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June 1991 M Volume 60 Law Enforcement Bulletin Number 6 [!=eatures

Pharmaceutical Diversion and Abuse ISO S B :3 1 By Thomas C. Babicke ROP-ing in Fences I 30 .3 0 4 6 By James Trainum, Nancy Brown, and Raymond Smith, Jr. Drug Abuse and Testing in Law Enforcement 12 By Andrew J. Harvey l.s D :5 0 S-

Plateauing in Law Enforcement I.'] 0 ';> 0", 16 By James M. Childers l,) 19 Gunshot Primer Residue 13030 J Page 19 By Roger W. Aaron Military Support to Civilian I J C> :3 (') (5) 24 Law Enforcement Agencies By R. Barry Cronin Detaining Suspected Drug Couriers: J::5 0 :5 0 '1 27 Recent Court Decisions By William U. McCormack

Departments

5 Book Review 22 The Bulletin Reports Page 27 10 Police Practices

United States Department of Justice Editor-Stephen D. Gladis, D.AEd. Federal Bureau of Investigation Managing Editor-Kathryn E. Sulewski Washington, DC 20535 Art Dlrector-John E. Ott Assistant Editors-Alice S. Cole William S. Sessions, Director Karen F. McCarron Production Manager-Andrew DiRosa Contributors' opinions and statements Staff Assistant-Garolyn F. Thompson should not be considered as an endorsement for any policy, program, or The FBI Law Enforcement Bulletin service by the FBI. (ISSN-0014-5688) is published monthly by the Federal Bureau of Investigation, 10th and The Attorney General has determined that Pennsylvania Avenue, N.W., Washington, The Cover: Prescription medication misuse the publication of this periodical is necessary D.C. 20535. Second-Class postage paid at and abuse contributes tv the drug problems in the transaction of the public business Washington, D.C., and additional mailing in this country. See article p. 1. required by law of the Department of Justice. offices. Postmaster: Send address changes Use of funds for printing this periodical has to FBI Law Enforcement Bulletin, Federal been approved by the Director of the Office Bureau of Investigation, Washington, D.C. of Management and Budget. 20535

ISSN 0014-5688 USPS 383-310 13CJ30tq

Detaining Suspected Drug Couriers Recent Court Decisions

By WILLIAM U. McCORMACK

ince 1968, the U.S. Supreme may quickly confirm or dispel an The purpose of this article is Court has recognized the officer's suspicion that the individ­ to alert law enforcement officers to Sconstitutional authority oflaw ual detained is a drug smuggler or the constitutional requirement for enforcement officers to temporar­ courier. reasonable suspicion and to assist ily detain an individual on less In the course of drug interdic­ them in deciding whether reason­ than probable cause. I Temporary tion efforts, some law enforcement able suspicion exists to detain a detentions have become an impor­ agencies have developed lists of suspected drug courier. It examines tant tool of law enforcement in factors and so-called drug courier recent court decisions addressing stopping the flow of illegal drugs profiles2 to assist officers in decid­ whether police had established into and around the United States. ing whether to detain a suspect. Some reasonable suspicion to detain sus­ A temporary detention based on of these factors and profiles have pected drug couriers and the extent reasonable suspicion gives offi­ been challenged on constitutional to which drug courier profiles can cers an opportunity to develop grounds when a law enforcement be used by police to establish rea­ probable cause through the use of officer employs them in detaining or sonable suspicion.This article then a trained drug-sniffing dog, fur­ stopping travelers in bus and train offers law enforcement officers ther questioning of a suspect, and stations, airport terminals, and on some specific recommendations other investigative efforts that the highways. regarding the types of facts and

