DRUG COURIER PROFILES The drug courier profile was developed by the Drug Enforcement Administration (DEA) during the mid-1970s. It consists of nothing more than a list of suspicious characteristics: in effect, a general description of a typical drug runner. Telltale signs include inappropriate dress for the immediate situation, a large roll of cash, nervousness around police, and the like. Drug agents frequently monitor the routes traveled by drug smugglers, on the lookout for travelers who fit the profile. Those who are stopped are often asked to consent to voluntary questioning or search. Until a few years ago, the technique was used mainly at airports, but now it is also used by state highway police. It has led to scores of arrests, but it has also caused controversy. The so-called suspicious acts are themselves entirely lawful, and as such, the use of the profile has been labeled by many observers as police harassment. The Supreme Court’s position on the matter in United States v. Sokolow is presented below, followed by two subsequent interpretations.
United States v. Sokolow (45 CrL 3001 ) Drug Enforcement Administration (DEA) agents stopped respondent upon his arrival at Honolulu Airport. The agents found 1,063 grams of cocaine in his carry-on luggage. When respondent was stopped, the agents knew, inter alia, that (1) he paid $2,100 for two round-trip plane tickets from a roll of $20 bills; (2) he traveled under a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours, even though a round-trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his trip; and (6) he checked none of his luggage. Respondent was indicted for possession with intent to distribute cocaine. The District Court denied his motion to suppress the evidence, finding that the stop was justified by a reasonable suspicion that he was engaged in criminal activity, as required by the Fourth Amendment. The Court of Appeals disagreed and reversed respondent’s conviction, applying a two-part test for determining reasonable suspicion. First, ruled the court, at least one fact describing “ongoing criminal activity”—such as the use of an alias or evasive movement through an airport—was always necessary to support a reasonable suspicion finding. Second, “probabilistic facts” describing personal characteristics of drug couriers—such as the cash payment for tickets, a short trip to a major source city for drugs, nervousness, type of attire, and unchecked luggage—were only relevant if there was evidence of “ongoing criminal activity” and the Government offered empirical documentation that the combination of facts at issue did not describe the behavior of significant numbers of innocent persons. The Court of Appeals held the agents’ stop impermissible, because there was no evidence of ongoing criminal behavior in this case.
The Supreme Court held that the DEA agents had a reasonable suspicion that the respondent was transporting illegal drugs when they stopped him on the facts of this case:
a. Under Terry v. Ohio (392 U.S. 1), the police can stop and briefly detain a person for investigative purposes if they have a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if they lack probable cause under the FourthAmendment. Reasonable suspicion entails some minimal level of objective justification for making a stop — that is, something more than an inchoate and unparticularized suspicion or hunch but less than the level of suspicion required for probable cause.
b. The Court of Appeals’ two-part test creates unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment. Under this Court’s decision, the totality of the circumstances must be evaluated to determine the probability, rather than the certainty, of criminal conduct [United States v. Cortez (449 U.S. 411)]. The Court of Appeal’s test draws an unnecessary sharp line between types of evidence, the probative value of which varies only in degree. While traveling under an alias or taking an evasive path through an airport may be highly probative, neither type of evidence has the sort of ironclad significance attributed to it by the Court of Appeals, because there are instances in which neither factor would reflect ongoing criminal activity. On the other hand, the test’s Aprobabilistic” factors also have probative significance. Paying $2,100 in cash for airline tickets from a roll of $20 bills containing nearly twice that amount is not ordinary conduct for most business travelers or vacationers. The evidence that respondent was traveling under an alias, although not conclusive, was sufficient to warrant consideration. Of similar effect is the probability that a few Honolulu residents travel for 20 hours to spend 48 hours in Miami during July. Thus, although each of these factors is not by itself proof of illegal conduct and is quite consistent with innocent travel, taken together, they amount to reasonable suspicion that criminal conduct was afoot.
c. The fact that the agents believed that respondent’s behavior was consistent with one of the DEA’s drug courier profiles does not alter this analysis, because the factors in question have evidentiary significance regardless of whether they are set forth in a profile.
d. The reasonableness of the decision to stop does not, as respondent contends, turn upon whether the police used the least intrusive means available to verify or dispel their suspicions. Such a rule would unduly hamper the officers’ ability to make on-the-spot decisions—here, respondent was about to enter a taxicab—and would require courts to indulge in unrealistic second-guessing [Florida v. Royer (460 U.S. 491), distinguished].
