THE D.E.A. DRUG COURIER PROFILE:
HISTORY AND ANALYSIS  

By

PHILIP S. GREENE*

BRIAN W. WICE**  

Possible Drug Courier Profiles! #1 Knowledge is power!

DETAINING SUSPECTED DRUG COURIERS: RECENT COURT DECISIONS from the F.B.I. #2 :):):)

Drug Courier Profiles!#3 Knowledge is power!

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 Drug Courier Profiles that drug enforcement agents have presented as "probable cause" for conducting searches:
 

arrived late at night arrived early in the morning arrived in afternoon one of first to deplane one of last to deplane deplaned in the middle purchased ticket at airport made reservation on short notice bought coach ticket bought first-class ticket used one-way ticket used round-trip ticket paid for ticket with cash paid for ticket with small denomination currency paid for ticket with large denomination currency made local telephone call after deplaning

made long-distance telephone call after deplaning pretended to make telephone call traveled from New York to Los Angeles traveled to Houston carried no luggage carried brand-new luggage carried a small bag carried a medium-sized bag carried two bulky garment bags carried two heavy suitcases carried four pieces of luggage overly protective of luggage disassociated self from luggage traveled alone traveled with a companion acted too nervous acted too calm

made eye contact with officer avoided making eye contact with officer wore expensive clothing and gold jewelry dressed casually went to restroom after deplaning walked quickly through airport walked slowly through airport walked aimlessly through airport left airport by taxi left airport by limousine left airport by private car left airport by hotel courtesy van suspect was Hispanic suspect was black female

It is our hope that the attention given to the problem of racial profiling will be accompanied by a larger rethinking of the war on drugs, and that more just, effective and compassionate drug policies will be put in place as the new century unfolds.

This section wass added to this report, It helps to show a listing of what litle things that they can use in "Profiling"  Chris

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THE D.E.A. DRUG COURIER PROFILE: HISTORY AND ANALYSIS  

 

* Practicing attorney, Houston, Texas; B.S., J.D., University of Houston; Board Certified Specialist in Criminal Law.

** Practicing attorney, Houston, Texas; B.S., J.D., University of Houston.

 

 

I. INTRODUCTION

 

It was a maxim with Foxey.

Always suspect everybody.

 

DICKENS, THE OLD CURIOSITY SHOP. [1841]

 

It was shortly after five o'clock on the afternoon of October 8, 1977, when Alex Elmore stepped off the Delta Airlines nonstop flight from Detroit to Atlanta's Mansfield International Airport.¹ Like the thousands of other travelers at Hartsfield Airport that day, Elmore left the rotunda area of Gate 68 where his flight terminated and began to walk towards the main terminal, passing only to scan an electronic flight monitor in the concourse^.2

 

But while Elmore's behavior may not have seemed odd to the casual observer, there were two men positioned between Gates 61 and 63 on Concourse F who were far from casual observers and to whom Elmore's behavior seemed far from ordinary^.3 Paul Markonni⁴ and Gerald Chapman,⁵ special agents of The Drug Enforcement Administration [DEA], observed Elmore as he headed toward the main terminal and as Chapman would later testify, Elmore "looked back several times."⁶ The agents also noticed that Elmore, who did not have any luggage with him, did not have any baggage claim receipts attached to his ticket.⁷ Their curiosity piqued, the agents decided to keep Elmore under surveillance as he walked through the concourse of the airport.⁸

 

Elmore went to the Delta ticket counter where he received information concerning a flight from Atlanta to Birmingham. Chapman, who was standing in line behind Elmore, first learned that Elmore had flown into Atlanta from Detroit,⁹ the latter long considered by the DEA to be a center of heroin traffic.¹⁰

 

Elmore left the Delta information counter and walked to a nearby card shop and then to another store, without making a purchase at either place.¹¹ While in the latter store, Agent Chapman noticed Elmore once again "look[ing] around sort of behind him.” ¹² Finally, Elmore began walking in the direction of Gate 51, from which his flight to Birmingham would depart.¹³ Again, Agent Chapman would later testify that Elmore "looked back several times," and seemed finally to be aware of the presence of the two DEA agents.¹⁴

 

Once at Gate 51, Elmore checked in, received his boarding pass, and then took a seat.¹⁵ Their curiosity now more than piqued, the agents decided to question Elmore because "his moves were sort of strange."¹⁶ Agent Chapman identified himself as a federal narcotics agent and asked to see Elmore's ticket.¹⁷ Elmore complied with the request and produced a one‑way ticket from Detroit to Birmingham issued to “E.Gray."¹⁸ When Chapman asked Elmore if he was Mr. Gray, Elmore responded affirmatively.¹⁹

 

Asked to produce additional identification, Elmore "volunteered" that his brother‑in‑law, E. Gray, had purchased the ticket in advance in Birmingham, and that he, Elmore, had picked the ticket up in Detroit without any identification.²⁰ Now visibly shaken, Elmore handed Chapman an Alabama driver's license with his correct name on it.²¹

 

Agent Chapman knew then that "something was wrong."²² Contrary to Elmore's assertion, the ticket was not marked pre‑paid and Chapman knew that Delta, or any other airline, would not give out a pre‑paid ticket without first requiring proper identification ²³Elmore, without any apparent reason, had lied to the agents; the agents would soon find out why.

