DRUG COURIER PROFILE:
Agent Paul Markonni has had an illustrious career, especially with respect to the drug courier profile, which he is given credit for developing while working in the Detroit DEA Office. The feats of Agent Markonni are well known. Consider the very first statement in U.S. v. Berd, “[t]his case presents yet another chapter in the life of DEA Special Agent Paul Markonni”, 634 F.2d at 981. Agent Markonni’s exploits are described as “legendary” in U.S. v. Ehlibracht, 693 F.2d 333, 335-66 n.3 (5th Cir. 1982).
With increasing frequency, law enforcement officers have come to rely upon certain characteristics claimed to constitute a composite profile of a “drug courier” as justification for “engaging” airline passengers at terminals.5 An overview of these cases and the inconsistencies produced reveals strong potential for abuse.
The Supreme Court exacerbated the problem by placing its stamp of approval upon the use of such profiles so long as the underlying facts relied upon by the agent, objectively constitute “reasonable suspicion” or “probable cause”. U.S. v. Sokolow, 490 U.S. 1, 104 L.Ed.2d 1 (1989).
Therefore, an intensive fact-bound inquiry of an agent professing to be an expert on “drug courier characteristics” will reveal whether the articulated factors consistently support the agent’s conclusion or whether they change to support the agent’s hunch and are therefore pretextual. U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 947 (1980).
Agent’s initial contact with an airline passenger, based upon a “drug courier profile”, did not violate the passenger’s Fourth Amendment rights.
The plurality was comprised of three separate analyses (accordingly not binding precedent).
- Two Justices (Stewart and Rehnquist) took positions that asking for identification and airline ticket did not constitute a “seizure”, as passenger had no objective reason to believe she was not free to go;
5 The “drug courier profile” is a list of characteristics composed by Agent Markonni for drug agents’ use in identifying drug couriers in airports. The list includes seven “primary characteristics” and four “secondary characteristics”, as noted in US v. Emlore, 595 F. 2d 1036 n.3 (5th Cir. 1979).
The seven primary characteristics are (1) arrival from or departure to an identified source city; (2) carrying little or no baggage, or large quantities of empty suitcases;
(3) unusual itinerary, such as a rapid turnaround time for a lengthy airplane trip; (4) use of an alias; (5) carrying unusually large amounts of currency in the many thousands of dollars, usually on their person in briefcases or bags; (6) purchasing airline tickets with a large amount of small denomination currency: and (7) unusual nervousness beyond that ordinarily exhibited by passengers.
The secondary characteristics are (1) almost exclusive use of public transportation, particularly taxicabs in departing from the airport; (2) immediately making a telephone call after deplaning; (3) leaving a false or fictitious call-back telephone number with the airline being utilized; and (4) excessively frequent travel to source or destination cities.
- Three Justices (Powell with Burger and Blackman) took the position that regardless of whether there was a seizure, one would be justified because such facts constituted a reasonable founded suspicion which would warrant any such intrusion; and;
- Four Justices (White, Brennan, Marshall and Stevens) concluded that Mendenhall had been seized
A majority held that the passenger’s subsequent “consent” to accompany the agents to the DEA Office and to search her person was voluntary.
See U.S. v. Glass, 741 F.2d 83, 85-86 (5th Cir. 1984) [an airport stop not justified by (1) information that two individuals of particular description would be arriving, (2) defendant’s arrival, (3) defendant’s recognition of another deplaning passenger, (4) other passenger’s use of an assumed name and (5) other passenger’s nervousness upon questioning]; U.S. v. Aguilar, 825 F.2d 39 (4th Cir. 1987) [drug courier profile characteristics along with a bulge and white plastic showing at ankle constituted probable cause].
MERELY APPROACHING INDIVIDUAL IN PUBLIC PLACE NOT FOURTH AMENDMENT “SEIZURE” AND THEREFORE REQUIRES NEITHER “PROBABLE CAUSE” NOR “REASONABLE SUSPICION”
Compare Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
“Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in any other public place, and asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” Florida v. Royer, 460 U.S. at 497.
With U.S. v. Gonzalez, 728 F. Supp. 185 (S.D.N.Y. 1989) [as defendant was about to board, agents approached her displaying their shields. The agents were taller than the defendant; the court found she was seized for Fourth Amendment purposes]; U.S. v. Tavolacci, 895 F.2d 1423 (D.C.Cir. 1990) [three officers were present in the doorway and aisle blocking defendant’s way out of passenger train “roomette,” but defendant was “free to leave”].
