# Petition — United States v. Mendenhall

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 544

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0291%3A01. Public record. Not legal advice.