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509 lines
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Plaintext
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DETAINING SUSPECTED DRUG COURIERS:
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RECENT COURT DECISIONS
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By
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William U. McCormack
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Special Agent
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Legal Instructor
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FBI Academy
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Quantico, Virginia
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Since 1968, the U.S. Supreme Court has recognized the
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constitutional authority of law enforcement officers to
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temporarily detain an individual on less than probable cause.
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(1) Temporary detentions have become an important tool of law
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enforcement in stopping the flow of illegal drugs into and
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around the United States. A temporary detention based on
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reasonable suspicion gives officers an opportunity to develop
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probable cause through the use of a trained drug-sniffing dog,
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further questioning of a suspect, and other investigative
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efforts that may quickly confirm or dispel an officer's
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suspicion that the individual detained is a drug smuggler or
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courier.
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In the course of drug interdiction efforts, some law
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enforcement agencies have developed lists of factors and
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so-called drug courier profiles (2) to assist officers in
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deciding whether to detain a suspect. Some of these factors and
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profiles have been challenged on constitutional grounds when a
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law enforcement officer employs them in detaining or stopping
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travelers in bus and train stations, airport terminals, and on
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the highways.
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The purpose of this article is to alert law enforcement
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officers to the constitutional requirement for reasonable
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suspicion and to assist them in deciding whether reasonable
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suspicion exists to detain a suspected drug courier. It
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examines recent court decisions addressing whether police had
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established reasonable suspicion to detain suspected drug
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couriers and the extent to which drug courier profiles can be
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used by police to establish reasonable suspicion. This article
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then offers law enforcement officers some specific
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recommendations regarding the types of facts and observed
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behavior that can constitutionally be used to establish
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reasonable suspicion for a temporary detention.
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USEFULNESS OF PROFILES
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In 1989, the U.S. Supreme Court decided United States v.
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Sokolow, (3) a case involving the use of a drug courier profile
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to detain an individual in an airport. In Sokolow, the Court
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held that reasonable suspicion to detain a person must be based
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on a totality of the circumstances and that the concept of
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reasonable suspicion is not readily or even usefully reduced to
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a neat set of legal rules. The Court reviewed the use of a drug
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courier profile in Sokolow, but did not find that the use of a
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profile either added to or detracted from the significance of
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the factors relied upon to detain a suspected drug courier.
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Rather, the Court found that based on a totality of the
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circumstances, all of the factors taken together amounted to
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reasonable suspicion to detain the defendant.
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Factual Background of Sokolow
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In Sokolow, a young man (the suspect) approached a ticket
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agent at the Honolulu International Airport and requested two
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round-trip tickets to Miami for a flight leaving later that day.
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He was dressed in a black jumpsuit and was wearing gold jewelry.
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The suspect, appearing nervous, told the ticket agent that the
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tickets were for Andrew Kray and Janet Norian and paid for them
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with $20 bills taken from a large roll of twenties. He and his
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female companion did not check their four pieces of luggage when
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they later boarded their flight.
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After the ticket agent informed police about the cash
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purchase of the tickets, an officer checked the phone number
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given by the suspect and determined that it was not listed in
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the name Andrew Kray. The officer then determined that the
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suspect and his companion had reservations to return from Miami
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to Honolulu just 3 days from the date of their departure.
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Drug Enforcement Administration (DEA) Agents observed that
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the suspect appeared nervous during his return flight to
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Honolulu. Again, he had not checked any luggage and was dressed
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exactly as when he left Honolulu. After getting off the plane,
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the couple was detained by DEA Agents, who asked the suspect for
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his ticket and identification. They were told that he did not
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have them and that his name was Sokolow. Sokolow and his
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companion were then escorted to the DEA office at the airport,
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and shortly thereafter, a drug-sniffing dog alerted on Sokolow's
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brown shoulder bag, which was then searched pursuant to a search
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warrant. After a second search warrant was later obtained,
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1,063 grams of cocaine were found in a different bag.
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The U.S. Court of Appeals for the Ninth Circuit reversed
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Sokolow's subsequent conviction on the grounds that there was
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insufficient reasonable suspicion to detain him at the airport
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and that this illegal detention tainted the subsequent search of
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the bag. The U.S. Supreme Court reversed the Ninth Circuit and
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held that under a totality of the circumstances, there were
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sufficient facts known by the DEA Agents to justify Sokolow's
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detention.