------June1991 127 observed behavior that can con­ to detain a person must be based on suspect appeared nervous during his stitutionally be used to establish a totality of the circumstances and return flight to Honolulu. Again, he reasonable suspicion for a tempo­ that the concept of reasonable suspi­ had not checked any luggage and rary detention. cion is not readily or even usefully was dressed exactly as when he left reduced to a neat set of legal rules. Honolulu. After getting off the plane, USEFULNESS OF PROFILES The Court reviewed the use of a drug the couple was detained by DEA In 1989, the U.S. Supreme Court courier profile in Sokolow, but did Agents, who asked the suspect for decided United States v. Sokolow,3 a not find that the use of a profile his ticket and identification. They case involving the use of a drug either added to or detracted from the were told that he did not have them courier profile to detain an individ­ significance of the factors relied upon and that his name was Sokolow. ual in an airport. In Sokolow, the to detain a suspected drug courier. Sokolow and his companion were Court held that reasonable suspicion Rather, the Court found that based then escorted to the DEA office at on a totality of the circumstances, all the airport, and shortly thereafter, of the factors taken together amounted a drug-sniffing dog alerted on to reasonable suspicion to detain the Sokolow's brown shoulder bag, defendant. which was then searched pursuant to a search warrant. After a second ... each decision to Factual Background of Sokolow search warrant was later obtained, " In Sokolow, a young man (the detain an individual 1,063 grams of cocaine were found suspect) approached a ticket agent at in a different bag. must be judged on the Honolulu International Airport The U.S. Court of Appeals for the individual facts and requested two round-trip tickets the Ninth Circuit reversed Sokolow's available... at the tilne to Miami for a flight leaving later subsequent conviction on the grounds of the stop, viewed in that day. He was dressed in a black that there was insufficient reason­ light of the officer's jumpsuit and was wearing gold able suspicion to detain him at the training and jewelry. The suspect, appearing airport and that this illegal detention nervous, told the ticket agent that the tainted the subsequent search of the experience. tickets were for Andrew Kray and bag. The U.S. Supreme Court re­ Janet Norian and paid for them with versed the Ninth Circuit and held $20 bills taken from a large roll of that under a totality of the circum­ twenties. He and his female com­ stances, there were sufficient facts " panion did not check their four pieces known by the DEA Agents to justify of luggage when they later boarded Sokolow's detention. their flight. After the ticket agent informed Reasonable Suspicion Based on police about the cash purchase of the Totality of Circumstances tickets, an officer checked the phone In analyzing the facts needed number given by the suspect and to detain a suspected drug courier, determined that it was not listed in the Supreme COUlt stated in Sokolow the name Andrew Kray. The officer that an officer must be able to articu­ then determined that the suspect late something more than an un­ and his companion had reservations particularized suspicion or hunch. to return from Miami to Honolulu The Court added that the level of just 3 days from the date of their suspicion is considerably less than Special Agent McCormack is a legal departure. instructor at the FBI Academy in proof of wrongdoing by a prepon­ Quantico, Virginia. Drug Enforcement Administra­ derance of the evidence and obvi­ tion (DEA) Agents observed that the ously less than that needed for

28/ FBI Law Enforcement Bulletin ------probable cause.4 In finding that rea­ suspicion must require the in establishing reasonable suspicion sonable suspicion existed based on a Agent to articulate the factors to detain. totality of the circumstances, the Court leading to that conclusion, stated that the primary facts the DBA but the fact that these factors PROFILES AS Agents relied upon to justify their may be set forth in a 'profile' INVESTIGATIVE AIDS stop were: does not somehow detract Sokolow makes it clear that 1) Sokolow paid $2,100 for from their evidentiary law enforcement officers should not two airplane tickets from a significance as seen by a rely exclusively on drug courier roll of $20 bills; trained agent. "7 profiles ot a magical number of matching factors to establish reason- 2) He traveled under a name able suspicion to detain a suspected that did not match the name , drug courier. Nonetheless, profiles under which his telephone can be particularly useful for a law number was listed; ... the legal basis for a enforcement officer who is recently 3) His original destination temporary' detention hired or transferred from a different was Miami, a source city for . . I h assignment. illicit drugs; IS simp y t e Officers who have extensive 4) He stayed in Miami {or presence or absence experience conducting drug inter- only 48 hours, even though a of reasonable diction efforts in a particular airport round-trip flight from suspicion based on a or other public facility or area are Honolulu to Miami takes 20 totality of the likely to gain valuable knowledge about drug trafficking in that loca- hours; c"cums. tances.... . I .. h tion. Puttmg t 1at expenence mto t e 5) He appeared nervous , , format of a profile can be a useful during his trip; and I...... way for experienced officers to pass 6) He checked none of his that knowledge and experience to 5 luggage. Illustrative of the judicial dis­ another officer. A profile based on agreement regarding the probative such knowledge and prior experi­ Judicial Disagreement­ value of profiles, the dissent in ence was viewed by one court as Probative Value of Profiles Sokolow analyzed the use of drug having the following investigative The probative value of drug courier profiles at greater length. and factual significance: courier profIles was raised in Sokolow They concluded that a law enforce­ "Indeed, the use of a profile because a DBA Agent testified dur­ ment officer's mechanistic applica­ is simply a means by which ing the suppression hearing that tion of a drug courier profile in de­ the law enforcement team Sokolow's behavior "had all the ciding whom to detain can only dull communicates its collective classic aspects of a drug courier."6 the officer's ability and determina­ expertise and empirical In response, Sokolow argued that tion to make sensitive and fact-spe­ experience to the officer in the DBA Agent's belief that his cific decisions based on experience, the field and by which the behavior was consistent with one particularly in ambiguous or border­ officer, in turn, explains the of the DBA's drug courier profiles line cases.8 special significance of his should detract from the probative Sokolow suggests that drng observations to the court.9 or evidentiary significance of some courier profiles should not be con­ Profiles can aid courtroom of the profile factors the Agent sidered by officers as a panacea testimony by helping officers to observed. The Court disagreed as for establishing reasonable suspi­ articulate the special significance follows: cion to detain an individual. How­ of their observations. They can "A court sitting to determine ever, courts appear to allow officers give officers a structured means to the existence of reasonable to use profiles as an investigative aid articulate reasonable suspicion based