See also INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758 80 L.Ed.2d 247 (1984) [approving “factory surveys” by INS Agents entering work place under warrant or with employer’s consent to question employees about their citizenship, as questioning is “mere consensual encounter” and not detention or seizure]; U.S. v. Collins, 699 F.2d 832 (6th Cir. 1983); Florida v. Rodriguez, 469 U.S. 1, 5, 105 S.Ct. 1517, 83 L.Ed.2d 165, 170-71 (1984).
“The initial contact between the officers and respondent, where they simply asked if he would step aside and talk with them, was clearly the sort of consensual encounter that implicates no Fourth Amendment interest.” Florida v. Rodriguez, 469 U.S. at 5.
See also U.S. v. Wiggins, 828 F.2d 1199 (6th Cir. 1987) [no arrest where brief interview and person was told could they could leave at any time]; U.S. v. Barnes, 496 A.2d 1040 (D.C. App. 1985) [the Supreme Court has established a relatively high threshold for finding a seizure, indicating that asking a suspect to take his hands out of his pockets and inquiring what he was doing and whether he had prior convictions did not constitute a Fourth Amendment seizure]; U.S. v. Castellanos, 731 F.2d 979, 983-84 (D.C. Cir. 1984) [no seizure when officer asks for identification]; U.S. v. Notorianni, 729 F.2d 520, 522 (7th Cir. 1984) [no seizure when agents identify themselves, ask questions, and announce that narcotics investigation is being conducted]; U.S. v. Hendrix, 726 F.2d 433, 434 (8th Cir. 1984) [no seizure when individual told of freedom to refuse to answer questions and to leave]. But see U.S. v. Quinn, 815 F.2d 153 (1st Cir. 1987) [seizure, but not arrest, where numerous officers blocked defendant’s car and questioned him for 20-25 minutes].
However, asking defendant to empty his pockets constituted an arrest. U.S. v. Willis, 759 F.2d 1486 (11th Cir. 1984).
Additional factors such as a language barrier, significant difference in size between the officers and the defendant, and the officer’s continued repetition of the word drugs in increasingly loud tones while pointing at the defendant’s bag constitutes a seizure subject to Fourth Amendment scrutiny. U.S. v. Gonzalez, 728 F. Supp. 185 (S.D.N.Y. 1989).
TAKING A JOG
The Supreme Court has held that an “investigatory pursuit” of a person was not a seizure unless, under the Mendenhall test, a reasonable person viewing all of the circumstances would not feel free to leave. Reaching this conclusion, the Court found that when a marked police car drives along side a running person for a short distance, a reasonable person would believe he or she was free to leave at least when the police had used no show of authority to make the individual stop. Michigan v. Chesternut, 486 U.S. 567 (1988).
But see Garza v. State, 771 S.W.2d 549 (Tex.Crim.App. 1989) [holding that the protection of the Fourth Amendment are involved at the point the law enforcement officer turned on the overhead flashing lights of his vehicle, as a reasonable person would not feel free to drive away. The driver of a motor vehicle who “flees or attempts to elude a pursuing police vehicle when give a visual or auditory signal to bring the vehicle to a stop commits a misdemeanor.”].
EVEN OFFICER’S STATEMENT “I’M A POLICEMAN”, WITHOUT MORE DOES NOT CONVERT THE ENCOUNTER INTO A SEIZURE
Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229, 236 (1983).
“Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.” Florida v. Royer, 460 U.S. at 497.
NOR DOES BRIEFLY QUESTIONING PASSENGER AND REQUESTING CONSENT TO SEARCH CONVERT THE ENCOUNTER INTO A SEIZURE
U.S. v. Jensen, 689 F.2d 1361 (11th Cir. 1982).
However, even a “momentary detention” of the individual requires at least “reasonable suspicion”.
Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229, 236 (1983).
“[An individual] may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.” Florida v. Royer, 460 U.S. at 498.
ACCUSATORY STATEMENT CONSTITUTES “SEIZURE”
Seizure occurs when officer tells defendant he suspects him of carrying drugs since [reasonable persons] would not feel they are thereafter free to go.
“Although we intimate no view with respect to whether a police officer’s statement to a suspect that he has reason to believe the suspect is carrying drugs would justify a reasonable person in believing that he was not free to go, we think that such a statement would, at minimum, be a significant factor in the Elmore analysis.
“We stated in Elmore that the question whether a seizure has occurred ‘often requires a “refined judgment”, especially when no force, physical restraint, or blatant show of authority is involved.’” 595 F.2d at 1041-42.
