JAMES BOVARD
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Playboy
November, 1994
HEADLINE: Drug-courier profiles: forget warrants - police can stop and search almost anyone; The Playboy Forum; Column
BYLINE: Bovard, James
Jill Darby, a flight attendant on a personal trip, was standing in Denver's Stapleton International Airport when a man approached and asked if he could search her purse and luggage. She refused because she did not believe the man was a law enforcement officer.
He shoved her against a wall. Two other men approached, showed badges and searched her forcibly. At some point in the search, Darby's finger was broken. She has filed a lawsuit.
Willie ones of NashviUe was flying to Houston to buy plants for his landscaping business. He paid cash for his plane ticket. Drug Enforcement Administration agents buttonholed Jones, checked his ID and asked permission to search him. Jones refused, but the officers searched him anyway. They found $9000 in cash and announced they were "detaining the money." Jones asked for a receipt. The agents handed him a slip of paper noting the seizure of "an undetermined amount of U.S. currency." Jones objected and asked the officers to count the money. The officers refused, claiming that such an action would violate DEA policy. Jones filed a lawsuit. Two years later, a judge ordered the money returned.
Joe Morgan, a Hall of Fame baseball player, was making a phone call in Los Angeles International Airport. An LAPD detective approached him, demanded to see identification and then, according to Morgan, grabbed him from behind, shoved him to the floor and handcuffed him. The officer told Morgan that the officer was an "authority figure" and that he would teach Morgan "what authority is all about."
Aided by a DEA agent, he dragged Morgan to a nearby room for interrogation. Later, realizing their mistake, the narcs released him. Morgan filed a lawsuit, which was settled for more than $750,000.
What do these people have in common? Each was stopped simply because he or she fit a drug-courier profile. Each is black.
The Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The purpose of the Fourth Amendment is to prevent government officials from having "dictatorial power over the streets." The Fourth Amendment is a thing of the past.
Drug-courier profile-official lists of characteristics or traits of people who supposedly carry drugs-now allow police to search almost anyone they please. Random shakedowns of travelers-because they are black, or Hispanic, or scruffy, say, and white-occur now more than ever before.
Federal prosecutors argue that the traits in the drug-courier profile automatically create a suspicion of criminal conduct-and thus a justification to accost private citizens. Asked to describe the specifics of such a profile, Donna De La Torre, a Customs Service spokeswoman, stonewalled. "I can't tell you exactly what it says. It changes constantly and it's not for public knowledge."
If you study individual cases, the capricious nature of the profiles emerges. Agents have shown remarkable creativity in devising drug-courier profiles for airline passengers. Some profiles pinpoint the first person off the plane as a likely drug suspect, others target the last person off and some assert that people who try to blend into the middle are the ones to detain.
Government agents have used drug-courier profiles to search passengers who had nonstop flights-and those who changed planes; people traveling alone-and people traveling with a companion; people who appeared nervous-and people who appeared too calm. Among the telltale characteristics in one widely used DEA courier profile are "the almost exclusive use of public transportation, particularly taxicabs, in departing from the airport" and "immediately making a phone call after deplaning." These two provisions alone should provide enough suspects to keep DEA agents happily burrowing through other people's belongings until at least the turn of the century.
Police routinely stop passengers if they are flying to or from places that are considered to be narcotics source cities, such as Detroit or Miami. During a 1991 federal court trial, prosecutors went even further, claiming that a "source city" for drug traffic is "virtually any city with a major airport." (The judge noted in his decision that this assertion provoked an eruption of laughter in the courtroom.)
Federal agents sometimes claim that their profiles are nearly infallible-which is news to the tens of thousands of people who have been wrongfully searched by government officials. In one court case, federal prosecutors sought to justify a drug-courier profile by claiming that "the combination of facts in this case will rarely, if ever describe an innocent traveler." One DEA spokesman declared that government agents "can spot a drug dealer the way a woman can spot a deal at the supermarket." But at the Buffalo airport in 1989, federal agents detained 600 individuals as suspected drug couriers. Only ten were subsequently arrested.