------June1991 129 on personal experiences and a means such as use of an alias or false name lish reasonable suspicion to detain to organize knowledge received from in travel, furtive or evasive behavior an individual. I2 other officers involved in previous after seeing law enforcement offi­ For example, the U.S.Court of drug investigations. Moreover, offi­ cers, the unusual purchase of a ticket Appeals for the Sixth Circuit found cers who identify the typical charac­ with cash, and the receipt by police insufficient facts to justify a tempo­ teristics of drug couriers and then of information or an anonymous tip rary detention in United States v. include those factors in a profile may that a particular person or type of Taylor. 13 In that case, the defendant be able to make more informed person is a drug courier. Most lower arrived in Memphis on a plane from decisions regarding the existence of courts applying Sokolow's totality Miami, Florida. His detention was reasonable suspicion, since a profile of circumstances test require police based on the following factors: can serve as a written list of factors to have some facts indicative of ille­ 1) Arrival from a drug-source that officers can use in making the gal activity before a temporary de­ city; decision whether to detain. tention is deemed lawful. 2) Walking away from the Probative Value of Observed Innocent citizens gate nervously and hurriedly Behavior Most courts hold that reason­ moving faster than the other Since the legal basis for a able suspicion requires police to have passengers; temporary detention is simply the more than merely facts and circum­ 3) Constantly looking presence or absence of reasonable stances that describe a very large backwards while walking; suspicion based on a totality of the 4) Carrying a tote bag held circumstances, officers involved in tightly to his body; and such stops should be aware of court decisions involving reasonable sus­ 5) Leaving the terminal picion decided in their jurisdiction. ... reasonable walking very fast. 14 While each fact pattern is different, "suspicion to detain The court also disapproved of there are common patterns in these requires factors or the stop on the grounds that the offi­ court decisions that can provide guid­ facts indicative or cers involved in the detention had ance to officers who must decide little experience in identifying drug probative of illegal couriers. Also, testimony at the sup­ whether reasonable suspicion exists drug trafficking .... to detain a suspected drug courier pression hearing indicated that the temporarily. defendant's race and grungy cloth­ Courts tend to divide facts ing may have been impermissibly officers may attempt to use to estab- ...... ~ considered by the officers in their " decision to detain. 15 lish reasonable suspicion into two general categories. The first cate­ category of innocent citizens, such Facts indicative gory includes facts that describe a as no checked luggage, last or first of illegal activity large number of innocent citizens, off an airplane, nervousness or ex­ such as nervousness, destination or treme confidence, early or late travel, Most courts hold that reason­ arrival at a "drug source" or "drug re­ flashy or grungy clothing, and travel able suspicion to detain requires ception" city, manner of attire, time to or from a drug-source city.lO In factors or facts indicative or proba­ of travel, position among disembark­ the context of vehicle stops, facts in tive of illegal drug trafficking, such ing passengers, no checked luggage, this category could include a young as the use of a false name,16 the and extreme confidence, such as person driving a late model sports unusual purchase of a ticket with looking straight ahead and walking car or a person driving extremely cash, 17 and furtive or unusual behav­ fast. cautiously on an interstate highway. II ior after seeing law enforcement Th~ second category consists Such otherwise innocent conduct officers. IS In the context of vehicle of facts indicative of illegal activity, is generally not sufficient to estab- stops, courts have found reasonable