See also U.S. v. Robinson, 625 F.2d 1211 (5th Cir. 1980); U.S. v. Burgos, 720 F.2d 1520, 1524 (11th Cir. 1983) [seizure occurs when suspect believes he or she is not free to leave].
DEFENDANT MUST BE HALTED BEFORE HE IS SEIZED
Upsetting a long line of precedence to the contrary, the Supreme Court in California v. Hodari, 499 U.S. 621, 111 S. Ct. 1547, 113 L.Ed.2d 690 (1991), held that a defendant who flees at the sight of a police officer chasing him and commanding him to stop is not seized before the defendant’s flight has been halted.
Dissenting, Justice Stevens points out the absurdity of the majority opinion:
“[T]he Court now adopts a definition of ‘seizure’ that is unfaithful to a long line of Fourth Amendment cases. Even if the Court were defining seizure for the first time, which it is not, the definition that it chooses today is profoundly unwise. In its decision, the Court assumes, without acknowledging, that a police officer may now fire his weapon at an innocent citizen and not implicate the Fourth Amendment- as long as he misses his target.” [emphasis supplied].
The more reasoned standard had been, until Hodari, that any time there is the slightest restraint of movement a seizure has occurred.
“As Detective Glover pursued Bowles, he passed his quarry, held out his credentials and turned to face defendant, blocking his path and stopping him from proceeding further. Clearly at this point Bowles’ movement had been restrained. U.S. v. Bowles, 625 F.2d 526, 532 (5th Cir. 1980).
Courts had recognized before Hodari that an invitation by one claiming police authority does not have the “option attendant upon a bid to a ball”.
“To codify ‘arrest’ by requiring such prerequisites as the laying on of hands or the use of magic words would be to defy reality. An invitation of one claiming police authority does not have the options attendant upon a bid to a ball. Even assuming that the inspectors did not intend to arrest Alexander to obtain evidence, the period of interrogation could have been a putative arrest from Alexander’s viewpoint. Alexander’s fear of police power is certainly as reasonable an explanation for his docility as innate friendliness.” Alexander v. U.S., 390 F.2d 101, 108 (5th Cir. 1968).
See also U.S. v. Morgan, 743 F.2d 1158 (6th Cir. 1984) [coercive tactics of officers who, encircled home, flooded it with spotlights and used a bullhorn to call defendant out was arrested and accomplished same purpose as entering house in violation of Payton v. New York, 445 U.S. 573 (1980)]; U.S. v. Robinson, 625 F.2d 1211 (5th Cir. 1980); U.S. v. Santora, 619 F.2d 1052 (5th Cir. 1980) [agents approach two men sitting at airport terminal coffee shop, identifying themselves and asking for identification – held to be Fourth Amendment seizure]; Earley
- State, 635 S.W.2d 528 (Tex.Crim.App. 1982) [defendant was arrested when his liberty of movement was restricted]; Hardinge v. State, 500 S.W.2d 870 (Tex.Crim.App. 1973); Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985) [removal and transportation of a suspect to the police station for fingerprinting requires probable cause and a warrant, no matter how brief the station house interrogation].
But see U.S. v. Tovolacci, 895 F.2d 1423 (D.C.Cir. 1990) [three officers blocking the way out of a train passenger roomette did not make a reasonable person believe he was not free to leave, the dissent says that the “free to leave” test is rendered “virtually meaningless” by majority opinion]; Burkes v. State, 830 S.W.2d 957 (Tex.App.
– Tyler 1990), rev’d, 830 S.W.2d 922 (Tex.Crim.App. 1991), on remand, 830 S.W.2d 959 (Tex.App. Tyler, 1992) [handcuffed defendant who was forced to lie on his stomach while being searched was subject only to an investigative stop and not an arrest, the stop was at night, the officers could not see the defendant’s hands and the suspects in the area out numbered the officers originally held only a Terry Stop, on appeal ruled an arrest and on remand for probable cause to arrest].
LENGTH OF STOP MUST BE BRIEF
An investigatory stop must be brief.
See U.S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); U.S. v. Brignoni-Ponce,
422 U.S. 873, 95 L.Ed.2d 2574, 45 L.Ed.2d 607 (1975); Dunn v. United States, 442 U.S. 100, (1979).
In U.S. v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), a traveler’s luggage was seized for ninety (90) minutes for the purpose of subjecting it to a “canine sniff” by a narcotics detention dog. The Court held:
“The length of the detention of respondent’s luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause.” U.S. v. Place, 462 U.S. at 709.
