Petition — United States v. Mendenhall

me ae

78-1824 Tree

od JUN 5 i979

— P WrOnREL RODAK, Rey

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PETITIONER

Vv.

SYLVIA L. MENDENHALL

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

RICHARD A, ALLEN

Assistant to the Solicitor General

JOHN LOFTUS

DEBORAH WATSON

Attorneys

Department of Justice

Washington, D.C. 20530

Page

ELSE EE 1

EIEN TERS REPOS Sn CE 1

I I ec eeeneneemeene 2

DS SLES ETAT 2

Reasons for granting the petition .................... 11

SAREE ESSN eS a 23

NEE NT SS EES SSD CD TT la

SESE EIEN 8a

Eg EEE SET UE ME 9a

CITATIONS

Cases:

Adams v. Williams, 407 U.S. 148.......... 14, 15, 16

Beek v: Ohio, 379 US. SO .......:.....-..22-...-2--- 16

Bretti v. Wainwright, 489 F.2d 1042,

cert. denied, 404 U.S. 948 -.................. 23

Coates v. United States, 413 F.2d 371...... 21

Delaware v. Prouse, No. 77-1571 (March

ESE EATT SEU NS Se 14

Holland v. United States, 348 U.S. 121... 15

Lowe v. United States, 407 F.2d 1391...... 21

Schneckloth v. Bustamonte, 412 U.S. 218.. 23

Scott v. United States, 436 U.S. 128 ........ 21

Terry v. Onto, 392 US. 1 ........................ 7,14, 19

United States v. Ballard, 573 F.2d 913..3, 17, 18

United States v. Bazinet, 462 F.2d 982,

cert. denied, 409 U.S. 1010 ........... 9-10

United States v. Brignoni-Ponce, 422 U.S.

EEG ESE SE RTL 1 7,14,18

Cases—Continued Page

United States v. Brunson, 549 F.2d 348,

cert. denied, 434 U.S. 842 .................... 19

United States v. Chatman, 573 F.2d 565.. 3, 20

United States v. Cortez, No. 77-1987 (9th

ee I Is SUD iisdhacehsssntamileisorsiionne 18

United States v. Cyzewski, 484 F.2d 509,

cert. dismissed, 415 U.S. 902 ................ 18

United States v. Doran, 482 F.2d 929...... 18

United States v. Edwards, 498 F.2d 496.. 18

United States v. Elmore, No. 78-5304 (5th

ee TN Fi BE Jhasigiebledeciciavasesnsrsncnrases 3,19

United States v. Fike, 449 F.2d 191 -....... 23

‘United States v. Gibson, 392 F.2d 373...... 20

United States v. Grandi, 424 F.2d 399,

cert. denied, 409 U.S. 870 .................... 21

United States v. McCaleb, 552 F.2d 717.... 3, 8, 9,

12, 18, 15, 20

United States v. Oates, 560 F.2d 45..3, 18, 20, 21

United States v. Palazzo, 488 F.2d 942.... 18

United States v. Pope, 561 F.2d 663........ 3

United States v. Price, No. 78-1886 (2d

| SER Tee cea aD 3, 15, 18

United States v. Rico, 594 F.2d 320.......... 3

United States v. Richards, 500 F.2d 1025,

cert. denied, 420 U.S. 924 -................... 20

United States v. Salter, 521 F.2d 1326... 20

United States v. Short, 570 F.2d 1051...... 20

United States v. Troutman, 590 F.2d

SESE aD Pecan to oes 3, 23

United States v. Van Lewis, 409 F. Supp.

535, aff’d, 556 F.2d 386 .-....................... 8, 11, 17

United States v. Watson, 423 U.S. 411... 23

United States v. Wylie, 569 F.2d 62, cert.

I GPR Wills DPN ivnscttecnssctticnpnienns 19, 20, 21

m

Constitution and statute:

United States Constitution,

Fourth Amendment

21 U.S.C. 841(a) (1)

Iu the Sayreme Conrt of the United States

OCTOBER TERM, 1978

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

SYLVIA L. MENDENHALL

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the en banc court of appeals (App.

A, infra, la-7a) is not yet reported. The opinion of

the panel (App. B, infra, 8a) and the opinion of

the district court (App. C, infra, 9a-20a) are not

reported.

JURISDICTION

The judgment of the en banc court of appeals was

entered on April 6, 1979. On April 27, 1979, Mr.

(1)

2

Justice Stewart extended the time within which to file

a petition for a writ of certiorari to June 5, 1979.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether federal narcotics agents who approach

a person and ask for identification on the basis of

facts that in their experience indicate that the per-

son may be a narcotics courier violate the Fourth

Amendment whenever the observed facts can be said

to be consistent with innocent behavior.

2. Whether federal narcotics agents, in requesting

a suspected narcotics courier to move from the public

areas of an airline terminal to a nearby office for

further questioning, have effected an arrest that is

unconstitutional unless supported by probable cause.

8. Whether a suspect who is being illegally de-

tained can validly consent to a search.

STATEMENT

1. Since October 1974, the Drug Enforcement Ad-

ministration has operated an extensive airport sur-

veillance program designed to intercept couriers

transporting narcotics between major drug origina-

tion and distribution centers in the United States.

The program was primarily initiated and developed

by DEA agents at the Metropolitan Detroit Airport,

a major drug distribution center, and now operates

at more than 20 airports throughout the nation. The

program has resulted in the interdiction of substan-

tial quantities of illicit drugs and has also generated

3

a corresponding abundance of litigation in the lower

federal courts.‘ Under the program, trained and ex-

perienced agents observe arriving and departing pas-

sengers on certain flights for characteristics and be-

havioral traits which, on the basis of their collective

experience, have tended to distinguish drug couriers

from other passengers.* The DEA and its agents

in the field have also developed relatively standard

procedures for approaching and questioning individu-

als suspected of being drug couriers. This case rep-

1 For statistics relating to the success of the program in

interdicting narcotics and narcotics couriers, see App. A,

infra, 4a n.1; United States v. Van Lewis, 409 F. Supp. 535

(E.D. Mich. 1976), aff’d, 556 F. 2d 385 (6th Cir. 1977). See

also discussion, infra, page 11 n.18.

For some of the recent cases considering suppression mo-

tions arising out of the operation of the program see United

States v. Price, No. 78-1886 (2d Cir. May 18, 1979) ; United

States v. Rico, 594 F. 2d 820 (2d Cir. 1979); United

States v. Oates, 560 F. 2d 45 (2d Cir. 1977) ; United States v.

Elmore, No. 78-5304 (5th Cir. May 22, 1979) ; United States

v. Troutman, 590 F. 2d 604 (5th Cir. 1979) ; United States v.

Ballard, 573 F. 2d 913 (5th Cir. 1978) ; United States v. Pope,

561 F. 2d 663 (6th Cir. 1977) ; United States v. McCaleb, 552

F. 2d 717 (6th Cir. 1977); United States v. Chatman, 573

F. 2d 565 (9th Cir. 1977).

2 These traits and characteristics, sometimes referred to as

a “drug courier profile,” include such elements as round trips

of short duration between major drug centers, purchasing

tickets with cash (and particularly small bills), no baggage

except carry-on-items, deplaning last, and, in general, nervous

or unusual behavior. See United States v. Van Lewis, supra,

409 F. Supp. at 538. These guidelines, their development, and

the way in which they are used are more fully described at

page 17 n.17, infra.

4

resents a fairly typical example of the operation of

the airport surveillance program and of the legal

questions that it has generated.

