ABSTRACT
After Van Lewis, Drug Enforcement Administration (DEA) agents across the nation adopted Markonni’s profile, but few judges adopted Joiner’s reasoning. The five federal appellate courts which examined the “profile” all ruled it provided insufficient legal justification to effect a stop or to conduct a search. The Sixth Circuit even declared Joiner’s ruling was “clearly erroneous,” and it began summarily dismissing cases involving the “much abused drug courier profile.” The more cases that were heard, the more absurd the “profile” became. Judges increasingly complained agents were stopping passengers for perfectly innocent behavior and that the “profile’s” infinitely flexible criteria changed from one arrest to the next. Passengers were stopped because they were walking too quickly or slowly, for carrying too much luggage or too little, or for disembarking first, last, or somewhere in between. The Supreme Court heard its first “drug courier profile” case in 1980, United States v. Mendenhall. The arresting agent had testified that he had first thought the defendant was suspicious simply because she was “a black woman traveling alone.” He also testified that she “was not free to leave” at any point after he “asked” her to accompany him to his office to be interrogated and strip-searched. Although the defendant had been legally “seized,” even the prosecution conceded that the agent had lacked probable cause to do so. The agent’s actions were so flagrantly unconstitutional that the Sixth Circuit dismissed the case in a mere two sentences. Yet, after the prosecution appealed, the Supreme Court ignored allegations of racial discrimination and instead adopted the logic first set forth in Van Lewis. It ruled that the strip-search, conducted without probable cause, was constitutional because the defendant had waived her constitutional rights and disrobed “in a spirit of apparent cooperation.”