U.S. v. Condelee (CA8, 48 CrL1112 ) The appearance and conduct of a Los Angeles–to-Kansas City air traveler gave drug task force agents in the latter city grounds for detaining her, a majority of the U.S. Court of Appeals for the Eighth Circuit held. Accordingly, evidence uncovered as a result of the stop was ruled admissible. The agents had a tip that drug gangs were using sharply dressed black females to transport drugs through Kansas City’s airport. The defendant, fitting that description and carrying a purse and a garment bag, deplaned from an early-morning flight and walked straight out of the concourse, without looking around or stopping for luggage. A consensual encounter ensued. Before it evolved into a seizure, the agents observed that the defendant was very nervous, that she tried to conceal the contents of her purse, and that the purse apparently contained something heavy. These facts and observations were enough, particularly in light of the lead agent’s long experience in drug interdiction, to create the degree of suspicion Terry v. Ohio (392 U.S. 1 ) requires for a stop, the majority of the court concluded.
Florida v. Johnson (47 CrL1182 ) The Florida Supreme Court ruled that a state highway patrol officer’s observation of a late-model, out-of-state car driven by a 30-year-old male in the early morning along a well-known route for drug couriers did not provide sufficient grounds to support a stop of the defendant’s vehicle on suspicion of drug trafficking. Accordingly, the majority affirmed suppression of a quantity of marijuana subsequently discovered in the trunk of the vehicle. The defendant conformed to the trooper’s personal drug courier profile, which the trooper had developed during the course of numerous drug arrests along Interstate 95 in Florida. Among the factors considered by the trooper in making the stop were that the hour was late, the driver was alone and appeared to be a male about 30 years of age, the driver was wearing casual clothes, the vehicle was a late model with out-of-state tags, and the vehicle was traveling at exactly the posted speed limit along a well-known drug corridor.
Addressing a similar profile situation in U.S. v. Sokolow, the U.S. Supreme Court decided that the defendant’s purchase of two expensive airline tickets with cash, his use of an assumed name, his failure to check any luggage, and an itinerary that included a short visit to Miami sufficiently suggested criminal conduct to justify a brief stop. Here, the majority said, there is nothing at all unusual about the conduct cited by the trooper in support of the vehicle stop. The class of persons described by this profile includes tens of thousands of law-abiding tourists and businessmen, the majority said.
In order for a vehicle stop to be justified, there must be a strong and articulable link, or rational inference, between the sequence of acts observed by the police and the concealed criminal conduct believed to exist, the majority said. Whether or not these factors make up a drug courier profile is not relevant to this inquiry.
United States v. Montero-Camargo (208 F.3d 1122 ) Related to the “drug courier profile” and the use of ethnic profiling in stopping and searching suspects is the case of U.S. v. Montero-Camargo, mentioned in passing in the Op-Ed of the chapter. In this case, a California court ruled that “Hispanic appearance” could not be used as a pretext for stopping motorists. Given the shifting demographics across the nation, the case has particular relevance and is explored in depth.
On the afternoon of October 15, 1996, a passing driver told Border Patrol agents at the Highway 86 permanent stationary checkpoint in El Centro, California, that two cars heading north, with Mexicali license plates, had just made U-turns on the highway shortly before the checkpoint. Upon receiving the tip, two Border Patrol Agents, Brian Johnson and Carl Fisher, got into separate marked patrol cars and headed south to investigate. Approximately one minute later (and about one mile from the checkpoint), the two agents saw a blue Chevrolet Blazer and a red Nissan sedan, both with Mexicali plates, pull off the shoulder and re-enter the highway, heading south.
