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The Drug War and the Fourth Amendment

How Drug Courier Profiles Begot Terrorism Watch Lists

by JAMES BOVARD

Friends of freedom have been chagrined over the past decade to learn that federal terrorist watch lists incorporate criteria — such as openly praising the Constitution or the Second Amendment — that put them in the crosshairs. More than a million names are now included on the catch-all terrorist watch list maintained by U.S. government agencies. The feds’ definition of terrorist threats is so broad that the Homeland Security Department warned local law-enforcement agencies to keep an eye on anyone who “expressed dislike of attitudes and decisions of the U.S. government.”

That standard makes no sense — unless the feds are seeking to maximize the number of persons they have a pretext to target. Federal agencies are relying on a technique previously pioneered for the drug war. It is not possible to understand the tactics and perils of terrorist watch lists without considering the sordid history of drug-courier profiles.

Drug-courier profiles are “an informally compiled abstract of characteristics thought typical of persons carrying illicit drugs,” according to a 1980 Supreme Court decision. Those profiles proved to be the “philosopher’s stone,” allowing police to stop and search anyone they please — or anyone who displeases them. Once the police created a drug profile, they claimed “reasonable suspicion” to stop and demand information from a person and often to pressure or force him (or her) to submit to a search.

Federal agents have shown remarkable creativity in devising drug-courier profiles for airplane passengers. Some profiles assert that either the first or the last person off the plane is probably a drug dealer. In case that does not suffice, there are also drug-courier profiles that reveal that people who exit amid a throng of passengers half-way through deplaning are the bad guys. Federal agents have used profiles that assert that people who take nonstop flights are couriers —as are people who changed planes along the way. Other suspicious traits include appearing nervous while flying — or appearing unnaturally calm. In the era before pervasive cell phones, “immediately making a telephone call after deplaning” was considered a telltale sign of a drug courier.

On April 7, 1995, an airline ticket agent at Chicago’s O’Hare Airport called DEA agent William Grant to alert him that Manuel Sanchez had just paid cash for a round-trip ticket to Houston. Grant and another DEA agent proceeded to the gate and asked Sanchez to leave the plane for questioning. Grant asked Sanchez whether he was carrying any money, and Sanchez replied that he had about $9,000 in cash. Grant asked how he had earned it. Sanchez said that he had worked at a jewelry store. Grant asked the name of the store, and Sanchez hesitated, then said he could not remember. Grant informed Sanchez he was confiscating the money because he believed it was related to narcotics trafficking. The money was put before a drug dog, which dutifully reacted.

Federal Judge James Moran struck down the forfeiture in a 1996 ruling that “the government must come forward with more than a ‘drug-courier profile’ and a positive dog sniff in order to link the defendant’s funds to illicit drug transactions.” The judge declared that “it is not reasonable for this court to infer from the mere fact that claimant was in possession of an envelope with a considerable sum of money that he was involved in activities proscribed by the Drug Act.” The judge was offended that the government apparently did nothing to justify its accusations against Sanchez, observing that “there must be some independent objective factual basis for determining the validity of the government’s assertions beyond their mere recitation by a drug agent clothed with official authority.”

The feds have also pioneered catchall profiles for anyone traveling on the nation’s roads, which have been eagerly adapted by state and local law-enforcement agencies. One Florida trial judge observed of the Florida police’s courier profile, “When you boil the profile down to its essentials, it covers just about every rental automobile or private automobile with out-of-state license plates traveling north on the turnpike or I-95.”

Police profited by combining drug-courier profiles with asset-forfeiture laws. The Volusia County, Florida, sheriff’s department set up a “forfeiture trap” run by a Selective Enforcement Team to stop motorists traveling Interstate 95 and seized an average of more than $5,000 a day from motorists between 1989 and 1992 — more than $8 million total. In three-quarters of the seizures, no criminal charges were filed.

A Pulitzer-prize-winning investigation by the Orlando Sentinel revealed that 90 percent of those seizure victims were black or Hispanic. When confronted with that statistic, the county sheriff, Bob Vogel, said, “What this data tells me is that the majority of money being transported for drug activity involves blacks and Hispanics.” People whose cash was seized by the deputies received scant due process of law; as the Sentinel noted, one deputy told two blacks from whom he had just confiscated $19,000, “You have the right to follow us back to the station and get a receipt.” Even citizens who provided proof that their money was honestly acquired (including a lottery winner’s proof of his lottery receipts) were treated like drug dealers. Volusia County officials routinely offered “settlements” to drivers whose cash they seized, promising to return a percentage of the seized cash if the drivers would sign a form promising not to sue.

The ACLU and the NAACP sued Volusia County for racial bias in its drug-courier profiles. In court proceedings two members of the team swore that Sheriff Vogel specifically instructed them to stop black and Hispanic drivers to search for drugs and cash. The officers also said that they had seen copies of a courier profile that included as one of the target characteristics, “Ethnic groups associated with the drug trade.” One deputy also stated that a caricature of a drug courier was posted on a department bulletin board that showed a black man wearing a large gold medallion and cowboy boots.

Abusive searches sparked a backlash that resulted in Congress’s pretending to seriously consider reining in forfeiture abuses. Rep. Ed Bryant (R-Tenn.) debunked other congressmen’s comments about the number of people whose money was seized though they had no drugs on them: “The way the system works in this is when there are couriers … they either have the money or they have the drugs, but they do not have them both…. So we either find drugs on the person or money on the person, depending which way they are going.” Thus the fact that someone is caught with lots of money but no drugs proves he is a drug courier. And Bryant happily ignored the vast number of cases where police stopped and searched people and found neither drugs nor stacks of cash.

During the 1950s citizens who invoked their constitutional rights and refused to testify about their politics were sometimes known as Fifth Amendment communists, whether or not they were communists. The modern equivalent is Fourth Amendment drug couriers. When a policeman asks a citizen to voluntarily submit to a search, the policeman is essentially asking the citizen to waive his constitutional right to privacy. Even if a citizen refuses to agree to be searched, police routinely forcibly search the person and then lie afterwards, denying that the citizen refused permission. Police also sometimes argue in court that a citizen’s unwillingness to permit himself to be searched is itself sufficient evidence to suspect the citizen of breaking the law. Though such arguments should be beyond contempt, many judges —eager to give the police as much discretionary power as possible —accept them with a straight face.

Initially, such profiles were difficult to reconcile with Americans’ constitutional rights. The Fourth Amendment purports to guarantee that government agents cannot forcibly search citizens without probable cause and reasonable suspicion that they have broken the law. The Fourth Amendment was a symbol of the Founding Fathers’ hatred of British customs officials, who claimed the right to break into  any private home or warehouse and search it for evidence of smuggled goods.

The Supreme Court decreed in 1891, “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Supreme Court Justice Robert Jackson wrote in 1949 that “uncontrolled search and seizure is one of the first and more effective weapons in the arsenal of every arbitrary government.” In 1967 the Supreme Court declared, “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.” But as the Drug War expanded, courts turned a blind eye to one procedure after another that would have been struck down in earlier times that were friendlier to individual rights.

Because the courts gave the feds so much leeway to fight drugs, it is not surprising that judges have thus far tolerated one anti-terrorist absurdity after another. But as the anti-freedom precedents pile up, time is running out on putting a leash on Leviathan.

James Bovard, a policy advisor to the Future of Freedom Foundation, is the author of  author of  Public Policy Hooligan, Attention Deficit Democracy, The Bush Betrayal, Terrorism and Tyranny, and other books. On Twitter – @jimbovard