2. Following a non-jury trial on stipulated facts

in the United States District Court for the Eastern

District of Michigan, respondent was convicted of

possession of heroin with intent to distribute it in

violation of 21 U.S.C. 841 (a) (1).°

The evidence at a pretrial suppression hearing

showed that early on the morniig of February 10,

1976, two DEA agents stationed at the Detroit Metro-

politan Airport were observing passengers deplaning

from an American Airlines flight from Los Angeles.

Los Angeles was known to the agents as a major

source of narcotics (Tr. 10-11, 20). Agent Anderson’s

attention was drawn to respondent, who was the last

person to leave the airplane. In his experience, which

included participation in more than 100 arrests dur-

ing his assignment to the Detroit Airport (Tr. 9;

App. C, infra, 18a-14a), drug couriers tend to de-

plane last, particularly on early morning flights, so

that they can more easily detect agents who might be

watching them (Tr. 12).

Anderson testified that respondent “completely

scanned the whole area where we were standing” and

“appeared to be very nervous” as she came off the

airplane (Tr. 11, 20). Respondent proceeded past

the baggage claim area but claimed no luggage—a

8 Respondent was sentenced to a term of 18 months’ im-

prisonment, to be followed by a three-year special parole term.

5

fact which the agents had found to be another com-

mon characteristic of drug couriers (Tr. 10, 12).

Respondent instead went to the Eastern Airlines

ticket counter (Tr. 18). Agent Anderson stood in

line directly behind her at the counter and watched

as she took from her purse an American Airline

ticket marked for travel from Los Angeles through

Detroit to Pittsburgh (Tr. 12-13). Respondent sought

to change her ticket from American to Eastern, but

kept Pittsburgh as her destination (Tr. 13); this

was significant to the agent because couriers fre-

quently change airlines to evade surveillance and de-

tection (Tr. 13-14).

Respondent then left the ticket counter and headed

for the Eastern flight departure gate (Tr. 14). The

agents approached her on the concourse, identified

themselves as federal agents, and asked to see her

identification and airline ticket (Tr. 14). Respond-

ent produced her driver’s license, which was in the

name of Sylvia Mendenhall. Her ticket, however,

was issued in the name of “Annette Ford.” When

asked why the ticket was under a different name,

respondent stated that she “just felt like using that

name” (Tr. 14). The agents’ suspicions were height-

ened when respondent stated that she had remained

in California only two days, which seemed an un-

usually brief period for a journey of that distance

(Tr. 10, 14-15). Agent Anderson then specifically

identified himself as a federal narcotics officer, and

respondent “became quite shaken, extremely nervous.

6

She had a hard time speaking” (Tr. 15).* Agent

Anderson then asked respondent if she would accom-

pany him to the DEA office (which was located less

than 50 feet away) for further questioning, and she

agreed (Tr. 15, 26). At the office, the agent asked

her if she would mind allowing a search of her per-

son and handbag and told her that she had the right

to decline the search if she so desired. She responded,

“Go ahead” (Tr. 16). She then handed Agent Ander-

son her purse, which contained a different airline

ticket, which had been issued to “F. Bush” three days

earlier for a flight from Pittsburgh through Chicago

to Los Angeles (Tr. 16). Respondent admitted that

this was the ticket on which she had flown to Cali-

fornia but gave no reason for using that additional

alias (Tr. 16).

A female police officer then arrived to search re-

spondent’s person (Tr. 16-17). She asked the agents

if respondent had consented to be searched (Tr. 34).

The agents said that she had, and respondent followed

the policewoman into a private room. There the

policewoman again asked respondent if she had con-

sented to the search, and respondent replied that she

had (Tr. 34). The policewoman explained that the

search would require the removal of respondent’s

clothing. As respondent removed her clothing, she

took a plastic package from her bra, which appeared

to contain heroin, and another package, wrapped in

4 The entire conversation in the concourse lasted only two or

three minutes (Tr. 15).

7

brown paper, from her underpants, and handed both

to the policewoman (Tr. 34-35).° The agents then

arrested respondent for possessing heroin (Tr. 17).

3. The district court denied respondent’s motion

to suppress the heroin found on her person (App. C,

infra, 9a-20a). The court concluded that the agents’

action in initially approaching respondent and asking

to see her ticket and identification was a permissible

investigative stop under the standards of Terry v.

Ohio, 392 U.S. 1 (1968), and United States v. Brig-

noni-Ponce, 422 U.S. 873 (1975), because it was

based on svecific and articulable facts that, in light

of the agents’ substantial experience,° justified a rea-

sonable suspicion of criminal activity and warranted

the limited intrusion involved (App. C, infra, 13a-

16a). The court also found that respondent was not

placed under arrest by having been asked to accom-

pany the agents to the DEA’s office, that she had done

so voluntarily and in a s} ‘rit of apparent cooperation,

and that she was not arrested until after she had been

searched (id. at 16a). Finally, the court, specifically

crediting Agent Anderson’s testimony, found that re-

spondent “gave her consent to the search [in the

5 The search took five to ten minutes (Tr. 17).

®The court noted (App. C, infra, 18a-l4a) that Agent

Anderson “has had ten years’ experience as a federal nar-

cotics agent; that he has attended several training sessions and

seminars to prepare him for his duties; that he has been as-

signed to the airport detail for more than a year and, in the

last year alone, has made approximately 100 arrests at the

airport.”

8

DEA office] and * * * such consent was freely and

voluntarily given” (ibid.)."

4. A panel of the court of appeals reversed in a

judgment order, stating only that “the court con-

cludes that this case is indistinguishable from United

States v. McCaleb, 552 F.2d 717 (6th Cir. 1977)”

(App. B, infra, 8a).

In McCaleb, the court suppressed heroin seized by

DEA agents at the Detroit Airport in substantially

similar circumstances. The court rejected the gov-

7 The court also concluded that, although respondent was

not arrested until after she had been searched and the heroin

discovered, the agents had probable cause to arrest her before

the search. The court outlined all of the facts known to the

agents at that time, including the fact respondent had been

travelling under two different aliases, and concluded (App.

C, infra, 18a): “Although each of these facts, in and of

themselves, are relatively innocuous and innocent, when all

of them are found to coincide, and all of them are known

characteristics of airborne drug couriers, they furnish the

officer observing them with probable cause. To hold otherwise

would be to direct DEA Agents to forget all of their training

and experience, to ignore the obvious, and to not use all of

the education and investigative know-how which they are re-

quired to acquire and cultivate in order to obtain and keep

their jobs.”

8 There are a number of differences between the facts in

McCaleb and the instant case: for example, McCaleb involved

three suspects travelling together; one of them claimed one

suitcase from the luggage claim, and the agent, in asking con-

sent to search the bag and advising them of their right to

refuse, also advised them that if consent were refused, he

would detain them while he sought a search warrant (552

F.2d at 719). But the salient facts of the two cases are sub-

stantially similar—-for example, round trips of short duration

to Los Angeles, carry-on luggage only, nervous behavior, use

9

ernment’s reliance on the agents’ experience and the

“drug courier profile” (see note 2, supra), holding

that the circumstances did not give rise to a reason-

able and articulable suspicion justifying the initial

approach and request for identification for the reason

that “[t]he activities of the appellants in this case ob-

served by DEA agents, were consistent with innocent

behavior.” 552 F.2d at 720.