According to the agents, the area where they first observed the cars is used by lawbreakers to drop off and pick up undocumented aliens and illegal drugs, while evading inspection. Its use for such purposes is due in part to the fact that the view of that part of the highway area from the Border Patrol checkpoint is blocked. The location, according to Agent Johnson, is the only place where it is feasible to turn around both safely and with impunity. After that point, the road narrows and is in plain view of the checkpoint. The highway itself runs through the open desert and there is a fence on either side.
Both agents testified that almost all of the stops made by the Border Patrol at the turnaround site resulted in the discovery of "a violation of some sort . . .” involving either illegal aliens or narcotics. In contrast, Agent Johnson said that similar stops made in connection with turnarounds near other checkpoints did not result in arrests nearly as frequently. He attributed the difference to the fact that travelers routinely miss their turnoffs to camping sites near those other checkpoints. Before the northbound Highway 86 checkpoint, however, there are no exits, driveways, or roads nearby that a driver might accidentally pass by. In fact, the only exit off of Highway 86 in that area is a private driveway to the Elmore Ranch, some two miles from the turnaround point.
The place where the agents saw that the vehicles had stopped following the U-turn was a deserted area on the side of the southbound highway located opposite the large sign on the northbound side advising drivers that the checkpoint was open. As Agent Johnson testified, the sign was the first indication to northbound drivers that the Border Patrol's facility was operational. The checkpoint in question had been closed for some time and had reopened only a day or two earlier.
At the suppression hearing, Agent Johnson testified that the majority of people going through the El Centro checkpoint are Hispanic. This demographic makeup is typical of the larger region of which the city El Centro is a part. In Imperial County, where El Centro is located, Hispanics make up roughly 73% of the population. See U.S. Census Bureau, "Population Estimates for Counties by Race and Hispanic Origin: July 1, 1999." Agent Johnson also testified that as he pulled behind the Blazer, he noted that both the driver and the passenger appeared to be Hispanic. Johnson stated that when the driver and passenger noticed him behind them, the passenger picked up a newspaper and began reading. This, according to Agent Johnson, further aroused his suspicions. Johnson then stopped the Blazer, identified himself as a Border Patrol agent, and asked about the citizenship of the two occupants. In response to Johnson's inquiries, the driver, Lorenzo Sanchez-Guillen, and his passenger, Sylvia Renteria-Wolff, showed Agent Johnson I-586 cards, which allow Mexican citizens to travel up to 25 miles inside the United States for no longer than 72 hours at a time. As the Blazer had been stopped approximately 50 miles from the border, Johnson then brought the two occupants to the checkpoint for processing.
In the meantime, Agent Fisher continued to follow the second car, a red Nissan sedan. According to Fisher, when he and Agent Johnson first drew near the two cars, the Nissan began to accelerate. As Fisher caught up with the vehicle, he could see that the second driver also appeared to be Hispanic. Fisher ultimately pulled the Nissan over after following it for approximately four miles. Appellant German Espinoza Montero-Camargo was the driver. After stopping the car, Agent Fisher, with the aid of Agent Johnson, who had returned to help him, searched the trunk and found two large bags of marijuana. A subsequent search of the Blazer back at the checkpoint turned up a loaded .32 caliber pistol in the glove compartment and an ammunition clip that fit the pistol in the passenger's purse.
Montero-Camargo, Sanchez-Guillen, and Renteria-Wolff were charged with conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1), as well as possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Sanchez-Guillen was also charged with being an illegal alien in possession of ammunition in violation of 18 U.S.C. § 922(g)(5) and § 924(a)(2) and aiding and abetting the carrying of a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) and (2). The three defendants filed a pre-trial motion to suppress on the ground that the vehicle stop was not based on reasonable suspicion. When the district court denied the motion, Montero-Camargo entered a conditional guilty plea to conspiracy to possess and possession of marijuana with the intent to distribute; he reserved the right to challenge on appeal two of the district court's determinations, including the denial of the motion to suppress. Sanchez-Guillen went to trial, and a jury convicted him of conspiracy to possess and possession of marijuana with the intent to distribute, as well as being an illegal alien in possession of ammunition. He raised a number of issues on appeal.
