AUTO “DRUG COURIER” STOPS
Courts have been just as reluctant to allow auto stops in the vicinity of the border on such “drug courier profiles”. U.S. v. Smith, 799 F.2d 704, 707 (11th Cir. 1986).
“Here, relying on a drug courier profile, Trooper Vogel stopped a car because two young men were traveling at 3:00 A.M. in an out-of-state car… Trooper Vogel stopped the car because the appellants matched a few non-distinguishing characteristics contained on a drug courier profile and, additionally, because Vogel was bothered by the way the driver of the car chose not to look at him. Vogel’s suspicion therefore was not the result of ‘reasonable inferences’ from ‘unusual conduct’ …but was instead a classic example of those ‘inarticulate hunches’ that are insufficient to justify a seizure under the Fourth Amendment.” U.S. v. Smith, 799 F.2d at 707.
See U.S. v. Solomon, 728 F. Supp. 1544 (S.D.Fla. 1990). The sheriff had received an anonymous tip relaying information about the defendant’s future conduct and officers did corroborate many innocent facts in the tip before running the defendant’s car off the road, forcibly stopping the car, yelling at the defendant, forcing him to exit the car and lie on the ground while guns were pointed at him. “…[T]he police officers observed a white male meeting [the tipster’s] description get into the El Camino. A white female matching the description of the tip’s Debbie then exited apartment 102. She joined the man in the car After stopping at an Amoco station, the
El Camino turned onto the Florida Turnpike and headed north.” ” The facts known to the officers at the time of the stop from the anonymous tip plus their investigation and surveillance of the defendants would not demonstrate probable cause to any reasonable law enforcement officer. In fact, there is considerable doubt that there was even reasonable suspicion sufficient to justify a Terry stop.” “Applying Gates to the case at bar, the police only corroborated the innocent activity of a couple who lived at a certain address, owned certain personalty, and who happened to take an early morning trip northward. Unlike the short trip to another state in Gates, a trip northward on the Florida Turnpike is not suspicious. Unlike Gates, [the defendants] reside in Florida. Their trip was as readily explainable as a pleasure excursion as a drug run.” ” Indeed, had the police officers herein done their homework, the compelling evidence discovered and seized here would have been admissible.” U.S. v. Solomon, 728 F. Supp. 1544 (S.D.Fla. 1990).
Testimony about a drug courier profile was found by at least one court to be irrelevant and inherently prejudicial and thus reversible error. Valcarcel v. State, 765 S.W.2d 412 (Tex.Cr.App. 1989) [en banc] [holding that it was noted in a concurring opinion that the Eleventh Circuit denounced the use of such testimony in U.S. v. Hernandez-Cuartas, 717 F.2d 552 (11th Cir. 1983)].
ADAPTING THE FACTS SOURCE OF DISTRIBUTION CITY
More than one court has noticed that according to the DEA, virtually every U.S. city with air service fits their criteria for either a “source” or “distribution” center. U.S. v. Andrews, 600 F.2d 563, 566-67 (6th Cir. 1979).
“Our experience with DEA Agent testimony in other cases makes us wonder whether there exists any city in the country which a DEA agent will not characterize as either a major narcotics distribution center or a city through which drug couriers pass on their way to a major narcotics distribution center.” U.S. v. Andrews, 600 F.2d at 566-67.
U.S. v. Pulvano, 629 F.2d 1151 (5th Cir. 1980) [a DEA agent testimony “convinces us of the tragic fact that every major population center in this country has become a home for drug traffickers]; U.S. v. Westerbann- Martinez, 435 F. Supp. 690 (E.D.N.Y. 1977).
“Although Chicago has been classified as a primary source city, no evidence was introduced in support of that classification. It appears safe to assume that the overwhelming percentage of travelers from Chicago are not in any way connected with the heroin trade. U.S. v. Westerbann-Martinez, 435 F. Supp. 690 (E.D.N.Y. 1977). Cf. United States v. Brignoni Ponce, 422 U.S. at 882.
FIRST/LAST OFF AIRCRAFT
Whether one was first to deplane, [U.S. v. Herbst, 641 F.2d 1165,] or last to deplane, [U.S. v. Mendenhall, 466 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); U.S. v. Berry, 636 F.2d 1075 (5th Cir. 1981); U.S. v. Fry, 622 F.2d 1218 (5th Cir. 1980).