See also U.S. v. Chamberlin, 644 F.2d 1262 (1980) [twenty minute detention on reasonable suspicion unlawful];
U.S. v. Perez-Esparaza, 609 F.2d 128 (1979) [a 3 hour detention during valid investigatory stop was illegal arrest].
But see U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).
“We reject the contention that a 20 minute stop is unreasonable when the police have acted diligently and a suspect’s actions contribute to the added delay about which he complains.” U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).
C.f. Two hour detention of Federal Express parcel to enable a “dog sniff” was not precluded by Pace. Detaining a parcel not like detaining luggage at airport, which had the effect of detaining the passenger. U.S. v. LaFrance, 879 F2d. 1 (1st Cir. 1989).
Also See Kothe v. State, 152 S.W.3d 54 (Tex.Crim.App.2004). [Viewed in the totality of the circumstances, continued detention of a driver for an additional three to twelve minutes while waiting for the results of a routine computer driver’s license check when the officer’s original articulable suspicion had already been resolved was not a violation of the Fourth Amendment.].
DETAINING LUGGAGE FOR ANY SIGNIFICANT PERIOD OF TIME CONSTITUTES A SEIZURE
More than a “momentary” detention of a passenger’s luggage may constitute a “seizure” requiring probable cause. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) [“the officers without his consent had retrieved and checked his luggage from the airline”]; U.S. v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); Peschel v. State, 770 P.2d 1144 (Alaska App. 1989) [“special obligation to diligently minimize inconvenience to the traveler” requires “least intrusive means.”].
In U.S v. Place, 462 U.S. 696, 698, 706, 103 S.Ct. 2637, 2639, 77 L.Ed.2d 110, 114, 120 (1983), the
Supreme Court considered “whether the Fourth Amendment prohibits law enforcement authorities from detaining personal luggage for exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the luggage contains narcotics.” The Court concluded that a “sniff test” by a well trained narcotics detection dog does not constitute a “search” requiring probable cause under the Fourth Amendment, and “that when an officer’s observations lead him to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.” [emphasis added]. U.S. v. Place, 462 U.S at 706.
As to the “scope” of such detentions the Court concluded that “the limitations applicable to investigative detentions of the person should define the permissible scope of the investigative detention of the person’s luggage on less than probable cause”. U.S v. Place, 462 U.S. at 709.
Relevant factors to be considered in determining whether the detention exceeds the limitations applicable to investigative detentions include the “brevity of the invasion”, and “whether the police diligently pursue their investigation.” U.S. v. Place, 462 U.S. at 709.
“Although we have recognized the reasonableness of seizures longer than the momentary ones involved in Terry, Adams, and Brignoni-Ponce, the brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion. Moreover, in assessing the effect of the detention, we take into account whether the police diligently pursue their investigation.” U.S v. Place, 462 U.S. at 709.
“In sum, we conclude that when an officer’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope…
[Such a seizure [of luggage] 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 length of the detention of respondent’s luggage [90 minutes] above precludes the consideration that the seizure was reasonable in the absence of probable cause.” U.S. v. Place, 462 U.S. at 706, 708-09.
See U.S. v. Gutierrez, 849 F.2d 940 (5th Cir. 1988) [abandoned suitcase could be searched]; U.S. v. Cagle, 849 F.2d 924 (5th Cir. 1988) [more than an investigative detention of suit case as agent’s actions caused same to miss being loaded on passenger’s flight]; U.S. v. Garcia, 849 F.2d 917 (5th Cir. 1988) [compressing and sniffing baggage is not a search or a seizure]; U.S. v. Hahn, 849 F.2d 932 (5th Cir. 1988); U.S. v. Belcher, 685 F.2d 289, 290 (9th Cir. 1982) [that at least where “bag was in [defendant’s] physical possession” at the time it was seized];
U.S. v. Moore, 786 F.2d 1308, 1311 (5th Cir. 1986) [handguns found in “plain view”, and seized, may be retained and used as evidence of extortion, despite immediate lack of probable cause linking the guns to the crime. Such retention is not effective detention of the owner under U.S. v. Place, 462 U.S. 696, 708-709 (1983)]; Peschel v. State, 770 P.2d 1144 (Alaska Ct. App. 1989); U.S. v. LaFrance, 879 F.2d 1 (1st Cir. 1989) [two hour detention of Federal Express parcel to enable a “dog sniff” was not precluded by]; U.S v. Place, 462 U.S. 696 (1983) [detaining a parcel is not like detaining luggage at airport which had the effect of detaining the passenger].