 

While Agent Markonni left with Elmore's ticket to check his story out, Chapman again informed Elmore that he was a DEA agent engaged in narcotics surveillance at the airport.²⁴ Chapman would later testify that Elmore's "whole facial expression changed.²⁵ He appeared to be extremely nervous at that point."²⁶ Elmore then worsened his own situation by informing Chapman that he had a case pending against him for the sale of heroin for which he had been arrested approximately six weeks earlier.²⁷

  

At this juncture, Agent Markonni returned to Gate 51 with a printed history of Elmore's Delta Airlines ticket.²⁸ It reflected that just the day before, Elmore had flown to Detroit under the alias of E. Gray with a one‑way ticket purchased in cash in Birmingham .²⁹ He then returned less than 16 hours later with another one‑way ticket which was paid for and picked up in Detroit.³⁰

 

Agent Chapman then asked Elmore if he was carrying narcotics; Elmore responded that he was not.³¹ Informed of his right to refuse, Elmore consented to a search of his person and began undressing in the gate area.³² At the urging of one of the agents, the trio retired to a private lounge where a subsequent search revealed heroin in Elmore's left sock.³³ After Markonni informed Elmore that he was under arrest, additional heroin was found in Elmore's right sock.³⁴ Agent Chapman then advised Elmore of his Miranda³⁵ rights.³⁶

 

Indicted for possession of heroin by a federal grand jury,³⁷ Elmore's motion to suppress the heroin found on his person was overruled by the trial court.³⁸ Following a two‑day jury trial, Elmore was convicted and sentenced to ten years in the federal penitentiary.³⁹

 

On appeal, Elmore advanced the contention that the initial stop by Agents Markonni and Chapman was not premised on a reasonable suspicion that he was engaged in criminal activity.⁴⁰ The subsequent search of his person, consensual or otherwise, was therefore tainted and required suppression of the heroin and a reversal of his conviction.⁴¹

 

.In an opinion which has become the standard by which the legality of airport searches in the Fifth Circuit are judged, the appellate court found that Alex Elmore's fourth amendment rights were not violated when he was detained by Agents Chapman and Markonni the afternoon of October 8, 1977.⁴² That Elmore and hundreds of other have become casualties in the DEA's struggle against the flow of illicit narcotics in and across the United States is due in large part to something which has become known as the Drug Courier Profile.

 

This article will examine the component parts of the Drug Courier Profile, a brief look at its history, and how the profile is utilized by the DEA and other law enforcement agencies at the major metropolitan airports across the country. Before examining the profile, this article will review the Supreme Court's landmark decision in Terry v. Ohio,⁴³ and how its approval of the "investigatory stop" eventually provided the basis for the utilization of the drug courier profile program a decade later. Finally, United States v. Mendehall ⁴⁴ and Reid v. Georgia,⁴⁵ the only two drug courier profile cases to reach the Supreme Court, are examined in detail to determine whether the Court was correct in reaching contrary results in the two cases based upon substantially similar facts.

 

The path to understanding the Drug Courier Profile and how its utilization became sanctioned by the appellate courts of this nation does not, oddly enough, begin in an airport concourse in Atlanta, New York, or Los Angeles. It begins instead, almost twenty years ago, on a street corner in Cleveland.

 

 

 

II. THE TERRY STOP

 

"There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the street.”⁴⁶

 

Detective Martin McFadden of the Cleveland Police Department had been a policeman for 39 years and a detective for 35.⁴⁷ Of those 35 years as a detective, 30 were spent patroling downtown Cleveland for shoplifters and pickpockets.⁴⁸ While patroling on the afternoon of October 31,1963 McFadden's attention was attracted by two men, Richard Chilton and John Terry. McFadden thought it noteworthy that when he looked over at them, "they didn't look right to me at the time.”⁴⁹

 

His interest aroused, McFadden began a surveillance of the duo from a distance of about 400 feet away and after watching Chilton and Terry make a dozen trips down Huron Road in front of a number of store windows, the detective had become thoroughly suspcious.⁵⁰ The movements of the men had, by this time, convinced McFadden that the duo were "casing a job, a stick‑up," and he felt that it was his duty as a policeman to investigate further.⁵¹ That he also felt the pair were armed impelled him to confront Terry and Chilton who were by now, joined by a third man, Katz."⁵²

 

McFadden approached the three men, identified himself as a police officer and when the men "mumbled something" in response to his inquiries, McFadden "grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing."⁵³

 

After feeling a pistol in the left, breast pocket of Terry's overcoat, but unable to retrieve it, McFadden ordered the trio into a nearby department store where a subsequent frisk revealed a revolver in Chilton's pocket as well."⁵⁴ Chilton and Terry were convicted of carrying concealed weapons after the trial court overruled their motions to suppress the pistols seized from them by Detective McFadden.⁵⁵ Their convictions were affirmed by the Ohio Court of Appeals⁵⁶ and the Ohio Supreme Court denied discretionary review.⁵⁷

 

Granting certiorari,⁵⁸ the Supreme Court rejected Terry's contention that Detective McFadden's actions violated the dictates of the fourth amendment and held for the first time that a peace officer may stop and question a person upon less than probable cause.⁵⁹ While a particular contact may not amount to a technical arrest, reasoned Chief Justice Warren in the majority opinion, the intrusion may be considered a fourth amendment seizure and thus subject to that amendment's reasonableness requirement.⁶⁰

 

