Scenes From a Drug War

DEA agents were right about Ranford Washington. It was the Fourth Amendment they had trouble with.

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From the beginning, Cleveland has not agreed with Ranford Washington.

He arrived early one summer morning in 1999. His train, the No. 49 from New York, was over an hour late pulling into the depot downtown, so Washington wasted little time. He stepped off the Amtrak and headed straight to the public telephones. He made a call, hung up, and walked outside. That's when he noticed someone approaching.

DEA Special Agent Charles Stirling wanted to chat. He showed Washington his badge and began asking questions. He wanted to know if Washington had been on the train, where he'd gotten on, whether he had identification.

Washington's comportment didn't do much to douse Stirling's curiosity. The agent noticed how Washington's hands shook as he handed over his ID, how he stammered when he spoke -- so much so that he was difficult to understand. Even more suspicious: Washington's Connecticut ID was in the name of Eugene Thamis. His train ticket was for Eugene Brown.

Stirling explained his interest. He was part of an interdiction unit that monitored trains. Hours before, the agency received a tip about four suspected drug couriers traveling on the No. 49. He asked Washington if he could search his luggage.

"I don't know if I want you to," Washington told him.

Stirling was soon joined by another officer, James Gilchrist, a Geauga County sheriff's detective who was also part of the drug unit. Gilchrist began quizzing Washington about his trip, his nationality, his luggage. He asked Washington if there was something inside his bag he didn't want agents to see. "I explained, if he would allow us to look in his luggage, it would be a brief encounter," Gilchrist later recalled.

Washington, however, had a question of his own: "Why me?"

It's an interesting query, since Ranford Washington happens to be a young black man who speaks with a thick Jamaican accent, and he was, in fact, transporting enough pot to supply stoners from Solon to Sandusky. When his luggage was eventually opened, agents discovered he was carrying 44 pounds.

Four months later, he was found guilty of one count of possession and one count of preparation to distribute; he was sentenced to nine years in prison.

Yet according to his attorney, James Willis, Washington should never have been stopped and searched in the first place. He had -- at least up to the point where his stash was discovered -- done nothing wrong. "It's called racial profiling," says Willis. "They were going to search those bags, no matter what he said. And they did. This is typical. This is what happens every day in America -- particularly in Cleveland, where we have Gestapo tactics in stopping people."

Ohio's 8th District Court of Appeals agreed, at least in part. Last month, a panel of three judges overturned the conviction. The DEA, it turned out, had been right about Ranford Washington. It was the Constitution they had trouble with.

The ruling was not something agents could have anticipated. For decades, the DEA has relied on profiles in its interdiction efforts -- most notoriously in training state and local police to identify drug couriers on the nation's highways. And while profiling has long given civil libertarians fits, the U.S. Supreme Court ruled in 1989 that their use did not violate Fourth Amendment protections against unlawful search and seizure. Profiling was perfectly valid -- as long as an agent could articulate why he had reasonable suspicion to justify a stop.

"The court said it was fine to use a profile, but there has got to be some relation that the officer can make between the profile and the observed behavior," says Carl Milazzo, assistant executive director for Americans for Effective Law Enforcement, a Chicago-based advocacy group for law enforcement personnel.

Ranford Washington was singled out that morning, Gilchrist and Stirling testified, because his behavior matched several profile characteristics: He was arriving from a drug "source" city. He was one of the last people off the train. He appeared nervous. His ID didn't match the name on his ticket. And he was carrying new luggage. "He had a new roller bag that he was using, and these are things we've seen in our efforts to interdict drugs," Stirling testified.

But what look like the telltale signs of a dope courier to Stirling looks like a fishing expedition to others. The sweeping criteria of the profile used to mark Washington -- new luggage? -- could be used to stop almost anyone, argues David Harris, a law professor at the University of Toledo who has written extensively on racial profiling. "Any profile is only as good as what goes into it. If what you have is a profile made up of factors that have no proven statistical value, if you have one made up of things that just make people suspicious on the spot, you get nothing from that."

Still, to many people in law enforcement, using profiles involves nothing more than enumerating their experience and instincts -- the things cops have always relied on to ferret out crime. "These individual traits -- no, they aren't criminal," says Eleanore Hilow, the assistant county prosecutor who argued the Washington case. "But when you take everything together and look at the totality of the circumstances . . . it points to this individual being a drug courier. And he was."

Indeed, Washington is not the best poster boy for the abuse of profiling. Stirling and Gilchrist did manage to find a guy who was transporting 44 pounds of marijuana in his suitcase. (The DEA did not return numerous phone calls.)

The appeals court seemed to recognize as much. Though Washington alleged that he'd been singled out solely because of his race, the court didn't overturn his conviction based on that claim. Instead, it found that officers had improperly detained and searched him, even though they had no reasonable suspicion that he had done anything illegal -- a violation of the Fourth Amendment. "After being told that the encounter would be brief if he consented to the search," Judge Anne L. Kilbane wrote, "a reasonable innocent person would have understood that he was not free to go unless he consented."

The court saved its heavy fire, however, for blasting the drug courier profile. Calling the characteristics "trivial," Kilbane wrote that the indicators could be applied to virtually anyone who traveled. "If we were to approve the seizure here, we would be sanctioning virtually random seizures of individuals, supported by only the most general justifications in order to mask their arbitrary (or worse, discriminatory) nature."

The decision surprised both sides. "This is a first," says Hilow. "I've done a lot of these interdiction cases, and the opinions that have come out of the 8th District have all been affirming, so this is really unusual."

Adds Willis: "Most of the time, our court of appeals . . . as far as they're concerned, police never do anything wrong."

Washington, meanwhile, will remain in prison while the county prosecutor's office appeals the decision to the Ohio Supreme Court. Even in victory, there is little in Ohio that seems to agree with him.

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