D.Kan.: Defendant’s drug courier profile stop was invalid

Buying a one-way bus ticket with cash going from Las Vegas to Des Moines was hardly reasonable suspicion. The defendant’s encounter was without reasonable suspicion and his consent was not voluntary. [Essentially, the government confronts the defendant, gets him nervous, and then claims nervousness is a factor in reasonable suspicion. Defense counsel showed how consent was invalid.] United States v. Correa, 753 F. Supp. 2d 934 (D. Kan. 2010)*:

The court finds that the encounter most resembles a Terry-type investigative detention and the government’s contention that it was consensual does not make it so. The facts on which the officers relied to single out the defendant for questioning do not furnish the reasonable, articulable grounds for suspicion of criminal activity required to justify the detention of the defendant. The officers’ targeting of the defendant was based only on the facts that he purchased his ticket with cash shortly before departure and was traveling from Las Vegas to Des Moines. This rationale is troubling. The officer’s reliance on the defendant’s purchase of a one-way ticket for cash shortly before departure is no cause for suspicion. Absent some evidence that it is unusual for bus travelers to do so, the court can draw no inference from the defendant’s cash purchase. Bus tickets are generally less expensive than airplane tickets, and common sense dictates that bus transportation is more likely to be used by people who do not have credit cards. There is no evidence that the ground transportation industry provides any incentive to purchase a ticket early, as the airline industry does. Officer Scott’s reliance on the trip’s origination in Las Vegas is similarly meaningless. Because of the widespread availability of drugs and the prevalence of cross-country drug-trafficking, virtually every major metropolitan area in the United States can be identified as either a source or destination city, or both, for the illicit drug trade.

Further, the court attaches no significance to the defendant’s explanation of the purpose of his trip. It is neither suspect nor inconsistent to describe the place where a person grew up or where his family lives as “home.” Also, the fact that the defendant carried only a small piece of luggage and acted nervous does not give rise to suspicion. Traveling light is conduct that is typical of many innocent travelers, as is nervousness in the face of interrogation in a confined space by presumably armed law enforcement officers. Given the method of law enforcement’s encounter in this matter, the court has little doubt that these officers fully expected to obtain acquiescence to search from any passenger they chose.

The court next finds that the government has not sustained its burden of showing that the defendant’s consent to search was voluntary. There is nothing in the record to support the conclusion that the defendant was of average intelligence and could reasonably comprehend the situation. Scott testified that he did not know the defendant’s nationality, level of education or criminal history. The conversation lasted only a few minutes and included short responses, pointing and gesturing. The contention that the consent was a product of free and unconstrained choice is further undermined by the evidence of the defendant’s “defeated” demeanor when asked for permission to search the jacket. The defendant’s demeanor could be easily interpreted as reluctance to consent and at most shows a mere acquiescence to a claim of lawful authority.