Drug Courier Profile

The winner of my request for the Llewellyn-like opinion about stopping people is smcelhaney, who pointed me to Judge Pratt's dissent in the 2nd Circuit case of United States v. Hooper. Here is what he had to say about the government's reliance on a "drug courier profile" as the basis for stopping people at the airport in Buffalo, New York:

a canvass of numerous cases reveals the drug courier profile's "chameleon-like way of adapting to any particular set of observations." United States v. Sokolow, 831 F.2d 1413, 1418 (9th Cir.1987), rev'd, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989):

Arrived late at night United States v. Nurse, 916 F.2d 20, 24 (D.C.Cir.1990).

Arrived early in the morning United States v. Reid, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980); United States v. Millan, 912 F.2d 1014, 1017 (8th Cir.1990).

One of first to deplane United States v. Millan, 912 F.2d at 1015; United States v. Moore, 675 F.2d 802, 803 (6th Cir.1982), cert. denied, 460 U.S. 1068, 103 S.Ct. 1521, 75 L.Ed.2d 945 (1983).

One of last to deplane United States v. Mendenhall, 446 U.S. 544, 547 n. 1, 100 S.Ct. 1870, 1873 n. 1, 64 L.Ed.2d 497 (1980); United States v. Sterling, 909 F.2d 1078, 1079 (7th Cir.1990); United States v. White, 890 F.2d 1413, 1414 (8th Cir.1989), cert. denied, 498 U.S. 825, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990).

Deplaned in the middle United States v. Buenaventura-Ariza, 615 F.2d 29, 31 (2d Cir.1980).

Used a one-way ticket United States v. Johnson, 910 F.2d 1506 (7th Cir.1990), cert. denied, 498 U.S. 1051, 111 S.Ct. 764, 112 L.Ed.2d 783 (1991); United States v. Colyer, 878 F.2d 469, 471 (D.C.Cir.1989); United States v. Sullivan, 625 F.2d 9, 12 (4th Cir.1980).

Used a round-trip ticket United States v. Craemer, 555 F.2d 594, 595 (6th Cir.1977).

Carried brand-new luggage United States v. Taylor, 917 F.2d at 1403; United States v. Sullivan, 625 F.2d at 12.

Carried a small gym bag United States v. Sanford, 658 F.2d 342, 343 (5th Cir.1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1618, 71 L.Ed.2d 852 (1982).

Travelled alone United States v. White, 890 F.2d at 1415; United States v. Smith, 574 F.2d 882, 883 (6th Cir.1978).

Travelled with a companion United States v. Garcia, 905 F.2d 557, 559 (1st Cir.), cert. denied, 498 U.S. 986, 111 S.Ct. 522, 112 L.Ed.2d 533 (1990); United States v. Fry, 622 F.2d 1218, 1219 (5th Cir.1980).

Acted too nervous United States v. Montilla, 928 F.2d 583, 585 (2d Cir.1991); United States v. Cooke, 915 F.2d 250, 251 (6th Cir.1990).

Acted too calm United States v. McKines, 933 F.2d 1412 (8th Cir.1991); United States v. Himmelwright, 551 F.2d 991, 992 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977).

Wore expensive clothing and gold jewelry United States v. Chambers, 918 F.2d 1455, 1462 (9th Cir.1990).

Dressed in black corduroys, white pullover shirt, loafers without socks United States v. McKines, supra.

Dressed in dark slacks, work shirt, and hat United States v. Taylor, 917 F.2d at 1403.

Dressed in brown leather aviator jacket, gold chain, hair down to shoulders United States v. Millan, 912 F.2d at 1015.

Dressed in loose-fitting sweatshirt and denim jacket United States v. Flowers, 909 F.2d 145, 146 (6th Cir.1990).

Walked rapidly through airport United States v. Millan, 912 F.2d at 1017; United States v. Rose, 889 F.2d 1490, 1491 (6th Cir.1989).

Walked aimlessly through airport United States v. Gomez-Norena, 908 F.2d 497, 497 (9th Cir.1990), cert. denied, 498 U.S. 947, 111 S.Ct. 363, 112 L.Ed.2d 326 (1991).