WALKING FAST OR WALKING SLOW
The manner in which a person walks through an airport can be viewed as suspicious regardless of whether it is fast or slow. Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) [refusing to “agree ‘that the manner in which the petitioner …walked through the airport reasonably could have led the agent to suspect (him) of wrong doing”]; U.S. v. Allen, 644 F.2d 749 (9th Cir. 1980); U.S. v. Chambliss, 425 F. Supp. 1330 (D. Mich. 1977).
Whether one walks fast:
U.S. v. Jefferson, 650 F.2d 854 (6th Cir. 1981) [Markonni followed the defendant who he thought “walked quickly”];State v. Key, 375 S.2d 1354 (La. 1979).
U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the agents will find same significant as a characteristic of the “drug courier profile”.
NERVOUSNESS/CALMNESS DURING POLICE ENCOUNTER
“Nervousness” during an encounter with the police is neither suspicious nor unusual. Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890, 894 (1980) [“according to the agent’s testimony, the men appeared nervous during the encounter”]; U.S. v. McCaleb, 552 F.2d 717, 720 (6th Cir. 1977); U.S. v. Ballard, 573 F.2d 913 (5th Cir. 1978); U.S. v. Pope, 561 F.2d 663 (6th Cir. 1977);U.S. v. McClain, 452 F. Supp. 195 (E.D. Mich. 1977); U.S. v. Rogers, 436 F. Supp. 1 (E.D. Mich. 1977); U.S. v. Westerbann-Martinez, 435 F. Supp. 690 (E.D. N.Y. 1977); Kaser v. State, 505 S.W.2d 806, 806-07 (Tex.Crim.App. 1974); U.S. v. Allen, 644 F.2d 749, 752 (9th Cir. 1980).
“Allen’s conformity to some of the drug courier profile factors and his nervous behavior when stopped were insufficient to ‘warrant a prudent [person] in believing that [he] had committed or was committing an offense’… Innocent travelers may be apprehensive when told by narcotics officers that they are suspected traffickers.” U.S. v. Allen, 644 F.2d at 752.
And, in U.S. v. Himmelwright, 551 F.2d 991, 992 n.1 (5th Cir. 1977), the officer found that an accused’s “calm demeanor was a suspicion-arousing factor”. See also Pace v. Beto, 469 F.2d 1389, 1390 (5th Cir. 1972). “Pace’s nervous conduct is not surprising in view of the fact that he had just been arrested.” Pace v. Beto, 469 F.2d at 1390.
This would seem especially true where the officer has “provoked” same by affirmatively misrepresenting facts to the suspect. Wong Sun v. U.S., 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441, 452-3 (1963).
“It is not universally true that a man, who is conscious that he has done no wrong, ‘will pursue a certain course not in harmony with the conduct of a man who is conscious of having done an act which is innocent, right and proper’; since it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties or from the unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the righteous are as bold as a lion.” Wong Sun v. U.S., 371 U.S. at 484. See also Gouged v. U.S., 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed.2d 374 (1920); Hoffa v. U.S., 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Lewis v. U.S., 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); U.S. v. Berryman, 717 F.2d 651 (1st Cir. 1983) [First Circuit suppresses contraband where drug courier characteristics not amount to reasonable suspicion].
STARING AT NON-UNIFORMED OFFICERS
“Staring” or looking at two non-uniformed officers as to whom there is no evidence the suspect had reason to recognize, is not an articulable fact giving rise to probable cause. Furthermore, appearing to be “suspicious” is the very kind of conclusory statement continually condemned by the courts.
It has been held that “staring” or looking at an agent nervously, even when coupled with other characteristics will not give rise even to “reasonable suspicion”, much less probable cause.
Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) [“Petitioner occasionally looked backward” even coupled with other suspicious and nervous behavior did not constitute even reasonable suspicion”]; U.S. v. Allen, 644 F.2d 749, 752 (6th Cir. 1980) [several factors including defendant’s “nervous behavior … were insufficient to ‘warrant a prudent (person) in believing that petitioner had committed or was committing an offense”]; U.S. v. Jefferson, 650 F.2d 854, 856-7 (6th Cir. 1981) [the fact that individual arrived from known source city for narcotics, “appeared nervous”, looked about terminal “with unusual intensity”, and matched the description of a drug carrier traveling the same itinerary, were “not sufficient to create a well founded suspicion”]; U.S. v. McCaleb, 552 F.2d 717, 719-720 (6th Cir. 1977) [the fact that defendant “appeared nervous”, even when coupled with other factors does “not provide specific and articulable facts” which would warrant even an “investigative stop”]; U.S. v. Ballard, 573 F.2d 913, 916 (5th Cir. 1978) [“appearing to be nervous”, even when coupled with other factors does not amount to “reasonable suspicion”];U.S. v. Smith, 799 F.2d 704, 707 (11th Cir. 1986).
