Saturday, August 17, 2019

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Vernellia Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

Article Index

B. Airport Stops: Drug Courier Profile

The use of drug courier profiling is also used at airports, bus stations, and with other modes of transportation to stop and search African-American males. As an African-American male who travels by plane on a frequent basis, I am normally one of three or four African-Americans on the plane. My personal observation is that the percentage of airplane travelers that are African-American is extremely small. However, a review of statistics on African-Americans who are stopped and searched by the United States Drug Enforcement Administration (DEA) reveals that African-Americans are disproportionately stopped. The DEA has developed what is known as drug courier profiles. In United States v. Elmore, a DEA agent provided the following characteristics of a drug courier profile:

The seven primary characteristics are: (1) arrival from or departure to an identified source city; (2) carrying little or no luggage, or large quantities of empty suitcases; (3) unusual itinerary, such as rapid turnaround time for a very lengthy airplane trip; (4) use of an alias; (5) carrying unusually large amounts of currency in the many thousands of dollars, usually on their person, in briefcases or bags; (6) purchasing airline tickets with a large amount of small denomination currency; and (7) unusual nervousness beyond that ordinarily exhibited by passengers. The secondary characteristics are (1) the almost exclusive use of public transportation, particularly taxicabs, in departing from the airport; (2) immediately making a telephone call after deplaning; (3) leaving a false or fictitious call-back telephone number with the airline being utilized; and (4) excessively frequent travel to source or distribution cities. These characteristics appear to be race-neutral and had race been listed, it would have raised constitutional concerns (e.g., a violation of the Equal Protection Clause of the Constitution). Courts have consistently held that the discriminatory investigation of citizens on the basis of race certainly violates [the Constitution], engenders distrust of law enforcement officials, and perpetuates the perception among minority citizens that they are second-class citizens, and are likely to be suspected of wrongdoing solely because of their race or ancestry. African-American males, in particular, view law enforcement officials with suspicion and distrust. The practice of drug courier profiling of African-American men further perpetuates the conflict between African-American males and law enforcement officials.

Even though the profile appears to be neutral on its face, the question still remains whether there are code words within these neutral terms that law enforcement officers interpret and manipulate to reach African-American travelers, particularly African-American males.

The enforcement of the drug courier profile by law enforcement officers has resulted in African-American males being detained, searched, humiliated, and embarrassed while exercising their constitutional right to travel. Based on the disproportionate number of African-American males stopped, it appears that the government's profile of a drug courier has become in practice the black male drug courier profile.

Courts have become suspicious of the use of the drug courier profile, however, the Court has failed to address the disparity in a manner to ensure equity in the enforcement of drug laws. For example, in Jones v. United States Drug Enforcement Administration, the court stated [i]t is clear from the testimony that [the] officers approached [the travelers because of their race]. Moreover, Jones presented evidence of other incidents where African-Americans were stopped without probable cause; however, the court refused to grant Jones's request for injunctive relief against the DEA.

In United States v. Travis, the evidence clearly supported the conclusion that airport detectives targeted African-American travelers by using a race-based profile. The evidence presented by defendants indicated that in 1992, twenty of the twenty-one individuals arrested at the Kentucky airport were of African-American or Hispanic descent. Even though the court expressed concerns that African-Americans may be targeted for searches at the airport, it nevertheless upheld the search as being lawful.

Further, in United States v. Weaver, a DEA agent stopped an African-American male at the Kansas City International Airport, because he was a roughly dressed young black male who might be a member of a Los Angeles street gang that had been bringing narcotics into the Kansas City area. Even with this evidence, the Eighth Circuit Court of Appeals, nevertheless, affirmed the district court's decision denying Weaver's motion to suppress evidence obtained by the government when he was stopped. In affirming the lower court's decision, the court of appeals acknowledged that had the decision to stop the African-American male been based solely on his race, the Constitution would have been violated. The court, however, focused on the fact that the DEA agent also relied on race-neutral evidence to stop and question Weaver. Based on this analysis, law enforcement officers can easily circumvent the constitutional rights of African-American males by connecting racial factors with race-neutral factors in their decision to stop any individual. At the same time the Eighth Circuit stated that it agreed with the dissent, that large groups of our citizens should not be regarded by law enforcement officers as presumptively criminal based on race. Nevertheless, African-American males who travel by plane or other modes of transportation may automatically be suspected of engaging in illegal activities solely based on the color of their skin. Proving that the DEA or other law enforcement officials are engaged in racial profiling in the enforcement of drug laws is almost impossible.