In denying the motion to suppress, the district court conceded that the government's case "was somewhat weak," but concluded that, upon considering "all the factors that the officers had in their possession at the time that each of them made the stops, . . . there was a sufficient founded suspicion to make an investigatory stop." Those factors, as the district court categorized them, included: 1) the tip about a U-turn made in the middle of the highway just before the checkpoint by two cars with Mexican license plates; 2) the alleged driving in tandem and the Mexicali license plates which supported the inference drawn by the officers that these were the two cars identified by the tipster; 3) the area in question, which, based on the officers' experience with previous stops, is "a notorious spot where smugglers turn around to avoid inspection" just before the first sign indicating that the checkpoint was in fact open; 4) the fact that the occupants of both cars appeared to be of Hispanic descent; and 5) the fact that the passenger in the Blazer picked up a newspaper as the Border Patrol car approached. The district judge concluded that when these factors were considered in light of the officers' experience, they supported a finding of reasonable suspicion.
On appeal, Montero-Camargo and Sanchez-Guillen argued that the district court erred in denying the motion to suppress. The panel majority agreed, however, with the district court's conclusion. It did so by listing, without further explication, a number of factors, including: apparent avoidance of a checkpoint, tandem driving, Mexicali license plates, the Hispanic appearance of the vehicles' occupants, the behavior of Renteria-Wolff, the agent's prior experience during stops after similar turnarounds, and the pattern of criminal activity at the remote spot where the two cars stopped. Although we reach the same result as both the district judge and the panel majority, we do so on the basis of a more selective set of factors.
The Reasonable Suspicion Calculus
The Fourth Amendment "applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975). Accordingly, the Fourth Amendment requires that such seizures be, at a minimum, "reasonable." In order to satisfy the Fourth Amendment's strictures, an investigatory stop by the police may be made only if the officer in question has "a reasonable suspicion supported by articulable facts that criminal activity may be afoot. . . ." United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989) (citing Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 88 S. Ct. 1868 ).
Like probable cause determinations, the reasonable suspicion analysis is "not 'readily, or even usefully, reduced to a neat set of legal rules'" and, also like probable cause, takes into account the totality of the circumstances. Sokolow, 490 U.S. at 7-8 (quoting Illinois v. Gates, 462 U.S. 213, 232, 76 L. Ed. 2d 527, 103 S. Ct. 2317 ). Although the level of suspicion required for a brief investigatory stop is less demanding than that for probable cause, the Fourth Amendment nevertheless requires an objective justification for such a stop. See 490 U.S. at 7. As a result, the officer in question "must be able to articulate more than an 'inchoate and unparticularized suspicion’ or 'hunch' of criminal activity." Illinois v. Wardlow, 528 U.S. 119, 145 L. Ed. 2d 570, 120 S. Ct. 673, 676 (2000). Rather, reasonable suspicion exists when an officer is aware of specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion. See United States v. Cortez, 449 U.S. 411, 418, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981); United States v. Salinas, 940 F.2d 392, 394 (9th Cir. 1991).
The requirement of particularized suspicion encompasses two elements. See Cortez, 449 U.S. at 418. First, the assessment must be based upon the totality of the circumstances. Second, that assessment must arouse a reasonable suspicion that the particular person being stopped has committed or is about to commit a crime. See id.; see Terry v. Ohio ("this demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence"). Accordingly, we have rejected profiles that are "likely to sweep many ordinary citizens into a generality of suspicious appearance. . . ." United States v. Rodriguez, 976 F.2d 592, 595-96 (9th Cir. 1992) (concluding that the factors cited in the case — namely, a Hispanic man carefully driving an old Ford with a worn suspension who looked in his rear view mirror while being followed by agents in a marked car — described "too many individuals to create a reasonable suspicion that this particular defendant was engaged in criminal activity"); see also United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9th Cir. 1994) (holding that reasonable suspicion cannot be based "on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped").
