The DEA Claims To Be Able To Search Your Bag Without Your Consent. But Can They?

Recent footage shows a federal agent attempting to search a citizen’s bag without their consent, despite precedent saying that’s illegal.

Can federal law enforcement demand an impromptu spot-check of your bag after you pass through airport security?

Recent footage released by the Institute for Justice (I.J.) shows an officer from the Drug Enforcement Administration (DEA) attempting to do precisely that. In the video, which was recorded earlier this year, a DEA agent repeatedly attempts to search the bag of a man identified as David C., who had already passed through a Transportation Security Administration (TSA) checkpoint and was attempting to board his flight. At one point, the agent implies that he could search David's backpack without his consent.

"I don't consent to search, sir," David tells the officer. "You don't have to consent," the officer responds, adding moments later, "I don't care [about] your consent stuff."

The video shows the officer offering David the choice between boarding the plane for his flight and staying with his bag. "Set your bag down and then you can walk on the plane," the agent says. "You can do that, but you can't take the bag."

"Am I being detained right now?" David asks. "Not you, but your bag," the officer replies.

David had good reason to be disquieted by the prospect of his bag being searched, even notwithstanding the fact that it contained no contraband. According to a 2016 USA Today report, the DEA annually seizes hundreds of millions of dollars from thousands of airport travelers through a controversial process called civil asset forfeiture. Civil forfeiture allows federal agents to take large quantities of cash from individuals—sometimes for years—without ever charging them with a crime.

David's situation is, in a way, familiar to many Americans. He was in Cincinnati for a business trip, but got sick and had to rebook his flight back to New York at the last minute. On the day of his flight, he passed through TSA and entered the airport terminal as normal, but was thereafter approached by the agent, who asked him for his ID and for permission to search his bag.

When David initially declined, the agent pulled out his badge.

The officer told David that 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 explains to David. "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." 

David was initially skeptical that the agent had the authority to search through his bag without consent, but the officer told him, "We wouldn't do this—and be doing this across the country—if it wasn't legal."

But is it legal? Outside an airport, a federal officer demanding that a citizen display the contents of their bag would be ludicrous unless, first, there was some exigent circumstance, and second, the agent had probable cause. Why would the mere fact that David's altercation with the agent took place inside an airport change that?

"Under the Supreme Court's ruling in United States v. Place, the government needs 'reasonable suspicion' to briefly seize your bag at an airport without a warrant or consent to subject it to a drug-detection dog's sniff," Orin Kerr, a professor at the University of California, Berkeley School of Law, tells Reason. "Courts have indicated that the mere fact that a one-way ticket was purchased last-minute is not enough to create reasonable suspicion."

"If that's all the officer was relying on, detaining the bag violated the Fourth Amendment," he adds.

At one point in the video, David argues that he was effectively being detained because he could not reasonably leave the airport without his bag, which contained his work laptop. The officer replies, "Your bags are not—they're different from your person. There's a difference."

Legally, that's not true. "The seizure of David's bag is fairly clearly a seizure of David himself, per Supreme Court precedent," explains Matthew Tokson, a professor at the University of Utah's S.J. Quinney College of Law. "Such a seizure can effectively restrain the person since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return."

The DEA agent's attempted interdiction ultimately caused so much delay that David was forced to miss his flight entirely. When David finally gave consent to the agent to search his bag (rather than wait even longer for the agent to attempt to obtain a warrant), the agent found nothing illegal inside it.

"What happened to me was wrong," David said in an interview with I.J. "And knowing that this happens to a lot of other people, I feel that sharing my story will hopefully make a difference."

I.J. is currently pursuing a class action lawsuit against the DEA over allegedly unconstitutional searches and seizures, including civil asset forfeitures, at U.S. airports. "Currently that lawsuit is wrapping up discovery and moving to class certification," a spokesperson for I.J. tells Reason.

The DEA did not respond to Reason's request for comment.