“The culminating factor behind Trooper Vogel’s decision to stop the car appears, then, to have been the failure of the driver to look at Vogel’s patrol car. Such an action is, however, fully consistent with cautious driving: safety, after all, requires keeping one’s eye on the road. More significantly, to the extent that such an action is suspicious, it in no way gives rise to a reasonable suspicion of illegal activity either alone or in combination with the other circumstances surrounding the stop of appellant’s car.” U.S. v. Smith, 799 F.2d at 707.
DAMNED IF YOU DO – DAMNED IF YOU DON’T
It appears to matter not whether one looks at an agent or away from him, acts nervously or remains calm, the officer may characterize same as suspicious.
In U.S. v. Himmelwright, 551 F.2d 991, 992 n.2 (5th Cir. 1977), the officer found that an accused’s “calm demeanor was a suspicion- arousing factor.” In U.S. v. Mallides, 473 F.2d 859, 861 (9th Cir. 1973), the officers relied upon the fact that the occupants of the vehicle were “sitting erectly and none turned to look at a passing patrol car”:
“The ‘furtive gesture’ syndrome has been overextended …Here the officers concluded that not looking was suspicious. In People v. Williams , 97 Cal.Rptr. 815 (1971), the officer testified that defendant’s looking at an approaching police car was suspicious”. U.S. v. Mallidies, 473 F.2d at 861 n.4.
In U.S. v. Westerbann-Martinez, 435 F. Supp. 690, 699 (E.D.N.Y. 1977), the court noted with respect to an officer’s characterization “that defendants were looking to see if they were watched”.
In U.S. v. Berry, 636 F.2d 1075, 1077 (5th Cir. 1981), the defendant “stared intently at the drug enforcement officers” and “looked back nervously at the agents” as he deplaned. Yet the court held “the nervous side glances” and “stares at the agents” supported only a finding of “reasonable suspicion” even when coupled with the fact that he was “traveling under an alias” and gave “false identification to the drug enforcement officer” a violation of Georgia law committed in the officers’ presence. U.S. v. Berry, 636 F.2d at 1081. The court held such facts would not amount to probable cause to search their luggage without their consent. U.S. v. Berry, 636 F.2d at 1081. On rehearing, the en banc Fifth Circuit (Unit B) reiterated the distinction between “reasonable suspicion” and probable cause, holding that “trying to hide their joint travels”, “traveling under assumed names” and nervously “staring” at the agent, even when coupled with the fact the agent had been “told to watch” for a drug suspect named Berry, gave rise only to a “reasonable suspicion” to make an investigative stop, not probable cause to arrest or search. U.S. v. Berry, 670 F.2d 583, 603-04 (5th Cir. 1982) [en banc].
See also U.S. v. Bowles, 625 F.2d 526, 535-36 n.13 (5th Cir. 1980) [the fact that in addition to several other factors, three suspects “in unison turned to stare at officers”, while “not provid[ing] probable cause” constituted “reasonable suspicion of criminal activity” sufficient to warrant the “quite modest” intrusion to warrant an investigative stop which is “less intrusive than a traditional arrest”]; U.S. v. Robinson, 625 F.2d 1211, 1213, 1217-19 (5th Cir. 1980) [remanding to the trial court to determine whether “appearing to be nervous and perspiring, and looking around” and pausing to “stare at (agent) Markoni” constituted even “reasonable suspicion” when coupled with some twelve (12) other factors].
NERVOUSLY LOOKING AROUND
It has been held that nervously looking around, even when coupled with other drug courier characteristics will not warrant a stop.
Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890, 894 (1980) [ Apetitioner occasionally looked backward”]; U.S. v. Allen, 644 F.2d 749 (9th Cir. 1980); U.S. v. Jefferson, 650 F.2d 854 (6th Cir. 1981); U.S. v. Westerbann-Martinez, 435 F. Supp. 690, 699 (E.D.N.Y. 1977).
“In describing his conclusion that defendants were looking about ‘nervously …as though they were looking to see if they were watched’.