See United States v. Goodwin 449 F.3d 766, 2006 WL 1409424 (7th Cir. 2006) [Law enforcement officers’ seizure of a traveler’s luggage five minutes before the only daily train to his destination was scheduled to depart did not exceed the lawful scope of an investigative detention permitted by the Fourth Amendment as interpreted in Terry
- Ohio, 392 U.S. 1 (1968). Causing an intrusion greater than that occasioned by a run-of-the-mill Terry stop did not convert the stop into a de facto arrest requiring probable cause; instead, it simply required more justification to show that the detention was “reasonable,” the court said.].
ASKING PASSENGER TO ACCOMPANY OFFICER TO “OFFICE” CONSTITUTES AN ARREST
However, requesting a passenger to accompany an officer to an office after the passenger has given his name and refused consent to search cannot be characterized as “brief …on the spot questioning” and distinguishes these facts from Mendenhall as not being consensual.
U.S. v. Hill, 626 F.2d 429, 435-36 (5th Cir. 1980).
“The absence of consent distinguishes this case from Mendenhall …though the facts of Mendenhall are similar …unlike Sylvia Mendenhall, Hill flatly refused to be searched without a warrant. In our view, that fact provides a basis for upholding the district court’s factual conclusion that Hill did not consent to accompany Markonni to the Delta office.” U.S v. Waksal, 709 F.2d 653 (11th Cir. 1983).
In Florida v. Royer, 460 U.S. 491 (1983), the Supreme Court stated:
“Asking for an examining of Royer’s ticket and his driver’s license were no doubt permissible in themselves, but when the officers identified themselves as narcotic agents, told Royer he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way he was free to deport, Royer was effectively seized for purposes of the Fourth Amendment… What had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room… The officers had Royer’s jacket, they had his identification and they had seized his luggage… As a practical matter Royer was under arrest.” Florida v. Royer, 460 U.S. at 501.
However, the Supreme Court has indicated in this context that where a suspect “agree[d] to talk with the police, move[s] over to where his cohorts and the other detective were standing, and ultimately grant[s] permission to search his baggage”, such “seizure”, if any, requires only “reasonable suspicion.” Florida v. Rodriguez, 469 U.S. 1, 6, 105 S.Ct. 308, 83 L.Ed.2d 165, 171 (1984).
See also U.S. v. Alvarez-Sanchez, 774 F.2d 1036 (11th Cir. 1985) [the court applies totality of circumstances test and holds that because defendant consented to accompany border patrol agents to an administrative office fifteen feet away, no illegal arrest occurred].
STOPS AT TWO DIFFERENT AIRPORTS “PRESUMES” AN ARREST REQUIRING PROBABLE CAUSE
U.S. v. Morin, 665 F.2d 765 (5th Cir. 1982).
EVEN WHERE INDIVIDUAL TRAVELING UNDER AN “ASSUMED NAME”, DRUG COURIER PROFILE ALONE DOES NOT CONSTITUTE “PROBABLE CAUSE”
In Florida v. Royer, 460 U.S. 4912 (1983), the Supreme Court said, “we cannot agree …that every nervous young man paying cash for a ticket to New York City [a ‘target city’] under an assumed name and carrying two heavy American Tourister bags may be arrested” or searched. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
See also U.S. v. Belcher, 685 F.2d 289, 291 (9th Cir. 1982).
Even where initial arrest was unlawful some courts have held a suspect’s subsequent conduct may provide probable cause. U.S. v. Bailey, 691 F.2d 1009 (11th Cir. 1982) [approach of Agent Markonni, individual fled, attempted to climb the gate and began “swinging, striking Markonni in the head”]. However, “flight” should not raise suspicions where it comes in response to the approach of plain clothed officers who fail to identify themselves. But where one flees approaching law enforcement in a crime ridden neighborhood, the Supreme Court held, he raises officers’ suspicions justifying his further investigation. Illinois v. Wardlow, 528 U.S. 119, 124. 120 S.Ct. 623, 676, 145 L.Ed.2d 570 (2000). See Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) [“when an officer insufficiently or unclearly identifies himself or his mission, the [person’s] flight from the (site of confrontation) must be regarded as ambiguous conduct”]; U.S. v. Jones, 619 F.2d 494, 498 (5th Cir. 1980) [a defendant’s “evasive actions and flight from two strange men riding in an unmarked car and exhibiting no indicia of lawful authority were only natural reactions to the circumstance”]; U.S. v. Amuny, 767 F.2d 1114, 1124-5 (5th Cir. 1985).
