including defendant's arrival from a source city and the fact that he walked rapidly through the terminal among the "full spectrum of facts" giving rise to the requisite reasonable articulable suspicion for an investigatory detention
How later courts described this case
- including defendant's arrival from a source city and the fact that he walked rapidly through the terminal among the "full spectrum of facts" giving rise to the requisite reasonable articulable suspicion for an investigatory detention
- noting that a factfinder's choice between two permissible views of the evidence cannot be clearly erroneous
- “Relevant precedent has made clear that a seizure within the meaning and purpose of the fourth amendment does not occur when governmental agents approach a pedestrian, identify themselves as law enforcement officers, and solicit conversation or request an interview.”
- “The subjective intent of the officers is relevant to an assessment of the fourth amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted.”
Written by the judges who cited it.
The opinion
NATHANIEL R. JONES, Circuit Judge,
dissenting.
The compelling dissenting opinion of Judge Keith draws my unqualified concurrence. I also join the excellently reasoned dissent of Judge Martin. Their analyses prompt me to add a word for the purpose of highlighting two serious ironies posed by the majority. In noting these ironies, I have no intention of seeking to add to the scholarship so evident in the masterful opinions of Judges Keith and Martin, for I could not.
This Court must be reminded that its en banc opinion in this case comes forth when our nation is concluding its observance of the bicentennial of the Bill of Rights. The case clearly invokes the Bill of Rights and its promises to individual citizens. The majority issues its opinion from a building majestically draped with huge banners proclaiming the bicentennials of both the Bill of Rights and the Constitution. Yet, ironically, the majority reaches a conclusion in its opinion that is unworthy of those heralded documents.
There was absolutely no articulable basis, except that of race, for the law enforcement agents’ decision to “fix” on the appellant as he deplaned at the Memphis Airport. He was one of a “steady stream of passengers.” See supra, p. 574. The claim that Taylor was stopped because he was dressed differently is not at all persuasive, especially considering the assortment of attire that individuals today don for travel, nor is the charge that he was traveling with only one bag. A college student, for example, visiting home or another campus for a weekend, in all likelihood will not be dressed in business attire or resort-wear and, moreover, might well be carrying only an overnight bag. Other judges, courts, and commentators have remarked with amazement, disapproval, and despair that the characteristics of the “drug courier profile” are so fluid as to be contradictory, and so general as to encompass a realm of perfectly innocent behavior. See, e.g., United States v. Hooper, 935 F.2d 484 (2d Cir.1991) (Pratt, J., dissenting) (“The ‘drug courier profile’ ... is so fluid that it can be used to justify designating anyone a potential drug courier if the DEA agents so choose.”), cert. denied, — U.S. -, 112 S.Ct. 663 , 116 L.Ed.2d 754 (1991); United States v. Andrews, 600 F.2d 563, 566-67 (6th Cir.1979) (“[0]ur ex *592 perience with DEA agent testimony ... makes us wonder whether there exists any city in the country which a DEA agent will not characterize as either a major narcotics distribution center or a city through which drug couriers pass on their way to a major narcotics distribution center.”), cert. denied, 444 U.S. 878 , 100 S.Ct. 166 , 62 L.Ed.2d 108 (1979); United States v. Pulvano, 629 F.2d 1151 , 1155 n. 1 (5th Cir. 1980) (recognizing that every major population center has become home for drug trafficking); United States v. Westerbann-Martinez, 435 F.Supp. 690, 698 (E.D.N.Y.1977) (noting that the drug courier profile “seems to change itself to fit the facts of each case.”); Fluid Drug Courier Profiles See Everyone as Suspicious, 5 Crim.Prac. Man. (BNA) No. 14, at 333-36 (July 10, 1991) (citing a full page of contradictory characteristics held to fit the drug courier profile in cases across the country).
The principal, though unarticulated, reason for Taylor’s being singled out for questioning was his race. It is beyond dispute that race is a constitutionally impermissible basis upon which a law enforcement officer may decide to stop and search a person. Despite this established principle, the majority nevertheless validates the stop and seizure in this case. I can only assume that Judge Martin is correct in concluding that the majority’s unarticulated reason for taking such a step is furtherance of the war on drugs. While I sympathize with those whose job it is to fight this unfortunate war, I do not believe that it is the function of a court to facilitate the war in violation of the United States Constitution. On the contrary, courts exist to ensure that the Constitution is upheld, even in the face of national crises. The majority, however, in order to reach its result in this case, has signed on to a law-enforcement strategy that adroitly and skillfully circumvents the document which has been the foundation of our nation for two hundred years.
One would have hoped that at this stage in the United States’ development the lessons of our past would be learned: that in times of crisis, courts must be unyielding to the passions of the moment. That truism certainly springs, inter alia, from our World War II experience with the Ko-rematsu case. The country is in the midst of another war, albeit of a different type, and we would do well to remember the words of Justice Murphy’s dissent in Kore-matsu. He cautioned that while the “scope of ... discretion [of those waging the war] must, as a matter of necessity and common sense, be wide,” likewise “[¡Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” Korematsu v. United States, 323 U.S. 214, 234 , 65 S.Ct. 193, 202 , 89 L.Ed. 194 (1944) (Murphy, J., dissenting). Justice Murphy’s wisdom is demonstrated in that he actually predicted that the Korematsu decision might someday lead to a result such as the one the majority has reached in this case. Id. at 240 , 65 S.Ct. at 205 (Murphy, J., dissenting) (warning that the Court’s holding in Korematsu would “encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow”).
The final irony I wish to note is that the protections of the Bill of Rights are being weakened at the very time that South Africa and the countries of Eastern Europe are seeking to import them into their own body of laws. American jurists and lawyers are traversing the oceans to lend their expertise to the emerging democratic governments and freedom movements to this end. I can only hope that our example will continue to teach these nations that civil rights must be protected both in word and in deed.
Some may conclude that I am magnifying the significance of the majority holding. I do not think so. This Court has today joined in a tragic retreat from those principles that have made this nation stand as a beacon of hope to the oppressed throughout the world. It is a retreat in which I, and my dissenting colleagues, cannot, in silence, participate.
I respectfully dissent.