In Brignoni-Ponce, the Court listed factors which officers might permissibly take into account in deciding whether reasonable suspicion exists to stop a car. Those factors include: (1) the characteristics of the area in which they encounter a vehicle; (2) the vehicle's proximity to the border; (3) patterns of traffic on the particular road and information about previous illegal border crossings in the area; (4) whether a certain kind of car is frequently used to transport contraband or concealed aliens; (5) the driver's "erratic behavior or obvious attempts to evade officers"; and (6) a heavily loaded car or an unusual number of passengers. With time, however, "subsequent interpretations of these factors have created a highly inconsistent body of law," and we have given them varying weight in varying contexts. United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989).
As the list of factors set out in Brignoni-Ponce suggests, sometimes conduct that may be entirely innocuous when viewed in isolation may properly be considered in arriving at a determination that reasonable suspicion exists. In United States v. Sokolow, the Supreme Court held that: “’in making a determination of probable cause the relevant inquiry is not whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that attaches to particular types of noncriminal acts.’ That principle applies equally well to the reasonable suspicion inquiry." 490 U.S. 1, 10, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 243-44, n. 13, 76 L. Ed. 2d 527, 103 S. Ct. 2317 ); see also United States v. Franco-Munoz, 952 F.2d 1055, 1057 (9th Cir. 1991). In short, conduct that is not necessarily indicative of criminal activity may, in certain circumstances, be relevant to the reasonable suspicion calculus. See Wardlow, 120 S. Ct. at 677. At the same time, however, innocuous conduct does not justify an investigatory stop unless there is other information or surrounding circumstances of which the police are aware, which, when considered along with the otherwise innocuous conduct, tend to indicate criminal activity has occurred or is about to take place.
In all circumstances, "the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling." Brignoni-Ponce, 422 U.S. at 885. Nevertheless, "while an officer may evaluate the facts supporting reasonable suspicion in light of his experience, experience may not be used to give the officers unbridled discretion in making a stop." Nicacio v. INS, 797 F.2d 700, 705 (9th Cir. 1986), overruled in part on other grounds in Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); see also United States v. Jimenez-Medina, 173 F.3d 752, 754 (9th Cir. 1999). In other words, an officer's experience may furnish the background against which the relevant facts are to be assessed, see Cortez, 449 U.S. at 418, as long as the inferences he draws are objectively reasonable; but "experience" does not in itself serve as an independent factor in the reasonable suspicion analysis.
2. The Factors Considered by the District Court
As noted above, the district court based its determination that reasonable suspicion existed on a series of factors: 1) the U-turn made before the checkpoint by the two cars; 2) the driving in tandem and the Mexicali license plates; 3) the area at which the U-turn occurred included a well-known drop-off point for smugglers; 4) the Hispanic appearance of the three defendants; and 5) Renteria-Wolff's picking up the newspaper after glancing back at the patrol cars. Although we agree with the district court that reasonable suspicion did exist to justify an investigatory stop, we conclude that some of the factors on which the district court relied are not relevant or appropriate to the reasonable suspicion analysis. We begin by considering the factors in that category, before turning to address those which the district court properly considered.
In concluding that reasonable suspicion existed, both the district court and the panel majority relied in part upon the Hispanic appearance of the three defendants. We hold that they erred in doing so. We first note that Agent Johnson testified at the suppression hearing that the majority of people who pass through the El Centro checkpoints are Hispanic, and thus, presumably have a Hispanic appearance.