When pressed as to how the ‘look’ would be different ‘if you are looking for someone who is not there, like a person who is supposed to pick you up and is not there?’ the agent admitted: ‘I can’t really answer that. ‘ …This court is not prepared to usher in the day in this country when, without stronger objective incriminatory evidence, any person may be subject to a police stop after arriving by plane in an airport merely because an agent subjectively concludes that repeated looking around is a manifestation of nervousness. It is not too difficult to see the eventual result of such a decision. Cf. United States v. Mallides, 473 F.2d 859, 860 (9th Cir.), reh’g denied, (1973) (occupants of automobile were ‘sitting very erect’ and ‘did not turn to look at the marked patrol car as it passed’); United States v. Himmelwright, 551 F.2d 991, 992 n.1 (5th Cir. 1977) (agent’s attention directed at defendant because she appeared ‘extremely calm’).”
“SUSPICIOUS MINDS” AT THE BORDER
No matter what the objective facts are, the government always contends that they militate towards establishing “reasonable suspicion”.
The government often contends that the time of day a particular vehicle is observed contributes to its “reasonable suspicion”.
See U.S. v. Villarreal, 565 F.2d 932, 934 n 2 (5th Cir. 1978)[sensor devices detected vehicles at 7:00 A.M. in an area where local traffic did not move at such an early hour]; U.S. v. Lamas, 608 F.2d 547, 548 (5th Cir. 1979) [vehicle stopped shortly after noon].
See U.S. v. Gorden, 712 F.2d 110 (5th Cir. 1983) [ “…after dark…”]; U.S. v. Rogers, 719 F.2d 767 (5th Cir. 1983) [“…near midnight…”]; U.S. v. Henke, 775 F.2d 641, 642 (5th Cir. 1985) [vehicle observed at 11:30 PM and again at 12:15 AM in an area where traffic is generally light after 10:00 PM.]; U.S. v. Garcia, 732 F.2d 1221 (5th Cir. 1984) [11:30 PM]; U.S. v. Melendez-Gonzales, 727 F.2d 407 (5th Cir. 1984) [ 4:57 AM]; U.S. v. George, 567 F.2d 643 (5th Cir. 1978)[1:45 AM]; U.S. v. Estrada, 526 F.2d 357, 358 (5th Cir. 1976) [suspect “was traveling at night on a road over which transportation of illegal aliens often took place”]; U.S. v. Dewitt, 569 F.2d 1338, 1339 (5th Cir. 1978) [vehicle observed at “night when the checkpoint was not operating, at about 10:00 P.M “];
U.S. v. Macias, 546 F.2d 58 (5th Cir. 1977) [ 4:15 AM]; U.S. v. Aguirre-Valenzuela, 700 F.2d 161, 162 (5th Cir. 1983) [sensor triggered at 8:30 PM].
RIDING HIGH OR RIDING LOW
The government often contends that vehicles which appear to be riding low because of excess weight or riding high because of the use of air shocks or heavy-duty suspensions are suspicious. Consequently, in U.S. v. Lopez, 564 F.2d 710 (5th Cir. 1977) where an officer’s suspicions were aroused when he noticed a vehicle with Harris County license plates (indicating that the vehicle was registered over 300 miles away) and when he noticed the vehicle was riding high in the rear and had air shock absorbers that appeared to be new, Judge Goldberg was prompted to comment: “Yet the border patrol’s position seems to be ‘riding high or riding low, either way a searching we will go….” U.S. v. Lopez, 564 F.2d at 713. See also U.S. v. Garcia, 732 F.2d 1221, 1222 (5th Cir. 1984) [an agent’s suspicion aroused when they observed a pickup truck camper travelling unusually slow, with its headlights angled up, with a low bumper, tires which “were squashed down”, where the wheel wells were covering part of the tires, and heavily loaded in the rear]; U.S. v. Melendez-Gonzalez, 727 F.2d 407, 409 (5th Cir. 1984) [an agent’s suspicion aroused by an automobile that appeared to the agents to be “heavily loaded”]; U.S. v. Gordon, 712 F.2d 110, 112 (5th Cir. 1983) [the agent’s suspicion was aroused when they noticed a stakebed truck with a hidden compartment underneath the bed, the bed of the truck higher than normal, and where the agents did not recognize the truck as belonging to any area residents];U.S. v. Lamas, 608 F.2d 547, 548 (5th Cir. 1979) [the officers’ suspicion aroused when they noticed the car that did not “look like the typical tourist’s car” and which appeared to be heavily loaded and had Colorado license plates]; U.S. v. Orona-Sanchez, 648 F.2d 1039, 1041 (5th Cir. 1981)[officer’s suspicions aroused when he noticed a three quarter ton pickup “with a camper shell [that] appeared to have a heavy load, the windows of the camper were either covered by a curtain or painted over and the truck had California