30/ FBI Law Enforcement Bulletin ------______suspicion where officers observed the defendant was talking to "Reasonable suspicion is a evidence associated with drug traf­ DEA Agents, she appeared less demanding standard than ficking, such as seeing a beeper and nervous and attempted to probable cause not only in papers with telephone numbers in a conceal the contents of her the sense that reasonable car or seeing a car with a large trunk purse, which made a loud suspicion can be established with the items normally kept in the thud when placed on a trash with information that is 22 trunk on the back seat. 19 can. different in quantity or Information that Tips the Scale Highly probative in determin­ ing reasonable suspicion is the re­ ceipt by law enforcement of infor­ In analyzing the facts needed to detain a mation or a tip that a particular person suspected drug courier. .. an officer must be or type of person is a drug courier.20 " For example, in United States v. able to articulate something more than an Condolee,21 the U.S. Court of Ap­ unparticularized suspicion or hunch. peals for the Eighth Circuit upheld a temporary detention of a stylishly dressed black woman at the Kansas City International Airport based on " the following factors: Anonymous Tips and content than that required to 1) The DEA Agent involved Corroboration establish probable cause, but in the stop had 17 years' The U.S. Supreme Court re­ also in the sense that reason­ experience with substantial cently held in Alabama v. White23 able suspicion can arise from experience in drug trafficking that an anonymous tip when suffi­ information that is less investigations; ciently corroborated can provide reliable than that required to 2) The defendant arrived reasonable suspicion to detain an show probable cause. "24 early in the morning from individual. In that case, police re­ Thus, informant information or Los Angeles, a source city ceived an anonymous tip that the anonymous tips not reliable enough especially for early courier defendant would be leaving a par­ to provide probable cause may pro­ dispatch; ticular apartment at a particular vide the justification for a temporary time in a brown Plymouth station detention, especially when corrobo­ 3) The Agent involved had wagon with the right taillight lens rated by observed behavior that has received a tip that two Los broken; that she would be going to probative value in determining rea­ Angeles street gangs were a certain motel; and that she would sonable suspicion.25 using "sharply dressed black be in possession of about an ounce female couriers" to smuggle of cocaine inside a brown attache SUMMARY drugs through the Kansas case. Police went to the apartment, In order to stop and detain City airport; saw the defendant leave and enter someone under the fourth amend­ 4) The defendant was the station wagon, and stopped ment, the U.S. Constitution requires traveling only with carry-on her just short of the motel to which that a law enforcement officer jus­ luggage and walked quickly the tipster had predicted she would tify the stop on something more than and directly, while looking drive. a mere suspicion or hunch. The stop straight ahead; and In approving the stop, the Court must be based on an articulable and 5) Prior to the actual described the reasonable suspicion reasonable suspicion that criminal temporary detention when standard as follows: activity is afoot.