The court in McCaleb further concluded that even

if the initial approach had been permissible, asking

the suspects to accompany the agents to a private

room for further questioning constituted an arrest

requiring probable cause because at that point “ap-

pellants * * * were not free to leave [and thus] the

arrest was clearly complete.” Jbid.* Finally, the court

in McCaleb concluded that the consent to search in

that case was not voluntary, primarily because of

what the court believed to be the unconstitutional

nature of the preceding stop and detention. Jd. at

720-721.”

of aliases, and consents to search—and they present the same

general questions of law.

*The opinion does not indicate the basis of the court’s

conclusion that the suspects were not free to leave; it may

have been based on the testimony of one of the agents at

the suppression hearing that if the suspects had sought to

leave, he would have restrained them. Whether the agent’s

subjective and uncommunicated intent on that matter has any

relevance to the legal questions involved is discussed infra,

page 21.

©The court relied for this conclusion on United States

Vv. Bazinet, 462 F. 2d 982, 989 (8th Cir.), cert. denied, 409

10

The case was reheard by the court en banc, which

reinstated the panel decision, stating simply that the

majority was convinced that in this case there was

not “valid consent to search within the meaning of

[McCaleb]” (App. A infra, 2a). The court also

stated that it should “not * * * attempt to formulate

definitive rules. Despite some general similarities,

every single case differs from every other in material

degree” (ibid.).

Judge Weick dissented. He noted that the major-

ity had declined to decide any of the “questions of

exceptional importance to be considered in connection

with investigations by experienced federal agents of

traffic in huge quantities of narcotics flowing into the

Detroit airport * * *” (App. A, infra, 4a). To the

extent the majority relied on principles stated in

McCaleb, Judge Weick concluded that “it is time to

overrule McCaleb and its progeny” (id. at 6a).”

U.S. 1010 (1972), in which the court stated that “the mere

fact that a person has been arrested in violation of his con-

stitutional rights casts grave doubts upon the voluntariness

of a subsequent consent. The government has a heavy burden

of proof in establishing that the consent was the voluntary

act of the arrestee and that it was not the fruit of the illegal

arrest” (footnote omitted).

11 The instant case was considered by the en banc court

jointly with United States v. Camacho, No. 78-5081. That

case presented many of the same issues as this one and was

disposed of by the court of appeals in the same manner. We

are not seeking review of the decision in Camacho because

of the presence of certain additional factual circumstances

that cast doubt upon the voluntariness of the consent to search

in that case.

11

REASONS FOR GRANTING THE PETITION

This case presents questions of exceptional impor-

tance to a major and highly successful law enforce-

ment program.” As noted in the Statement (page

2, supra), the DEA’s airport surveillance program

now operates in more than 20 cities. Its success in

interdicting the flow of narcotics is documented not

only in Judge Weick’s dissent (App. A, infra, 4a

n.l) but also by the numerous reported decisions

considering suppression claims arising out of its op-

eration (see note 1, supra).* By seeking to intercept

2 We believe that the questions we present are also of

general importance to the conduct of police investigations

in a wide variety of contexts. We focus here upon their special

importance to the airport surveillance program because that

is the context in which the court of appeals decided them and

because it is not certain to what extent the standards articu-

lated in McCaleb would be applied by that court in other

contexts.

** The operation and success of the Detroit airport program

is most fully described in the opinion of the district court in

United States v. Van Lewis, 409 F. Supp. 5385 (E.D. Mich.

1976), aff’d, 556 F. 2d 385 (6th Cir. 1977 ), issued following

an extensive suppression hearing. The court described the

background and operation of the program and the develop-

ment and use of the profile. It also found (409 F. Supp. at

539) that since the initiation of the program, “agents have

searched 141 persons in 96 airport encounters [i.e., encounters

where a search ensues] prompted by their use of the courier

profile and independent police work. * * * Agents found con-

trolled substances in 77 of the 96 encounters and arrested 122

persons for violations of the narcotics laws.” Further data

demonstrating the high success rate of the program and the

reliability of the courier profile was developed in the suppres-

12

the movement of substantial quantities of illicit drugs

from the importers to their customers, the retail dis-

tributors, the basic method and objective of the pro-

gram is a significant departure from and comple-

ment to more traditional methods of narcotics law

enforcement, such as searches and seizure at the

point of importation or operations directed at the

detection of retail (or “street’”’) sales by means of

informants and undercover purchases.

The operation of the airport surveillance program

typically involves—as it did in this case—three prin-

cipal and recurring features: (1) the initial contact

with the suspect for questioning and identification,

based in large part on characteristics and patterns

of behavior that the agents, through their collective

experience, have learned to associate with drug cour-

iers; (2) a request that the suspect move from the

public areas of the terminal to a nearby office if the

agents believe that further questioning is appropri-

ate; and (3) a request in the office for a consent to

search the suspect’s effects or person. The legal

standards established by the Sixth Circuit in United

States v. McCaleb, 552 F.2d 717 (1977), and relied

on by the en banc court in this case, if correct, mean

that the relatively standard practices developed and

sion hearing in United States v. Camacho and presented to the

court of appeals in our petition for rehearing in this case and

Camacho (C.A. App. in No. 78-5081 at 44-46). Some of those

statistics are set forth in Judge Weick’s dissent, App. A,

infra, 4a n.1.

13

followed by DEA in each of these three phases of the

airport surveillance program, which are believed to

contribute significantly to its successful operation,

are unconstitutional.

As we explain more fully below, the legal stand-

ards set forth in McCaleb are in direct conflict with

the decisions of other circuits and with general

Fourth Amendment principles delineated by this

Court. Even if we are wrong on the merits, however,

the issues are important and recurring; they war-

rant this Court’s plenary review in order to provide

needed guidance to law enforcement agencies like

DEA in the structuring of their programs and in

the training and supervision of their agents.

Corresponding to the three principal features of

the airport surveillance program, the decision below

and in McCaleb present three distinct legal questions:

(1) whether law enforcement officers may, on the

basis of observation of articulable facts that in their

experience suggest criminal activity but that are

“consistent with innocent behavior” (McCaleb, supra,

552 F.2d at 720), approach an individual in a public

place to ask questions and request production of

identification; (2) whether requesting a suspect to

go to a nearby office for further questioning converts

a permissible investigative stop into an arrest that

is invalid unless supported by probable cause; and

(3) whether an unlawful stop or arrest normally

precludes a valid consent to search, even when the

suspect has been advised of the right to refuse con-

14

sent. We submit that the court below decided each

of those questions incorrectly.

1. In Terry v. Ohio, 392 U.S. 1 (1968), and sub-

sequent cases, this Court has established that police

officers may briefly detain a person for investigative

purposes if they can point to specific facts that are

reasonably indicative of possible criminal activity

but that do not amount to probable cause—i.e., facts

that support a reasonable suspicion, but not neces-

sarily a reasonable conclusion, of criminality. See

Terry, supra, 392 U.S. at 20-27; Adams v. Williams,

407 U.S. 148, 146-149 (1972); United States v.

Brignoni-Ponce, 422 U.S. 873, 880-882 (1975). The

proper consideration, as the Court stated in Terry,

is whether an officer is “able to point to specific and

articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that

intrusion” (392 U.S. at 21; footnote omitted). The

lawfulness of the detention thus depends on considera-

tions both of the facts supporting the suspicion and of

the degree and purposes of the intrustion. See also

Delaware v. Prouse, No. 77-1571 (March 27, 1979),

slip op. 5.

Contrary to the implication of the court of ap-

peals’ opinion (App. A, infra, 2a), this case involves

more than simply the application of settled legal

principles to the varying facts of particular cases.

