The Department of Justice (DOJ) is cracking down on the Drug Enforcement Agency’s (DEA) practice of randomly searching passengers and seizing their cash at airports.

The DEA’s activities were put in the spotlight, thanks to an investigation by Atlanta News First. The investigation found that “drug agents have been seizing anything over $5,000 if airline passengers can’t prove — on the spot — that their own money didn’t come from drug trafficking. The government seizes the cash when no drugs are found, without arresting the traveler or charging them with a crime, and the DEA gets to keep the money it seizes.”

In the wake of the investigation, the DOJ Office of the Inspector General (OIG) investigated the allegations and uncovered disturbing issues.

In response to various recent allegations, and to follow up on our 2015 cold consent encounters report, earlier this year the OIG initiated an evaluation of the interdiction activities of the DEA at transportation centers, including its use of seizures and consensual encounters, as well as the data collection and tracking of such activities. The OIG’s current oversight work, including the evaluation and a separate ongoing investigation, has recently identified several serious concerns about the DEA’s interdiction activities in transportation settings.

Among the most disturbing things the OIG discovered is that one DEA office was paying an airline as a confidential source (CS), giving them a percentage of cash seized as a result of tips.

First, during the investigation, we learned of a DEA office that has a Limited Use CS, who is an employee of a commercial airline, and has for several years been paying the CS a percentage of forfeited cash seized by the DEA office from passengers at the local airport when the seizure resulted from information the CS had provided to the DEA. Specifically, we learned that for the past several years this CS has sent the DEA office information from the airline’s reservation system identifying passengers who purchased tickets to certain U.S. cities within 48 hours of the travel so that the DEA could, among other things, approach those passengers at the airport and seek their consent to search their carry-on luggage. During consensual encounters, passengers have the right to decline to engage with the DEA SAs or TFOs or have their bag searched. If the law enforcement officer does not already possess at least a reasonable suspicion that a crime has been or is being committed, the law enforcement officer lacks the necessary legal basis to detain the passenger or their property.

To make matters worse, the DEA ignored its own guidelines allowing passengers to opt out of consensual searches.

As an example of the DEA’s use of this CS, earlier this year, in the early morning, the DEA office received from the CS a list of five such individuals traveling to a major U.S. city and commercial hub on a domestic flight, operated by the CS’s employer, that was scheduled to leave approximately 3 hours later. DEA SAs and TFOs at the local airport planned to approach the travelers whose names appeared on the list—after those travelers had passed through airport security and while they were in the process of boarding their flight—to have a consensual encounter with them. Based on the OIG’s prior work in this area, such consensual encounters may include a request that a traveler consent to a search of their belongings, if the SA or TFO thinks it warranted. Our investigators were told that, after receiving the list and prior to approaching the travelers, the DEA ran checks for prior criminal records. None of the five had a prior relevant criminal history. Thus, any consensual encounter would have been based solely on the fact that within the previous 48 hours they had purchased tickets, some of which were one way, to fly to a major U.S. city that is a significant business center. The DEA had no additional information to suggest that these five passengers might be engaged in illegal activity.

As one of the five travelers was boarding their flight, the traveler was approached by a DEA TFO, who decided to detain the traveler’s carry-on bag after the traveler did not consent to a search.5 The DEA TFO advised the traveler that he was detaining the bag, but he told the traveler that they were free to board the plane without the bag. The traveler ultimately decided to remain with the bag. Thereafter, a law enforcement drug-detection dog, according to the DEA, alerted to the bag. The DEA TFO then told the traveler that they could either consent to the search of the bag or the DEA would detain it further and seek a search warrant. The passenger eventually told the DEA that it could search the carry-on bag and signed a consent form. No cash, drugs, or other contraband was found when the DEA searched the bag, and the bag was returned to the traveler. By that time, the traveler had missed their original flight. The traveler made a video and audio recording of this encounter on a personal recording device, and an edited version of the video and audio has been made public.

DEA Created a Legal Quagmire

As a result of the DEA’s handling of the above case, the OIG found the agency had created a legal nightmare.

We believe that the information our investigation has uncovered thus far regarding the DEA’s transportation interdiction activities at this airport illustrates several potentially significant—and in many cases longstanding—systemic issues and possible legal risks. Among them are whether the DEA’s multiyear payments to a Limited Use CS could result in a finding that the CS is acting as an agent of the DEA, thereby rendering the CS a government actor for Fourth Amendment purposes. It also raises questions as to whether CSs employed by private transportation companies may be violating state law by providing passenger data to the DEA (in the absence of a subpoena) in the increasing number of states that tightly regulate business use of consumer data. Additionally, Limited Use CSs provide information to the DEA without direction about suspicious activity or behavior that could be indicative of criminal activity. This raises the question of whether DEA policy intends for the Limited Use CS category to include airline employees who provide to the DEA, with some regularity, lists of travelers who purchase tickets within 48 hours for flights to certain major metropolitan U.S. cities, without any further suspicion about those passengers. We note that it is hardly unusual for travelers, including business travelers and last-minute vacationers, to purchase tickets within 48 hours of a flight. We also believe that the DEA and the Department need to consider whether approaching airline passengers to request consent to search their carry-on bag as they are approaching the jetway to board their soon-to-be departing flight could be viewed as placing undue pressure on travelers to accede to such requests.

Further, the DEA’s failure to collect data for each consensual encounter, as required by its own policy, and its continued inability to provide us with any assessment of the success of these interdiction efforts once again raise questions about whether these transportation interdiction activities are an effective use of law enforcement resources—and leaves the DEA once again unable to provide adequate answers to those questions.

DOJ Suspends Random Consensual Searches

In response to the issues discovered by the investigation, the Deputy Attorney General has ordered the DEA to suspend random consensual searches, specifically those unconnected to an existing investigation.

Until the utility of conducting consensual encounters pursuant to the transportation interdiction facilities program is evaluated, assessed, and identified concerns are sufficiently addressed, I am directing that the DEA suspend conducting consensual encounters pursuant to the program, subject to my further review following the assessment and evaluation. Consensual encounters pursuant to the program may not be resumed absent explicit direction from the Deputy Attorney General.

The Deputy Attorney General’s memorandum is another win for travelers and privacy advocates, joining a list of recent court decisions upholding Fourth Amendment rights at the border, prohibiting geofence warrants, and putting limits on the length of police seizures.

Thanks to the Deputy Attorney General’s decision, law-abiding travelers can rest a little easier, knowing their hard-earned cash isn’t going to be seized at the airport without just cause.