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COURIERS.P27
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1991-08-09
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June 1991
DETAINING SUSPECTED DRUG COURIERS:
RECENT COURT DECISIONS
By
William U. McCormack
Special Agent
Legal Instructor
FBI Academy
Quantico, Virginia
Since 1968, the U.S. Supreme Court has recognized the
constitutional authority of law enforcement officers to
temporarily detain an individual on less than probable cause.
(1) Temporary detentions have become an important tool of law
enforcement in stopping the flow of illegal drugs into and
around the United States. A temporary detention based on
reasonable suspicion gives officers an opportunity to develop
probable cause through the use of a trained drug-sniffing dog,
further questioning of a suspect, and other investigative
efforts that may quickly confirm or dispel an officer's
suspicion that the individual detained is a drug smuggler or
courier.
In the course of drug interdiction efforts, some law
enforcement agencies have developed lists of factors and
so-called drug courier profiles (2) to assist officers in
deciding whether to detain a suspect. Some of these factors and
profiles have been challenged on constitutional grounds when a
law enforcement officer employs them in detaining or stopping
travelers in bus and train stations, airport terminals, and on
the highways.
The purpose of this article is to alert law enforcement
officers to the constitutional requirement for reasonable
suspicion and to assist them in deciding whether reasonable
suspicion exists to detain a suspected drug courier. It
examines recent court decisions addressing whether police had
established reasonable suspicion to detain suspected drug
couriers and the extent to which drug courier profiles can be
used by police to establish reasonable suspicion. This article
then offers law enforcement officers some specific
recommendations regarding the types of facts and observed
behavior that can constitutionally be used to establish
reasonable suspicion for a temporary detention.
USEFULNESS OF PROFILES
In 1989, the U.S. Supreme Court decided United States v.
Sokolow, (3) a case involving the use of a drug courier profile
to detain an individual in an airport. In Sokolow, the Court
held that reasonable suspicion to detain a person must be based
on a totality of the circumstances and that the concept of
reasonable suspicion is not readily or even usefully reduced to
a neat set of legal rules. The Court reviewed the use of a drug
courier profile in Sokolow, but did not find that the use of a
profile either added to or detracted from the significance of
the factors relied upon to detain a suspected drug courier.
Rather, the Court found that based on a totality of the
circumstances, all of the factors taken together amounted to
reasonable suspicion to detain the defendant.
Factual Background of Sokolow
In Sokolow, a young man (the suspect) approached a ticket
agent at the Honolulu International Airport and requested two
round-trip tickets to Miami for a flight leaving later that day.
He was dressed in a black jumpsuit and was wearing gold jewelry.
The suspect, appearing nervous, told the ticket agent that the
tickets were for Andrew Kray and Janet Norian and paid for them
with $20 bills taken from a large roll of twenties. He and his
female companion did not check their four pieces of luggage when
they later boarded their flight.
After the ticket agent informed police about the cash
purchase of the tickets, an officer checked the phone number
given by the suspect and determined that it was not listed in
the name Andrew Kray. The officer then determined that the
suspect and his companion had reservations to return from Miami
to Honolulu just 3 days from the date of their departure.
Drug Enforcement Administration (DEA) Agents observed that
the suspect appeared nervous during his return flight to
Honolulu. Again, he had not checked any luggage and was dressed
exactly as when he left Honolulu. After getting off the plane,
the couple was detained by DEA Agents, who asked the suspect for
his ticket and identification. They were told that he did not
have them and that his name was Sokolow. Sokolow and his
companion were then escorted to the DEA office at the airport,
and shortly thereafter, a drug-sniffing dog alerted on Sokolow's
brown shoulder bag, which was then searched pursuant to a search
warrant. After a second search warrant was later obtained,
1,063 grams of cocaine were found in a different bag.
The U.S. Court of Appeals for the Ninth Circuit reversed
Sokolow's subsequent conviction on the grounds that there was
insufficient reasonable suspicion to detain him at the airport
and that this illegal detention tainted the subsequent search of
the bag. The U.S. Supreme Court reversed the Ninth Circuit and
held that under a totality of the circumstances, there were
sufficient facts known by the DEA Agents to justify Sokolow's
detention.
Reasonable Suspicion Based on Totality of Circumstances
In analyzing the facts needed to detain a suspected drug
courier, the Supreme Court stated in Sokolow that an officer
must be able to articulate something more than an
unparticularized suspicion or hunch. The Court added that the
level of suspicion is considerably less than proof of wrongdoing
by a preponderance of the evidence and obviously less than that
needed for probable cause. (4) In finding that reasonable
suspicion existed based on a totality of the circumstances, the
Court stated that the primary facts the DEA Agents relied upon
to justify their stop were:
1) Sokolow paid $2,100 for two airplane tickets from a roll
of $20 bills;
2) He traveled under a name that did not match the name
under which his telephone number was listed;
3) His original destination was Miami, a source city for
illicit drugs;
4) He stayed in Miami for only 48 hours, even though a
round-trip flight from Honolulu to Miami takes 20 hours;
5) He appeared nervous during his trip; and
6) He checked none of his luggage. (5)
Judicial Disagreement--Probative Value of Profiles
The probative value of drug courier profiles was raised in
Sokolow because a DEA Agent testified during the suppression
hearing that Sokolow's behavior "had all the classic aspects of
a drug courier." (6) In response, Sokolow argued that the DEA
Agents belief that his behavior was consistent with one of the
DEAs drug courier profiles should detract from the probative or
evidentiary significance of some of the profile factors the
Agent observed. The Court disagreed as follows:
"A court sitting to determine the existence of reasonable
suspicion must require the Agent to articulate the factors
leading to that conclusion, but the fact that these factors
may be set forth in a profile does not somehow detract from
their evidentiary significance as seen by a trained agent."
(7)
Illustrative of the judicial disagreement regarding the
probative value of profiles, the dissent in Sokolow analyzed the
use of drug courier profiles at greater length. They concluded
that a law enforcement officer's mechanistic application of a
drug courier profile in deciding whom to detain can only dull
the officers ability and determination to make sensitive and
fact-specific decisions based on experience, particularly in
am