Part Two: THE WAY YOU LOOK|
by Andrew Schneider and Mary Pat Flaherty
Look around carefully the next time you’re at any of the nation’s big airports, bus stations, train terminals or on a major highway, because there may be a government agent watching you. If you’re black, Hispanic, Asian or look like a “hippie, ” you can almost count on it.
The men and women doing the spying are drug agents, the frontline troops in the government’s war on narcotics. They count their victories in the number of people they stop because they suspect they’re carrying drugs or drug money.
But each year in the hunt for suspects, thousands of guiltless citizens are stopped, most often because of their skin color.
A 10-month Pittsburgh Press investigation of drug seizure and forfeiture included an examination of court records on 121 “drug courier” stops where money was seized and no drugs were discovered. The Pittsburgh Press found that black, Hispanic and Asian people account for 77 percent of the cases.
In making stops, drug agents use a profile, a set of speculative behavioral traits that gauge the suspect’s appearance, demeanor and willingness to look a police officer in the eye.
For years, the drug courier profile counted race as a principal indicator of the likelihood of a person’s carrying drugs.
But today the word “profile” isn’t officially mentioned by police. Seeing the word scrawled in a police report or hearing if from a witness chair instantly unnerves prosecutors and makes defense lawyers giddy. Both sides know the racial implications can raise constitutional challenges.
Even so, far away from the courtrooms, the practice persists.
In Memphis, Tenn, in 1989, drug officers have testified, about 75 percent of the people they stopped in the airport were black.
In Eagle Country, Colo., the 60 mile-long strip of Interstate 70 that winds and dips past Vail and other ski areas is the setting of a class action suit that charges race was the main element of the profile used in drug stops.
According to court documents in one of the cases that led to the suit, the sheriff and two deputies testified that “being black or Hispanic was and is a factor” in their drug courier profiles.
Lawyer David Lane says that 500 people – primarily Hispanic and black motorists – were stopped and searched by Eagle County’s High Country Drug Task Force during 1989 and 1990. Each time Lane charged, the task force used an unconstitutional profile based on race, ethnicity and out-of-state license plates.
Byron Boudreaux was one of those stopped.
Boudreaux was driving from Oklahoma to a new job in Canada when Sgt. James Perry and three other task force officers pulled him over.
“Sgt. Perry told me that I was stopped because my car fit the description of someone trafficking drugs in the area,” Boudreaux says. He let the officers search his car.
“Listen, I was a black man traveling alone up in the mountains of Eagle County and surrounded by four police officers. I was going to be as cooperative as I could,” he recalls.
For almost an hour the officers unloaded and searched the suitcases, laundry baskets and boxes that were wedged into Boudreaux’s car. Nothing was found.
“I was stopped because I was black, and that’s not a great testament to our law enforcement system,” says Boudreaux, who is now an assistant basketball coach at Queens College in Charlotte, N.C.
In a federal trial stemming from another stop Perry made on the same road a few months later, he testified that because of “astigmatism and color blindness” he was unable to distinguish among black, Hispanic and white people.
U.S. District Court Judge Jim Carrigan didn’t buy it and called the sergeant’s testimony “incredible”.
“If this nation were to win its war on drugs at the cost of sacrificing its citizens’ constitutional rights, it would be a Pyrrhic victory indeed,” Carrigan wrote in a court opinion. “If the rule of law rather than the rule of man is to prevail, there cannot be one set of search and seizure rules applicable to some and a different set applicable to others.”
LIVELIHOOD IN JEOPARDY
In Nashville, Tenn, Willie Jones has no doubt that police still use a profile based on race.
Jones, owner of a landscaping service, thought the ticket agent at the American Arilines counter in Nashville Metro Airport reacted strangely when he paid cash Feb. 27 for his round-trip ticket to Houston.
“She said no one ever paid in cash anymore and she’d have to go in the back and check on what to do,” Jones says.
What Jones didn’t know is that in Nashville – as in other airports – many airport employees double as paid informers for the police.
The Drug Enforcement Administration usually pays them 10 percent of any money seized, says Capt. Judy Bawcum, head of the Nashville police division that runs the airport unit.
Jones got his ticket. Ten minutes later, as he waited for his plane, two drug team members stopped him.
“They flashed their badges and asked if I was carrying drugs or a large amount of money. I told them I didn’t have anything to do with drugs, but I had money on me to to buy some plants for my business,” Jones says.
They searched his overnight bag and found nothing. They patted him down and felt a bulge. Jones pulled out a black plastic wallet hidden under his shirt. It held $9,600.
