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Bleg for Help Finding Sixth Circuit Fourth Amendment Case:

I've been looking for, but can't seem to find, a Sixth Circuit en banc case from approximately 1991 upholding a search and seizure under the Fourth Amendment. I'm specifically interested in the dissenting opinion, which, as I recall, went through a devastating list of contradictory testimony given by federal officers in various cases as to why they suspected a particular passenger (first to get off the train, last to get off the train, middle to get off the train; had no luggage, had too much luggage; meandered his way out of the airport, went directly out of the airport without stopping; etc.) If anyone knows this case, or one like it, please let me know.

Bob Smith (mail):
That seems no different than auto stops. As I recall "drove too fast", "drove too slow", and "drove the speed limit" have all been approved as probable cause for stopping and searching a car. Why any law enforcement officer could argue with a straight face that law abiding behavior is suspicious is beyond me, since I apparently lack the highly refined intellgence necessary to understand these issues.
3.25.2006 8:54pm
Hope this is helpful:
Perhaps you're thinking of Justice Marshall's dissenting opinion in United States v. Sokolow, 490 U.S. 1 (1989), where he wrote:

Reflexive reliance on a profile of drug courier characteristics runs a far greater risk than does ordinary, case-by-case police work of subjecting innocent individuals to unwarranted police harassment and detention. This risk is enhanced by the profile's "chameleon-like way of adapting to any particular set of observation." 831 F.2d 1413, 1418 (CA9 1987). Compare, e. g., United States v. Moore, 675 F.2d 802, 803 (CA6 1982) (suspect was first to deplane), cert. denied, 460 U.S. 1068 (1983), with United States v. Mendenhall, 446 U.S. 544, 564 (1980) (last to deplane), with United States v. Buenaventura-Ariza, 615 F.2d 29, 31 (CA2 1980) (deplaned from middle); United States v. Sullivan, 625 F.2d 9, 12 (CA4 1980) (one-way tickets), with United States v. Craemer, 555 F.2d 594, 595 (CA6 1977) (round-trip tickets), with United States v. McCaleb, 552 F.2d 717, 720 (CA6 1977) (nonstop flight), with United States v. Sokolow, 808 F.2d 1366, 1370 (CA9), vacated, 831 F.2d 1413 [490 U.S. 1, 14] (1987) (case below) (changed planes); Craemer, supra, at 595 (no luggage), with United States v. Sanford, 658 F.2d 342, 343 (CA5 1981) (gym bag), cert. denied, 455 U.S. 991 (1982), with Sullivan, supra, at 12 (new suitcases); United States v. Smith, 574 F.2d 882, 883 (CA6 1978) (traveling alone), with United States v. Fry, 622 F.2d 1218, 1219 (CA5 1980) (traveling with companion); United States v. Andrews, 600 F.2d 563, 566 (CA6 1979) (acted nervously), cert. denied sub nom. Brooks v. United States, 444 U.S. 878 (1979), with United States v. Himmelwright, 551 F.2d 991, 992 (CA5) (acted too calmly), cert. denied, 434 U.S. 902 (1977).
3.25.2006 10:09pm
Vae Victis22 (mail):
U.S. v. Taylor, 956 F.2d 572 (CA6 1992) was an en banc Fourth Amendment case from an airport. One of the dissents mentions some of the drug courier profile contradictions and cites some additional sources.
3.25.2006 10:10pm
Tyrone Slothrop (mail) (www):
I vaguely remember the case. Did Judge Boggs write the dissent?
3.25.2006 10:21pm
Bryan DB:
There's also one from the Ninth Circuit, though it's not airplanes and airports.
3.25.2006 10:39pm
Bryan DB:
I should add: 4th Amendment courier-type cases have been blown so badly with their reliance on "characteristics of couriers" that there's probably a devastating dissent along the lines of Marshall's in every single district. As well there should be.
3.25.2006 10:42pm
davidbernstein (mail):
Thanks. I see now that Judge Martin in the 1992 Sixth Circuit case cited to a dissenting opinion by Judge Pratt in the 2nd Circuit, which I think is the opinion I was thinking of. U.S. v. Hooper, 935 F.2d 484 (2d Cir. 1991):