Warren stressed that "street encounters between citizens and police officers are incredibly rich in diversity,"⁶¹ and that "[O]bviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons."⁶² A seizure has occurred Warren concluded, "[O]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen."⁶³

 

Under the facts of Terry, then, the Court found that there was little doubt that Detective McFadden "seized" Terry and subsequently subjected him to a "search" when he took hold of him and patted down the outer surfaces of his clothing."⁶⁴ In determining whether this search and seizure was "unreasonable," the Court found, "[O]ur inquiry is a dual one‑whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place."⁶⁵

 

In attempting to assess the reasonableness of Detective McFadden's conduct generally, the Court spoke of the "governmental interest which itself justifies the intrusion upon the constitutionally protected interests of the private citizen,"⁶⁶ and how a peace officer must be able to "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."⁶⁷

 

Though Terry et al had engaged in a series of acts which themselves were consistent with innocent behavior, to McFadden, when taken together, these acts surely warranted further investigation."⁶⁸ And though McFadden's subsequent actions in frisking Terry and Chilton undoubtedly fell under the aegis of a "seizure,"⁶⁹ the Court was of a different mind insofar as the seizure issue was concerned prior to the forcible frisk: "We cannot tell with any certainty upon this record whether any such "seizure" took place here prior to Officer McFadden's initiation of physical contact for purposes of searching Terry for weapons, and thus may assume that up to that point no intrusion upon constitutionally protected rights had occured."⁷⁰

 

Ample support for this assumption‑the eventual underpinning for the initiation of the drug courier profile‑can be found in the concurring opinions of Justices Harlan and White. Justice Harlan observed that a police officer has "the liberty, (again, possessed by every citizen) to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away.”⁷¹ Justice White's thoughts were framed in a much simpler manner. "[T]here is nothing in the Constitution," he observed, "which prevents a policeman from addressing questions to anyone on the street.”⁷²

 

The import of Terry, then, was clear: while something less than a full scale arrest and search would trigger fourth amendment scrutiny, not every police‑citizen encounter, even for investigative purposes, was encompassed by the fourth amendment. A decade after Terry, courts reviewing drug courier profile convictions would wrestle with the difficult task of refining the distinction between these two categories of police-public encounters. ⁷³

 

When a peace officer used gunpoint or physical restraint in an encounter of the public there was, of course, little question that a seizure had occurred since usually restraint of movement was accomplished.⁷⁴ The line of demarcation, according to Terry's teachings was that a seizure had occurred if it was "apparent . . . that the individual was not free to ignore the officer and proceed on his way.”⁷⁵

 

But by the same token, if an individual was "free to choose whether to enter or continue an encounter with police and elects to do so," it had been held that there was no seizure.⁷⁶ . The importance of this fact could not be understated. If a peace officer approached an individual and requested that individual to answer some questions, that citizen would probably not realize he or she had the right to walk away. If they elected not to, their responses to any questions on the part of the officer could well be used to supply the requisite reasonable suspicion for a Terry frisk or probable cause for a fufl‑blown arrest and search.

 

Justice Brennan, in a footnote to Davis v. Mississippi ⁷⁷put it this way, "[T]hat while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer."⁷⁸

 

If this logic was lost on the general public, it was not to police officers. In 1974, a special agent with the Drug Enforcement Administration took the rationale of Terry v. Ohio⁷⁹ one step further. Unlike Detective McFadden had done a decade before, he would stand, not in the street, but in the airport concourses and attempt to spot air travelers whose behavior "just didn't look right." He would approach them ever so politely and ask for their cooperation as well as their airline ticket and driver's license. The agent knew that the great majority of air travelers would view such a request from a DEA agent as an offer they could not refuse.

 

But how would the agent know who or what to look for in the airport concourse? He remembered that during the height of the air piracy epidemic, the FAA compiled a list of characteristics endemic to most skyjackers and concentrated their efforts on these individuals.⁸⁰ Sky‑jackers, however, were no longer the primary problem confronting federal law enforcement. Couriers of illicit narcotics traveling in interstate commerce were the current problem. The DEA agent knew just what would have to be done to stem the tide of illicit narcotics in and across the nation: the solution‑the drug courier profile; its creator‑Special Agent Paul Markormi, the DEA's point man in the battle against narcotics couriers; the battleground‑every major metropolitan airport in the United States.

 

 

 

III. THE PROFILE AND HOW IT IS USED

 

"[T]he profile has a chameleon‑like quality, it seems to change itself to

fit the facts of each case. One agent candidly admitted that the profile

in a particular case consists of anything that arouses his suspicions."⁸¹

 

It was 1974 and there seemed to be little question that the DEA created in the Nixon era to organize government efforts to stop illicit narcotics trafficking in and across the nation, was losing the war of attrition it was fighting. One DEA special, agent at the Detroit Office, Paul Markormi, began to compile a list of characteristics he and his colleagues felt most couriers of illicit narcotics who came through the Detroit Airport, possessed.⁸²  Markonni realized that the bulk of all narcotics entering the United States came from four major cities,. which he labeled as so-called "source cities." These original four were Los Angeles, San Diego, Miami, and New York.⁸³

 

Added to this list were so‑called "use‑cities" or major population centers where the DEA knew suspected couriers would either pass through or end up with their loads.⁸⁴ Two such centers were Detroit,⁸⁵ where the drug courier profile would eventually debut, and Atlanta,⁸⁶ which quickly rose to the top of the list, especially after Paul Markonni was transferred there. It went without saying, then, that the DEA would concentrate their efforts at airports in these source or use cities and would pay particular attention to travelers either arriving from or department to those areas.