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Reasonable Suspicion Based on Totality of Circumstances
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In analyzing the facts needed to detain a suspected drug
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courier, the Supreme Court stated in Sokolow that an officer
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must be able to articulate something more than an
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unparticularized suspicion or hunch. The Court added that the
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level of suspicion is considerably less than proof of wrongdoing
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by a preponderance of the evidence and obviously less than that
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needed for probable cause. (4) In finding that reasonable
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suspicion existed based on a totality of the circumstances, the
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Court stated that the primary facts the DEA Agents relied upon
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to justify their stop were:
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1) Sokolow paid $2,100 for two airplane tickets from a roll
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of $20 bills;
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2) He traveled under a name that did not match the name
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under which his telephone number was listed;
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3) His original destination was Miami, a source city for
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illicit drugs;
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4) He stayed in Miami for only 48 hours, even though a
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round-trip flight from Honolulu to Miami takes 20 hours;
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5) He appeared nervous during his trip; and
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6) He checked none of his luggage. (5)
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Judicial Disagreement--Probative Value of Profiles
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The probative value of drug courier profiles was raised in
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Sokolow because a DEA Agent testified during the suppression
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hearing that Sokolow's behavior "had all the classic aspects of
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a drug courier." (6) In response, Sokolow argued that the DEA
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Agents belief that his behavior was consistent with one of the
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DEAs drug courier profiles should detract from the probative or
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evidentiary significance of some of the profile factors the
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Agent observed. The Court disagreed as follows:
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"A court sitting to determine the existence of reasonable
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suspicion must require the Agent to articulate the factors
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leading to that conclusion, but the fact that these factors
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may be set forth in a profile does not somehow detract from
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their evidentiary significance as seen by a trained agent."
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(7)
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Illustrative of the judicial disagreement regarding the
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probative value of profiles, the dissent in Sokolow analyzed the
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use of drug courier profiles at greater length. They concluded
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that a law enforcement officer's mechanistic application of a
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drug courier profile in deciding whom to detain can only dull
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the officers ability and determination to make sensitive and
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fact-specific decisions based on experience, particularly in
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ambiguous or borderline cases. (8)
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Sokolow suggests that drug courier profiles should not be
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considered by officers as a panacea for establishing reasonable
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suspicion to detain an individual. However, courts appear to
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allow officers to use profiles as an investigative aid in
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establishing reasonable suspicion to detain.
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PROFILES AS INVESTIGATIVE AIDS
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Sokolow makes it clear that law enforcement officers should
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not rely exclusively on drug courier profiles or a magical
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number of matching factors to establish reasonable suspicion to
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detain a suspected drug courier. Nonetheless, profiles can be
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particularly useful for a law enforcement officer who is
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recently hired or transferred from a different assignment.
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Officers who have extensive experience conducting drug
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interdiction efforts in a particular airport or other public
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facility or area are likely to gain valuable knowledge about
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drug trafficking in that location. Putting that experience into
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the format of a profile can be a useful way for experienced
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officers to pass that knowledge and experience to another
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officer. A profile based on such knowledge and prior experience
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was viewed by one court as having the following investigative
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and factual significance:
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"Indeed, the use of a profile is simply a means by which
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the law enforcement team communicates its collective
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expertise and empirical experience to the officer in the
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field and by which the officer, in turn, explains the
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special significance of his observations to the court." (9)
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Profiles can aid courtroom testimony by helping officers to
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articulate the special significance of their observations. They
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can give officers a structured means to articulate reasonable
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suspicion based on personal experiences and a means to organize
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knowledge received from other officers involved in previous drug
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investigations. Moreover, officers who identify the typical
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characteristics of drug couriers and then include those factors
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in a profile may be able to make more informed decisions
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regarding the existence of reasonable suspicion, since a profile
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can serve as a written list of factors that officers can use in
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making the decision whether to detain.