Moreover, a canvass of numerous cases reveals the drug courier profile's "chameleon-like way of adapting to any particular set of observations." United States v. Sokolow, 831 F.2d 1413, 1418 (9th Cir.1987), rev'd,490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989):
Arrived late at night United States v. Nurse, 916 F.2d 20, 24 (D.C.Cir.1990).
Arrived early in the morning United States v. Reid, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980); United States v. Millan, 912 F.2d 1014, 1017 (8th Cir.1990).
One of first to deplane United States v. Millan, 912 F.2d at 1015; United States v. Moore, 675 F.2d 802, 803 (6th Cir.1982), cert. denied,460 U.S. 1068, 103 S.Ct. 1521, 75 L.Ed.2d 945 (1983).
One of last to deplane United States v. Mendenhall, 446 U.S. 544, 547 n. 1, 100 S.Ct. 1870, 1873 n. 1, 64 L.Ed.2d 497 (1980); United States v. Sterling, 909 F.2d 1078, 1079 (7th Cir.1990); United States v. White, 890 F.2d 1413, 1414 (8th Cir.1989), cert. denied,498 U.S. 825, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990).
Deplaned in the middle United States v. Buenaventura-Ariza, 615 F.2d 29, 31 (2d Cir.1980).
Used a one-way ticket United States v. Johnson, 910 F.2d 1506 (7th Cir.1990), cert. denied,498 U.S. 1051, 111 S.Ct. 764, 112 L.Ed.2d 783 (1991); United States v. Colyer, 878 F.2d 469, 471 (D.C.Cir.1989); United States v. Sullivan, 625 F.2d 9, 12 (4th Cir.1980).
Used a round-trip ticket United States v. Craemer, 555 F.2d 594, 595 (6th Cir.1977).
Carried brand-new luggage United States v. Taylor, 917 F.2d at 1403; United States v. Sullivan, 625 F.2d at 12.
Carried a small gym bag United States v. Sanford, 658 F.2d 342, 343 (5th Cir.1981), cert. denied,455 U.S. 991, 102 S.Ct. 1618, 71 L.Ed.2d 852 (1982).
Travelled alone United States v. White, 890 F.2d at 1415; United States v. Smith, 574 F.2d 882, 883 (6th Cir.1978).
Travelled with a companion United States v. Garcia, 905 F.2d 557, 559 (1st Cir.), cert. denied,498 U.S. 986, 111 S.Ct. 522, 112 L.Ed.2d 533 (1990); United States v. Fry, 622 F.2d 1218, 1219 (5th Cir.1980).
Acted too nervous United States v. Montilla, 928 F.2d 583, 585 (2d Cir.1991); United States v. Cooke, 915 F.2d 250, 251 (6th Cir.1990).
Acted too calm United States v. McKines, 933 F.2d 1412 (8th Cir.1991); United States v. Himmelwright, 551 F.2d 991, 992 (5th Cir.), cert. denied,434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977).
Wore expensive clothing and gold jewelry United States v. Chambers, 918 F.2d 1455, 1462 (9th Cir.1990).
Dressed in black corduroys, white pullover shirt, loafers without socks United States v. McKines, supra.
*500 Dressed in dark slacks, work shirt, and hat United States v. Taylor, 917 F.2d at 1403.
Dressed in brown leather aviator jacket, gold chain, hair down to shoulders United States v. Millan, 912 F.2d at 1015.
Dressed in loose-fitting sweatshirt and denim jacket United States v. Flowers, 909 F.2d 145, 146 (6th Cir.1990).
Walked rapidly through airport United States v. Millan, 912 F.2d at 1017; United States v. Rose, 889 F.2d 1490, 1491 (6th Cir.1989).
Walked aimlessly through airport United States v. Gomez-Norena, 908 F.2d 497, 497 (9th Cir.1990), cert. denied,498 U.S. 947, 111 S.Ct. 363, 112 L.Ed.2d 326 (1991).
Flew in to Washington National Airport on the LaGuardia Shuttle United States v. Powell, 886 F.2d 81, 82 (4th Cir.1989), cert. denied,493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990).
Had a white handkerchief in his hand United States v. Garcia, 848 F.2d 58, 59 (4th Cir.), cert. denied,488 U.S. 957, 109 S.Ct. 395, 102 L.Ed.2d 384 (1988).
3.25.2006 10:59pm
Matt McHale:
Also the following passage recently appeared in a New Yorker article by Malcolm Gladwell on racial profiling and stereotyping, available here.

The instability issue is a problem for profiling in law enforcement as well. The law professor David Cole once tallied up some of the traits that Drug Enforcement Administration agents have used over the years in making generalizations about suspected smugglers. Here is a sample:

Arrived late at night; arrived early in the morning; arrived in afternoon; one of the first to deplane; one of the last to deplane; deplaned in the middle; purchased ticket at the airport; made reservation on short notice; bought coach ticket; bought first-class ticket; used one-way ticket; used round-trip ticket; paid for ticket with cash; paid for ticket with small denomination currency; paid for ticket with large denomination currency; made local telephone calls after deplaning; made long distance telephone call after deplaning; pretended to make telephone call; traveled from New York to Los Angeles; traveled to Houston; carried no luggage; carried brand-new luggage; carried a small bag; carried a medium-sized bag; carried two bulky garment bags; carried two heavy suitcases; carried four pieces of luggage; overly protective of luggage; disassociated self from luggage; traveled alone; traveled with a companion; acted too nervous; acted too calm; made eye contact with officer; avoided making eye contact with officer; wore expensive clothing and jewelry; dressed casually; went to restroom after deplaning; walked rapidly through airport; walked slowly through airport; walked aimlessly through airport; left airport by taxi; left airport by limousine; left airport by private car; left airport by hotel courtesy van.
3.25.2006 11:40pm
MassRepUnsure (mail):
I think these cases have reached the local level as either fact or urban legend. I lived in a small city in Virginia with a very aggresive police force. Through a friend I heard that a local judge became upset after the police had offered multiple reasons for DUI stops. One time it would be the driver was speeding, another time the driver would be driving below the speed limit, another time the driver would be driving the speed limit. All were probable cause for a DUI stop.
I don't doubt that the police would make these claims and it is troubling that only a single district judge was present to stop this abuse.
3.26.2006 12:03am
M. Simon (mail) (www):
Here is a piece I did on this subject a while back. Included are some pretexts and links to more.
3.26.2006 12:44am
Chris Budzban (mail):
This might be it. If it is, just tell me where to e-mail the rest of the case.


United States Court of Appeals,Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Eddie Louis TAYLOR, Defendant-Appellant.
No. 89-6396.

Reargued May 22, 1991.
Decided Feb. 10, 1992.

Defendant was convicted in the United States District Court for the
Western
District of Tennessee, Odell Horton, Chief Judge, of possessing cocaine
with
intent to distribute, and he appealed. The Court of Appeal, 917 F.2d
1402,
reversed. Rehearing en banc was granted, 925 F.2d 990. The Court of
Appeals, Krupansky, Senior Circuit Judge, held that: (1) initial
contact
between airport police officers and defendant constituted consensual
interview, and (2) two spherical, tape-wrapped bundles found in
defendant's
bag during consensual search gave officers probable cause to arrest
defendant.
3.26.2006 2:55am
thedaddy (mail):
A good friend of mine is a high level customs officer. He has developed the ability to spot people who are going through customs with contraband that is a "sixth sense".
He would probably tell you that any group of those things mentioned above might have triggered his spider sense and he wouldn't think of it as a contradiction or fudging. Of course his succes record of stops to finds (he dosen't need a warrant so he operates in a frictionless labratory of sorts) is extremely high. See below.

Bob Smith"since I apparently lack the highly refined intellgence necessary to understand these issues".

You've got that right Bob! The specialized knowledge and the intelligence that it takes to be a good or even great Police Officer or anything else for that matter is experience and learning what works, and how it does, in the real world.

If you are a lawyer I am sure you remember your first day at court on you own and how repetition and familiarity with how it really works. As opposed to how it was presented in school. That only comes with time and with making mistakes that you learn from. You seem to have forgotten.

The judge cited above, Judge Pratt was myopic in his dissent.

thedaddy
3.26.2006 11:39am
Ken Arromdee (mail):
He would probably tell you that any group of those things mentioned above might have triggered his spider sense and he wouldn't think of it as a contradiction or fudging.

But the things mentioned above cover basically everyone. So your friend would tell you that everyone triggers his sense?

Look at it from the perspective of an innocent person who wishes to avoid being stopped (which is really whom laws about unreasonable search and seizure are supposed to protect). Based on that list of "suspicious" actions, how must he act to avoid being stopped by your friend?
3.26.2006 12:09pm
WB:
I seem to recall one of the VConspirators posting something about this a while back.

The problem seems to be explaining the "hunch" in retrospect. The inspector sees someone who "doesn't look right," and can't tell why, but must give an explanation after the fact. As one might imagine, these explanations are often unsatisfactory when aggregated in this way.

When the average person encounters someone and makes a snap judgment about whether you think that person is trustworthy, I doubt if the person making the judgment can come up with a satisfying explanation that could be programmed into a computer and used to screen people.

This is not to say that "hunches" should be unquestionable black boxes, only that there's something about them that eludes description, and I don't think that Justice Marshall's collection of cases is conclusive of abuse. If a loan officer denies loans to people based on hunches, and it turns out that over the course of 5 years 90% of his hunches precluded racial minorities with solid credit profiles from getting loans, then his hunches are most likely a proxy for conscious or subconscious racism.

In police work, however, I don't think it makes sense to hold that all searches that can't be justified by a clearly-defined algorithm are per se unconstitutional.
3.26.2006 12:44pm
WB:
K. Arromdee wrote:
Look at it from the perspective of an innocent person who wishes to avoid being stopped (which is really whom laws about unreasonable search and seizure are supposed to protect). Based on that list of "suspicious" actions, how must he act to avoid being stopped by your friend?

Much of the point of police stops is that you can't tell who's innocent and who's guilty just by looking at them. If there were a clearly-defined list of actions that a person could do to avoid being stopped, guilty people as well as innocent people would do them, and only incompetent criminals would ever get arrested. I think Mr. Arromdee is asking the wrong question.
3.26.2006 12:47pm
Dave Hardy (mail) (www):
Had a case like that -- well, helped out on a case like that. Vehicle stopped, searched, found mariuhana. Basis for stop questioned, and result:

1. He was travelling down a highway that was a corridor for drug smuggling. Admission on cross ex that ALL highways in AZ are corridors.

2. He was driving at rush hour, which is when smugglers will drive so as to blend in. (i.e., appearing innocent is suspicious indeed).

3. There was another car near him, with a CB radio (ten yrs ago, when these were popular). Smugglers often use CB to communicate. As did everyone else.

4. When the LEOs drove alongside him, he did not make eye contact. (Rather difficult to make eye contact with driver alongside when doing 75 MPH. If he had, I suspect that would have been cited as suspicious, too).

Search upheld, of course.
3.26.2006 12:49pm
abb3w:
Since this touched on the peculiarity of giving speed limit related behavior as probable cause, I'll point at this exercise in civil obedience that's floated around the web recently. It's an amusing and thought provking time waster, albeit unrelated (that I can see) to the initial search-and-seizure question.
3.26.2006 12:49pm
Dave Hardy (mail) (www):
Our suspicion, BTW, was that either the agency had an informant in Mexico, or the seller had tipped them off (one way to increase profit margins is to make the sale, pocket that, and then sell info on it to the US). In either event, they knew exactly what vehicle to look for and about when it would reach them, but didn't want to reveal how they knew.
3.26.2006 12:55pm
Len (mail):
I'm sure glad that drug smuggling was included in the Constitution, and that the Constitution gives the government the right to specify our personal habits. (This is called sarcasm, in case you are like most people and do not understand your own language.)
3.26.2006 1:16pm
Steve Lubet (mail):
"Why any law enforcement officer could argue with a straight face that law abiding behavior is suspicious is beyond me."

Depending on the level of intrusiveness, the standard for conducting a search is either "probable cause" or "reasonable suspicion." In either case, however, you are by definition talking about "law abiding behavior."

If the behavior were criminal, the officer could simply proceed to an arrest, making the lower standard for a search unnecessary.
3.26.2006 1:39pm
Brian Macker (mail) (www):
That seems no different than auto stops. As I recall "drove too fast", "drove too slow", and "drove the speed limit" have all been approved as probable cause for stopping and searching a car.


Which further seems no different than anti-trust laws. As "made more profit, "made less profit", "made the same profit" have all been used in those cases. Or by their better known names respectively monopoly pricing, price dumping, and collusive pricing.
3.26.2006 2:39pm
wm. tyroler (mail):
Same general point suggested by David Bernstein's post, concisely made by Judge Posner, in U.S. v. Broomfield, 417 F.3d 654 (7th Cir 2005):


... Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited. United States v. Jones, 269 F.3d 919, 927-29 (8th Cir. 2001); United States v. Moreno-Chaparro, 180 F.3d 629, 632 (5th Cir. 1999); see also United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1123 n. 4 (9th Cir. 2002); cf. United States v. Troka, 987 F.2d 472, 474 (7th Cir. 1993). ...
3.26.2006 3:51pm
Mike Smitherson:
I don't know much about these cases (i.e., anything), but isn't it more than simply "deplaned first," but the combination of "deplaned first" with other suspicious characteristics? While one profile may include "deplaned first" with X number of other characteristics (e.g., no luggage), another profile may include "last to deplane" with Y number of other characteristics. So if you're thinking someone just returned from a drug buy, the fact that the person deplanes first, with no luggage, walks quickly through the airport, and takes a taxi might be suspicious; whereas if you think someone is engaging in some other illegal activity, the fact that he deplanes last, walks aimlessly through the airport, and acts nervously might be suspicious. All I know is that it is fun to say "deplane."
3.26.2006 5:41pm
Ross Levatter (mail):
David,

In your latest post, on Israeli checkpoints, you conclude: "When your enemies are unwilling to respect any boundaries in their efforts to murder innocents, what are you to do?" But you did not open that post to responses.

Isn't it inappropriate to ask a question and then prevent others from answering? There are a number of substantive answers, but you won't be in a position to learn about any of them if you close off your posts. Alternatively, if you're not interesting in any dialog, as would seem to be the case, shouldn't you simply make statements rather than ask questions of your audience?
3.26.2006 5:55pm
Ken Arromdee (mail):
Much of the point of police stops is that you can't tell who's innocent and who's guilty just by looking at them. If there were a clearly-defined list of actions that a person could do to avoid being stopped, guilty people as well as innocent people would do them, and only incompetent criminals would ever get arrested.

In that case, why do we even bother making the police describe why the suspect seems suspicious? It seems to me that the whole point of making the police describe that is that we don't want the police to stop someone if they can't articulate a reason. If any reason or none would do, then we would be more honest if we just said that the police can stop people, period, without having to give a reason.
3.26.2006 7:24pm
Dilan Esper (mail) (www):
The interesting thing is that these "suspicious activities" have been judicially condemned over and over again, yet they are still widely in use. Reminiscent of, from a slightly different context, Justice Scalia's "ghoul in a late night horror movie" in the Lamb's Chapel case.
3.27.2006 2:04am
Eh Nonymous (mail) (www):
Re Ross' question-

Isn't it inappropriate to ask a question and then prevent others from answering?
Well, that'd be called "rhetorical." And no, it doesn't have to be in the form of a statement. Blogger's choice.
3.27.2006 12:29pm
M. Simon (mail) (www):
John Hancock and his run in with the Brits looking for contraband in the sloop Liberty is part of the history of the Fourth Amendment.

In other words the Fourth was designed with contraband in mind.


Origins of the Fourth Amendment
3.27.2006 2:05pm