“I explained that I was going to Houston to order some shrubbery for my nursery. I do it twice a year and pay cash because that’s the way the growers want it,” says the father of three girls.
The drug agents took his money.
“They said I was going to buy drugs with it, that their dog sniffed it and said it had drugs on it,” Jones says. He never saw a dog.
The officers didn’t arrest Jones, but they kept the money. They gave him a DEA receipt for the cash. But under the heading of amount and description, Sgt. Claude Byrum wrote, “Unspecified amount of U.S. Currency.”
Jones says losing the money almost put him out of business.
“That was to buy my stock, I’m known for having a good selection of unusual plants. That’s why I go South twice a year to buy them. Now I’ve got to do it piecemeal, run out after I’m paid for a job and buy plants for the next one,” he says.
Jones has receipts for three years showing that each fall and spring he buys plants from nurseries in other states.
“I just don’t understand the government. I don’t smoke. I don’t drink. I don’t wear gold chains and jewelry, and I don’t get into trouble with the police,” he says. “I didn’t know it was against the law for a 42 year-old black man to have money in his pocket.”
Tennessee police records confirm that the only charge ever filed against Jones was for drag racing 15 years ago.
“DEA says I have to pay $900, 10 percent of the money they took from me, just to have the right to try to get it back,” Jones says.
His lawyer, E.E. “Bo” Edwards filled out government forms documenting that his client couldn’t afford the $900 bond.
“If I’m going to feed my children, I need my truck, and the only way I can get that $900 is to sell it,” Jones says.
It’s been more than five months, and the only thing Jones has received from DEA are letters saying that his application to proceed with out paying the $900 bond was deficient. “But they never told us what those deficiencies were,” says Edwards.
Jones is nearly resigned to losing the money. “I don’t think I’ll ever get it back. But I think the only reason they thought I was a drug dealer was because I’m black, and that bothers me.”
It also bothers his lawyer.
“Of course he was stopped because he was black. No cop in his right mind would try that with a white businessman. These seizure laws give law enforcement a license to hunt, and the target of choice for many cops is those they believe are least capable of protecting themselves: blacks, Hispanics and poor whites,” Edwards says.
In Buffalo, N.Y., on Oct. 9, Juana Lopez, a dark-skinned Dominican had just gotten off a bus from New York City when she was stopped in the terminal by drug agents who wanted to search her luggage.
They found no drugs, but DEA Agent Bruce Johnson found $4,750 in cash wrapped with rubber bands in her purse. The money, the 28 year-old woman said, was to pay legal fees or bail for her common law husband. After he began questioning her, Johnson realized that he had arrested the husband for drugs two months earlier in the same bus station.
Johnson called the office of attorney Mark Mahoney, where Ms. Lopez said she was heading, and verified her appointment.
Johnson then told the woman she was free to go, but her money would stay with him because a drug dog had reacted to it.
Ms. Lopez has receipts showing the money was obtained legally – a third of it was borrowed, another third came from the sale of jewelry that belonged to her and her husband, and the rest from her savings as a hair stylist in the Bronx.
It has been more than nine months since the money was taken, and Assistant U.S. Attorney Richard Kaufman says the investigation is continuing.
Robert Clark, a Mobile, Ala., lawyer who has defended many travelers, says profile stops are the new form of racism.
“In the South in the ’30s, we used to hang black folks. Now, given any excuse at all, even legal money in their pockets, we just seize them to death,” he says.
“If you took all the racial elements out of profiles, you’d be left with nothing,” Says Nashville lawyer Edwards, who heads a new National Association of Criminal Defense Lawyers task force to investigate forfeiture law abuses.
“It would outrage the public to learn the trivial indicators that police officers use as the basis for interfering with the rights of the innocent.”
Examination of more than 310 affidavits for seizure and profiles used by 28 different agencies reveals a conflicting collection of traits that agents say they use to hunt down traffickers.
Guidelines for DEA drug task force agents in three adjacent states give conflicting advice on when officers are supposed to become suspicious.
Agents in Illinois are told it’s suspicious if their subjects are among the first people off a plane, because it shows they’re in a hurry.
In Michigan, the DEA says that being the last off the plane is suspicious because the suspect is trying to appear unconcerned.
And in Ohio, agents are told suspicion should surface when suspects deplane in the middle of a group because they may be trying to lose themselves in the crowd.
One of the most often mentioned indicators is that suspects were traveling to or from a source city for drugs.
But a list of cities favored by drug couriers gleaned from the DEA affidavits amounts to a compendium of every major community in the United States.