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Probative Value of Observed Behavior
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Since the legal basis for a temporary detention is simply
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the presence or absence of reasonable suspicion based on a
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totality of the circumstances, officers involved in such stops
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should be aware of court decisions involving reasonable
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suspicion decided in their jurisdiction. While each fact
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pattern is different, there are common patterns in these court
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decisions that can provide guidance to officers who must decide
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whether reasonable suspicion exists to detain a suspected drug
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courier temporarily.
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Courts tend to divide facts officers may attempt to use to
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establish reasonable suspicion into two general categories. The
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first category includes facts that describe a large number of
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innocent citizens, such as nervousness, destination or arrival
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at a "drug source" or "drug reception" city, manner of attire,
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time of travel, position among disembarking passengers, no
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checked luggage, and extreme confidence, such as looking
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straight ahead and walking fast.
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The second category consists of facts indicative of illegal
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activity, such as use of an alias or false name in travel,
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furtive or evasive behavior after seeing law enforcement
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officers, the unusual purchase of a ticket with cash, and the
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receipt by police of information or an anonymous tip that a
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particular person or type of person is a drug courier. Most
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lower courts applying Sokolow's totality of circumstances test
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require police to have some facts indicative of illegal activity
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before a temporary detention is deemed lawful.
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Innocent citizens
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Most courts hold that reasonable suspicion requires police
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to have more than merely facts and circumstances that describe a
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very large category of innocent citizens, such as no checked
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luggage, last or first off an airplane, nervousness or extreme
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confidence, early or late travel, flashy or grungy clothing, and
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travel to or from a drug-source city. (10) In the context of
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vehicle stops, facts in this category could include a young
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person driving a late model sports car or a person driving
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extremely cautiously on an interstate highway. (11) Such
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otherwise innocent conduct is generally not sufficient to
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establish reasonable suspicion to detain an individual. (12)
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For example, the U.S.Court of Appeals for the Sixth Circuit
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found insufficient facts to justify a temporary detention in
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United States v. Taylor. (13) In that case, the defendant
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arrived in Memphis on a plane from Miami, Florida. His
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detention was based on the following factors:
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1) Arrival from a drug-source city;
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2) Walking away from the gate nervously and hurriedly
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moving faster than the other passengers;
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3) Constantly looking backwards while walking;
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4) Carrying a tote bag held tightly to his body; and
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5) Leaving the terminal walking very fast. (14)
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The court also disapproved of the stop on the grounds that
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the officers involved in the detention had little experience in
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identifying drug couriers. Also, testimony at the suppression
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hearing indicated that the defendant's race and grungy clothing
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may have been impermissibly considered by the officers in their
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decision to detain. (15)
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Facts indicative of illegal activity
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Most courts hold that reasonable suspicion to detain
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requires factors or facts indicative or probative of illegal
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drug trafficking, such as the use of a false name, (16) the
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unusual purchase of a ticket with cash, (17) and furtive or
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unusual behavior after seeing law enforcement officers. (18) In
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the context of vehicle stops, courts have found reasonable
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suspicion where officers observed evidence associated with drug
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trafficking, such as seeing a beeper and papers with telephone
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numbers in a car or seeing a car with a large trunk with the
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items normally kept in the trunk on the back seat. (19)
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Information that Tips the Scale
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Highly probative in determining reasonable suspicion is the
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receipt by law enforcement of information or a tip that a
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particular person or type of person is a drug courier. (20) For
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example, in United States v. Condolee, (21) the U.S. Court of
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Appeals for the Eighth Circuit upheld a temporary detention of a
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stylishly dressed black woman at the Kansas City International
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Airport based on the following factors:
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1) The DEA Agent involved in the stop had 17 years'
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experience with substantial experience in drug trafficking
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investigations;
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2) The defendant arrived early in the morning from Los
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Angeles, a source city especially for early courier
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dispatch;
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3) The Agent involved had received a tip that two Los
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Angeles street gangs were using "sharply dressed black
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female couriers" to smuggle drugs through the Kansas City
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airport;
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4) The defendant was traveling only with carry-on luggage
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and walked quickly and directly, while looking straight
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ahead; and
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5) Prior to the actual temporary detention when the
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defendant was talking to DEA Agents, she appeared nervous
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and attempted to conceal the contents of her purse, which
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made a loud thud when placed on a trash can. (22)
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Anonymous Tips and Corroboration
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The U.S. Supreme Court recently held in Alabama v. White
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(23) that an anonymous tip when sufficiently corroborated can
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provide reasonable suspicion to detain an individual. In that
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case, police received an anonymous tip that the defendant would
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be leaving a particular apartment at a particular time in a
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brown Plymouth station wagon with the right taillight lens
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broken; that she would be going to a certain motel; and that she
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would be in possession of about an ounce of cocaine inside a
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brown attache case. Police went to the apartment, saw the
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defendant leave and enter the station wagon, and stopped her
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just short of the motel to which the tipster had predicted she
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would drive.