As we stressed earlier, reasonable suspicion requires particularized suspicion. See Wardlow, 120 S. Ct. at 676; see also Hernandez-Alvarado, 891 F.2d at 1417; Jimenez-Medina, 173 F.3d at 754. Where, as here, the majority (or any substantial number) of people share a specific characteristic, that characteristic is of little or no probative value in such a particularized and context-specific analysis. See Rodriguez-Sanchez, 23 F.3d at 1492 (holding that reasonable suspicion cannot be based "on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped"). As we put it in Rodriguez, "we are not prepared to approve the wholesale seizure of miscellaneous persons . . . in the absence of well-founded suspicion based on particular, individualized, and objectively observable factors which indicate that the person is engaged in criminal activity." 976 F.2d at 596 (holding that a stop cannot be upheld where the factors tendered as justification are "calculated to draw into the law enforcement net a generality of persons unmarked by any really articulable basis for reasonable suspicion . . . .") (emphasis added).
In arriving at the dictum suggesting that ethnic appearance could be relevant, the Court relied heavily on now-outdated demographic information. In a footnote, the Court noted that:
The 1970 census and the INS figures for alien registration in 1970 provide the following information about the Mexican-American population in the border States. There were 1,619,064 persons of Mexican origin in Texas, and 200,004 (or 12.4%) of them registered as aliens from Mexico. In New Mexico there were 119,049 persons of Mexican origin, and 10,171 (or 8.5%) registered as aliens. In Arizona there were 239,811 persons of Mexican origin, and 34,075 (or 14.2%) registered as aliens. In California there were 1,857,267 persons of Mexican origin, and 379,951 (or 20.4%) registered as aliens.
Brignoni-Ponce, 422 U.S. at 886 n.12. Brignoni-Ponce was handed down in 1975, some twenty-five years ago. Current demographic data demonstrate that the statistical premises on which its dictum relies are no longer applicable. The Hispanic population of this nation, and of the Southwest and Far West in particular, has grown enormously — at least five-fold in the four states referred to in the Supreme Court's decision. According to the U.S. Census Bureau, as of January 1, 2000, that population group stands at nearly 34 million. Furthermore, Hispanics are heavily concentrated in certain states in which minorities are becoming if not the majority, then at least the single largest group, either in the state as a whole or in a significant number of counties. According to the same data, California has the largest Hispanic population of any state — estimated at 10,112,986 in 1998, while Texas has approximately 6 million. As of this year, minorities — Hispanics, Asians, blacks and Native Americans — comprise half of California's residents; by 2021, Hispanics are expected to be the Golden State's largest group, making up about 40% of the state's population. Today, in Los Angeles County, which is by far the state's biggest population center, Hispanics already constitute the largest single group.
In this case, the two cars driven in tandem by Montero-Camargo and Sanchez-Guillen made U-turns on a highway, at a place where the view of the border officials was obstructed, and stopped briefly at a locale historically used for illegal activities, before proceeding back in the direction from which they had come. The U-turn occurred at a place at a location where it was unlikely that the cars would have reversed directions because they had missed an exit. Moreover, the vehicles in question bore Mexicali license plates and the U-turn occurred just after a sign indicating that a Border Patrol checkpoint that had been closed for some time was now open. We conclude that these factors, although not overwhelming, are sufficient to constitute reasonable suspicion for the stop. In reaching that result, however, we firmly reject any reliance upon the Hispanic appearance or ethnicity of the defendants. We also do not consider Renteria-Wolff's behavior in glancing at the Border Patrol car in the rear view mirror and then picking up and reading a newspaper.
In affirming the district court's ruling, we note that the agents' initial decision to investigate the tip and to pursue the two vehicles was made without any knowledge on their part of the defendants' ethnicity or Hispanic appearance. Agents Johnson and Fisher observed that appearance only when the officers subsequently caught up with the defendants' cars. Moreover, the agents had enough information to justify the stop before they became aware of the defendants' likely ethnicity. Under these circumstances, there is no need to remand the matter to the district court for reconsideration of its decision. Instead, we AFFIRM the district court's denial of the motion to suppress.