“If a police officer identifies himself while approaching a suspect and the suspect flees, the suspect’s conduct suggests that he knowingly seeks to evade questioning or capture… Such conduct ordinarily supplies another element to the reasonable suspicion calculus, …but may occasionally serve as the catalyst to confer mere reasonable suspicion to probable cause… In cases where investigating officers do not identify themselves, however, flight alone is, at best, ambiguous conduct…
[W]e view the appellants’ flight from the scene of the plane as ambiguous conduct and insufficient to support a finding of probable cause [six unmarked vehicles carrying approximately twelve plainclothes law enforcement officers converged, in unison, upon the site of the aircraft. None of the vehicles had sirens blaring or lights flashing, and the officers did not announce either their purpose or identity in any other way. Some of the officers apparently had their weapons drawn. Flight under these circumstances was as much reasonable as it was suspicious. It added nothing to the officers’ determination of probable cause. We therefore reject the government’s claim that the appellant’s flight from the area of the plane supported their determination of probable cause. The search of the aircraft cannot be sustained upon this basis.” U.S v. Waksal, 709 F.2d 653 (11th Cir. 1983).
But the accused may lack “standing” to complain that an illegal stop or arrest precipitated another’s “flight”.
U.S. v. Johnson, 496 A.2d 592 (D.C. App. 1985) [a defendant’s detention justified where third party’s flight could be imputed; no standing to exclude third party’s flight in justifying defendant’s stop].
EXPLOITATION OF AIRPORT SECURITY POINTS
U.S. v. Politano, 491 F. Supp. 456, 461 (W.D. N.Y. 1980); U.S. v. Gorman, 637 F.2d 352 (5th Cir. 1981); U.S. v.
Lopez-Pages, 767 F.2d 776 (11th Cir. 1985).
THREE LEVELS OF POLICE CITIZEN CONTACT
In U.S. v. Berry, 670 F.2d 583 (5th Cir. 1982) [en banc], the Fifth Circuit outlined three levels of police citizen contacts:
ARREST: Requires probable cause;
SEIZURE: Requires reasonable suspicion and the presence of particular characteristics of drug courier profile are of no legal significance; and
INITIAL CONTACT: Extremely restrictive in scope, must be conducted in completely non-coercive manner, does not require reasonable suspicion, does not invoke Fourth Amendment.
See U.S. v. Barnes, 496 A.2d 1040 (D.C. App. 1985) [applying what it considers the Supreme Court’s relatively high threshold for finding a seizure, the D.C. Circuit holds that asking the accused to take his hands out of his pockets and inquiring what he was doing and whether he had prior convictions did not constitute a “seizure” for Fourth Amendment purposes].
FOURTH AMENDMENT REQUIRES DETERMINATION OF PROBABLE CAUSE TO DETAIN INDIVIDUAL ARRESTED WITHOUT A WARRANT
The Fourth Amendment requires that a neutral judicial officer determine probable cause for any significant pretrial restraint shortly after the arrest of a person arrested without a warrant.
Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) [a state prosecutor’s filing of “information” did not constitute such a probable cause determination by a neutral judicial officer]. See also Irardi v. Gunter, 528 F.2d 929 (1st Cir. 1976) [Gerstein’s probable cause determination is a prerequisite to interstate extradition]; Moss v. Weaver, 525 F.2d 1258 (5th Cir. 1976) [applying Gerstein to juvenile detention]; Robertson v. Riddle, 402 F. Supp. 144, 146 (W.D. Va. 1975) [the magistrate conducting such probable cause determinations need not be an attorney]; Coleman v. Frantz, 754 F.2d 719 (7th Cir. 1985) [the defendant’s eighteen day detention without an appearance before a judge or magistrate was a violation of defendant’s Fourth Amendment right to be brought before a magistrate without unreasonable delay].
A warrantless arrest by a law officer is reasonable under the Fourth Amendment if, given the facts known to the officer, there is probable cause to believe that a crime has been or is being committed. See Devenpeck v. Alford, 543 U.S. 146, 125 S.Ct. 588, 160 L.Ed 2d 537 (2004).
However, although officer’s affidavit for a search warrant failed to state that officer actually observed the defendant transport drugs, taken as a whole, the affidavit provided sufficient information that was reasonable for the officer to believe that there was probable cause for a search warrant. See U.S. v. Sibley, 448 F.3d 754 (5th Cir. 2006).
