ABSTRACT
The origins of today’s “drug courier profiles” can be traced back to the world’s first predictive criminal profile–the skyjacker profile which was developed in the late 1960s to combat airplane hijackings. Although the skyjacker profile was deemed constitutional, it was clearly problematic. “Proposals based on research designed to predict who might commit crimes and giving them the special attention of law enforcement agencies [are] particularly disturbing,” warned one judge in 1971. Three years after this prescient warning, a Drug Enforcement Administration (DEA) agent, Paul Markonni, received a then novel assignment–catch drug couriers passing through Detroit Metropolitan Airport. Markonni later explained that “when we started this detail at the airport, we didn’t really know what we were looking for.” However, as Markonni and numerous other agents later testified, they certainly knew who to target: black and Latino passengers. The first published case involving Markonni’s “profile” was a consolidated ruling involving multiple defendants, United States v. Van Lewis. The agents testified that one defendant, a woman, was stopped on the basis of a mistaken identity; another defendant, a man, was stopped because he had triggered the profile by engaging in “suspicious” behavior such as using the bathroom after disembarking. Both sets of defendants were interrogated, taken to a private office, and the agents then “requested” to search their luggage. The man complied; the woman refused but her luggage was searched notwithstanding. Judge Charles Joiner found that the agents had lacked probable cause to conduct either search. However, in a radical departure of traditional Fourth Amendment law, Joiner ruled only the woman’s constitutional rights had been violated. Rather than focusing on the agents’ actions, Joiner focused on the suspects’ reactions. Since the man had complied with the agents’ “requests,” Joiner ruled he had willingly waived his constitutional rights. Would higher courts uphold this logic?
