by Gregory J. Reigel, Esq
© Copyright 2024. All rights reserved!
Published in Midwest Flyer Magazine June/July 2024 Digital Issue
Several recent incidents reported in the media prompted a number of airmen to ask the question: May the FAA search my aircraft? To answer that question, we need to initially distinguish between the terms “search” and “inspect.”
A “search” is conducted to investigate whether criminal activity/conduct has occurred. The FAA does not, nor is it authorized to, conduct “searches.” An “inspection” is conducted to confirm compliance with regulations/laws including aircraft airworthiness and operation.
A “ramp inspection” occurs when the FAA conducts “surveillance of an airman, operator, air agency, or aircraft, which may include conducting maintenance record inspections sufficient to show compliance with 14 CFR during actual operations at an airport or heliport.”
During a ramp inspection, the FAA inspector conducting the inspection may not open or enter the aircraft unless the inspector receives consent from either the crew (as an agent of the owner/operator) or from the owner/operator. And neither the crew nor the owner/operator are required to give consent.
However, in contexts other than a ramp inspection (e.g., during a 49 U.S.C. §44709 request for reexamination of an aircraft’s airworthiness), the aircraft owner/operator may be required to give consent in order to avoid suspension/revocation of the aircraft’s registration by the FAA.
But what happens when the FAA shows up and its inspectors are not alone? In some instances, the FAA inspector(s) will be accompanied by representatives from other agencies and/or law enforcement. Does this change anything for the FAA? Fortunately, no, it does not. The FAA is still bound by the rules limiting its authority to open or enter an aircraft. However, the FAA’s limitations do not extend to those other agencies.
For example, if a ramp inspection is conducted in connection with an aircraft’s arrival from outside the U.S., Customs and Border Protection (CBP) personnel may also be participating. CBP does have the authority to search an aircraft if it has reasonable cause to suspect the aircraft contains merchandise which was imported contrary to law, which is subject to duty, or that was unlawfully introduced into the U.S.
Interestingly, CBP is also now investigating “illegal charter” for purposes of assessing fines based upon information FAA has provided regarding what FAA believes constitutes “illegal charter” and duties that must be paid in connection with “commercial flights.”
Similarly, the Drug Enforcement Agency (DEA) is another agency that may conduct searches. Either the FAA or DEA may receive anonymous tips or other information regarding use of an aircraft that may be criminal in nature. A ramp inspection may then be conducted to investigate, although it must be conducted within the limitations of each agency’s authority. So, while the FAA may not “search” the aircraft, that does not preclude DEA or another agency with similar authority to conduct a “search.”
With DEA and other law enforcement agencies, a “vehicle exception” applies to the 4th amendment prohibition on unreasonable search and seizure. Under this exception, a search of a vehicle, including an aircraft, without a warrant is permissible if probable cause exists to believe the vehicle contains contraband or other evidence of a crime.
If DEA (or any other law enforcement agency for that matter) asks for permission to search, it likely means they do not have a reasonable basis to search and are thus trying to do so with consent. If they had probable cause, they wouldn’t ask – they would just conduct the search. So, if you are withholding consent, you need to make it very clear that you do not consent to any searches of your aircraft.
Also, do not try to argue with the FAA inspector or law enforcement officer. Very rarely will you win that argument. On the contrary, an argument may well get you in deeper trouble. You could provide information that helps make a case against you, or you could be viewed as exhibiting a “poor compliance attitude,” or you could be considered to be viewed as obstructing the process and/or judgment. Don’t do it. Discretion and respect will serve you better.
If the FAA or law enforcement did not have the proper authority for their actions or they did not follow appropriate procedures, you will generally have an opportunity to fight that battle at a later date in a different forum (e.g., with an FAA or prosecuting attorney or in a courtroom).
Ramp inspections can be stressful. When the “rest of the gang” (e.g., CBP, DEA, or law enforcement, etc.) are also present, it can be even worse. Understanding the authority possessed by each agency for conducting inspections and/or searches of aircraft will allow you to respond in a way that protects your rights and is respectful and compliant.
EDITOR’S NOTE: Greg Reigel is an attorney with Shackelford, Bowen, McKinley & Norton, LLP, and represents clients throughout the country in aviation and business law matters. He has more than three decades of experience working with airlines, charter companies, fixed base operators, airports, repair stations, pilots, mechanics, and other aviation businesses in aircraft purchase and sales transactions, regulatory compliance including hazmat and drug and alcohol testing, contract negotiations, airport grant assurances, airport leasing, aircraft-related agreements, wet leasing, dry leasing, and FAA certificate and civil penalty actions. He is also Board Certified in Aviation Law by the Texas Board of Legal Specialization. For assistance, call 214-780-1482, email: greigel@shackelford.law, Twitter @reigellaw www.shackelford.law
