NCJ Number
79964
Journal
American Criminal Law Review Volume: 19 Issue: 1 Dated: (Summer 1981) Pages: 49-79
Date Published
1981
Length
31 pages
Annotation
This article analyzes conflicting Supreme Court decisions on the status of drug courier profiles and then proposes a prophylactic consent rule to curb abuse of police stops based on less than probable cause.
Abstract
In its 1968 Terry v. Ohio decision, the Supreme Court recast the standards for determining the validity of a search and seizure by holding that less than probable cause could support protective police action. The Court also ruled that the level of intrusion must be balanced against the need for Government action and that this need be specific. Since Terry, the Court has focused primarily on determining circumstances which justify intrusions based on less than probable cause, and its balancing efforts have produced legal problems as dramatically illustrated by the 1980 decisions in United States v. Mendenhall and Reid v. Georgia. These cases raised the constitutionality of drug courier profiles -- informally compiled abstracts of characteristics thought typical of persons carrying illicit drugs -- that are used increasingly by Drug Enforcement Administration officials to justify stops of arriving airport passengers. Although both cases had similar fact patterns, the Court affirmed Mendenhall's conviction and reversed Reid's scarcely a month later. In the period between Terry and the drug courier profile cases, the Court maintained the probable cause requirement in situations that presented traditional search and seizure problems but at the same time applied Terry to cases not involving problems of physical danger, such as searches by border patrols. Following these cases, the Court considered police protection issues and authorized police protective action without any probability in one context but required reasonable suspicion in others. Against this conflicting and confusing background, Mendenhall and Reid presented the Court with the opportunity to provide substantial guidance in establishing the proper scope of the Terry analysis. A summary of the facts and the Court's ruling in these cases concludes that the Mendenhall opinion was in error and returned to the pre-Terry technique of authorizing obvious Government intrusions without any probability support by finding that no right guaranteed by the fourth amendment was implicated. A drug courier profile is neither specific enough nor reliable enough to evidence reasonable suspicion and permits agents to cover arbitrary target selection with a patina of respectability. Suggestions for retracking the original reasonable suspicion analysis are offered. Approximately 200 footnotes are included.