 

Markonni also realized that drug couriers, like most reputable businessmen, did not prefer to spend an inordinate amount of time on the road while carrying their product. It went without saying that couriers would travel light‑with little or no luggage in order to get in and out of an airport as quickly as possible. Moreover, couriers would also attempt to make their rounds without unnecessary lay‑over time in a city where a narcotics transaction would occur. The result: rapid turnaround times to places that would themselves require somewhat lengthy trips.⁸⁷

 

But most of the time, the agent would not have the turnaround time at his disposal, at least prior to stopping a potential suspect. It would therefore be critical for the agent to possess other indicia of criminality if his subsequent stop would be later validated by a reviewing court. Markonni et al began to concentrate on a suspect's demeanor as soon as they came into view and under suspicion and gave birth to the soon‑to‑be‑notorious "funny look" on the part of a suspect which resulted from the latter's "unusual nervousness beyond that ordinarily exhibited by passengers." Perhaps the most subjective of all the profile criteria, the "nervous look" which triggered an agent's investigation, translated roughly to an educated guess that his quarry was a courier.⁸⁸

 

And so based upon little else beside travel to or from a particular city and unusual nervousness, an agent, would spot a suspect and follow that person for a while‑put "some ground surveillance on him" in the vernacular of the trade. While surveillance was underway, the next stop would be unobtrusively to learn as much about the suspect without actually confronting him. Standing behind a suspect in a ticket line often revealed whether or not an individual was traveling without luggage (if there were no luggage checks attached to the traveler's ticket, it usually meant he was traveling light.⁸⁹ An agent might also learn if the suspect had a rapid turnaround time for a lengthy flight or if the suspect had or was about to pay for a ticket with cash, usually small denominations, allegedly common among couriers who did not have the luxury of Master Charge or American Express.⁹⁰

 

Once he had decided to confront a suspect, the agent must attempt to ensure that he has some sort of "founded suspicion" upon which to stop an individual. Upon initial contact with a subject, it was DEA policy to "identify themselves and request that the people produce identification. We never demand, we always ask, 'Excuse me. Do you have some identification we could take a look at for a second?' Something on that order."⁹¹

 

The first request was always for a plane ticket to discover destination, turnaround time, and method of payment.⁹² The next request was for a driver's license to ascertain if the suspect was traveling under an alias, a trait also endemic to couriers.⁹³ If the suspect was traveling under an assumed name, its revelation was often enough to break a suspect down.⁹⁴

 

These traits all became known as "primary characteristics" of the profile and combined with the secondary characteristics: almost exclusive use of public transportation in departing from the airport; immediately making a telephone call after deplaning; leaving a false or ficticious callback telephone number with the airline being utilized; and excessively frequent travel to source or distribution cities. They comprised Markonni's list of things to spot in a suspected drug courier.⁹⁵

 

The most difficult part of the agent's ploy began once a suspect was confronted and the initial contact made between citizen and agent. The agent knew though most travelers did not that the traveler could tell the agent to get lost or worse‑given the lack of reasonable suspicion to justify a Terry stop.⁹⁶ Therefore the agent was always careful to give the suspect the impression that he was never under arrest or in custody during the contact and was always free to go.⁹⁷ Regardless of whether this was true, it was certain that the agent would testify to this sequence of events at trial. The next step was to explain the agent's purpose to the suspect and to ask him if he would consent to a cursory search of a bag or his person for narcotics. The agent always stresses that if the suspect is clean, they have nothing to worry about.⁹⁸ Markonni and company knew that the consent to search if given would later validate the entire chain of events even if the agent did not have a founded suspicion and the initial detention were illegal.⁹⁹

 

If the suspect was sharp enough to ask the agent what would happen in the event consent was not given, the agent would tell the traveler that he, the agent, would attempt to procure a search warrant from the nearest available magistrate to get into the suspect's bags.¹⁰⁰ Occasionally, the agent would inform the suspect that if the consent to search were refused, the traveler could leave but the luggage would stay.¹⁰¹

 

Given this subtle pressure exerted on the psyche of a potential courier, it is not surprising that in the overwhelming number of reported cases, the suspect will consent to a search notwithstanding the fact that such a search will reveal the presence of contraband. A suspect's efforts to escape at this point has the effect of supplying the missing link in the chain of probable cause.¹⁰²

 

It is readily apparent then that Markonni's profile was bottomed on the notion that once a suspect has been identified, it was incumbent upon the agent to detain that individual long enough to gather evidence which either corroborates or allays the agent's earlier suspicions.¹⁰³ But if a reviewing court later determined that an individual was "seized" within the meaning of the fourth amendment when confronted by agents, the seizure would be invalid unless the agent had a reasonable suspicion the suspect was violating the law. As set forth above, the DEA manuevered around this constitutional obstacle by instructing their agents to be polite and unassuming in initiating citizen contact. If the citizen did not want to talk, and there were no objective facts from which the agent could conclude the suspect might be guilty of some offense, the citizen could leave. On the other hand, Markonni correctly reasoned that the great majority of citizens, whether couriers or not, would want to talk to the agent.

