of cash through the checkpoint may be investigated by law enforcement authorities if criminal activity is suspected. As a general rule, passengers are required to cooperate with the screening process. Cooperation may involve answering questions about their property, including why they are carrying a large sum of cash. A passenger who refuses to answer questions may be referred to appropriate authorities for further inquiry.
Here's the thing: once again, the TSA is full of shit. "OMG 9/11!!!", while a popular sentiment, has not yet entirely reworked Fourth Amendment law. Government authorities still have to demonstrate reasonable suspicion to detain you temporarily for investigation, and probable cause to arrest you; the former becomes the latter when a reasonable person in your position would not feel free to leave. That's true even in the airport. Therefore, a traveler's use of cash — for instance, possession of a few thousand dollars in cash, or the purchase of an expensive one-way ticket using cash — can be one factor contributing to reasonable suspicion, but not the only factor. In U.S. v. Sokolow, for example, SCOTUS found that an airport stop was supported by reasonable suspicion premised on specific objective factors when a traveler paid $2,100 in cash for airplane tickets out of a roll of cash twice that big, was apparently traveling under an alias, and was traveling from Honolulu to Miami for only 48 hours. But the Court emphasized that it was the combination of factors that amounted to probable cause:
Any one of these factors is not, by itself, proof of any illegal conduct, and is quite consistent with innocent travel. But we think, taken together, they amount to reasonable suspicion.
Here, the only basis for suspecting Beirfeldt was his possession of around four grand in cash. That's not even enough for reasonable suspicion, let alone the probable cause needed to arrest him. Moreover, cops can't transform an invocation of rights — for instance, a refusal to answer questions — into reasonable suspicion or probable cause without more. (Note that this is an entirely different question than whether TSA may refuse to let someone through security and onto a plane if they do not cooperate — the question presented is whether TSA may detain, and then arrest, someone for not "cooperating.")
TSA would like you to believe that the law requires you to "cooperate" — that is, satisfy the curiosity of TSA agents — in your interactions with them. If you want to get on the plane, you will probably need to cooperate. But the law doesn't require you to do so, they have no right to detain you without specific and objective facts leading to reasonable suspicion, and it is dishonest for them to suggest otherwise.
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