license plates …with wide tread tires”]; U.S. v. Escamilla, 560 F.2d 1229, 130 (5th Cir. 1977) [officer’s suspicions aroused when he noticed a truck with out-of-country license plates in proximity to a Continental Trailways bus and a 1973 Hornet car, and that the truck was loaded with bails of hay which were clumsily stacked suggesting that the truck contained secret compartments with gaps between bails to provide air for illegal aliens]; U.S. v. Frisbie, 550 F.2d 335, 337 (5th Cir. 1977) [officer’s suspicion aroused when he noticed a pickup truck with box type camper and noticed that the truck was riding low on its springs and was also difficult for the driver to stop, “causing the officer to believe that it was heavily loaded”]; U.S. v. Sarduy, 590 F.2d 1355 (5th Cir. 1979); U.S. v. Hosch, 577 F.2d 963, 966 (5th Cir. 1978) [rear end “riding very low”]; U.S. v. Gandara- Nunez, 564 F.2d 694 (5th Cir. 1977) [car riding low]; U.S. v. Payne, 555 F.2d 475, 477-78 (5th Cir. 1977) [El Camino camper looked and handled as if heavily loaded]; U.S. v. Barnard, 553 F.2d 389 (5th Cir. 1977) [vehicle heavily loaded]; U.S. v. Garza, 544 F.2d 222 (5th Cir. 1976); U.S. v. Walker, 522 F.2d 194 (5th Cir. 1975).
OUT-OF-STATE LICENSE PLATES
Courts have held that the fact the accused’s auto has out-of-state plates is “virtually meaningless”. U.S. v. George, 567 F.2d 643, 645 (5th Cir. 1978) [the fact a vehicle has out-of-state license plates adds nothing to other circumstances and is “virtually meaningless”]; U.S. v. Smith, 799 F.2d 704, 707 n.3 (11th Cir. 1986); U.S. v. Lopez, 564 F.2d 710, 713 (5th Cir. 1977).
“[W]e view the fact that the car was old, with a large trunk and out-of-county license plates, as having only minor importance. We would have thought it obvious that citizens may leave their state or county without having their purposes questioned. Our concept of the border has become somewhat expansive, but it has not yet attained continental proportions. We are a people on the move, and nary an eyebrow should be raised by seeing a Harris County license plate over 50 miles from our neighbor to the south. It should take more than the elevation of an eyebrow to justify the stop in question here. U.S. v. Lopez, 564 F.2d at 713.
“Garza testified that appellant’s car did not look like the typical tourist’s car, appeared to be heavily loaded, and had Colorado license plates. These observations were colored by Garza’s knowledge that the area was not visited frequently by tourists and that 48% of the cars in which illegal aliens had ben found in the area had Colorado plates. Although under such circumstances we might hold that Garza could have reasonably suspected that the car was not carrying “typical tourists”, it is too much to ask that we go one step further and conclude that this was enough to arouse a reasonable suspicion that the car was carrying illegal aliens. To hold otherwise would render suspect all citizens of the State of Colorado traveling the roads of New Mexico or Texas in other than late model cars.” U.S. v. Lamas, 608 F.2d 547, 549 (5th Cir. 1979).
OTHER SUSPICIOUS VEHICLES
See U.S. v. Rogers, 719 F.2d 767, 760 (5th Cir. 1983) [officers suspicions aroused by a Ford sedan with Texas plates “which did not belong to any resident of the area, all of those vehicles he knew well”]; U.S. v. George, 567 F.2d 643 (5th Cir. 1978) [the officer’s suspicion aroused by a “1973 Buick Electra, a car “larger than a compact”, and it had Georgia license plates”]; U.S. v. Saenz, 578 F.2d 643, 646 (5th Cir. 1978) [Officer Newberry’s suspicions aroused in another case where “vehicles had out-of- county license plates and there was only one occupant in each car, which was uncommon in case of tourists”]; U.S. v. Barnard, 553 F.2d 389, 391 (5th Cir. 1977) [officer’s suspicion aroused by two vehicles when the first vehicle, an MG, was equipped with a CB antenna and the driver appeared to be speaking into a microphone as he passed. Moreover, both vehicles had the same three letter prefix on its license plates indicating to the officer that they were registered in the same county, a county other than the one through which they were traveling, and the Mercury automobile appeared to be riding low, suggesting to the officer that it might be transporting illegal aliens in its trunk]; U.S. v. Almond, 565 F.2d 927, 928 (5th Cir. 1978) [officer’s suspicion aroused when they observed a pickup truck with overhead camper with Georgia license plates].