 

Combining the brief investigatory stop of Terry v. Ohio,¹⁰⁴ with the consent to search doctrine as explicated in Schnekloth v. Bustamonte,¹⁰⁵ Agent Markonni put his profile into action in late 1974 at the Detroit Metropolitan Airport. It would take six years before a conviction premised on a drug courier profile stop would reach the Supreme Court.¹⁰⁶ Ironically enough, it was a case based upon a stop at the Detroit Airport during the initial stages of the profile program. The case, however, would pose far more questions than it would purport to answer.¹⁰⁷

 

 

 

 

IV. MENDENHALL AND REID

"A search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success."¹⁰⁸'

 

Whether the actions of a DEA agent in approaching an individual and requesting identification merely because that person possessed one or more of the behavioral characteristics of the drug courier profile violated the fourth amendment was an issue endemic to almost every drug courier profile case. As the Supreme Court reconvened for its October Term in 1979, one of their first acts of business was to grant certiorari to review the narcotics smuggling conviction of Sylvia Mendenhall,¹⁰⁹ which had been reversed by the Sixth Circuit Court of Appeals.¹¹⁰

 

As the Court heard oral argument on the case and prepared to deliver its opinion at the end of May, 1980, it appeared for the first time that the lower courts would have a definitive Supreme Court opinion to use as a guidepost in reviewing profile cases. When the Mendenhall opinion was released on May 27,1980, however it was not characterized as definitive.¹¹¹

 

In the early morning hours of February 10, 1976, at Detroit's Metropolitan Airport¹¹² Sylvia Mendenhall was the last passenger to deplane from an American Airlines flight from Los Angeles. Two DEA agents assigned to the airport as part of the drug courier profile detection program watched her deplane and observed her "behavior" as she walked through the airport concourse.¹¹³

 

The agents noted that Mendenhall's "behavior" appeared to be consistent with at least four characteristics of the drug courier profile: (1) she arrived on a flight from Los Angeles, a so‑called "source" city; (2) was the last to deplane, "appeared to be very nervous", and "completely scanned the whole area where [the agents] were standing;" (3) proceeded past the baggage claim area without claiming any luggage; and (4) changed airlines for her flight out of Detroit.¹¹⁴ On the basis of Mendenhall's behavior, the two agents approached her, identified themselves only as federal agents, and asked for her identification and airline ticket.¹¹⁵

 

The young woman complied and produced her driver's license and a ticket issued to one "Annette Ford."¹¹⁶ When asked why she was traveling under an apparent alias, Mendenhall simply stated that she "just felt like using that name."¹¹⁷ After she indicated that she had been in  California only two days, Agent Anderson specifically identified himself as a DEA agent and, as he would later testify, Mendenhall "became quite shaken, extremely nervous. She had a hard time speaking."¹¹⁸

 

After first returning Mendenhall's driver's license and airline ticket,¹¹⁹ Agent Anderson, his suspicions now clearly aroused, asked her if she would accompany him to the airport DEA office for additional questioning. Without expressly assenting to Agent Anderson's "request," Mendenhall followed him to the DEA office on the next floor, some 50 feet from where she had first been approached.¹²⁰

 

Once at the office, Agent Anderson asked Mendenhall if she would consent to a search of her person and handbag and informed her that she could decline the agent's invitation to do so if the so desired.¹²¹ Mendenhall responded, "Go ahead" and handed Agent Anderson her purse. It contained a receipt for an airline ticket which had been issued to "F. Bush" three days earlier for a flight from Pittsburgh through Chicago to Los Angeles.¹²² In response to the agent's inquiry as to whether this was the ticket she had used for her recent journey, Mendenhall admitted that it was.¹²³

 

By this time, a female police officer had arrived at the DEA office to conduct the search of Mendenhall's person.¹²⁴ The policewoman asked the agents if the subject had consented to the search; the agents answered affirmatively and Mendenhall followed the policewoman into a private room.¹²⁵ She again asked Mendenhall if she would consent to a search; Mendenhall again replied that she did.¹²⁶ When Mendenhall was told that she would have to undress as part of the search, she stated that she "had a plane to catch.”¹²⁷ The policewoman, however, told Mendenhall that if she were not in possession of narcotics, there would be no problem!¹²⁸ Mendenhall began to undress without further comment.¹²⁹, As Mendenhall undressed, she handed the policewoman two small packages which had been concealed in her undergarments and which appeared to the policewoman to contain heroin.¹³⁰ The agents then arrested Mendenhall for possession of heroin.¹³¹

 

The District Court rejected Mendenhall's contention that the DEA agents actions violated the dictates of the fourth amendment and denied her motion to suppress.¹³²  The court concluded that the agents' conduct in initially approaching Mendenhall and in asking her to produce identification was a permissible investigative stop pursuant to Terry v. Ohio ¹³³

and United States v. Brignoni‑Ponce¹³⁴  inasmuch as the agents' conduct was based on specific and articulable facts that justified a suspicion of criminal activity.¹³⁵ Moreover, the district court found that Mendenhall had not been "seized" when she was asked to accompany the agents to the DEA office but had instead accompanied the agents "voluntarily and in a spirit of apparent cooperation. ¹³⁶It was only after the contraband was found that an arrest had occurred. ¹³⁷ But most importantly, the district court found that Mendenhall consented to the search of her person in the DEA office and that "such consent was freely and voluntarily given."¹³⁸

 