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In approving the stop, the Court described the reasonable
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suspicion standard as follows:
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"Reasonable suspicion is a less demanding standard than
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probable cause not only in the sense that reasonable
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suspicion can be established with information that is
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different in quantity or content than that required to
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establish probable cause, but also in the sense that
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reasonable suspicion can arise from information that is
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less reliable than that required to show probable cause."
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(24)
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Thus, informant information or anonymous tips not reliable
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enough to provide probable cause may provide the justification
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for a temporary detention, especially when corroborated by
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observed behavior that has probative value in determining
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reasonable suspicion.(25)
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SUMMARY
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In order to stop and detain someone under the fourth
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amendment, the U.S. Constitution requires that a law enforcement
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officer justify the stop on something more than a mere suspicion
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or hunch. The stop must be based on an articulable and
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reasonable suspicion that criminal activity is afoot.
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In developing and articulating reasonable suspicion, a
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profile can be a useful tool in categorizing and attaching
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particular significance to otherwise innocent behavior.
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However, each decision to detain an individual must be judged on
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the individual facts available to an officer at the time of the
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stop, viewed in light of the officer's training and experience.
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Officers are encouraged to gather and evaluate as many
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facts as possible because the validity of a detention is
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determined by a totality of the circumstances test. Under this
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test, most courts attach particular significance to certain
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factors, such as the use of a false name, the unusual purchase
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of a ticket with cash, unusual furtive or evasive behavior, and
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the existence of informant information or a tip that a
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particular person or particular type of person is likely to be a
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drug courier.
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FOOTNOTES
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(1) Terry v. Ohio, 392 U.S. 1 (1968). See also, John C.
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Hall, "Investigative Detention: An Intermediate Response," FBI
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Law Enforcement Bulletin, November and December 1985 and January
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1986; Jerome O. Campane, "Investigative Detention and the Drug
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Courier: Recent Supreme Court Decisions," FBI Law Enforcement
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Bulletin, November 1983.
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(2) Drug courier profiles are typically developed by law
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enforcement officers who work in a particular area. Because the
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factors in one area may vary significantly from other areas, it
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may be difficult to determine significant factors nationwide.
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(3) 109 S.Ct. 1581 (1989).
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(4) Id. at 1585.
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(5) Id. at 1583.
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(6) Id. at 1587, n. 6.
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(7) Id. at 1587.
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(8) Id. at 1588.
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(9) Derricot v. State, 578 A.2d 791 (Md. App. 1990).
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(10) In Reid v. Georgia, 448 U.S. 438 (1980) (per curiam),
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the petitioner arrived from Fort Lauderdale early in the
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morning, appeared to conceal the fact that he was traveling with
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a companion and had not checked luggage. The Court found these
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facts insufficient to justify a temporary detention.
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(11) See, e.g., State v. Johnson, 561 So.2d 1139 (Fla.
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1990) (late model car being driven cautiously at 4:15 a.m. by
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30-year-old male on I-95 not sufficient reasonable suspicion to
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justify stop of car on suspicion of drug trafficking); Snow v.
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State, 578 A.2d 816 (Md. App. 1990) (avoidance of eye contact by
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nervous driver stopped on I-95, the presence of several air
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fresheners, and driver's refusal to consent to search did not
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give reasonable suspicion to detain for drug trafficking; United
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States v. Hernandez-Alvarado, 891 F.2d 1414 (9th Cir. 1989) (no
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reasonable suspicion to stop when agent observed car bought from
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dealership associated with drug dealers, two-way antenna
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protruding from large trunk, driver driving cautiously, and car
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registered in a neighborhood known as a high drug smuggling
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area); and United States v. Tapia, 912 F.2d 1367 (11th Cir.