Also see Torres v. State, 182 S.W.3d 899 (Tex.Crim.App.2005) [Given the totality of the circumstances, the state failed to carry its burden to justify a warrantless arrest for DWI where the arresting officer was told by deputies on the scene that the defendant was drunk. The deputy’s unexplained opinions about whether defendant was intoxicated did not give the officer personal knowledge of, or reliable information about, facts or circumstances sufficient to justify the arrest. The deputies did not articulate supporting facts upon which their opinions were based. Rather, they merely asserted that defendant appeared intoxicated.]
RETURN TO McNABB/MALLORY RULE
Additionally, it has been held that a 6 hour delay in presenting an arrestee before the magistrate is unreasonable, rendering the fruits of such illegal detention inadmissible.
U.S. v. Perez, 733 F.2d 1026 (2d Cir. 1984).
See also U.S. v. Wilson, 838 F.2d 1081, 1085 (9th Cir. 1988) [where arraignment was postponed until questioning was complete the court found that the delay was solely to obtain a confession and therefore not reasonable even though 18 U.S.C. ‘ 3501(c)) sometimes allows delays for more than six hours]. But see U.S. v. Montoya De Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) [16 hour detention at border waiting for defendant to excrete contraband was reasonable]. But see U.S. v. Onyema, 766 F.Supp 76, remanded by, 952 F.2d 393 (2d Cir. 1991) [defendant incommunicado for 78 hours until he passed contraband from his alimentary canal violated the Fourth Amendment, officers never took evidence supporting reasonable suspicion before a judge during the detention].
“DRUG COURIER PROFILE” DOES NOT CONSTITUTE “REASONABLE SUSPICION”
A Drug Courier Profile is a checklist of reoccurring characteristics which can do no more than alert the agent to initiate surveillance. U.S. v. Rico, 594 F.2d 320, 326 (2d Cir. 1979); U.S. v. Hanson, 801 F.2d 757 (5th Cir. 1986) [profile match alone cannot create reasonable suspicion].
The Supreme Court has recognized the potentially great harm of totally arbitrary and random stops of citizens in public airports. See also U.S. v. Allen, 644 F.2d 749 (9th Cir. 1980); U.S. v. Berry, 636 F.2d 1075, 1080 n. 8 (5th Cir. 1981); U.S. v. Berd, 634 F.2d 979, 984 n.6 (5th Cir. 1981).
Because of the potential for including innocent citizens as profiled drug couriers, courts critically view the use of the drug courier profile to establish reasonable suspicion.
“The fact that many of the drug courier profiles characteristics are consistent with innocent behavior convinces this court that the profile characteristics should be used only sparingly, if at all, as a justification for questioning citizens.” U.S. v. Berry, 636 F.2d 1075, 1080 n.8 (5th Cir. 1981).
See also U.S. v. Allen, 644 F.2d 749 (9th Cir. 1980); U.S. v. Buenaventura-Ariza, 615 F.2d 29 (2d Cir. 1981);
U.S. v. Berry, 636 F.2.d 1075 (5th Cir. 1981); U.S. v. Pulvano, 629 F.2d 1151, 1155 n. 1 (5th Cir. 1980); U.S. v.
Andrews, 600 F.2d 563 (6th Cir. 1980); U.S. v. McCaleb, 552 F.2d 717 (6th Cir. 1977); U.S. v. Scott, 545 F.2d 38 (8th Cir. 1976); U.S. v. Gonzalez, 728 F. Supp. 185 (S.D.N.Y. 1989) [clutching bag in protective manner the outline of a rectangular object in the bag, nervously looking around and being in line with another person who also acted nervous all was “wholly consistent with lawful activity.” “It is certainly true that there could be a compilation of ‘wholly lawful conduct’ [which] might justify the suspicion that criminal activity was afoot”, but this is not such a case… There was nothing about the [rectangular] shape [of the package] that distinguished it as uniquely drug packaging. Indeed, Gary [the officer] “‘didn’t know what it was at all’, but because his mind was focused on his professional responsibilities, namely finding and arresting those trafficking in narcotics, he was more apt to see the package as drugs than as a lawful possession, such as a book or a gift of some sort. It is a form of tunnel vision, entertained in good faith or perhaps even subconsciously, but nonetheless limiting. Without more particularized and objective facts, the carrying of an unidentified object with a rectangular shape which protrudes from a person’s handbag cannot, even in combination with the other equally innocent circumstances cited by the government, give rise to that level of reasonable suspicion required by the fourth amendment… Interdicting the flow of drugs is of primary public importance; but an officer seizing a citizen must articulate reasons which pass constitutional scrutiny.] Valcarcel v. State, 765 S.W.2d 412 (Tex. 1986) [en banc] [courier profile testimony is irrelevant, inherently prejudicial and equals reversible error].
