Fault Lines
8 December 2017

Exhibiting Human Behavior is Indicia for Drug Trafficking, Or Is It?

October 20, 2016 (Fault Lines) — What does a drug trafficker look like? How exactly does he act? How does he react to a police presence? Ask a police officer and he will give you a very specific answer – one that miraculously matches whatever is happening at the moment. Score one for the Fourth Amendment and the Seventh District Court of Appeals at Amarillo for recognizing the farce that has become “reasonable” as to just what constitutes suspicion.

In Ramirez-Tamayo v. State, the court took law enforcement to task for their over-generalizations of indicia of drug trafficking. Ramirez-Tamayo was stopped for speeding, 78 in a 75 mph zone. The deputy approached the passenger side of the car, and Ramirez-Tamayo opened the passenger door instead of rolling down the window. As the door opened, the deputy noted a smell of cigarette smoke and cologne. The deputy soon discovered the car was a rental with “no smoking” decals. Additionally, Ramirez-Tamayo was nervous as he was made to sit in the front seat of the deputy’s patrol car while he spoke with him. After informing Ramirez-Tamayo that he would only receive a warning, the deputy prolonged the detention and decided to have a drug dog sniff the car. Ultimately, several pounds of marijuana were discovered within the car’s doors.

In a hearing on the motion to suppress, the deputy testified that Ramirez-Tamayo’s conduct was suspicious; leading him to believe Ramirez-Tamayo was engaged in drug trafficking necessitating the prolonged detention and ultimate search. Not surprisingly, the trial court denied the motion to suppress. After all, the deputy explained each of his observations, coupled with his “training and experience,” gave rise to indicia of trafficking. Naturally, opening the car door rather than rolling down the window was suspicious because drug smugglers often hide narcotics inside doors impeding the operation of the window. Logically, the smell of cigarette smoke and cologne was suspicious because smugglers often use various odors to mask the scent of drugs. Obviously, being nervous was suspicious because, again, drug traffickers just can’t help but display nervousness at being caught.

Despite the innocence of each of these actions, the deputy was certain each and every action taken by Ramirez-Tamayo was, according to his training and experience, nevertheless suspicious. And the trial court certainly was not going to discount the word of an officer. His conclusory statements regarding human behavior were good enough for government work. Never mind that he offered no basis for his conclusions; no evidence of his training or experience; no explanation as to why innocent behavior should be construed as worthy of a prolonged detention and search.

And, with some intellectual honesty, the Amarillo court opened with perhaps the best first paragraph:

We reverse.

Then took law enforcement to task:

[B]ecause drug traffickers have been seen breathing, then breathing is an indicia of drug trafficking. Because they normally have two hands, then having two hands is an indicia of drug smuggling. … Whether it be driving a clean vehicle, or looking at a peace officer, or looking away from a peace officer, or a young person driving a newer vehicle, or someone driving in a car with meal wrappers, or someone driving carefully, or driving on an interstate, most anything can be considered as indicia of drug trafficking to law enforcement personnel. Maybe this is because drug smugglers just happen to be human beings and being such, they tend to engage in the same innocuous acts in which law abiding citizens engage.

The court goes to great pains to show that officers generally rely on just about anything to justify their suspicions. All the while, officers routinely state the things they observed are consistent with their “training and experience.” However, as the court points out, just because an officer has observed similar behavior before, does not convert that innocent behavior into suspicious behavior. And, in this case, the deputy provided no basis for his training and experience, only conclusions that otherwise innocent actions were suspicious to him.

Each case is fact specific. It is not enough to simply say that because some innocent activity was linked to crime in some prior case, an officer who knew of that activity and perceived it unfolding before him would ipso facto have basis to reasonably suspect that a crime is about to occur. Much depends upon the activity and the degree of suspicion reasonably attaching to it under all circumstances then unfolding.

So, just because an officer may have once known a drug trafficker to open the car door rather than roll down the window, does not convert the activity to one of suspicion. It was incumbent upon the state and the deputy to explain why this particular otherwise innocent action was in fact suspicious. Instead, here the deputy failed to offer anything more than his own conclusion.

Each indicia at bar could have significance or not. It was dependent upon the State and deputy to explain why they did. Merely offering conclusory opinions derived from an unknown data base does not instill us with confidence about their reliability and accuracy. As stated in Ford v. State, “[m]ere opinions are ineffective substitutes for specific, articulable facts in a reasonable suspicion analysis.” Without proof of their substantive reliability they are not enough to raise the totality of the circumstances before us to the level of reasonable suspicion.

While taking law enforcement to task, the court left open that the result could have been entirely different had the deputy actually given some basis for his conclusions. And there it is! The intellectual honesty we are accustomed to: if the officer simply explains why he believes it, then it’s likely to be okay. So, as much as the court explains the farce that all activity is twisted into suspicious activity in the eyes of law enforcement, the court will likely continue to accept those suspicions so long as the officer can explain his “training and experience” and tie it to each innocent action.

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  • Links #329 | The Honest Courtesan
    23 October 2016 at 6:02 am - Reply

    […] More of this, please. […]

  • Fault Lines Friday Fail
    28 October 2016 at 11:38 am - Reply

    […] week’s “winner” is the Texas deputy whose “training and experience” led him to believe heavy breathing was a sign a person dealt drugs. Check out this week’s top 5 fails and pick your […]

  • Backpage and the Texas Tribune’s Tinfoil Hat
    17 February 2017 at 9:53 am - Reply

    […] If this reminds you of something, it should. These “phrases and symbols,” and their extraordinary flexibility, are a lot like the criteria law enforcement uses to detain and expropriate people on suspicion of trafficking drugs. At least those “indicia,” as they’re known, are finally beginning to meet with judicial skepticism. […]