Grant v. State

Moylan, J., delivered the opinion of the Court. Far from condemning the alert and diligent efforts of the drug enforcement officers in this case, we applaud them. As a result of their efforts, a significant, high-level functionary in an underworld network importing contraband narcotics from Florida into Maryland has been brought to book. We approach this appeal bearing in mind the wisdom expressed by Justice Powell 1 in his concurring opinion in United States v. Mendenhall, 446 U.S. 544, 561-562 , 100 S.Ct. 1870 , 64 L.Ed.2d 497, 514 (1980): "The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit.

New problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances. Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates. The profits are enormous. And many drugs, including heroin, may be easily concealed.

As a result, the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement.” ⁵ The appellant, William McKlveen Grant, was convicted by an Anne Arundel County jury, presided over by Judge Raymond G. Thieme, Jr., of unlawful possession with intent to distribute contraband cocaine and of conspiracy to possess and distribute cocaine. He was discovered at the Baltimore-Washington International Airport to be in possession of 124 grams of 60% pure cocaine. Expert testimony established that that cocaine would be "cut” to a level of 10% purity before it hit the streets of Maryland and that the approximate street value was $48,000. Upon this appeal, the appellant raises five contentions: (1) That the search of his suitcase and the seizure of the cocaine represented a violation of his Fourth Amendment rights; (2) That a Corporal Cusimano should not have been allowed to testify as to "the drug courier profile” or as to the street value of the cocaine that was found in the appellant’s possession; (3) That Judge Thieme erroneously refused to grant the defense request for a bill of particulars; (4) That Judge Thieme erroneously denied the appellant’s motion to dismiss the indictment pursuant to Md. Rule 711; and (5) That Judge Thieme erroneously excluded character evidence offered by the defense.

The Search and Seizure We deal first with the suppression issue. The indispensable predicate for the exclusion of highly probative evidence is that the investigative behavior of the police be unreasonable within the contemplation of the Fourth Amendment. Far from being unreasonable, the investigative behavior in this case was a model of both thoroughness ⁶ and restraint. Had they done other than what they did, the police would have been derelict and the scourge upon our society that is the drug traffic would have gone on unabated.

The reason for the police investigation in this case was that the appellant and his co-conspirator, Frank Anthony Herrmann, met a number of the telltale characteristics of the so-called "drug courier profile,” promulgated by the Drug Enforcement Agency to assist federal and state agents in spotting possible drug couriers. A preliminary word is in order about the special training and the mission of the State Trooper who first questioned the appellant and ultimately seized the appellant’s suitcase. Corporal Wayne Cusimano had been a Maryland State Policeman for 15-1/2 years. At the time of the investigation in this case, he had been assigned to the Special Services Intelligence Section for the preceding four years.

As a part of his duties with the Special Services Intelligence Section, Corporal Cusimano had been assigned for the preceding five months to the Baltimore-Washington .International Airport where his special mission was to intercept drugs coming into Baltimore from certain designated "source cities.” During those five months at the Baltimore-Washington . International Airport, Corporal Cusimano had received on-the-job training through DEA agents and had attended a DEA seminar on the airport courier situation throughout the country. An additional preliminary word is also in order about the so-called "drug courier profile.” It is a convenient descriptive term without a great deal of legal significance. Some lament the fact that the Supreme Court has not yet told us whether meeting the so-called "drug courier profile” is an adequate predicate to establish either articulable suspicion for a stop or probable cause for an arrest or search.

Of course, the Supreme Court has not told us that and they never will. Indeed, they cannot, for there is no such thing as a single drug courier profile; there are infinite drug courier profiles. The very notion is protean, not monolithic. United States v. Mendenhall, supra, refers to it as "an informally compiled abstract of characteristics thought typical of persons ⁷ carrying illicit drugs.” 446 U.S. at 547 n. 1.

It is simply an open-ended laundry list of more or less suspicious circumstances, some of which may occur in a particular case. A larger number of the more suspicious circumstances may well pass constitutional muster in a given case, whereas a smaller number of more ambiguous circumstances will not pass muster in another case. In United States v. Mendenhall, supra, the particular characteristics there present were deemed to be enough to establish articulable suspicion for a Terry-type stop. 2 In Reid v. Georgia, 448 U.S. 438 , 100 S.Ct. 2752 , 65 L.Ed.2d 890 (1980), a different collection of characteristics from the laundry list did not pass constitutional muster. Yet, in the next case, Florida v. Royer, U.S. , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983), a different collection of characteristics did pass constitutional muster.

