It’s after midnight. You are hurrying through the airport with a carry-on bag, impatient to get home from a business trip, looking around for a phone booth to call ahead.
A man keeps pace with you, staying close. He makes eye contact. You look away. Another man hovers nearby. You walk faster. The first man closes in from the side. The other circles behind you. Your heart is pounding.
"Excuse me." He flashes a badge. "Can I talk to you? I’m a narcotics interdiction officer, and we’re trying to stop drugs from coming in here.”
You know you’ve done nothing wrong. But suddenly you’re a suspect. Your hands are shaking.
He asks for your ticket. He asks for identification. He asks where you came from. He asks where you’re going. He asks whether you have any illegal drugs. He asks whether he can look through your bag.
All the while, his partner stands behind you, attentively.
Pop quiz: (1) Are you free to treat the officer like a panhandler, tell him you’re in a hurry and walk away? (2) If you answer his questions until he asks to search your bag, can you then stop, say you’ve had enough of being treated like a criminal, and leave? (3) If you do that, what will the cops do?
To courts such as the U.S. Court of Appeals for the D.C. Circuit, the answers to the First two questions raised by this increasingly familiar scenario are crystal clear: Of course you are free to leave. It’s so obvious that any "reasonable person" would know it.
It follows, these courts say, that such "encounters" are in no way coercive. As long as the police are polite and do not overtly restrict their quarry’s movement, they may ask anyone to consent to be questioned and searched. The strictures of the Fourth and Fifth Amendments do not apply: no need for a warrant, no need for any reason to suspect the targeted individuals of criminality, no need to tell them their rights.
The beauty of it, narcotics officers say, is that almost everyone meekly agrees to answer questions and be searched.
Like lemmings, drug couriers by the dozens- approached as they get off trains and buses and planes, or drive up to police roadblocks-"voluntarily" hand over tote bags, gym bags, and suitcases stuffed with tens of thousands of dollars worth of heroin and cocaine.
D.C. police detective Vance Beard told Legal Times in January that he recalled negative reactions from only nine of the 400 or more passengers he had talked with since October 1987. "Even guilty parties are happy to talk to you," he said.
A typical episode was described by the D.C. Circuit last December in United States v. Winston:
After approaching a passenger just off a bus from New York and identifying his mission, "Beard proceeded to ask Winston whether he had any drugs in the totebag he was carrying, and Winston answered no. Beard asked him whether he would mind if Beard searched the bag, to which Winston replied, ‘No, I don’t mind, because I don’t have anything to do with drugs.’ Beard then searched the bag and found 537 individual packets of crack.”
Exit Winston, stage left.
Now why would Winston do a thing like that? If-as the court found in upholding the search-the circumstances would not "have caused a reasonable person to feel he was not free to leave," why didn’t Winston leave?
The answer is that most people would not feel free to leave under such circumstances-and with good reason.
Police agencies and courts are using transparently coerced "consent" to give carte blanche for dragnet searches in airports, in train and bus stations, at roadblocks, and elsewhere.
The few travelers who do invoke their theoretical rights not to be searched are, police have testified, immediately suspected of having something to hide.
Such a traveler may find herself followed, insistently asked to let a police dog sniff her bag-and, perhaps, told that her bag will be detained or detained herself, which the police will justify to the court by citing the traveler’s by-now "suspicious" conduct.
And so we have moved into a regime of police fishing expeditions, in which innocent citizens must submit to searches or be branded as drug suspects for refusing.
After all, the D.C. Circuit said, there is a "presumption that a reasonable person is willing to cooperate with a law enforcement officer.”
Some federal courts have suggested that refusal to cooperate-when combined with other "suspicious" conduct such as walking fast, looking around "nervously," having no checked luggage, declining to tell a cab driver your destination within earshot of the police, giving a false identification-will create the kind of "reasonable suspicion" necessary to justify temporary detention.
As Justice Thurgood Marshall pointed out, dissenting in a drug case last year, the "drug courier" profiles used to target travelers for scrutiny have a "chameleon-like way of adapting to any particular set of observations.”
He cited cases in which suspicions were triggered by people being the first to deplane, being the last to deplane, and deplaning in the middle; having one-way tickets and having round-trip tickets; having no luggage and having new suitcases; traveling alone and traveling with a companion; acting nervously and acting too calmly.
The one constant, according to a few statistical analyses and a lot of anecdotal evidence, is that you are far more likely to be scooped into the police net and asked to submit to a search if you are black or Hispanic.
In 1988, Le Var Burton, a black actor, was approached by state agents when he stopped in Gilroy, Calif., to put oil in his car because-as a young black male wearing a blue bandanna around his head and driving a new BMW with a car phone antenna-he fit a gang-member profile. When he asked why the officers had picked him out and surrounded him, one replied, "It’s none of your business."
The courts see only the cases in which those searched turn out to be criminals. The innocent are not prosecuted and have little incentive to sue. And all too conveniently, few if any law-enforcement agencies keep statistics on what percentage of such searches turn up evidence of crime.
But logic suggests the number of innocents put on the spot by police dwarfs the number found to have drags. Indeed, such techniques as having a three-agent team board interstate buses and go down the aisles questioning all the passengers guarantee that the vast majority of those hassled are innocent.
Evidence found in such bus searches has been suppressed this year by U.S. District Judges Gerhard Gesell and Stanley Sporkin in the District of Columbia, in a welcome departure from the trend toward evisceration of the Fourth Amendment.
While distinguishing the appellate precedents on the ground that cornering a passenger in the close confines of a bus is even more coercive than in a station or on a train, both judges also questioned the general drift of the law, in language worth repeating:
"In this ‘anything goes’ war on drugs," Judge Sporkin said, "random knocks on the doors of our citizens’ homes seeking ‘consent’ to search for drugs cannot be too far away. This is not America."
Judge Gesell worried that we may be replicating, "in modem sophisticated dress, the same type of government behavior that led to this nation’s war of independence." He added:
"Despite the understandable public concern about drug trafficking, no responsible federal judge can cooperate with a system so intimidating that it compels compliance with police requests to search-or a system which permits the exercise of a constitutional right to be treated as an admission of guilt."