The Sixth Circuit Court of Appeals reversed Mendenhall's subsequent conviction with the terse pronouncement that the "court concludes that this case is indistinguishable from United States v. McCaleb.¹³⁹ In McCaleb,¹⁴⁰ the Sixth Circuit had reversed the district court's finding that a drug courier profile stop on facts substantially similar to those in Mendenhall did not offend the dictates of the fourth amendment.¹⁴¹ The Court of Appeals had there pointed out that not only was the drug courier profile, by itself, insufficient to provide probable cause to arrest an individual, but that on the facts of that case, the defendant's eventual consent to search their suitcases was not freely and voluntarily given.¹⁴² The Court of Appeals' succinct finding in Mendenhall did not appease Circuit Judge Weick who, in a forceful dissent, presaged the sentiments of Justice Powell's concurring opinion when Mendenhall reached the Supreme Court:

 

With the ever increasing traffic in narcotics causing so much damage and injury to the public, we ought not sanction a set of rules which hamstring the federal officers in making legitimate investigations. It is also noteworthy that the investigations in each of the present cases, as in many others, produced real results. The defendants were couriers of narcotics.¹⁴³

 

In both the district court and the court of appeals, the parties had apparently agreed that Mendenhall had been "seized" when she was approached by the DEA agents in the concourse and asked to produce her plane ticket and identification.¹⁴⁴ Yet, after review had been granted and during oral argument, the government took the position that Mendenhall had not been "seized" when initially approached by the agents.¹⁴⁵ And when asked by Justice White if it was the government's position that on the basis of a person's conformity with the profile, police, may pick out a person, approach that individual and to, in essence, determine if the officer's suspicions of criminality were confirmed, the government's attorney conceded quite readily, "Yes, I think that's our position."¹⁴⁶

 

It was not, however, the Court's position. Two Justices, however, Stewart and Rehnquist, concluded that the DEA agents did not "seize" Mendenhall within the meaning of the fourth amendment when they approached her in the airport concourse.¹⁴⁷ Stewart viewed the events merely as an encounter that intruded upon no constitutionally protected interest for the same reason advanced by Justice White in Terry, i.e., that nothing in the Constitution prevents a peace officer from addressing questions to anyone on the streets¹⁴⁸ or for that matter, in airports:

 

We adhere to the view that a person is "seized" only when by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards ... [A]s long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.¹⁴⁹

 

For Stewart and Rehnquist, the bottom line insofar as determining whether a fourth amendment seizure, short of traditional arrest, had been effected was whether "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."¹⁵⁰

 

With this test in mind, Stewart concluded that Mendenhall had not been seized in the airport concourse when approached by the DEA agents.¹⁵¹ Mendenhall, reasoned Stewart, had not been summoned to the agents' presence, but had instead been approached.¹⁵² The agents were not in uniform with weapons displayed, they were in street clothes and requested, not demanded, to see Mendenhall's identification.¹⁵³ The incident transpired in a public place and it was not enough to establish a seizure that the person asking the questions was a law enforcement official.¹⁵⁴

 

Because the eventual search of Mendenhall was not preceded by an impermissible seizure of her person. Stewart found that her eventual consent could not be considered involuntary since it came on the heels of an illegal detention.¹⁵⁵ It was the Sixth Circuit and not the district court which had erred, reasoned Stewart, for substituting its own factual findings for the lower court insofar as a finding that Mendenhall had freely and voluntarily consented to the search of her person.¹⁵⁶

 

Justice Powell, joined in concurrence by the Chief Justice and Justice Blackmun, offered his own perspective of the events in the airport concourse.¹⁵⁷ He felt that even assuming, as the courts below had, that Mendenhall had been seized within the meaning of the fourth amendment when detained, the seizure was, all things considered, reasonable.¹⁵⁸ Its reasonableness, Powell wrote, was the product of three factors: the public interest served by the seizure, the minimal scope of the intrusion, and the objective facts upon which the agents relied.¹⁵⁹

 

I "The public," noted Powell, "has a compelling interest in detecting those who would traffic in deadly drugs for personal profit."¹⁶⁰ Detailing the efforts of the DEA and the drug courier profile program, Powell found that when the two DEA agents stopped Sylvia Mendenhall in February of 1976, "they were carrying out a highly specialized law enforcement operation designed to combat the serious societal threat posed by narcotics distribution."¹⁶¹

 

The nature of the agents' intrusion was itself, noted Powell, quite minimal.¹⁶² Because they did not display weapons or restrain Mendenhall and given the brevity of their questioning, the agents' conduct could not have led Mendenhall to be frightened or isolated from assistance there in the airport concourse.¹⁶³

 

Finally, Powell spoke of the ability of law enforcement personnel to “perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer."¹⁶⁴ It was this purported ability on Agent Anderson's part to distinguish between innocent behavior and suspected criminality on the basis of apparently harmless conduct, and not the profile itself, which provided the objective facts necessary to validate the initial stop.¹⁶⁵

 

And so without expressly finding that behavior in conformity with the profile itself would provide probable cause for a full‑blown arrest and search, the five justices in the majority seemingly gave their approval to the technique utilized by the DEA in stopping air travelers on the strength of the drug courier profile.¹⁶⁶ Seizure or no seizure, the majority concluded, "the careful and commendable police work that led to the criminal conviction in this case satisfies the requirements of the Fourth Amendment.”¹⁶⁷

 

