Airport Seizures and Asset Forfeitures
Check your 4th Amendment Rights at the Ticket Counter
Government searches are common at airports, even in America. In fact, Customs and Border Protection (CBP) agents are at most major airports ready to search and seize private property. This may not seem surprising given the heightened security efforts since 9/11. Also not surprising is the fact that along with terrorism-related concerns, CBP also tries to monitor airports for possible drug smuggling.
Customs Isn’t Just Looking for Rum
In addition to CBP’s security and law enforcement objectives, airports are also a source of another kind of search. That is, anyone traveling internationally expects ‘customs’ to request he/she declare jewelry, alcoholic beverages, and items that were acquired in the foreign nation. What may be surprising is that CBP agents are also looking for something else… cash.
Seizures at Airport Security
Sure drug seizures make sense but how do cash seizures enter the picture? Well, airports are another venue that has become a source point for asset forfeiture efforts. Under federal law, particularly pursuant to 18 USC 981, 982, 983 and 21 USC 853 and 881, the forfeiture of private property is authorized on the theory that such property is connected to a crime.
So how can a passenger’s cash become subject to forfeiture? Simple, the Government extends currency reporting requirements similar to a bank’s Cash Transaction Requirement (CTR) to international borders. Did you know that a person “shall file a Currency or Monetary Instrument Report (CMIR) when the person knowingly transports or is about to transport ‘monetary instruments’ of more than $10,000” through an international border? 31 USC 5316. This transaction requirement, just like a bank’s CTR requirement, criminalizes any passenger’s failure to make such a report when leaving or entering the United States. 31 USC 5324(b).
While this law provides an incredible law enforcement weapon to federal agents by allowing arrest and capture of drug proceeds or monies used to finance terrorist activities, notice that the law does not only apply to illegal money. In other words, a person carrying money from legal activities such as selling real estate or employment income has the same duty to report as a common drug dealer. 31 USC 5324 makes no distinction.
Declaring Your Cash and Other Custom Reporting Requirements
Just like most other federal crimes, violations of transaction reporting requirements are a basis for criminal and civil forfeiture. 31 USC 5317. This applies to bank CTRs as well as traveler CMIRs.
For example, suppose a man traveled from Africa to New York Kennedy Airport carrying cash of more than $10,000. [This example is based upon an amalgam of client stories and no one person.] Also suppose that man was given a document on the flight requesting him to declare any monetary instrument of more than $10,000 (a CMIR). If that man fails to do so and is searched at the airport, the Government can seize all of his money on the spot.
What if the money was a gift from his parents? What if it is income he saved over two years? What if the man hasn’t broken a law before in his entire life? What if the money was going to be given to a nephew for college tuition or to a homeless shelter? None of this matters. The very fact that he didn’t obey the reporting requirement [on purpose] is all that matters. He is a federal criminal and the Government can pursue his money.
It is important to understand that these laws, while heavily infringing on the property rights of American residents and citizens, can be extremely useful for legitimate law enforcement purposes. Let’s take a different type of example.
Suppose a different man travels from Mexico to Austin, Texas, with just the clothes on his back for a 10-hour trip. Also suppose that when the man is in Texas, he picks up $25,000 in drug proceeds to take back to Mexico. Also suppose that at the airport he was given a CMIR requesting that he declare any monies over $10,000 intended to be taken across the American/Mexican border. Then suppose TSA agents or CBP agents find his itinerary suspicious and interview him. If he is searched and the money is found, then it will almost assuredly be seized. While this is not a drug seizure such a confiscation would serve a law enforcement objective, that is, disrupting and/or shutting down drug trafficking organizations.
Property Seized at Airport and Then Charged with a Crime
Remember, these seizures are based upon federal crimes. Persons who fail to file transaction reports when required to do so face possible imprisonment of 5 years. 31 USC 5324(d).
If money or other property is seized, a claim by the owner needs to be filed in about 30 days. Failure to claim can end up in a default judgment that will give the Government the property outright.
People finding themselves in this position need to arrange for legal assistance immediately. The laws upon which asset forfeiture laws are based are centuries-old precepts and can be and unfamiliar even to attorneys. Any person who has had property seized should quickly consult an attorney with experience in Asset Seizure and Forfeiture.
Search and Seizure Exceptions at Airports
Under the 4th amendment, persons in the United States are to be free from unreasonable searches and seizures. Typically, this means that a search by law enforcement must be supported by a warrant based upon probable cause. However, there are several zones where the warrant requirement is unnecessary. One of the most glaring exceptions exists in American airports.
Anyone who has been to the airport knows that he or she will be asked to go through a metal detector that checks for weapons, bombs, etc… in other words, to prevent terrorist attacks. Most of us, while frustrated by the delay and intrusiveness of a body scan, appreciate diligent efforts to keep us safe when traveling by air. So it is probably no surprise that federal officers are granted a lot of latitude to search persons at the airport.
But what may surprise you is that these relaxed standards are not confined to terrorism investigations. Many searches occur without probable cause to identify and seize narcotics or money. In fact, airport currency seizures are a major boon for the government because they trigger an aggressive asset forfeiture effort that puts passengers under intense scrutiny and pressure.
K-9 Searches at Airports
Folks coming from all walks of life use airports. Whether it’s the weary business traveler or the family vacationers or the love struck honeymooners, it takes all types to fill an airport. While these pursuits are entirely legal, it shouldn’t come as any surprise that drug smugglers and other criminals use the friendly skies to transport their hooch and loot.
Responding to this reality, federal agents track the travel patterns of investigative targets. If a suspected drug or drug money smuggler is traveling at an airport, an agent may ask a customs and border protection officer (CBP Officer) to detain the traveler and begin to ask questions. That officer may even request for a canine trained to detect odors associated with narcotics to sniff a person’s travel belongings. Other officers may arrange for such canines to inspect luggage that’s checked. If the dog indicates an odor, guess what, a search is coming.
Even if no drugs are found, if a person is carrying a large amount of cash, that money may be seized as drug proceeds. At that point, it is incumbent on the passenger (or other owner) to make a claim to the money. If they don’t do so in about 30 days, the government gets to keep the cash outright.
Airport Seizures and Asset Forfeitures are Big Government Business
As I’ve discussed in other writings, asset forfeiture is a legal process that allows the federal government, and most state governments, to take private property on the basis that such property was either used in a crime or the proceeds of crime. Property used to break the law, for example, a car used to transport drugs, is said to be used to facilitate crime. Also, property obtained with the fruits of crime, for example, a car bought with bank robbery money, is called proceeds. Both facilitation and proceeds theories support the forfeiture of a person’s property under the law. What’s more, not only are these laws on the books, state and federal prosecutors are adept at defending their takings in court and, if they are successful, keeping private property outright.