------June1991/31 In developing and articulating Court found these facts insufficient to justify a IS ld. at 1409. temporary detention. 16 Florida v. Royer, 460 U.S. 491 (\ 983) and reasonable suspicion, a profile can II See, e.g., State v. JOhliSOll, 561 So.2d Ullited States v. Tavolacci, 895 F.2d 1423 (D.C. be a useful tool in categorizing and 1139 (Fla. 1990) (late model car being driven Cir., 1990). cautiously at 4: 15 a.m. by 30-year-old male on 17 Ullited States v. Colyer, 878 F.2d 469 attaching particular significance to 1-95 not sufficient reasonable suspicion to (D.C. Cir. 1989) and Ullited States v. Sterling, otherwise innocent behavior. How­ justify stop of car on suspicion of drug 909 F.2d 1078 (7th Cir. 1990). trafficking); Snow v. State, 578 A.2d 816 (Md. IK See, e.g., Florida v. Rodriguez, 469 U.S. I ever, each decision to detain an App. 1990) (avoidance of eye contact by nerv­ (1984) (suspects glancing over shoulders and individual must be judged on the ous driver stopped on 1-95, the presence of overheard saying, "Let's get out of here."); several air fresheners, and driver's refusal to United States v. Sul/iI'al/, 903 F.2d 1093 (7th individual facts available to an offi­ consent to search did not give reasonable Cir. 1990) (detention of train traveler's luggage cer at the time of the stop, viewed suspicion to detain for drug trafficking; Ullited upheld based on travel from Los Angeles, a States v. Hemal/dez-AiI'arado, 891 F.2d 1414 source city, one-way ticket purchased with cash in light of the officer's training and (9th Cir. 1989) (no reasonable suspicion to stop on date of departure, defendant only carrying experience. When agent observed car bought from one small bag and appeared to divert eyes from dealership associated with drug dealers, two­ police officers when followed by them, and Officers are encouraged to way antenna protruding from large trunk, driver appeared to pretend to make a telephone call gather and evaluate as many facts as without actually placing any money in a public phone); United States v. Hayes, 825 F.2d 32 possible because the validity of a de­ (4th Cir. 1987) (the fact that defendants were tention is determined by a totality of traveling from a source city and appeared nervous not sufficient for reasonable suspicion, the circumstances test. Under this but when the defendants took flight after police test, most courts attach particular Profiles can aid identified themselves, detention based on " reasonable suspicion then justified). significance to certain factors, such courtroom testimony 19 See, DerricO( v. State, 578 A.2d 791 (Md. as the use of a false name, the un­ helping officers to App. 1990) (flashy vehicle and dress of young by driver, as well as possession of paging device usual purchase of a ticket with cash, articulate the special and papers bearing telephone numbers, gave unusual furtive or evasive behavior, reasonable suspicion to detain for drug traffick­ significance of their ing); Cresswell v. Slate, 564 So.2d 480 ,Fla. and the existence of informant infor­ 1990) (nervous driver on 1-95 in car with large mation or a tip that a particular observations. , , trunk driving car registered to someone else, CB in car, ignition key separate from other keys, person or particular type of person is and items normally kept in trunk on back seat likely to be a drug courier. provided reasonable suspicion to justify 1m detention of driver for drug trafficking). driving cautiously, and car registered in a 20 See, e.g., Ullited States v. Malone, 886 neighborhood known as a high drug smuggling F.2d 1162 (9th Cir. 1989) (stop in airport Footnotes area); and Ullited States v. Tapia, 912 F.2d 1367 justified, in part, on defendant fitting a "gang I Terry v. Ohio, 392 U.S. I (1968). See also, (11th Cir. 1990) (no reasonable suspicion to member" profile based on knowledge of DEA John C. Hall, "Investigative Detention: An detain a motorist for drug smuggling when offi­ Agents concerning Los Angeles street gang Intermediate Response, " FBI Law Enfurcement cer observed nervous Hispanic individual in car members transporting drugs into Seattle. Also, Bulletin, November and December 1985 and with out-of-State license allegedly traveling out defendant glanced around terminal furtively, January 1986; Jera ..lc O. Campane, "Investiga­ of State to look for work with no visible signs of carried only a plastic shoe bag for a 3-day stay, tive Detention and the Drug Courier: Recent luggage. Court stated that these characteristics had no identification, could not name anyone in Supreme Court Decisions," FBI La\l' Enforce­ could plausibly describe the behavior of a large Seattle to verify identity, and could not explain ment Bulletin, November J983. portion of the motorists engaged in travel on Ot .. presence in the city). 2 Drug courier profiles are typically interstate highways). See also, John Sauls, 21 915 F.2d 1206 (8th Cir. 1990). developed by law enforcement officers who "Traffic Stops: Police Powers Under the Fourth 221d. at 1210. work in a particular area. Because the factors in Amendment," FB! Law Enforcemelll Bulletin, 23 110 S.Ct. 2412 (1990). one area may vary significantly from other October 1989. 24M. at 2416. areas, it may be difficult to determine significant 12See, e.g., United Slates v.lvlillall, 912 F.2d 2S See, e.g., United Slates v. Lane, 909 F.2d factors nationwide. 10 14 (8th Cir. 1990) (reasonable suspicion to 895 (6th Cir. 1990) (informant's tip added to the 3109 S.Ct. 1581 (1989). detain traveler in an airport not present When totality of the circumstances justifying detention ·Id. at 1585. DEA Agents knew defendant had arrived on an of defendant for drug possession). sId. at 1583. early flight from San Francisco to Kansas City, 61d. at 1587, n. 6. was one of the first passengers to deplane, car­ 7 Id. at 1587. ried a garment bag and had not checked Law enforcement officers of SId. at 1588. luggage, dressed casually, wore a gold chain other than Federal jurisdiction who are 9 Derricot v. State, 578 A.2d 791 (Md. App. and had long hair, had purchased a one-way interested in this article should consult 1990). ticket costing $179 with cash, was not traveling their legal advisor. Some police lOIn Reid v. Georgia, 448 U.S. 438 (1980) under an assumed name, could not remember (per curiam), the petitioner arrived from Fort the address or telephone number of the person procedures ruled permissible under Lauderdale early in the morning, appeared to allegedly visited, and had something evenly Federal constitutional law are of conceal the fact that he was traveling with a shaped in the pockets of his jacket). questionable legality under State law companion and had not checked luggage. The 13 917 F.2d 1402 (6th Cir. 1990). or are not permitted at al/. 14 !d. at 1408.

32 I FBI Law Enforcement Bulletin