The Supreme Court decision in Whren gave law enforcement officers the authority to stop African-American males, and other minorities, on the basis of their race, and the Supreme Court decision in United States v. Armstrong made it virtually impossible to prove that law enforcement officers were intentionally engaged in stopping African-American males. For all practical purposes, Armstrong gave law enforcement officials unfettered authority to profile, stop, search, and prosecute African-Americans, particularly black males during the war on drugs. If there was ever a case where the statistical data clearly supported a pattern and practice of selective enforcement on the basis of race, it would have been Armstrong.

In Armstrong, the Federal Bureau of Alcohol, Tobacco, and Firearms and the Narcotics Division of Inglewood, California, Police Department had infiltrated a suspected crack distribution ring by using three confidential informants. As a result of the drug sting, Armstrong and other African-American males were indicted. Defendants filed a motion for discovery or for dismissal of the indictment alleging that the government had engaged in selective prosecution on the basis of race. To support their claim, they submitted an affidavit of an employee of the office of the Federal Public Defender described as stating:

. . . in every one of the 24 841 or 846 [drug] cases closed by the office during 1991, the defendant was black. Accompanying the affidavit was a study listing the 24 defendants, their race, whether they were prosecuted for dealing cocaine as well as crack, and the status of each case.

Over objections by the Government the district court granted the motion for discovery. It ordered the Government:

(1) to provide a list of all cases from the last three years in which the Government charged both cocaine and firearms offenses, (2) to identify the race of the defendants in those cases, (3) to identify what levels of law enforcement were involved in the investigations of those cases, and (4) to explain its criteria for deciding to prosecute those defendants for federal cocaine offenses.

After appeals to the Ninth Circuit, the Supreme Court granted certiorari to establish the standard for discovery for a selective prosecution claim.

The Supreme Court acknowledged that the government is prohibited from using race as a basis to prosecute. From there, the Court established a heightened standard which ties the hands of defendants from discovering evidence to support their claim of selective enforcement. The Supreme Court held that to establish a selective prosecution claim the claimant:

Must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.

The Supreme Court also held that this standard even applies when defendants are seeking discovery to prove their claim. The difficulty in selection cases is identifying whites who are treated more favorably by the prosecutor in the enforcement of drug laws. The Court incorrectly hypothesized that the similarly situated standard will not make selective prosecution claims impossible to prove. Subsequent selective enforcement cases, where a discovery motion to discover evidence to support similarly situated whites were treated more favorably, have been denied based on the Court's decision in Armstrong, thus leaving defendants, especially African-American male defendants, without sufficient evidence to support their claim.

The difficulty in meeting the Armstrong standard is illustrated in United States v. Barlow. Barlow, an African-American male, was stopped by DEA agents at Chicago's Union Station after he purchased two one-way tickets to Topeka, Kansas. The DEA agents indicated that Barlow and his companion were stopped because they kept glancing over their shoulders at the agents and whispering to one another. After receiving consent to search their bags, the DEA agents found drugs and weapons. Barlow and his companion were arrested.

In Barlow's motion for discovery under the Armstrong standard, he alleged that he had been pursued, stopped, interviewed, and investigated by Drug Enforcement Administration agents based on his race. Barlow presented preliminary statistical evidence which indicated that African-American males were singled out for stops, whereas white males were not. He requested the names and races of all individuals stopped by the agents during a five year period. In rejecting his motion, the court held that allegations of racial profiling are analyzed under the same standard of complaints of selective prosecution. The court stated that Barlow needed to demonstrate that the agents' actions had a discriminatory effect and that the agents had a discriminatory purpose when they approached him. . . . Without this evidence, Barlow could not meet the standard in Armstrong to obtain discovery on a claim of racial profiling.

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