Such statistics may justify fear of flying, but ground travel is no safer. Drug-courier profiles in many states target drivers who exceed the speed limit, even though a 1991 Federal Highway Administration survey found that more than half of drivers exceed speed limits. And for those cars that don't speed, New Mexico state police invented a drug-courier profile to justify stopping drivers who showed "scrupulous obedience to traffic laws." A Georgia state police profile instructed troopers to be wary of "cars carrying a box of tissues, which signals cocaine use, and cars carrying empty McDonald's cartons or pillows and blankets in the backseat area, which may signal drug runners in a hurry," as one law journal article noted. A Florida trial judge commented on the courier profile used by Florida police: "When you boil the profile down to its essentials, it covers just about every rental automobile or private automobile with out-of-state license plates traveling north on the turnpike or I-95."
The police defend profiles as a "tool that works." Here, exactly, is how the tool works. Between 1989 and 1992, the Tinicum, Pennsylvania police department routinely stopped blacks and Hispanics who were driving through or near the town, on the pretext of a motor vehicle code provision that prohibits cars from having rabbits' feet, dice or air fresheners hanging from the rearview mirror. Tinted windows could also get motorists pulled over. Police then searched the automobiles for drugs and contraband. Four black women returning from a church service asserted that the police officer who performed the search said he stopped them because they were young, black and driving "a nice car."
In a six-month period, 96 percent of the cars stopped by one Tinicum police officer were driven by blacks. The Delaware County, Pennsylvania district attorney justified the racial targeting: "Everybody knows that the drug trade in Chester and Philadelphia and in Wilmington, Delaware is controlled by blacks. It's a truism."
Or is the truism that drug enforcement in some cities is controlled by racists? A Biloxi, Mississippi newspaper examined police files and found that of 57 cars stopped and searched on a local interstate, 55 were driven by blacks or Hispanics. A Rutgers University study found that though only 4.7 percent of the traffic on the New Jersey turnpike involved "late-model cars with out-of-state plates driven by black males," 80 percent of arrests fit that description.
As with the airport profiles, profiles for drivers are also being profitably combined with asset-forfeiture laws. The Volusia County, Florida sheriff's department set up a "forfeiture trap" run by a Selective Enforcement Team and seized an unbelievable average of $5000 a day from unlucky motorists traveling Interstate 95 between 1989 and 1992-more than $8 million total. In three quarters of the seizures, no criminal charges were filed. A Pulitzer Prize-winning investigation by The Orlando Sentinel revealed that 90 percent of scizure victims were black or Hispanic.
People whose cash was seized by the deputies received scant due process of law. As the Sentinel noted, one deputy told two blacks from whom he had just confiscated $19,000: "You have the right to follow us back to the station and get a receipt." Even citizens who provided proof that their money was honestly acquired (including a lottery winner's receipts) were treated like drug dealers. Volusia County officials often offered "settlements" to drivers whose cash they seized, vowing to return a percentage of the seized cash if the drivers would promise not to sue.
The ACLU and the NAACP are suing Volusia County for racial bias in its drug-courier profiles. In court proceedings earlier this year, two members of the Selective Enforcement Team swore that the program head specifically instructed them to stop black and Hispanic drivers to search for drugs and cash. The officers also said they had seen copies of a courier profile that included as a target characteristic "ethnic groups associated with the drug trade." One deputy stated that a caricature of a drug courier posted on a department bulletin board showed a black man wearing a large gold medallion and cowboy boots.
During the Fifties, citizens who invoked their constitutional rights and refused to testify about their politics were sometimes known as Fifth Amendment communists. The modern equivalent is Fourth Amendment drug couriers. When a police officer asks a citizen to submit voluntarily to a search, the officer is essentially asking the citizen to waive his or her constitutional right to privacy. Even if a citizen refuses to be searched, police often forcibly search the person and then deny that the citizen refused permission. Police also sometimes argue in court that a citizen's s unwillingness to be searched is itself sufficient evidence that he or she has broken the law. Although such arguments should be beyond contempt, many judges, anxious to give the police as much discretionary power as possible, accept them with a straight face.
It is only a question of time until the oppressive tactics that the government now uses against drug suspects will be used against clean-living, God-fearing, Volvo-driving Americans.