There is no inconsistency among these three cases. It is rather the case that the suppression hearing judge and the reviewing court will look at the actual observations testified to on a case-by-case basis and will decide whether those observations add up to articulable suspicion and/or probable cause, just as if the phrase "drug courier profile” had never been coined. The only legal significance to this umbrella term called "the profile” is that the expertise of the police will be legitimately taken into consideration when we assess the significance of observations that might to the untrained layman seem completely ambiguous. The establishment of the profile by the Drug Enforcement Agency simply gives us the benefit of the collective expertise of many investigators working nationwide in this sensitive area of law enforcement.

The special significance that a given observation might have to a trained and experienced policeman could always be established on a case-by-case basis, even if the "profile” did not exist. ⁸ Corporal Cusimano was on duty at the airport at 11:15 a.m. on March 13,1981, when a Delta Airlines flight arrived from Miami/Fort Lauderdale. According to the "drug courier profile,” Miami/Fort Lauderdale is a "source city” for narcotics arriving in the Baltimore area. Corporal Cusimano watched the passengers deplane and then followed them to the baggage claim area. He testified that two of the characteristics according to the "profile” were that (1) couriers would typically carry very little by way of luggage and (2) at the baggage claim area, they would frequently stay away from the luggage until they deemed it safe to pick it up.

Corporal Cusimano observed the codefendant, Frank Anthony Herrmann, behaving "in a nervous and suspicious manner” as he picked up a small suitcase. He walked abruptly away from the baggage claim area and appeared to glance down at the tag on the bag in a surreptitious fashion. Corporal Cusimano followed Mr. Herrmann to the premium parking lot directly in front of the airport. He observed Mr. Herrmann approach a parked maroon-colored Lincoln, in which the appellant was seated on the driver’s side.

Mr. Herrmann opened the rear door of the automobile and placed the bag on the rear seat. To that point, there is nothing remotely requiring constitutional analysis, for Corporal Cusimano was only observing what was visible for anyone to see and no constitutional right of the appellant was even dimly involved. At that point, Corporal Cusimano approached the automobile and asked whether either Mr. Herrmann or the appellant could produce a claim check. For the next few minutes, there was conversation between the Corporal, on the one hand, and the appellant and Herrmann on the other hand.

As each answer provoked new questions, that conversation took on increasingly suspicious overtones. Before recounting it and its legal significance, we preface it with our conclusion that the gears of the Fourth Amendment were not yet engaged. As Justice White observed in his concurring opinion in Terry v. Ohio, supra, at 392 U.S. 34 , "There is nothing ⁹ in the Constitution which prevents a policeman from addressing questions to anyone on the streets.” The United States Court of Appeals for the Sixth Circuit spoke to the same issue in United States v. Collis, 699 F.2d 832, 835 (1963): "The average citizen may well elect to stop and respond to inquiries of a law enforcement officer, compelled, perhaps, by a desire to assist the officer in the prevention of crime or, as noted by the lower court, bound by a sense of common courtesy. In neither instance however is the citizen actually or constructively restrained by the authority of the officer.” The opinion for the Court in United States v. Mendenhall, supra, explained the distinction between a mere accosting and a Terry-type detention, at 446 U.S. 555 : "The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions.

Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official.” It is also clear that as the conversation progressed, what may have begun as little more than an inchoate hunch, at the moment of the initial and constitutionally innocuous accosting, mushroomed into Terry-level articulable suspicion (if such were deemed necessary) with the first brief responses. That articulable suspicion, in turn, almost unquestionably ripened into probable cause (if such were ever deemed necessary) by the time the conversation had progressed for several minutes. The articulable suspicion and/or the probable cause were, however, redundant for, as shall be discussed, the appellant was never restrained or detained even within the contemplation of Terry. We turn our attention to the bizarre conversation and the unavoidable conclusions that any reasonable person would ¹⁰ draw from it.

As soon as the appellant observed the Corporal’s badge, he became highly nervous and broke out into a profuse sweat. A prudent policeman and a prudent reviewing judge could well wonder why an apparently affluent businessman, who stated that he had been to Florida for several days on a business trip involving possible land purchases, and who drove a Lincoln, would become so nervous and agitated at the modest request to produce a claim check for his suitcase. Neither the appellant nor Mr. Herrmann could produce a claim check. The less-than-steadfast Mr. Herrmann quickly offered an explanation that he had not been on the flight but had simply picked up the baggage for the appellant, who was Mr. Herrmann’s employer.

Corporal Cusimano testified that one modus operandi used in the drug courier business is for one individual to pick up the bags for someone else. While looking for a claim check, the appellant produced a one-way ticket from Fort Lauderdale to Baltimore in the name of "W. Grant” and purchased on that very day, March 13. No claim check was stapled to the ticket envelope. Corporal Cusimano testified that it is routine procedure for the claim check to be stapled to the envelope.