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1990) (no reasonable suspicion to detain a motorist for drug
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smuggling when officer observed nervous Hispanic individual in
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car with out-of-State license allegedly traveling out of State
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to look for work with no visible signs of luggage. Court stated
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that these characteristics could plausibly describe the behavior
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of a large portion of the motorists engaged in travel on our
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interstate highways). See also, John Sauls, "Traffic Stops:
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Police Powers Under the Fourth Amendment," FBI Law Enforcement
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Bulletin, October 1989.
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(12) See, e.g., United States v. Millan, 912 F.2d 1014
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(8th Cir. 1990) (reasonable suspicion to detain traveler in an
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airport not present when DEA Agents knew defendant had arrived
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on an early flight from San Francisco to Kansas City, was one of
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the first passengers to deplane, carried a garment bag and had
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not checked luggage, dressed casually, wore a gold chain and had
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long hair, had purchased a one-way ticket costing $179 with
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cash, was not traveling under an assumed name, could not
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remember the address or telephone number of the person allegedly
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visited, and had something evenly shaped in the pockets of his
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jacket).
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(13) 917 F.2d 1402 (6th Cir. 1990).
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(14) Id. at 1408.
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(15) Id. at 1409.
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(16) Florida v. Royer, 460 U.S. 491 (1983) and United
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States v. Tavolacci, 895 F.2d 1423 (D.C. Cir., 1990).
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(17) United States v. Colyer, 878 F.2d 469 (D.C. Cir.
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1989) and United States v. Sterling, 909 F.2d 1078 (7th Cir.
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1990).
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(18) See, e.g., Florida v. Rodriguez, 469 U.S. 1 (1984)
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(suspects glancing over shoulders and overheard saying, "Let's
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get out of here."); United States v. Sullivan, 903 F.2d 1093
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(7th Cir. 1990) (detention of train traveler's luggage upheld
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based on travel from Los Angeles, a source city, one-way ticket
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purchased with cash on date of departure, defendant only carrying
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one small bag and appeared to divert eyes from police officers
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when followed by them, and appeared to pretend to make a
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telephone call without actually placing any money in a public
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phone); United States v. Hayes, 825 F.2d 32 (4th Cir. 1987) (the
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fact that defendants were traveling from a source city and
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appeared nervous not sufficient for reasonable suspicion, but
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when the defendants took flight after police identified
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themselves, detention based on reasonable suspicion then
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justified).
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(19) See, Derricot v. State, 578 A.2d 791 (Md. App. 1990)
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(flashy vehicle and dress of young driver, as well as possession
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of paging device and papers bearing telephone numbers, gave
|
||
reasonable suspicion to detain for drug trafficking); Cresswell
|
||
v. State, 564 So.2d 480 (Fla. 1990) (nervous driver on I-95 in
|
||
car with large trunk driving car registered to someone else, CB
|
||
in car, ignition key separate from other keys, and items
|
||
normally kept in trunk on back seat provided reasonable
|
||
suspicion to justify detention of driver for drug trafficking).
|
||
|
||
(20) See, e.g., United States v. Malone, 886 F.2d 1162
|
||
(9th Cir. 1989) (stop in airport justified, in part, on
|
||
defendant fitting a "gang member" profile based on knowledge of
|
||
DEA Agents concerning Los Angeles street gang members
|
||
transporting drugs into Seattle. Also, defendant glanced around
|
||
terminal furtively, carried only a plastic shoe bag for a 3-day
|
||
stay, had no identification, could not name anyone in Seattle to
|
||
verify identity, and could not explain presence in the city).
|
||
|
||
(21) 915 F.2d 1206 (8th Cir. 1990).
|
||
|
||
(22) Id. at 1210.
|
||
|
||
(23) 110 S.Ct. 2412 (1990).
|
||
|
||
(24) Id. at 2416.
|
||
|
||
(25) See, e.g., United States v. Lane, 909 F.2d 895 (6th Cir.
|
||
1990) (informants tip added to the totality of the circumstances
|
||
justifying detention of defendant for drug possession).
|
||
|