Police Officers have probable cause to stop a vehicle that failed to comply with a statute that prohibits a license plate from being obscured by a license plate frame. See U.S. v. Contreras-Trevino, 448 F. 3d 821 (5th Cir. 2006).
SUSPICIOUS MODUS OPERANDI
The government has contended in many other cases that observing what, in their experience, is a recognizable modus operandi has contributed to their reasonable suspicion.
U.S. v. Barnard, 553 F.2d 389, 392 (5th Cir. 1977) [“lead car – load car” modus operandi “whereby two cars travel together during a smuggling venture with the first car operating primarily as a scout car”]; U.S. v. Saenz, 578 F.2d 643,645 (5th Cir. 1978) [officer observed two vehicles and then articulated his suspicion of the “lead car – load car” method of operation]; U.S. v. Orona-Sanchez, 648 F.2d 1039, 1041 (5th Cir. 1981) [“lead car – load car” operation].
SUSPICIOUS DRIVING CHARACTERISTICS
Yet, another factor frequently advanced by the government as contributing to an agent’s reasonable suspicion is a vehicle’s driving patterns. U.S. v. Henke, 775 F.2d 641, 642-43 (5th Cir. 1985) [where surveillance revealed a truck parked at a roadside park known to be used by smugglers to avoid a fixed checkpoint for two hours, later meeting another vehicle and its occupants]; U.S. v. Garcia, 732 F.2d 1221, 1222 (5th Cir. 1984) [where the agents spotted a pickup truck camper traveling northbound unusually slowly with its headlights angled up]; State v. Huddleston, 164 S.W. 3d 711 (Tex. App-Austin 2005) [Officer stops defendant for driving over the center line. At the suppression hearing, the only justification offered for stopping defendant was officer’s belief that she had violated the Traffic Code by failing to remain within a single lane. Under the statute, a violation occurs only when a vehicle fails to stay within its lane and such movement is not safe or is not made safely. Officer testified that defendant never crossed the fog line in an unsafe manner. Instead, he said that defendant’s repeated crossings of the line established a “pattern” in violation of the statute. The Traffic code requires drivers to remain in a single lane “as nearly as practical,” but allows lane changes if “that movement can be made safely.” Witnessing the defendant safely cross the fog line five times over a stretch of six miles did not give the officer a reason to suspect that she was unsafely failing to remain in a single lane in violation of the Traffic Code.]
U.S. v. Melendez-Gonzalez, 727 F.2d 407, 409 (5th Cir. 1984) [where two vehicles were observed driving only fifty yards apart]; U.S. v. Salazar-Martinez, 710 F.2d 1087, 1087-88 (5th Cir. 1983) [“when the driver saw [the INS agents] vehicle on the embankment, he decelerated”]; U.S. v. Aguirre-Valenzuela, 700 F.2d 160, 162 (5th Cir. 1983) [where the agents observed that a vehicle traveled erratically]; U.S. v. Saenz, 578 F.2d 643, 645 (5th Cir. 1978) [the defendant driving appeared nervous and the car swerved]; U.S. v. Almand, 565 F.2d 927, 929 (5th Cir. 1978) [the border patrol agent knew that the vehicle he was investigating had stopped or turned off the highway]; U.S. v. Barnard, 553 F.2d 389, 391 (5th Cir. 1977) [one of two vehicles was driving erratically, at speeds ranging from 35 – 60 MPH while the other vehicle acted accordingly to “maintain a constant distance between it and the Mercury”]; U.S. v. Macias, 546 F.2d 58, 59 (5th Cir. 1977) [where two vehicles approaching a checkpoint executed u-turns in the middle of the highway at approximately 300 to 350 yards from the checkpoint”]; U.S. v. Orona-Sanchez, 648 F.2d 1039, 1041 (5th Cir. 1981) [pickup “slowed down considerably”];
U.S. v. Frisbie, 550 F.2d 335, 337 (5th Cir. 1977) [driver had difficulty in stopping his vehicle]; U.S. v. Smith, 799 F.2d 704 (11th Cir. 1986) [vehicle weaving slightly did not justify stop].