But see U.S. v. Cordell, 723 F.2d 1283, 1285 (7th Cir.), cert. denied, 104 S.Ct. 1291 (1984) [reasonable suspicion when individual arrived from identified source city, name on airline ticket purchased for cash not the same as on driver’s license, and nervousness increased as questioning progressed]; U.S. v. Albano, 722 F.2d 690, 692-931 (11th Cir. 1984) [reasonable suspicion when every act of – those under surveillance consistent with drug trafficking]; U.S. v. Ilazi, 730 F.2d 1120, 1124 (8th Cir. 1984) [reasonable suspicion when most of facts giving rise to agent’s suspicions based on suspects’s conduct, rather than on circumstances describing “very large category of presumably innocent travelers”]; U.S. v. Smith, 574 F.2d 882 (2d Cir. 1978);U.S. v. Haye, 825 F.2d 32 (4th Cir. 1987) [suspects had “some” drug courier profile characteristics, took circuitous route through airport, and then fled when police identified themselves. This court held same was reasonable suspicion that elevated to probable cause]. See also U.S. v. Vasquez, 612 F.2d 1338 (2d Cir. 1979); U.S. v. Smith, 574 F.2d 882 (2d Cir. 1978).
The Supreme Court has recognized the potentially great harm of totally arbitrary and random stops of citizens in public airports.
Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980).
Therefore, the Court in Mendenhall did not resolve the issue of whether the initial contact constituted a seizure. See also U.S. v. Allen, 644 F.2d 749 (9th Cir. 1980); U.S. v. Berry, 636 F.2d 1075 n.8 (5th Cir. 1981); U.S. v. Berd, 634 F.2d 979 n.6 (5th Cir. 1981); U.S. v. Robinson, 625 F.2d 1211 (5th Cir. 1980).
A DEA Agent’s stop of an airline passenger on his belief the passenger’s conduct “fit the so-called drug courier profile, a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics, is violative of the passenger’s Fourth Amendment rights, as same does not constitute reasonable suspicion”. Such “circumstances describe a very large category of presumably innocent travelers who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure”. Reid v. Georgia, 448 U.S. at 443.
Although not a complete rejection of the drug courier profile, the Supreme Court has implicitly admonished lower courts to carefully consider cases decided on the basis of the profile, ascribing little weight to characteristics that describe a large number of travelers. Reid v. Georgia, 448 U.S. at 443.
EVEN WHEN COUPLED WITH AN “ANONYMOUS TIP” PROFILE DOES NOT CONSTITUTE “PROBABLE CAUSE”
Anonymous tip accurately describing defendant coupled with elements of drug courier profile is insufficient to provide probable cause. And such a tip, even alleging illegal possession of a firearm, is not sufficient for even a Terry stop where the tip lacked enough predictive information to render it reliable. Thus, information which merely identifies an individual at a particular location lacks such reliability. Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). U.S. v. Ballard, 573 F.2d 913 (5th Cir. 1978); U.S. v. Garrett, 627 F.2d 14 (6th Cir. 1980); Adrow v. Johnson, 623 F. Supp. 1085 (D. Ill. 1983) [uncorroborated anonymous tip that prison guard was carrying narcotics did not establish probable cause or reasonable suspicion].
Where the anonymous tip contains information predicting a subject’s future behavior, which police work confirms occurred as predicted, then the tip increases in reliability and justifies a Terry stop. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2410, 110 L.Ed.2d 301 (1990) [an anonymous person, stating that Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey’s Motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case]; U.S. v. Large, 729 F.2d 636 (8th Cir. 1984) [probable cause when suspect fit description by confidential informant, pattern of activity consistent with innocence but suggestive, and nervousness increased during Terry stop]. Short visits in countries which are known drug sources has also been acknowledged as a factor in arousing suspicion. U.S. v. Dorsey, 641 F.2d 1213 (7th Cir. 1981); U.S.
- Klein, 592 F.2d 909 (5th Cir. 1979); U.S. v. Himmelwright, 551 F.2D 991 (5th Cir. 1977); U.S. v. Kallevic, 534 F.2d 411 (1st Cir. 1976). As has presence in a high crime area and flight upon the approach of law enforcement. Illinois v. Wardlow, 528 U.S. 119, 124. 120 S.Ct. 623, 676, 145 L.Ed.2d 570 (2000).