Since I did not post a blog post last week, the ideas in this post are a continuation of the issues that I had with the readings and cases from last week. Something that troubled me about these drug court decisions is this concept of "reasonable suspicion." I think individuals would all like to think that there are certain characteristics and actions that drug smugglers do that would label them unmistakably as such (paying with only cash, not checking any luggage, looking nervous, etc.), but as we saw last week in our discussion, when we compile all the characteristics of the drug smugglers in all of the Supreme Court cases, the characteristics are often polar opposites of one another and can describe almost any given individual anytime. Therefore, I want to discuss whether or not it is possible to define a set of characteristics that could serve as a checklist for "reasonable suspicion." In the Supreme Court case this week U.S. v. Montoya de Hernandez, the characteristics of Montoya de Hernandez that contributed to her suspicious status were her recent frequent trips to Miami and Los Angeles, her home destination of Bogota a source city of narcotics, her possession of $5,000 of cash, as well as an unconcrete plan of where she would be staying and how she would be traveling around Los Angeles. Insepctor Talamantes had determined from these facts that Montoya de Hernandez was a balloon swallower, and subsequently detained her. Read in context of the court case, many of us would agree that Montoya de Hernandez seems to be a drug smuggler, but taken out of context, many individuals would not have known what to label her.
I do not think our country can get away with relying on ambiguous terms anymore because no one deserves to be mistakenly thrown into detention. In the context of international border searches, it makes sense that the United States would be extremely overcautious about suspicious individuals into the country, but there should still be a laundry list of characteristics that constitute "reasonable suspicion" that is expressed to and understood by the general public. By having these characteristics set, debates and discussions on seizures and probable cause can be focused on whether these characteristics are an accurate representation of criminals and drug smugglers and veer away from whether the seizure itself had probable cause. I believe this to be a more fruitful way in which to conduct Fourth Amendment searches in the future.
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There is a strong argument that says experienced DEA agents at the border "know it when they see it" -- its the both the sum of identifiable characteristics and the way those characteristics manifest on an individual that raises suspicion. Would you prefer a system wherein police were allowed to rely on their instinctual "know it when they see it" or rather have police rely on the application of some predetermined checklist of characteristics?
ReplyDeleteI understand why you advocate publication of profiling characteristics. But wouldn't this undermine their efficacy? If the criteria are published, won't that allow drug smugglers to simply adapt their appearance and behavior to avoid detection? Could we instead allow the criteria remain secret (at least to the general public), but require some kind of empirical link between a particular criterion and the likelihood that the target is engaged in criminal activity?
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