The government has contended in other cases that the driver’s or passengers’ actions upon noticing they are being followed has often contributed to their reasonable suspicion. U.S. v. Garcia, 732 F.2d 1221, 1222 (5th Cir. 1984) [ “according to the agents, the male passengers attempted to conceal themselves by ducking and scrambling down below the window”]; U.S. v. Salazar-Martinez, 710 F.2d 1087, 1088 (5th Cir. 1983) [“the driver of the Lincoln looked over at Molina ‘nervously,’ but the three passengers continued to look ahead”]; U.S. v. Lamas, 608 F.2d 547, 548 (5th Cir. 1979) [the occupants seemed to avoid eye contact with the agent and the passengers appeared to “slouch down to avoid being seen”]; U.S. v. Saenz, 578 F.2d 643, 647 (5th Cir. 1978) [Agent Newberry “observed nervous behavior on the part of appellant exhibited by frequent glances at the rear view mirror and a swerving driving pattern”]; U.S. v. Villareal, 565 F.2d 932, 836 (5th Cir. 1978) [the officer observed passengers duck beneath the dash when their vehicle approached the border patrol car]; U.S. v. Barnard, 553 F.2d 389, 391-392 (5th Cir. 1977) [the “driver glanced repeatedly and nervously at (the border patrol agent)as he passed and then drove erratically while [the border patrol agent] followed”]; U.S. v. Escamilla, 560 F.2d 1229, 1231 (5th Cir. 1977) [ “as appellants proceeded through the intersection [they did not] “acknowledged the presence of the agent’s vehicle parked at the intersection i.e. appellants stared straight ahead”].
The Supreme Court held that odd waving by children could be considered with the totality of circumstances to justify a Terry stop of a vehicle. U.S. v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 752, 151 L.Ed.2d 740 (2002)[characterized the waving as “methodical,” “mechanical,” “abnormal,” and “certainly … a fact that is odd and would lead a reasonable officer to wonder why they are doing this”].
Similarly, the government has frequently contended that reasonable suspicion exists when a vehicle is observed traveling on a road frequently used by smugglers. U.S. v. Melendez-Gonzalez, 727 F.2d at 411 [the automobile traveling on Highway 67, some 60 miles from the Mexican border, making it possible that the appellant had begun his trip south of the border]; U.S. v. Lamas, 608 F.2d 547, 548 (5th Cir. 1979) [automobile stopped in New Mexico on Highway 180 “a major artery for transporting illegal aliens from Mexico to Colorado …not visited frequently by tourists]; U.S. v. Pena-Cantu, 639 F.2d 1228, 1229 (5th Cir. 1981) [“[t]he travelers were proceeding in a northerly direction away from Mexico towards Houston…”]; U.S. v. George, 567 F.2d at 644-45 [vehicle proceeding north on Highway 118 within 9 ½ miles of the Mexican border where “the transportation of a illegal aliens is “relatively heavy” …and there is usually little traffic…”]; U.S. v. Estrada, 526 F.2d 357, 358 (5th Cir. 1976) [vehicle “was traveling at night on a road over which the transportation of illegal aliens often took place”]; U.S. v. Gordon, 712 F.2d 110, 113 (5th Cir. 1983) [the vehicle was stopped “after dark on a section of roadway which leads directly north from the border”]; U.S. v. Rogers, 719 F.2d 767, 769 (5th Cir. 1983) [the vehicle was stopped on Highway 170 at a time when it was rare to see cars traveling on that remote and sparsely settled an area at such a late hour]; U.S. v. Almond, 565 F.2d at 929 [the officer knew that the vehicle had stopped or turned off Highway 385]; U.S. v. Aguirre-Valenzuela, 700 F.2d at 162 [the vehicle had apparently traveled on a dirt road running north and south connecting the banks of the Rio Grande to FM]; U.S. v. Salazar- Martinez, 710 F.2d 1087 (5th Cir. 1983) [ vehicle traveling on IH 10 “a major interstate highway traversing the southern United States from Florida to California” which the agent was aware “is a frequently used route for the smuggling of people and contraband from Mexico to Houston and points beyond”]; U.S. v. Villarreal, 565 F.2d 932, 934 (5th Cir. 1978) [two vehicles “coming from an un-patrolled border area were traveling together north on Highway 118 towards Alpine, Texas”]; U.S. v. Macias, 546 F.2d 58 (5th Cir. 1977) [stop and search of the vehicle was valid where site was in close proximity to border and the surrounding area was desolate and barren with rough terrain and when stop occurred at a hour when few travelers were about and much illegal activity occurred];
U.S. v. Frisbie, 550 F.2d 335, 336 (5th Cir. 1977) [two vehicles were traveling east on Highway 170 from the area of the Mexican border and the location of the vehicles “indicated to the officers a substantial possibility that they were coming from an un-patrolled river area to the west on Highway 170”].