Rather, the court’s holding here and in McCaleb with

regard to the lawfulness of the initial encounter turn

upon several general propositions that have the effect

15

of severely curtailing, in a large class of cases, the

investigative activities of law enforcement officers.

a. In McCaleb (and presumably in this case), the

court of appeals found no reasonable suspicion war-

ranting the initial approach to the suspects, relying

on the ground that their observed behavior could be

said to be “consistent with innocent behavior.” 552

F.2d at 720. The proposition of law indicated by

that holding is, we submit, plainly incorrect; it finds

no support in Terry or, to our knowledge, any other

case, and it has been expressly rejected by the Second

Circuit. United States v. Price, No. 78-1386 (May

18, 1979), slip op. 2671. Virtually any set of facts

can be said to be consistent with some hypothesis of

innocent behavior, even if the facts would indicate an

extremely high likelihood of criminal activity to a

person of reasonable caution. Not even the reason-

able doubt standard imposes such a stringent cri-

terion on the fact-finder,“ to say nothing of the pro-

gressively more relaxed standards of probable cause

and reasonable suspicion. Certainly the facts war-

ranting reasonable suspicion and justifying the in-

trusions in Terry and in Adams v. Williams, 407

U.S. 143 (1972), could be said to have been consist-

ent with an hypothesis of innocent behavior. See

Terry v. Ohio, supra, 392 U.S. at 22.

It is difficult to imagine that the Sixth Circuit in

this case and in McCaleb understood Terry to re-

“See Holland v. United States, 348 U.S. 121, 139-140

(1954).

16

quire virtual certainty of criminality before an in-

vestigative stop is warranted. If not, however, it is

impossible to deduce what else the “consistent with

innocent behavior” standard does mean, particularly

in view of the court’s unwillingness to amend or

clarify that standard in McCaleb and in this case.”

In the absence of this Court’s review, agents and

district courts in the Sixth Circuit will lack any

meaningful guidance with respect to the lawfulness

of particular actions performed in the course of the

surveillance program.

b. It is almost as difficult to deduce the court of

appeals’ view of the relevance in these cases of the

set of common drug courier characteristics that the

agents have collectively developed in their extensive

experience—referred to popularly and by the court

as the “drug courier profile.” The court seems to

regard reliance by the agents on these characteristics

in initiating an encounter as largely irrelevant and

possibly improper.*® If so, we can see no rational

15 It is possible that the court meant to say that reasonable

suspicion cannot exist if the observed behavior is more con-

sistent with innocence than it is with criminality. If so, it

would be incorrect, because that would define “reasonable

suspicion” in terms of the standard for probable cause. See,

e.g., Adams V. Williams, supra, 407 U.S. at 148; Beck v. Ohio,

379 U.S. 89, 91 (1964).

6In both McCaleb (552 F. 2d at 720) and the en banc

decision in this case, the court stated that “the so-called drug

courier profile does not, in itself, represent a legal standard

of probable cause in this Circuit” (App. A, infra, 2a). In

McCaleb the court went on to state that “while a set of facts

may arise in which the existence of certain profile charac-

teristics constitutes reasonable suspicion, the circumstances of

this case do not * * *.” 552 F. 2d at 720. See also App. A,

17

basis for that view. In deciding whether to detain a

person for questioning it seems to us plainly appro-

priate—indeed commendable—for an agent to rely

not only on his own experience but also on the col-

lective experience of his colleagues and predecessors.”

infra, 2a. What is meant is not clear, but in finding no

reasonable suspicion in both cases—despite a substantial

correspondence of observed traits with profile characteristics

—the court appears to have concluded that such coincidence is

largely irrelevant and should be disregarded. See also United

States v. Van Lewis, 556 F. 2d 385, 889 (6th Cir. 1977 ) (“the

profile is too amorphous to be integrated into a legal stand-

ard’’) ; United States v. Ballard, 573 F. 2d 918, 916 (5th Cir.

1978) (coincidence with the profile, without more, cannot

justify an investigative stop).

We believe that view is incorrect. It is true that the reason-

ableness of each stop must be measured by the totality of the

observed facts and that the coincidence of those facts with

profile characteristics does not necessarily make the stop

reasonable (e.g., if other facts negate the reasonableness of

the inferences)—and we have never suggested otherwise.

But it is equally true that a high coincidence between ob-

served facts and. profile characteristics does not necessarily

make the stop unreasonable or justify disregarding that coin-

cidence, which is what the Fifth and Sixth Circuits have

apparently suggested.

17 As the district court indicated (App. C, infra, 18a), the

value of collective experience is the very premise of education

and training.

While, as we have noted (note 16, supra) the court of

appeals’ view of the profile is unclear, it is possible that the

court misunderstood the nature and function of the profile,

the development and use of which is described in United

States v. Van Lewis, supra, 409 F. Supp. at 538-539. As

a factual matter, there is no national profile; each air-

port unit has developed its own set of drug courier character-

istics on the basis of that unit’s experience. While many of

the salient characteristics are common to the guidelines of

18

_ See, e.g., United States v. Brignoni-Ponce, supra, 422

U.S. at 884-885, where the Court clearly indicated

that the collective experience of Border Patrol offi-

cers would be highly relevant to the reasonableness

of particular vehicle steps. See also United States v.

Price, supra, slip op. 2666-2670; United States v.

Oates, 560 F.2d 45, 61 (2d Cir. 1977); but ef.

United States v. Ballard, 573 F.2d 918, 915-916

(5th Cir. 1978); United States v. Cortez, No. 77-

1987 (9th Cir. April 19, 1979). The decision below

and in McCaleb raises substantial questions about the

utility, if not the propriety, of this important law

enforcement device, and the need to resolve those

questions is a further reason why this Court’s re-

view is appropriate.

ce. The analysis of the court of appeals also ap-

pears to ignore entirely the question whether the

amount of suspicion necessary to justify a particular

police-citizen encounter varies with the intrusiveness

most, if not all units, there are some differences based on the

particular experiences of different units and the peculiar

characteristics of each airport. Furthermore, the profile is not

rigid, but is constantly modified in light of experience.

The basic purpose of the profile is to inform, but not to

serve as a substitute for, the agents’ judgment in particular

circumstances. Similar profiles have been developed to assist

in the detection of potential air pirates, or “skyjackers”, and

their use has been widely noted and approved. See United

States v. Edwards, 498 F. 2d 496 (2d Cir. 1974); United

States v. Palazzo, 488 F. 2d 942 (5th Cir. 1974); United

States v. Cyzewski, 484 F. 2d 509 (5th Cir. 1973), cert. dis-

missed, 415 U.S. 902 (1974); United States v. Doran, 482

F. 2d 929 (9th Cir. 1973).

19

of the encounter. It is arguable that the initial en-

counter between the DEA agents and respondent in

this case was not even a “seizure” of her person

within the meaning of the Fourth Amendment."* But

assuming that it was, it surely must rank among the

least intrusive of the range of such encounters that

would require Fourth Amendment scrutiny. Accord-

ingly, in our view, relatively little in the way of

reasonable_suspicion should be required to sustain

the validity of the agents’ limited action.

By its failure to accord proper weight to this con-

sideration, as well as by its adoption of unduly oner-

ous standards for determining what constitutes rea-

sonable suspicion, the court of appeals has severely

impaired the effectiveness of the critical first step in

an important law enforcement program that has

heretofore made significant strides in interdicting the

distribution of narcotics.