Seeming to be nervous, looking around, pacing, looking at a watch, making a phone call – all things that business travelers routinely do, especially those who are late or don’t like to fly – sound alarms to waiting drug agents.
Some agents change their mind about what makes them suspicious.
In Tennessee, an agent told a judge he was leery of a man because he “walked quickly through the airport.” Six weeks later, in another affidavit, the same agent said his suspicions were aroused because the suspect “walked with intentional slowness after getting off the bus.”
In Albuquerque, N.M., people have been stopped because they were standing on the train platform watching people.
Whether you look at a police officer can be construed to be a suspicious sign. One Maryland state trooper said he was wary because the subject deliberately did not look at me when he drove by my position.” Yet, another Maryland trooper testified that he stopped a man because the “driver stared at me when he passed.”
Too much baggage or not enough will draw the attention of the law.
You could be in trouble with drug agents if you’re sitting in first class and don’t look as if you belong there.
DEA Agent Paul Markonni, who is considered the “father” of the drug courier profile, testified in a Florida court about why he stopped a man.
“We do see some real slimeballs you know, some real dirt bags, that obviously could not afford, unless they were doing something, to fly first class,” he told the court.
The newest extension of the drug courier profile are pagers and cellular telephones.
Based on the few cases that have reached the courts, the communication devices – which are carried by business people, nervous parents and patients waiting for a transplant as well as drug couriers – are primarily suspicious when they are found on the belts or in the suitcases of minorities or long haired whites.
For police intent on stopping someone, any reason will do.
“If they’re black, Hispanic, Asian or look like a hippie, that’s a stereo type, and the police will find some way to stop them if that’s their intent,” says San Antonio lawyer Gerald Goldstein.
A DEA agent thought that former New York Giants center Kevin Belcher matched his profile. When Belcher got off a flight from Detroit March 2, he was stopped by DEA’s Dallas/Fort Worth Airport Narcotics Task Force.
The Texas officers had been called a short while earlier by a DEA agent at Detroit’s Metro Airport. A security screener had spotted a big, black man carrying a large amount of money in his jacked pocket, the Detroit agent reported to his Southern colleagues.
Belcher was questioned about the purpose of the trip and was asked whether he had any money. He gave the agents $18,265.
Belcher explained that he was going to El Paso to buy some classic old cars – “1968 or ’69 Camaros are what I’m looking for.” Belcher, whose professional football career ended after a near-fatal traffic accident in New Jersey, told the agents he owned four Victory Lane Quick Oil Change outlets in Michigan. The money came from sales, he said, and cash was what auctioneers demanded.
A drug-sniffing dog was called, it reacted, and the money was seized.
Agent Rick Watson told Belcher he was free to go “but that I was going to detain the monies to determine the origin of them.”
In his seizure affidavit, Watson listed the matches he made between Belcher and the profile of “other narcotic currency couriers encountered at DFW airport.
Included in Watson’s profile was that Belcher had bought a one way ticket on the date of travel; was traveling to a “source” city, El Paso, “where drug dealers have long been known to be exporting large amounts of marijuana to other parts of the country”; and was carrying $100, $50, $20, $10 and $5 bills, “which is consistent with drug asset seizures.”
Watson made no mention as to what denomination other than $1 bills was left for non-drug traffickers to carry.
“The drug courier profile can be absolutely anything that the police officer decides it is at that moment,” says Albuquerque defense lawyer Nancy Hollander, one of the nation’s leading authorities on profile stops.
Officials are reluctant to reveal how many innocent people are ensnared each day by profile stops. Most police departments say they don’t keep that information. Those that do are reluctant to discuss it.
“We don’t like to talk much about what we seize at the (Nashville) airport because it might stir up the public and make the airport officials unhappy because we are somehow harassing people. It would be great if we could keep the whole operation secret,” says Capt. Bawcum, in charge of the airport’s drug team.
Capt. Rudy Sandoval, commander of Denver’s vice bureau, says he doesn’t keep the airport numbers but estimates his police searched more than 2,000 people in 1990, but arrested only 49 and seized money from fewer than 50.
At Pittsburgh’s airport, numbers are kept. The team searched 527 people last year, and arrested 49.
A federal court judge in Buffalo, N.Y., says police stop too many innocent people to catch too few crooks.
Judge George Pratt said he was shocked that police charged only 10 of the 600 people stopped in 1989 in the Buffalo airport and decried encroaching on the constitutional rights of the 590 innocent people.
In his opinion in the case, Pratt said that by conducting unreasonable searches: “It appears 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.’ When, pray tell, will it end ? Where are we going?”
The following is a side box on Part Two: