Editor’s note: This is the first of a two-part series on the drug war’s detrimental effect of the Fourth Amendment. Part I focuses on the danger of drug-courier profiles, while part II takes aim at unconstitutional search-and-seizure practices used by police in prosecuting the war on dope.
Got a marijuana-leaf T-shirt? An issue of High Times sitting in your
backseat? A Grateful Dead bumper sticker on your car?
You’re under arrest. Searched at the least.
Think I’m exaggerating?
Better talk to the woman in Davidson, N.C., who, after being pulled
over the morning of Aug. 17, was asked to let the officer search her
vehicle for dope because he saw a marijuana plant pictured on a
periodical in her car. The officer thought the rag was High Times, a magazine dedicated to pot,
which he has found in the possession of others he has busted for drugs.
Never, the cliché goes, judge a book by its cover — unless,
apparently, that book is a drug suspect.
While no drugs were found in the search, the Davidson police maintain
that the ganja graphic was probable cause for a rummage and rumple
session through the woman’s car. “He acted properly,” said Assistant
Police Chief Butch Parker about the officer. “He thinks he had
reasonable suspicion, and we do too.”
The American founders went to great lengths to secure the citizenry
from the arbitrary use of power by government. While living under the
English Crown, Americans were subject to wanton and capricious searches
by government officers who operated with about as much accountability as
high school bullies — and there was little or no recourse. Back in
1761, the great American attorney James Otis argued against this
arbitrary authority, noting that if the officer broke into a man’s house
in search of contraband, even if motivated by “malice or revenge, no
man, no court can inquire.”
Having enough of such abuses, our forebears decided to give John Bull
the boot and set up a government constituted with the preservation of
life, liberty and property as its chief aim. Part of that vision
included a Bill of Rights, crafted specifically to put a leash on
government abuse. The Fourth Amendment in that Bill of Rights speaks
directly to the issue at hand:
The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures, shall
not be violated, and no warrants shall issue, but upon probable cause,
supported by oath of affirmation, and particularly describing the place
to be searched, and the person or thing to be seized.
Except, of course, for some notable exceptions:
First class mail may be opened without a warrant on less than
probable cause. … Automotive travelers may be stopped … near the
border without individualized suspicion even if the stop is based
largely on ethnicity … and boats on inland waters with ready access to
the sea may be hailed and boarded with no suspicion whatsoever.
What, you say you never read that in the collected writings of
James Otis, James Madison, Thomas Jefferson or George Washington?
Probably not — the part about the automotive searches was a dead
give-away. The horse from whose mouth those words actually sprung
answers to the name of William H. Rehnquist, chief justice of the
Supreme Court — deciding the unfortunate 1985 case, United States v.
Montoya De Hernandez.
As it happened, De Hernandez, a suspected “balloon swallower,” was
nabbed by drug enforcement police at an airport, stripped of her
clothing, searched and held naked under detention until she could
“relieve” herself over a wastebasket. It wasn’t much relief, I’m sure.
Not only was she held without warrant or probable cause, but she was
forced to endure the humiliation of sitting — with two overlooking
matrons — naked until she could defecate in a garbage can. Amazingly,
the Supreme Court has even sanctioned such detention, humiliation and
invasion of privacy for up to 18 hours.
The primary reason De Hernandez found herself sitting in the buck
over a basket is something called a drug-courier profile — an informal
compilation of characteristics (e.g., mannerisms, appearances, locality
and locomotion) that form a stereotype of someone who traffics illegal
drugs — or leaves a copy of High Times sitting in her car.
Someone like De Hernandez, for instance, flying on a long-distance
flight, who does not eat anything while on board, displays mannerisms
like that of someone who had a lunch of 50 heroin-stuffed condoms before
boarding the plane; if you’re bagging dope in your belly, taking an
early trip to the restroom because of light snack might make you lose
your hidden cargo. Imagine trying to explain that to your boss. Sounds
like a Maalox moment to me.
Such being the case, it is not uncommon, as David Boaz of the Cato
Institute notes, for long-distance flight attendants to radio ahead and
inform drug agents on the ground about someone who didn’t eat or drink
On that basis, the court has ruled that the traveler may be seized on
arrival at the airport without warrant or probable cause, be
strip-searched and ordered to remain in solitary confinement (save for
two onlookers to ensure proper care of any evidence). The peculiarity
here is that anyone suffering a stomachache might well qualify for the
same High Court sanctioned treatment received by De Hernandez. I’m not
a major flyer myself, but it seems to me that no matter how sick you
might feel, popping a few peanuts seems incredibly prudent.
Other profiles based on mannerisms are even less rational. For
instance, driving over posted speed limits in many states will fit a
drug-courier profile, while at the same time, as Daniel K. Benjamin and
Roger Leroy Miller note in their book, “Undoing Drugs,” in New Mexico a
driver can be detained for showing “scrupulous obedience to traffic
laws.” Furthermore, in New Mexico simply having Florida license tags is
enough to qualify for a profile. How’s that for interstate relations?
In New Hampshire, one policeman publicly announced that he stopped
and searched any car with a Grateful Dead bumper sticker as a matter of
The profile that De Hernandez ran afoul of is not the only one for
which airplane passengers should be on guard, and many of them are
ridiculously confusing. “Some profiles reveal that the first person off
the plane is a likely drug suspect,” observes “Lost Rights” author James
Bovard. “Other profiles insist that the last person off is the likely
drug dealer, and some profiles assert that the people who try to blend
into the middle are the ones to suspect.”
Bovard’s journalist calculator counts all the way to Catch 22 on this
one. “In federal court cases, drug courier profiles have justified
government agents’ accosting plane passengers who had nonstop flights –
and those who changed planes; persons traveling alone — and persons
traveling with a companion; people who appeared nervous — and people
who appeared too calm.”
Still another profile asserts that landing in a city known as a major
source for drugs is enough to supply an officer with reasonable
suspicion of illicit goings-on. Never mind, as Steven B. Duke and
Albert C. Gross point out in a 1994 Reason magazine article, that every
city with a major airport is considered by the authorities to be a major
source for drugs. Again quoting Bovard, “When the Founding Fathers
created the Fourth Amendment, they were not thinking of ‘going to
Detroit’ as ‘reasonable suspicion.’”
Nor were they thinking of race, but many drug-courier profiles are
often based on ethnicity or group membership. Hispanics and hippies are
often stopped near the America-Mexico border based on profiles. If
driving a rented car or a vehicle with out-of-state tags so much the
worse. As Benjamin and Miller note, policemen will commonly pull the vehicle over
and ask if they can search it, merely because the driver looks Hispanic –
ditto for blacks. In fact, after examining 121 cases
of travelers being stopped, searched, and found clean of any
illicit drugs, the Pittsburgh Press reported that 77 percent were
Racist? Sure. But it’s legal. Recall Rehnquist’s words:
“Automotive travelers may be stopped … near the border without
individualized suspicion even if the stop is based largely on
ethnicity.” Maybe Justice Rehnquist’s ink blotter was sitting on top of his copy of the
14th Amendment, too.
American jurisprudence has had from the get-go the desire to rule out
this sort of arbitrariness. Yet drug-courier profiles permit and implicitly — if not explicitly –
condone random enforcement. Currently, a citizen can be stopped
under almost any circumstance and be subject to detention and
questioning, based not on reasonable suspicion that a crime has actually
been committed, but on the fallacious and unconstitutional notion that a
character abstraction based on criminal behavior is a reliable standard
by which to test the rest of society.
Obviously, many drug traffickers and users will fit the profiles –
if for no other reason than the fact that they’re based on drug-law
offenders in the first place. Too often, however, law abiding citizens
fit the same template, simply because they’re too broad and ambiguous.
Drug users and dealers are not amazingly distinct from the rest of us;
anybody can have perfectly harmless characteristics that overlap with
those of drug dealers. Utterly abandoning any semblance of sanity, the
gung-ho drug warriors, however, assume that if it walks like a duck and
quacks like a duck, it must be a crack dealer.
The result is that a tremendous number of citizens who have done no
wrong are hassled by drug enforcement agents: they were too nervous, or
too calm; the first, middle, or last passengers off the plane; had a wrong bumper sticker on their car, or magazine on the passenger seat.
All of these citizens have had their constitutional rights violated in
the name of law and order. By comparison, it would be like the ACLU
promoting book burning — or Pat Robertson promoting the ACLU.
Supporters of drug profiles attempt to justify these wrongs by
singing the wondrous praises of profiling. A large number of criminals
are nabbed with profiles, they say. Well and good, but how many were
detained because of a profile match and found to be innocent of an
agent’s claim of lawbreaking?
As Duke and Gross document, a commander of Denver’s vice bureau
estimated that out of 2,000 airport searches his officers conducted in
1990, only 49 actual arrests were made. Hooray! That’s only 1,951
American citizens subjected to unnecessary detention. Similarly, in
1989 at Buffalo’s airport, 600 people were detained and only 10 actually
“It appears,” observed Second U.S. Court of Appeals Judge George
Pratt, “that they have sacrificed the Fourth Amendment by detaining 590
innocent people in order to arrest 10 who are not — all in the name of
the ‘war on drugs.’” Then again, I suppose 10 out of 600 isn’t too bad
for a government operation.
The question is, should the drug war be a government operation? If
we truly value the Constitution — and, in particular, the Fourth
Amendment — I think the answer is a resounding “No.”