18In Terry v. Ohio, supra, 392 U.S. at 19 n.16, this Court

stated : “Obviously, not all personal intercourse between police-

men and citizens involves ‘seizures’ of persons. Only when the

officer, by means of physical force or show of authority, has

in some way restrained the liberty of a citizen may we con-

clude that a ‘seizure’ has occurred.” At least one circuit has

concluded, specifically in the airport surveillance context, that

the initial encounter and request for identification does not

constitute a seizure. See United States v. Elmore, No. 78-

5304 (5th Cir. May 22, 1979). See also United States v. Price,

supra (noting but reserving the question). Other courts have

reached the same conclusion in similar contexts. See United

States v. Wylie, 569 F. 2d 62, 68 (D.C. Cir. 1977), cert. denied,

435 U.S. 944 (1978) ; United States v. Brunson, 549 F. 2d

348, 357 (5th Cir.), cert. denied, 434 U.S. 842 (1977) (col-

lecting cases).

20

2. The court in McCaleb concluded that even if

an initial stop meets Terry standards, the agents’

request that the suspect accompany them to a nearby

private room converts the stop into an arrest requir-

ing probable cause, because at that point the suspects

“are not free to leave * * *.” 552 F.2d at 720.

That conclusion, which is also of critical impor-

tance to the success of the airport surveillance pro-

gram, is in conflict with decisions of the Ninth and

Second Circuits, which have considered the issue spe-

cifically in this context. United States v. Chatman,

573 F.2d 565, 567 (9th Cir. 1977) ; United States v.

Oates, supra.”

The Sixth Circuit’s holding on this point is incor-

rect in several respects. First, whether or not a

detained individual is free to leave manifestly cannot

be the test for distinguishing a Terry stop from an

arrest (or detention)” requiring probable cause,

19 See also United States v. Salter, 521 F. 2d 1326, 1828-1329

(2d Cir. 1975) ; United States v. Richards, 500 F. 2d 1025,

1027-1029 (9th Cir. 1974), cert. denied, 420 U.S. 924 (1975).

Other circuits have reached the same conclusion in similar con-

texts. See United States v. Short, 570 F.2d 1051, 1054 (D.C.

Cir. 1978) ; United States v. Wylie, 569 F. 2d 62, 70 (D.C. Cir.

1977), cert. denied, 435 U.S. 944 (1978); United States v.

Gibson, 392 F. 2d 373, 376 (4th Cir. 1968).

20 The term “arrest” has been used in a number of different

ways. Usually it refers to the formal act by which a person

is charged with an offense and taken into custody for that

offense. It is often used, however, to refer to that degree of

detention that goes beyond a Terry stop and that requires

probable cause, although that may not entail a formal charge

against the detainee or the element of extended deprivation

of liberty.

21

since the kind of investigative stop authorized by

Terry and other cases also presumes some restraint

on liberty amounting to a “seizure” of the person.

Second, to the extent the Sixth Circuit’s view is based

on the subjective but uncommunicated intent of the

agents, it is incorrect because subjective intent is not

the appropriate standard for determining Fourth

Amendment violations, as Terry itself makes clear.

392 U.S. at 21-22. See also Scott v. United States,

436 U.S. 128, 136-137 (1978). Third, there is in

our view no sound basis for concluding that removing

a suspect from the public areas of a terminal to a

nearby office for further brief questioning is auto-

matically an unreasonable incident to a stop under

the rationale of Terry.” Finally, there is no basis

in this record for overturning the district court’s

finding that respondent was not directed to the DEA

office, but simply asked if she would go there, and

that she willingly complied in a spirit of apparent

cooperation. In any event, DEA agents need guid-

21 See also United States v. Oates, supra, 560 F. 2d at 58;

United States v. Wylie, supra, 569 F. 2d at 69 n.7; United

States v. Grandi, 424 F. 2d 399, 401 (2d Cir. 1970), cert.

denied, 409 U.S. 870 (1972); Coates v. United States, 418

_ F. 2d 371 (D.C. Cir. 1969) ; Lowe v. United States, 407 F. 2d

1391, 1897 (9th Cir. 1969).

22 Moreover, the court of appeals gave no apparent consid-

eration to the significant fact that respondent had shown

the agents that she had been travelling under an alias before

they asked her to accompany them to the DEA office—a fact

that substantially increased their suspicion and indicated the

appropriateness of further questioning.

22

ance on the validity of this aspect of the program as

well, which the court below has declined to provide.”

3. Finally, the decisions in this case and in Mc-

Caleb reflect the proposition that a consent to search

normally cannot be valid if the preceding detention

is impermissible. Since in this case it is difficult to

imagine how respondent could have more clearly

manifested her consent (having, as the district court

found, willingly accompanied the agents to the office

and then twice expressed consent to a search of her

person and effects after being told of her right to

refuse), it would seem to follow that the court of ap-

peals believed that a valid consent can never be given

when the preceding detention is for some reason im-

permissible. And because the court has effectively

held unlawful DEA’s standard procedures for in-

vestigative detention, the court’s conclusion with re-

spect to the consent issue provides agents with little,

if any, means for the successful implementation of

the program.

The Sixth Circuit’s conclusion on the consent issue

is, again, in conflict with the decision of at least one

other circuit, which has upheld the validity of con-

23 The validity of requiring a suspect to go to the police

station for questioning is before this Court in Dunaway v.

New York, No. 78-5066, argued March 21, 1979. If the State

prevails in Dunaway, the propriety of the requiring a suspect

to move a brief distance out of a crowded airport area to a

nearby office would follow. But even if petitioner prevails in

Dunaway, the substantially lesser intrusion involved in this

case remains reasonable in our view.

23

sents in the course of airport detentions found or

assumed to be impermissible. See United States v.

Troutman, 590 F.2d 604 (5th Cir. 1979).** We be-

lieve that it is also in conflict with the standards set

forth in Schneckloth v. Bustamonte, 412 U.S. 218

(1973). See also United States v. Watson, 423 U.S.

411, 425 (1976) (Powell, J., concurring). This ques-

tion also merits this Court’s review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

RICHARD A. ALLEN

Assistant to the Solicitor General

JOHN LOFTUS

DEBORAH WATSON

Attorneys

JUNE 1979

24 See also United States v. Fike, 449 F. 2d 191 (5th Cir.

1971), Bretti v. Wainwright, 439 F. 2d 1042 (5th Cir.), cert.

denied, 404 U.S. 943 (1971), upholding consents in similar,

non-airport contexts.

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 78-5064, 78-5081

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

Vv.

SyLv1a L. MENDENHALL and DAvip A. CAMACHO,

DEFENDANTS-APPELLANTS

Appeals from the United States District Court

for the Eastern District of Michigan,

Southern Division

Decided and Filed April 6, 1979

Before: EDWARDS, Chief Judge, WEICK, CELE-

BREZZE, LIVELY, ENGEL, and KEITH, Circuit Judges,

sitting en banc.*

Epwarps, Chief Judge and CELEBREZZE, LIVELY,

ENGEL, and KEITH, Circuit Judges, joined in a Per

Curiam Opinion. WEICK, Circuit Judge, (pp. 3-6)

filed a separate dissenting opinion.

PER CURIAM. On petition filed by the United

States, this court, on January 12, 1979, vacated the

decisions in No. 78-5064, United States v. Sylvia L.

Mendenhall, and No. 78-5081, United States v. David

A. Camacho, and scheduled arguments on both before

* Judge Merritt recused himself from this hearing.

2a

the court en bane. The cases have now been briefed

and orally argued before the full court.

On careful review of the records, and the authori-

ties cited to us in the Supreme Court and the Courts

of Appeals, we now conclude that the panel decisions

in both Mendenhall and Camacho should be and are

hereby reinstated.

Our review of the facts in both of these cases con-

vinces the majority of this court that in neither case

was there valid consent to search within the meaning

of United States v. McCaleb, 552 F.2d 717 (6th Cir.

1977). We also hold that the so-called drug courier

profile does not, in itself, represent a legal standard

of probable cause in this Circuit. We recognize, of

course, that the drug enforcement agency’s employ-

ment of this profile in educating its officers as to

what conduct to look for in relation to drug couriers

is a perfectly valid law enforcement device.

Examination of these records and re-examination

of precedent in these airport drug search cases in this

and other Appellate Courts have led to our decision

not to attempt to formulate definitive rules. Despite

some general similarities, every single case differs

from every other in material degree.

In view of our en banc decision set forth above,

we now reverse our preceding denial of bail to Men-

denhall and Camacho and remand these cases to the

District Court for determination of an appropriate

bond pending petitions for writ of certiorari.

WEICcK, Circuit Judge, Dissenting. I respectfully

dissent. En banc consideration of the present appeals

3a

was ordered so that we could re-examine and recon-

sider our decision in McCaleb, which has been under

continuous attack by the Government in an increas-

ing number of narcotics cases coming from traffic in

drugs at Detroit’s Metropolitan Airport.

Important questions of law are involved in connec-

tion with investigations of drug traffic at the airport,

such as the right of federal agents to stop and ques-

tion suspects where such agents have reasonable

grounds to believe that the suspects are engaged in

narcotics transactions; and such questions as: Where

the agents by their questions learn that the suspects

are traveling under assumed names, and are acting

in a suspicious manner, may they request that the

suspects accompany them to a private room at the

airport in order to comply with airport regulations

designed to prevent confrontation in public areas

and possible resulting injury to the public? and

Where the suspects consent to accompany the officers

to the private room, is such consent, or their consent

in the private room to a search, coercive per se?

After receiving supplemental briefs filed by the

parties and hearing oral arguments, the en banc ma-

jority, consisting of only five of the six Judges con-

stituting the en bane Court (our normal complement

is nine Judges and two more judgeships are provided

in the recent Bill passed by Congress) summarily

disposed of the appeals by a simple two-page per

curiam order without deciding any of the important

questions of law involved, which were the very rea-

sons for granting en banc consideration.

.

4a

It was suggested by a colleague that we withhold

decision to await the determination by the Supreme

Court of similar questions of law in pending “stop

and frisk” cases, but such suggestion was not fol-

lowed by the en bane majority. The similar cases in

which the Supreme Court granted certiorari, heard

oral arguments in one of them, and fixed the time for

oral arguments in another, are as follows: Delaware

v. Prouse, No. 77-1571 (heard January 17, 1979);

Michigan v. DeFillippo, No. 77-1680, 47 U.S.L.W.

3053 scheduled during weeks of February 23 and 26

(one hour) ; Brown v. Texas, No. 77-6673.

The Government, in its petition for rehearing en

banc, points out questions of exceptional importance

to be considered in connection with investigations by

experienced federal agents of traffic in huge quanti-

ties of narcotics flowing into the Detroit airport,

principally from Los Angeles, San Diego, Miami, and

New York.’

‘The amount and type of illegal narcotics seized at the

Detroit Metropolitan Airport are as follows:

1975 1976 1977 1978

Heroin 41.1 lbs. 66 lbs. 14.5 Ibs. 10 lbs.

Cocaine 5.1 Ibs. 7 Ibs. 5.3 Ibs. 4.8 lbs.

Phencycli-

dine 15 Ibs. 5.5 Ibs. 3 ozs. 1 Ib.

Marijuana 794 lbs. 189.5 lbs. 347.8 lbs. 47.5 lbs.

LSD 6,000 dosage 11,000 dosage

units units

Hashish 5.8 ozs. 8 ozs.

Ampheta-

mines 41 grams

Methamphet- 29 ozs.

amines

Dangerous 2,000 dosage 1,536 dosage

Drugs 93 grams units units

(p. 2, Petn for rehearing en banc]

5a

The investigations involve persons who, in the

trained mind of experienced federal agents, are re-

garded as suspicious. Usually such persons are travel-

ing between distant places, without luggage or with

little luggage, and are looking around and appear to

be nervous. The agent will stop such a person in the

airport, identify himself, ask the suspect for iden-

tification, and ask to see his plane ticket.

When identification has been made the agent usu-

ally discovers that the suspect is traveling under an

assumed name. The plane ticket may also reveal

stop-offs at a place or places other than Detroit.

Sometimes the suspect is seen in the presence of a

known narcotics dealer. The agent will then invite

the suspect to accompany him to a private room in

the airport. The reason is that the agent must com-

ply with ‘airport regulations which are designed to

prevent public confrontation and injury which may

result therefrom. When they arrive at the room the

agent then asks the suspect for permission to search

him. If consent is given, such consent ought not be

vitiated by an appellate court where the District

Court has found the consent to be voluntary, in the

absence of a finding by the appellate court that the

District Court’s finding is not supported by substan-

tial evidence. Where consent is not given, the agent

would have the right to arrest and search, if he has

probable cause to do so.

In the present appeals each District Judge hearing

the case granted an evidentiary hearing on a motion

to suppress evidence, and held that the federal agents

Se ee ee ee

i

6a

had reasonable grounds to stop and question the de-

fendants, that defendants acquiesced in following the

agents to the private room, and that consent to the

search was either given voluntarily or that the agents

had probable cause to arrest and search. The District

Judges who presided in the present cases were the

Honorables Ralph B. Guy, Jr. and Robert E. De- |

Mascio, both able jurists with extensive experience

in the trial of cases in the Eastern District of Michi-

gan.

The en bane majority, relying on McCaleb, reverses

the judgments of the District Judges without specifi-

cally finding that the District Judges’ findings of fact

on the issues of reasonable grounds to stop and ques-

tion, acquiescence in following the agents to the pri-

vate room, and probable cause to arrest and search

or voluntary consent to the search, were not sup-

ported by substantial evidence, and are clearly erro-

neous, and that their conclusions of law are incorrect.

Apparently the en banc majority regard McCaleb

as holding that the facts are per se coercive. If this

is so, it is time to overrule McCaleb and its progeny.

The McCaleb opinion also regards circumstances

(which to the trained mind of the federal agents are

regarded as suspicious), as such that they may be

treated as innocent by an appellate court.

With the ever increasing traffic in narcotics caus-

ing so much damage and injury to the public, we

ought not sanction a set of rules which hamstring

the federal officers in making legitimate investiga-

tions. It is also noteworthy that the investigations

AA A Rel EEE ee EO A ati Nate

Ta

in each of the present cases, as in many others, pro-

duced real results. The defendants were couriers of

narcotics.

I would affirm the judgment of conviction in each

appeal.

8a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 78-5064

[Filed Oct. 20, 1978]

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v.

SYLVIA MENDEN HALL, DEFENDANT-APPELLANT

ORDER

BEFORE: WEICK, LIVELY and MerritTT, Circuit

Judges.

Upon consideration of the briefs and oral argu-

ments of counsel together with the record and tran-

script the court concludes that this case is indistin-

guishable from United States v. McCaleb, 552 F.2d

717 (6th Cir. 1977).

