The Justice Department has ordered the Drug Enforcement Administration (DEA) to suspend most searches of passengers at airports and other mass transit hubs after an independent investigation found DEA task forces weren’t documenting searches and weren’t properly trained, creating a significant risk of constitutional violations and lawsuits.
The deputy attorney general directed the DEA on November 12 to halt what are known as “consensual encounter” searches at airportsunless they’re part of an existing investigation into a criminal networkafter seeing the draft of a Justice Department Office of Inspector General (OIG) memorandum that outlined a decade’s worth of “significant concerns” about how the DEA uses paid airline informants and loose criteria to flag passengers to search for drugs and cash.
OIG Investigators found that the DEA paid one airline employee tens of thousands of dollars over the past several years in proceeds from cash seized as a result of their tips. However, the vast majority of those airport seizures aren’t accompanied by criminal prosecutions. This has led to years of complaints from civil liberties groups that the DEA is abusing civil asset forfeiturea practice that allows police to seize cash and other property suspected of being connected to criminal activity such as drug trafficking, even if the owner is never arrested or charged with a crime.
The memo , released publicly today by the OIG, found that failures to properly train agents and document searches “??creates substantial risks that DEA Special Agents (SA) and Task Force Officers (TFO) will conduct these activities improperly; impose unwarranted burdens on, and violate the legal rights of, innocent travelers; imperil the Department’s asset forfeiture and seizure activities; and waste law enforcement resources on ineffective interdiction actions.”
The OIG memo and directive is a victory for advocacy groups that oppose civil asset forfeiture, such as the Institute for Justice, a public-interest law firm that is currently litigating a class action lawsuit challenging the DEA’s airport forfeiture practices.
Dan Alban, a senior attorney at the Institute for Justice, says the OIG memo “confirms what we’ve been saying for years, and it confirms the allegations in our ongoing class action lawsuit against DEA over precisely these sorts of abusive practices, where they target travelers based on innocuous information about their travel plans, and then interrogate them and search their bags in what they call a ‘consensual encounter’ that is really anything but consensual in the high security environment of an airport.”
The OIG launched an investigation earlier this year following the Institute for Justice’s release of a video taken by an airline passenger who was detained and had his bags searched by the DEA at the airport. The passenger, identified only as David C., had already passed through a Transportation Security Administration (TSA) checkpoint and was boarding his flight when he was approached by a DEA officer who demanded to search his carry-on. When David refused to give permission, the agent declared he was detaining the carry-on bag, and David could either board his flight or consent to a search.
David missed his flight entirely and eventually consented to a search of his carry-on, which revealed no drugs or cash.
The DEA agent told David he was suspected of illicit activity because he had booked his flight shortly before it took off. “When you buy a last-minute ticket, we get alerts,” the officer explained. “We come out, and we talk to those people, which I’ve tried to do to you, but you wouldn’t allow me to do it.”
The subsequent OIG investigation found that David was one of five passengers flagged that day by an airline employee who was paid by the DEA to flag travelers’ itineraries if they met certain suspicious criteria.
According to previous OIG audits, common red flags for passengers are “traveling to or from a known source city for drug trafficking, purchasing a ticket within 24 hours of travel, purchasing a ticket for a long flight with an immediate return, purchasing a one-way ticket, and traveling without checked luggage.”
Today’s OIG memo noted that “it is hardly unusual for travelers, including business travelers and last-minute vacationers, to purchase tickets within 48 hours of a flight.”
This DEA’s practice of obtaining passenger information from transportation companies, such as Amtrak and major airlines, was first revealed in 2014, with more information coming out in a 2016 inspector general audit .
By combining a snitch network, loose criteria for searches, and the low evidentiary bar to seize property under civil asset forfeiture, DEA task forces have been able to seize an enormous amount of money from airline passengers, despite it being perfectly legal to fly domestically with large amounts of cash.
In 2016, a USA Today investigation found the DEA had seized more than $209 million from at least 5,200 travelers in 15 major airports over the previous decade.
A 2017 report by the Justice Department Office of Inspector General found that the DEA seized more than $4 billion in cash from people suspected of drug activity over the previous decade, but $3.2 billion of those seizures were never connected to any criminal charges.
That 2017 report warned that that DEA’s airport forfeiture activities were undermining its credibility: “When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution, law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution.”
But DEA cash seizures based on flimsy, evidence-free suspicions continued.
The Institute for Justice launched its class action lawsuit in 2020. The suit argues the DEA has a practice or policy of seizing currency from travelers at U.S. airports without probable cause simply if the dollar amount is greater than $5,000. This practice, the suit argues, violates travelers’ Fourth Amendment rights.
One of the lead plaintiffs in the suit, Terrence Rolin, a 79-year-old retired railroad engineer, had his life savings of $82,373 seized by the DEA after his daughter tried to take it on a flight out of Pittsburgh with the intent of depositing it in a bank. After the case went public, the DEA returned the money .
The DEA seized $43,167 from Stacy Jones, another of the plaintiffs in the Institute for Justice suit, in 2019 as she was trying to fly home to Tampa, Florida, from Wilmington, North Carolina. Jones says the cash was from the sale of a used car, as well as money she and her husband intended to take to a casino. The DEA returned her money after she challenged the seizure as well.
Likewise, in 2021 the DEA returned $28,000 to Kermit Warren, a New Orleans man who said he was flying to Ohio to buy a tow truck when agents seized his life savings at the airport.
In all these cases, DEA agents originally decided that the cash was connected to drug trafficking.
Last year, Sens. Ron Wyden (DOre.) and Cynthia Lummis (RWyo.) urged the Justice Department to ban the DEA and other federal law enforcement agencies from using travel employees as sources for obtaining Americans’ travel information without a warrant or subpoena.
The Justice Department directive halts “all consensual encounters at mass transportation facilities unless they are either connected to an existing investigation or approved by the DEA Administrator based on exigent circumstances.”
Alban says the Justice Department directive will curb the majority of abusive “consensual encounter” searches, but it won’t stop TSA screeners from flagging cash at security checkpoints.
Furthermore, Alban says, only legislation can permanently stop the DEA from abusing asset forfeiture, noting a 2019 bill passed by Congress that stopped the IRS from summarily seizing small business’ bank accounts.
“It’s that sort of reform that is really needed,” Alban says, “because at any time this directive could be rescinded, and then DEA ill be back to their regular practice of preying on travelers at airports.”
The DEA did not immediately respond to a request for comment.