The Court did not resolve the issue of whether the initial contact constitutes 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 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. Allen, 644 F.2d 749 [innocent travelers nervous and apprehensive]; U.S. v. Buenaventura-Ariza, 615 F.2d 29 (2d Cir. 1980); U.S. v. Berry, 636 F.2d 1075 (5th Cir. 1981); U.S. v. Pulvano, 629 F.2d 1151 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. Cordell, 723 F.2d 1283, 1285 (7th Cir. 1983), 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.
- Albano, 722 F.2d 690, 692-931 (11th Cir. 1984) [reasonable suspicion when every act of those under surveillance consistent with drug trafficking].
But see 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). See also U.S. v. Vasquez, 612 F.2d 1338 (2d Cir. 1979).
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. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980).
Presence of Kentucky Fried Chicken has been noted as a factor in the drug courier profile. See U.S. v. Amuny, 767 F.2d 1113, 1117 (5th Cir. 1985) [agents noted the “Colonel’s world-famous chicken”]; State v. Anderson, 754 P.2d 542 (N.M. App. 1988) [“[a]t the hearing, Garley testified that the presence of the Kentucky Fried Chicken and the carry on bag, the travel in an easterly direction, defendant’s admission of having slept at a rest area, and defendant’s nervousness made him feel that he had ‘a reasonable suspicion based on articulable facts to believe that defendant was carrying drugs’ …this was courier profile taught to him in a law enforcement class”].
INVESTIGATIVE STOP AMOUNTS TO SEIZURE
Drug Courier Profile characteristics alone do not create a “reasonable” or “articulable suspicion” required for such brief investigative detention:
“[Elements of the profile] separately or in combination would include such a number of presumably innocent persons as to approach a subjectively administered, random basis for stopping and interrogating passengers. Seizure on any such random basis are …one of the precise evils at which the fourth amendment was aimed.” U.S. v. Gooding, 695 F.2d 78, 83 (4th Cir. 1982).
“DRUG PACKAGE PROFILE”
Holding of an express mail package by postal inspectors who found that the package met the “drug package profile” was reasonable under the Fourth Amendment for a dog to sniff same for contraband. U.S. v. Hill, 701 F. Supp. 1522, 1526 (D. Kan. 1988).
“As part of a nationwide drug interdiction program, postal inspectors and DEA officials make random investigations of United States Express Mail packages, matching them against an Express Mail Profile, which is used to detect express mail packages likely to contain illegal drugs. This ‘Drug Package Profile’ includes the following elements:
- Size and shape of the
- Package heavily taped and attempts to close or seal all openings.
- Hand printed or written
- Unusual return name and
- Unusual odors coming from
- Fictitious return
- Destination of
In addition to these elements, the inspectors also pay close attention to the city of origination and to the addressee’s name (e.g., if multiple packages are sent to a single address but each package is addressed to a different individual. If a package matches one or more of the elements of the profile, the package is detained and subjected to a canine sniff, if the dog alerts to the package, the package is sent to its destination city under controlled conditions. Upon arrival, the package is once again subjected to a canine sniff. If the dog alerts to the package, the postal inspector obtains a search warrant. The package is then searched pursuant to a warrant. If illegal drugs are found, the inspector generally obtains authorization for a signaling device to be placed in the package. After the package is delivered to the addressee (or to the person to whom the addressee delivers the package), a search warrant for the residence is obtained and executed.” U.S. v. Hill. 701 F. Supp. at 1526. But see U.S. v. Gonzalez, 728 F. Supp. 185 (S.D.N.Y. 1989) [nothing about a rectangular shaped package that distinguished it as uniquely drug packaging]. “Indeed [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 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 acts…carrying of an unidentified object with a rectangular shape…cannot…give rise to that level of reasonable suspicion required by the fourth amendment.” U.S. v. Gonzalez, 728 F. Supp. 185 (S.D.N.Y. 1989).