Accordingly, the judgment of the district court is

reversed.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk

9a

APPENDIX C

UN ITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Criminal No. 6-80208

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

SYLVIA L. MENDENHALL, DEFENDANT

MEMORANDUM AND ORDER

The Drug Enforcement Administration (DEA)

has a continuing narcotic detection program where-

by its agents observe flights arriving at Detroit

Metropolitan Airport from cities around the country

that are known to be primary source cities for contra-

band narcotics. On February 10, 1976, as a part of

this program, DEA Agent Anderson was stationed

so that he could observe passengers deplaning from

American Airlines Flight 218 arriving from Los

Angeles, California, a primary source city for Mexi-

can heroin. He was assigned to detect possible

couriers of illicit drugs. After stopping defendant,

Agent Anderson accompanied her to the airport DEA

office and conducted a search. As a consequence of

his observation and actions on that day, defendant

Ree eee ATs ee ene eae Pt er ee

10a

was indicted for possession with intent to distribute

approximately 250 grams of heroin in violation of 18

U.S.C. § 841(a)(1). Defendant has filed a motion

to suppress the seized heroin, alleging that the agent

did not have a reasonable suspicion, based upon ar-

ticulable facts, to justify the investigative stop; that

the agent lacked probable cause to arrest her; that

she did not consent to a search; and that, if she did

consent to the search, she did not freely and volun-

tarily do so.

At the suppression hearing, Agent Anderson testi-

fied that, as he observed deplaning passengers from

Flight 218, the defendant attracted his attention be-

cause she was the last passenger to deplane. Agent

Anderson further testified that his experience has

taught him that drug couriers deplane last to obtain

a clear view of the area inside the terminal, unob-

structed by a crowd. He testified that defendant

carefully looked about the entire area in a nervous

manner as she deplaned as if she were trying to

detect police in the terminal area. Because of these

facts, Agent Anderson decided to place the defendant

under surveillance. The defendant proceeded down

the concourse to the baggage claim area but did not

claim any luggage. Agent Anderson’s suspicions

were aroused when he saw that defendant, after

taking a long journey, did not stop for luggage.

Defendant then took an escalator to the main com-

plex and went to the ticket counter of Eastern Air-

lines; Agent Anderson continued to follow her to

the ticket counter and stood in line behind her. He

lla

was able to observe the defendant present her ticket

to the ticket agent and ask for a ticket from Detroit

to Pittsburgh, Pennsylvania. Agent Anderson testi-

fied that he could see that the ticket defendant

handed to the ticket agent was a valid ticket show-

ing an itinerary from Los Angeles to Detroit to Pitts-

burgh. This intensified Agent Anderson’s suspicion

because it became obvious to him that defendant was

attempting to change airlines to continue her journey

to Pittsburgh even though she possessed a valid

ticket to the same destination. This further aroused

Agent Anderson’s suspicions because he testified he

had learned through his experience that illicit drug

couriers from a primary source city often change

airlines to confuse anyone who may know that they

are to arrive at a specific time or via a specific air-

line and to further conceal their arrival from a pri-

mary source city. Agent Anderson further testified

that the agent at the Eastern Airlines counter told

defendant that her ticket was good for her flight to

Pittsburgh and that all she needed was an Eastern

Airlines boarding pass, which was provided to her.

The defendant then headed for the Eastern Airlines

boarding area. At this time, Agent Anderson stop-

ped the defendant, identified himself as a federal

agent and asked the defendant for identification. The

defendant produced an Ohio driver’s license that

showed her name to be Sylvia Mendenhall. Agent

Anderson then requested to see the defendant’s air-

lines ticket. She produced an American Airlines

ticket issued in the name of Annette Ford. The agent

12a

asked the defendant why her ticket was in that name

while her identification showed her name as Menden-

hall. Defendant responded that she felt like using

the name Annette Ford. Agent Anderson stated that

when he identified himself as a federal narcotics

agent, the defendant became extremely nervous and

had great difficulty placing her identification back

into her purse; he then asked the defendant if she

would accompany him to the airport DEA Office for

further questioning. She did so.

Upon arrival at the DEA Office, Agent Anderson

asked the defendant if she would consent to a search

of her person and handbag and informed her that she

had a right to refuse to be searched. Agent An-

derson testified that the defendant thereupon con-

sented to the search. Upon examining her purse, he

found a ticket issued to F. Bush for a flight to Cali-

fornia three days previous. He then requested a

woman police officer from the airport security force

to assist in a search of defendant’s person. This fe-

male officer, Beverly Mersier, accompanied defendant

to an adjoining room, where she again asked the de-

fendant if she was consenting to the search. Officer

Mersier testified that defendant replied that she had

consented to the search. Officer Mersier further testi-

fied that defendant began to remove her clothing

and that it was at this time that defendant removed

a plastic bag containing a brown substance from her

brassiere and handed it to Officer Mersier. As she

began to further disrobe, defendant handed Officer

Mersier another plastic bag which she had extracted

nen as

18a

from her undergarments. Officer Mersier then hand-

ed the two plastic bags to Agent Anderson, who was

waiting in an adjoining room. Upon these facts, the

government contends that the initial stop was found-

ed upon reasonable suspicion, that defendant was not

placed under arrest until after the search resulted

in the discovery of alleged narcotics on defendant’s

person, that defendant freely and voluntarily con-

sented to the search after being informed that she

had the right to refuse to give such consent, and

that the evidence found as a result of the search

should not be suppressed because it was legally ob-

tained.

A law enforcement officer may approach a sus-

picious individual for investigative purposes when

the officer’s observations, coupled with his experi-

ence and training, give him a reasonable suspicion

that a person is engaging in criminal activity. In

order to justify such an intrusion, however, the of-

ficer must “be able to point to specific and articula-

ble facts which, taken together with rational infer-

ences from those facts, reasonably warrant that in-

trusion.” T'erry v. Ohio, 392 U.S. 1, 21 (1968). In

determining the reasonableness of the investigative

stop, if is proper for the court to take into ac-

count the officer’s experience, training and knowl-

edge. 392 U.S. at 30.

We have concluded that Agent Anderson’s inves-

tigative stop of the defendant was a justifiable in-

trusion. Agent Anderson testified that he has had

ten years’ experience as a federal narcotics agent;

14a

that he has attended several training sessions and

seminars to prepare him for his duties; that he has

been assigned to the airport detail for more than

a year and, in the last year alone, has made approxi-

mately 100 arrests at the airport. Additionally,

Agent Anderson was able to testify to several ar-

ticulable facts that gave rise to a reasonable sus-

picion on his part that the defendant was engaging

in criminal activity: the defendant was arriving

from a flight originating in a primary source city

for narcotics entering the Detroit area; she engaged

in a common tactic of illegal drug carriers, namely,

remaining in the aircraft so as to be the last pas-

senger to deplane; when she did deplane, she nervous-

ly scanned the entire area as though she were at-

tempting to locate anyone who might be observing

deplaning passengers. At this point Agent Anderson

acted properly by merely placing her under surveil-

lance. The results of his surveillance produced addi-

tional facts that justify the initial investigative stop.

He observed that the defendant did not attempt to

claim any luggage, although she had presumably

just completed a long journey. The agent knew from

his experience that drug couriers carry little or no

luggage, See United States v. Van Lewis, 409 F.Supp.

535, 538 (E.D. Mich. 1976), and then his suspicions

were further confirmed when, standing behind the

defendant at the Eastern Airlines ticket counter, he

observed that she did indeed arrive from Los Angeles,

a major drug import center. Finally, Agent Ander-

son observed that defendant was switching airlines

SEE el aoa ee ee ae ee

eit eee ae eee ee ee PY eee

ld5a

to reach a destination for which she was already

ticketed. We conclude that when all of these factors

—flight from a source city, last passenger to deplane,

the nervous scanning of the entire airport area, ap-

parent lack of luggage although coming from a great

distance, the changing of airlines without apparent

justification even though in possession of a valid

ticket to the same destination—are found to coin-

cide, a Terry type intrusion in order to determine

defendant’s identity and obtain more information is

justified. See Terry v. Ohio, supra; Adams v. Wil-

liams, 407 U.S. 148, 146 (1972).