Flew in to Washington National Airport on the LaGuardia Shuttle United States v. Powell, 886 F.2d 81, 82 (4th Cir.1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990).

Had a white handkerchief in his hand United States v. Garcia, 848 F.2d 58, 59 (4th Cir.), cert. denied, 488 U.S. 957, 109 S.Ct. 395, 102 L.Ed.2d 384 (1988).

In our "Looking-Glass" world of drug enforcement, the DEA apparently seeks "to be master" by having "drug courier profile" mean, like a word means to Humpty Dumpty, "just what I choose it to mean--neither more nor less."

UPDATE: After I posted the above, I was alerted to an earlier argument, with examples, to the same effect, in Justice Marshall's dissent in U.S. v. Sokolow, 490 U.S. 1, 13-14 (1989). The alert came off list from Stephen Rynerson, who gets at least a share of the prize. Here's what Marshall said:

the facts about Andrew Sokolow known to the DEA agents at the time they stopped him fall short of reasonably indicating that he was engaged at the time in criminal activity. It is highly significant that the DEA agents stopped Sokolow because he matched one of the DEA's “profiles” of a paradigmatic drug courier. In my view, a law enforcement officer's mechanistic application of a formula of personal and behavioral traits in deciding whom to detain can only dull the officer's ability and determination to make sensitive and fact-specific inferences “in light of his experience,” Terry, supra, at 27, 88 S.Ct., at 1883, particularly in ambiguous or borderline cases. Reflexive reliance on a profile of drug courier characteristics runs a far greater risk than does ordinary, case-by-case police work of subjecting innocent individuals to unwarranted police harassment and detention. This risk is enhanced by the profile's “chameleon-like way of adapting to any particular set of observations.” 831 F.2d 1413, 1418 (CA9 1987). Compare, e.g., United States v. Moore, 675 F.2d 802, 803 (CA6 1982) (suspect was first to deplane), cert. denied, 460 U.S. 1068, 103 S.Ct. 1521, 75 L.Ed.2d 945 (1983), with United States v. Mendenhall, 446 U.S. 544, 564, 100 S.Ct. 1870, 1882, 64 L.Ed.2d 497 (1980) (last to deplane), with United States v. Buenaventura-Ariza, 615 F.2d 29, 31 (CA2 1980) (deplaned from middle); United States v. Sullivan, 625 F.2d 9, 12 (CA4 1980) (one-way tickets), with United States v. Craemer, 555 F.2d 594, 595 (CA6 1977) (round-trip tickets), with United States v. McCaleb, 552 F.2d 717, 720 (CA6 1977) (nonstop flight), with United States v. Sokolow, 808 F.2d 1366, 1370 (CA9), vacated, 831 F.2d 1413 1987) (case below) (changed planes); Craemer, supra, at 595 (no luggage), with United States v. Sanford, 658 F.2d 342, 343 (CA5 1981) (gym bag), cert. denied, 455 U.S. 991, 102 S.Ct. 1618, 71 L.Ed.2d 852 (1982), with Sullivan, supra, at 12 (new suitcases); United States v. Smith, 574 F.2d 882, 883 (CA6 1978) (traveling alone), with United States v. Fry, 622 F.2d 1218, 1219 (CA5 1980) (traveling with companion); United States v. Andrews, 600 F.2d 563, 566 (CA6 1979) (acted nervously), cert. denied sub nom. Brooks v. United States, 444 U.S. 878, 100 S.Ct. 166, 62 L.Ed.2d 108 (1979), with United States v. Himmelwright, 551 F.2d 991, 992 (CA5) (acted too calmly), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). In asserting that it is not “somehow” relevant that the agents who stopped Sokolow did so in reliance on a prefabricated profile of criminal characteristics, ante, at 1587, the majority thus ducks serious issues relating to a questionable law enforcement practice, to address the validity of which we granted certiorari in this case.

Mr. Rynerson only gets a share of the prize, however, because, as the citation makes clear, Justice Marshall in turn pulled this idea from the Circuit court opinion in the same case, by Judge Ferguson. But Judge Ferguson in turn got the idea from a law review article by North Carolina Appeals Court Judge Charles L. Becton, The Drug Courier Profile, 65 N.C.L.Rev. 417, 438-44, 474-80 (1987).