The four dissenters, led by Justice White, concluded that "none of the aspects of Ms. Mendenhall's conduct, either alone or in combination, were sufficient to provide reasonable suspicion that she was engaged in criminal activity."¹⁶⁸ They were troubled by the finding of Justices Stewart and Rehnquist that Mendenhall had not been seized when approached by the DEA agents although this contention had been seemingly rejected by both the district court and the court of appeals.¹⁶⁹ The dissenters also did not believe that the majority's disposition of the "consent" issue could be reconciled with their recent holding in Dunaway v. New York¹⁷⁰

 

Addressing the "objective facts" which the concurrence utilized to validate the reasonableness of the agents' actions the dissent did not feel that Mendenhall's behavior in the airport concourse, regardless of any drug courier profile, was not such as "would lead an experienced officer reasonably to conclude that criminal activity was afoot, but rather the kind of behavior that could reasonably be expected of anyone changing planes in an airport terminal.”¹⁷¹

 

Mainly, the dissent focused on the majority's tacit finding from the state of the record below, that Mendenhall "consented" to accompany the officers to the DEA office for the eventual strip search given only in the absence of proof that she resisted police authority.¹⁷² That such a notion was squarely rejected by the Court in Bumper v. North Carolina,¹⁷³ argued the dissenters, was something clearly recognized by the Sixth Circuit in rejecting the district court's "findings" of consent.¹⁷⁴

 

Whatever vitality remained in the majority's analysis in Mendenhall given the patently fragmented breakdown of the Court seemed to be swept away just a month later with the Court's decision in Reid v.Georgia,¹⁷⁵ second of the pair of profile cases considered during the 1980 term. Inexplicably, the per curiam opinion does not even mention Mendenhall or the result there reached though the concurring opinion of Justice Powell pointed out the facts in the two cases were "remarkably similar."¹⁷⁶

 

Tommy Reid, Jr., arrived at Atlanta's Hartsfield Airport on a nonstop flight from Fort Lauderdale, Florida in the early morning hours of August 14, 1978. ¹⁷⁷ As he was walking through the concourse, Reid was observed by a DEA agent who noticed that another individual who carried a shoulder bag like the one Reid carried, appeared to be glancing at Reid, who looked back several times in the man's direction without speaking.¹⁷⁸ When they reached the main lobby of the terminal, the second man caught up with Reid and after speaking briefly with him, they left the terminal together.¹⁷⁹

 

The DEA agent approached the pair outside the terminal and, after identifying himself, asked the two men to produce their airline tickets and identification, which they did.¹⁸⁰ The tickets reflected that the pair had purchased the tickets with Reid's credit card and had stayed in Fort Lauderdale only one day.¹⁸¹ During the course of the encounter, the DEA agent would later testify that the pair appeared extremely nervous.¹⁸² The agent asked Reid and his companion to return to the terminal and to consent to a search of their shoulder bag and persons.¹⁸³ According to the DEA agent, Redi nodded his head affirmatively and his companion responded, "Yeah, okay."¹⁸⁴ Yet when the trio reentered the main terminal, Reid broke and ran, abandoning his shoulder bag which was later found to contain cocaine.¹⁸⁵

 

The Fulton County Superior Court granted Reid's motion to suppress the cocaine, concluding that it had been illegally obtained after Reid had been seized by the DEA agent who could not have had an articulable suspicion that Reid was in possession of narcotics.¹⁸⁶ The Georgia Court of Appeals reversed, finding that the stop was valid pursuant to Terry v. Ohio ¹⁸⁷ inasmuch as Reid "in a number of respects, fit a 'profile' of drug couriers compiled by the [DEA].”¹⁸⁸ The Court of Appeals also found that Reid had consented to return to the terminal for a search of his person and that probable cause existed to search the shoulder bag given his eventual flight and abandonment of the bag.¹⁸⁹

 

The Court reversed the decision of the Georgia Court of Appeals, concluding that the DEA agent could not, as a matter of law, have reasonably suspected Reid of criminality on the basis of Reid's conformity with some of the characteristics of the drug courier profile.¹⁹⁰ Notwithstanding the fact that Reid had arrived from a source city in the early morning hours when law enforcement activity was diminished and appeared to have no other luggage than his shoulder bag,¹⁹¹ the Court held that:

 

[0]f the evidence relied on, only the fact that the petitioner preceded another person and occasionally looked backward at him as they proceeded through the concourse relates to their particular conduct. The other circumstances describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure. Nor can we agree, on this record, that the manner in which the petitioner and his companion walked through the airport reasonably could have led the agent to suspect them of wrongdoing.¹⁹²

 

The agent's actions were, simply stated, an "inchoate and unparticularized suspicion or 'hunch' " and "simply too slender a reed to support the seizure in this case."¹⁹³

 

Concurring, Justice Powell pointed out that because the Georgia courts did not consider whether Reid had been seized when approached by the DEA agent, apparently assuming as the lower courts in Mendenhall had, that Reid had been seized, they were free to re‑examine that issue upon remand.¹⁹⁴

 

On remand to the Georgia Court of Appeals, the trial court's suppression order was affirmed without comment as to whether there had been a seizure.¹⁹⁵ But the Georgia Supreme Court granted the State's petition for review and relying heavily on the questionable precedent of Mendenhall found that Reid and his companion had not been "seized" when they were approached by the DEA agent outside the terminal building.¹⁹⁶

 

Given the questionable precedential value of both Mendenhall and Reid, it is difficult at best to attempt to gauge the course the lower state courts and federal appellate courts will continue to take in future drug courier profile cases. But a cursory examination of profile opinions delivered in the wake of Mendenhall and Reid makes it clear that the question of whether the initial questioning of citizens by DEA agents, on the strength of the profile alone, is a seizure within the meaning of the fourth amendment, simply has not been definitively answered.¹⁹⁷

 

If it is true, as the Fifth Circuit has pointed out, that Mendenhall does in fact "implicitly approve the use of the 'drug courier profile' by drug enforcement agents,"¹⁹⁸ and given the apparent success the DEA has enjoyed since the initiation of the program almost eight years ago,¹⁹⁹ it almost certainly appears that the drug courier has grafted an additional exception onto an already beleaguered fourth amendment.

 

 

 

V. CONCLUSION

 

The crime charged in this case is a serious crime with grave societal

consequences. This court has great respect for those law enforcement

officials who are charged with the difficult task of detecting and appre­

hending persons involved in the drug trade. But respect for, and appre­

ciation of, the difficulty of the task cannot in any way diminish this

court's duty to uphold the constitutional rights of all citizens.²⁰⁰

 

That the drug courier profile is perhaps the most formidable weapon in the arsenal of law enforcement to stem the flow of illicit narcotics in and across this nation cannot now be seriously doubted. On the strength of the questionable precedential value of United States v. Mendenhall,²⁰¹ the courts of appeals and district courts appear to be sanctioning profile stops with increasingly regularity, which itself may suggest the creation of an airport stop exception to the fourth amendment. As long as a reviewing court can point to any indication of "voluntariness," either real or apparent on the part of the citizen accosted in an airport concourse, the court will validate the ensuing search. It is precisely this type of law enforcement activity that the spirit and tenor of the fourth amendment was designed to prevent.

 

The weakness inherent in the drug courier profile is certainly its “chameleon‑like character" which places a premium on the subjective feeling of the agent involved and discounts the need for objective criterion on which to premise an investigatory stop. To give an officer the power to detain individuals merely because they act in concert with a (series of characteristics thought to be common to drug couriers is to take a long step down the road to unbridled police power. When drug couriers finally become cognizant of the profile and no longer act in concert with it, it will not be long before another set of characteristics emerge from the minds of those who must take the credit or responsibility for developing the original profile.

 

Concurring in the Court's opinion in United States v. Mendenhall,²⁰² Justice Powell pointed out that "the public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit.”²⁰³Left unsaid is the correlative notion that the public also has a similarly compelling interest in being able to walk through a metropolitan airport without the need to explain to an overly inquisitive narcotics agent why the citizen has acted in conformity with a patently nebulous drug courier profile.

 

It is instructive to note that as far back as Terry v. Ohio,²⁰⁴ the case which has provided the cornerstone of legitimacy for airport stops, the late Justice Douglas warned of the "powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand."²⁰⁵ If the price society must pay to stem the trafficking of narcotics is to water down the time‑honored guarantees of the fourth amendment on the strength of the drug courier profile, perhaps it is a price which society can ill afford to pay.

 

1. United States v. Elmore, 595 F.2d 1036, 1037 (5th Cir. 1979).

 

2. Id. Notwithstanding the nature of Elmore's subsequent behavior the court felt obliged to point out that "there is nothing unusual about a person verifying his flight number when looking for it on a monitor screen." Id.

 

3. Id. The evidence relating to the agents' position was conflicting. Agent Chapman testified at the preliminary hearing, and later, at the suppression hearing that he and Markonni positioned themselves between gates 63 and 65. He also testified at the suppression hearing that the agents were stationed between gates 61 and 63. The Court pointed out that this difference insofar as gate areas in the concourse was "of no material moment." Id. at n.1.

 

4. As is explicated below, in Section III, infra, Paul Markonni special agent of the Drug Enforcement Administration (DEA) is something of a living legend insofar as federal narcotics agents are concerned. As one federal jurist has phrased it in the prologue of an opinion:

 

We are once again asked to determine whether evidence taken pursuant to one of the unerring bunches of the ubiquitous Agent Paul Markonni should have been suppressed on the grounds it was taken in violation of the Fourth Amendment.

 

United States v. Williams, 647 F.2d 588, (5th Cir. 1981) (per curiam).

 

Markonni is credited with the development of the drug courier profile while at the Detroit office of the DEA. Cf. Drug Courier Profiles (A Markonnian Nightmare) Goldstein and Hirschorn, at 1, n.1, Nat. Assoc. of Crim. Def. Lawyers, Crim. Def. Sem. Aug. 1981. See also Section 111, infra.

 

 

5. Both agents had a number of years experience in the enforcement of Federal drug laws. United States v. Elmore, 595 F.2d 1036, 1037 (5th Cir. 1979).

 

6. Id. The agents did not see Elmore when he deplaned but first observed him as he left the rotunda and headed toward the main terminal. Id.

 

7. Id. The agents testified that they noticed Elmore did not have any luggage claim receipts attached to his ticket when he paused to examine the flight monitor as well as his own ticket. This lack of luggage and Elmore's "looking back several times" were two characteris‑ tics of the profile the DEA felt most narcotics couriers possessed. See infra, Section III.

 

8. United States v. Elmore, 595 F.2d 1036, 1037 (5th Cir. 1979).

 

9. Id. Birmingham is regarded by the DEA as being a heroin "use" city, or in other words, the fina