The agent’s action, in asking defendant to show

him some identification and her airline ticket, was

“reasonably related in scope to the circumstances

which justified the interference in the first place.”

Terry, supra, 392 U.S. at 20, see also United States

v. Brignoni-Ponce, 442 U.S. 878, 881 (1975), citing

Terry, supra, 392 U.S. 1, 29. It constituted an ap-

propriate manner of investigating defendant’s sus-

picious activity further. The airline ticket that de-

fendant produced, rather than dispelling the agent’s

suspicions, see Terry, supra, 392 U.S. at 28, only

served to heighten them—it demonstrated that de-

fendant was traveling under an alias, a known tactic

of illegal drug couriers, see United States v. -Van

Lewis, supra, 409 F.Supp. at 538. Nor did defend-

ant’s unsatisfactory explanation that “she felt like

using that name” allay the agent’s heightened sus-

picions that she was engaged in criminal activity.

Thus, the agent properly sought to continue his in-

16a

vestigation by requesting that defendant voluntarily

accompany him to the DEA Office at the airport. The

court finds that defendant did so accompany Agent

Anderson to the airport DEA Office “voluntarily in a

spirit of apparent cooperation with the [agent’s] in-

vestigation”, Sibron v. New York, 392 U.S. 40, 638

(1968), and that she was not placed under arrest at

some time prior to the conclusion of the search.’

The defendant contends that she did not consent

to the search, and that even if she did, such consent

was not freely and voluntarily given. The testimony

of Agent Anderson and Officer Mersier, which the

court finds credible, is to the contrary. Both testified

that defendant gave her consent to the search and

the court finds that such consent was freely and vol-

untarily given. Schneckloth v. Bustamonte, 412 U.S.

218 (1973). The evidence, then, was discovered after

The court finds that defendant was not placed under arrest

at any time prior to the conclusion of the search, notwith-

standing Agent Anderson’s testimony that he would have

compelled defendant to accompany him had she not volun-

tarily agreed to do so. This subjective viewpoint of the agent

is not controlling—it was not communicated to the defendant

and she was not of the view that she was not free to go.

See W. LaFave, “Street Encounters” and the Constitution:

Terry, Sibron Peters and Beyond, 67 Mich.L.Rev. 39, 63n.

117, 101-05 (1968). Moreover, if the court relied on Ander-

son’s subjective view to determine whether and when an

arrest occurred, the effect would be to suppress the evidence,

since no probable cause existed at this point in time. How-

ever, to do so would only punish the agent for that which

he would have done had defendant elected to not voluntarily

accompany him. The court will not subscribe to such an

absurd result.

ee ee eae

17a

a legal stop and a consensual search and not as a

product of an illegal stop, an arrest (legal or illegal)

or a nonconsensual search. As such, defendant’s mo-

tion to suppress the evidence must fail. Moreover,

the court notes that, although Agent Anderson did

not arrest defendant until the search of her person

was concluded, he possessed probable cause to effect

her arrest prior to his summoning of Officer Mersier.

When the agent saw the contents of defendant’s

purse and found the second airline ticket, he was

apprised of the following facts: defendant had been

in Los Angeles, a known primary source city for

contraband narcotics; she had deplaned last, a known

tactic of illegal drug couriers, utilized so as to gain

a clear view of the terminal upon exiting the plane;

she had nervously scanned the area as if she were

trying to spot anyone who might be watching her

and the deplaning throng, a common mannerism

among drug couriers; she did not have any baggage,

although she had been on a long distance journey

(also known to be a common identifying habit of

drug couriers) ; she had effected a switch in airlines

to a destination for which she already possessed a

valid ticket (Agent Anderson testified that he had

learned, in the course of his experience and training

as a DEA Agent, that drug couriers often switch

airlines to cover their trial [sic] and to confuse any-

one who might be attempting to follow them or place

them under surveillance); defendant was traveling

under an alias, a common tactic of illegal drug cour-

iers; defendant had traveled to Los Angeles, a pri-

18a

mary source city, three days previous to her landing

at the airport in Detroit, and travel to and from

primary source cities is a characteristic of drug cour-

iers; she had traveled to Los Angeles under yet an-

other alias; she was ostensibly from Cleveland, but

was flying a circuitous route if she were homebound

(thus, possibly setting up an innocent-looking route

home from Pittsburgh—if anyone were to check on

her arrival in Pittsburgh, they would see that she had

arrived on a flight originating in Detroit, not Los

Angeles, because of the airline switch); and she of-

fered no satisfactory explanation of any of these cir-

cumstances. Although each of these facts, in and of

themselves, are relatively innocuous and innocent,

when all of them are found to coincide, and all of

them are known characteristics of airborne drug

couriers, they furnish the officer observing them with

probable cause. To hold otherwise would be to direct

DEA Agents to forget all of their training and ex-

perience, to ignore the obvious, and to not use all of

the education and investigative know-how which they

are required to acquire and cultivate in order to

obtain and keep their jobs.

The defendant did not appear at the time and date

scheduled for the evidentiary hearing on her motion

to suppress. Defendant’s counsel sought to adjourn

the suppression hearing and objected to the court pro-

ceeding in the absence of the defendant. Counsel con-

tends that the defendant had a right to be present at

the suppression hearing. We have concluded, how-

ever, that the right to be present at a suppression

19a

hearing is waived by a voluntary absence. United

States v. Dalli, 424 F.2d 45, 48 (2d Cir. 1970). This

is especially true in the circumstances of this case.

Upon defendant’s representations that she was hav-

ing a pregnancy-related problem, we granted prior

adjournments of the suppression hearing. Cn July 26,

1976, the court scheduled the hearing for August 23,

1976; on July 28, 1976, the defendant’s counsel re-

quested an adjournment of the hearing until August

30, 1976, which was granted; on August 23, 1976,

defendant’s counsel again requested that the hearing

be adjourned until September 27 which was also

granted; finally, at defendant’s counsel’s request the

parties stipulated to a date certain, October 18, 1976,

on which date the hearing proceeded. This latter

adjournment necessitated adjourning the trial date.

Defendant’s counsel has now represented to the

court that she advised the defendant of the date for

her suppression hearing. Moreover, counsel advises

that she communicated by telephone witl the defend-

ant’s mother who assured counsel that the defendant

was in Detroit, supposedly for the suppression hear-

ing. It ig clear to us that defendant’s absence is

purely a voluntary one. To hold that defendant has

not waived her appearance by a voluntary absence

would produce absurd results. It would permit the

defendant to manipulate this court’s docket at will.

This is especially so after the court endeavored to

make the date for her suppression hearing as con-

venient as possible for the defendant to be present at

20a

the hearing. The date the hearing was conducted was

selected by the defendant’s counsel.

Accordingly, IT IS ORDERED that defendant’s

motion to suppress evidence be and the same hereby

is denied.

/s/ Robert E. DeMascio

ROBERT E. DEMASCIO

United States District Judge

Dated: November 18, 1976

Pursuant to Rule 77(C), Fed. R. Civ. P. copies

mailed to attorneys for all parties on November 18th,

1976.

/s/ Laverne Doss

Deputy Court Clerk

bo U. S. GOVERNMENT PRINTING OFFICE; 1979 294559 4is8