The Corporal asked the appellant, moreover, why he had not picked up the bag himself since he had to walk right past the baggage claim area on his way to the parking lot. The appellant claimed that he was extremely tired and did not want to wait for the baggage. Corporal Cusimano noted that if his fatigue were that pronounced, it was strange that he was driving the automobile rather than letting his employee, Mr. Herrmann, do the driving. It was at that point that the appellant explained to the Corporal that he had been in Florida for three or so days to look at some land.

Corporal Cusimano asked the appellant whom he had been doing business with in Florida. The appellant gave the name "Bob Holden” but did not know Holden’s address and could not remember a telephone number. He seemed to the Corporal to be visibly shaken and confused as to his activities. When asked if he would mind ¹¹ coming into the terminal where some telephone calls could be made to verify his movements in Florida, he claimed that he was too tired to do so and had to get to his office to make up a payroll.

Mr. Herrmann was then asked about his relationship with the appellant. He responded that he worked for the appellant and had dropped him off "at the airport yesterday.” The Corporal noted the inconsistency between this version of the schedule and the appellant’s story about having been in Florida for several days. Mr. Herrmann appeared to be in an extremely agitated state and volunteered the information that he did not know what was in the bag and did not know anything about the appellant’s activities. Mr. Herrmann then asked if he was under arrest and was assured by the Corporal that he was not.

Mr. Herrmann then left to make a telephone call. Just before Mr. Herrmann left, the Corporal asked for some identification from both the appellant and Mr. Herrmann. The appellant produced his driver’s license showing his name as "William McKlveen Grant” and his address as 7894 Chalice Road, Severn, Maryland. The address on Mr. Herrmann’s driver’s license was 12969 Claxton Drive, Laurel, Maryland.

As the inconsistencies continued to gush forth in a profusion worthy of the Watergate, Corporal Cusimano bore in more doggedly with his questions. As every answer made the appellant increasingly suspect, there was more fully evidenced the wisdom of Terry v. Ohio’s call for "an escalating set of flexible responses, graduated in relation to the amount of information [the police] possess.” 392 U.S. at 10. Unable to produce the claim check for the bag, the appellant volunteered the information that there was nothing in it except a pair of old jeans, a pair of tennis shoes, and some dirty underwear. The spareness of the wardrobe seemed strange for a man who had been on a three-day business trip.

The appellant refused, moreover, to let Corporal Cusimano look into the bag. A prudent policeman and a prudent reviewing judge could think of many good reasons for such ¹² refusal; the list of good reasons shrinks significantly if the bag did, in truth, contain nothing but a pair of old jeans, a pair of tennis shoes, and some dirty underwear. At that point, a Trooper Raffel, of the State Police, joined Corporal Cusimano on the parking lot. The appellant was asked one additional time about a claim check.

In looking through his pockets on this occasion, he produced yet a second airline ticket. This one also had no claim check stapled to the envelope. This second ticket was an Eastern Airlines round-trip ticket, leaving Baltimore for Fort Lauderdale at 9 a.m. on the day before, March 12, and returning from Fort Lauderdale to Baltimore at 5:30 p.m. on that same day. The date on that ticket also was inconsistent with the appellant’s story about having been in Florida for approximately three days.

The appellant became very "flustered” when questioned about that ticket. He suddenly claimed that he had missed his return flight and had had to purchase the return flight on Delta. He then changed his story about having been in Fort Lauderdale for a few days, saying that it was just a one-day trip. The second airline ticket was significant in several ways.

It had been paid for in cash. Corporal Cusimano testified that one of the very significant characteristics in the "drug courier profile” was the use of cash to pay for airline tickets. He also testified that changing planes and airlines was a common practice to throw investigators off the scent. Not only had the return flight portion of that Eastern Airlines ticket not been used directly, but it had not been used even as a credit toward the payment of the Delta ticket that became the substitute return flight.

No explanation was given for this senseless extravagance. It was also noted by the officers that the second ticket was in the name of "Fred Grant,” whereas the first ticket had been in the name of "W. Grant.” When questioned about this, the appellant explained that the round-trip ticket had been purchased for him by his employee, Mr. Herrmann, and that- Mr. Herrmann (a most unusual employee) was not familiar with his name. ¹³ In the meantime, the ever-faithful Mr. Herrmann had returned to the vehicle. He again asked if he was under arrest and was again assured that he was not. He then volunteered the information that he did not know what was going on but, whatever it was, he had nothing to do with it.

He then stated that he was going to catch a cab because he had to relieve a babysitter; he left the area. A prudent policeman and a prudent reviewing judge could not help but wonder what would have happened to that babysitter, if Corporal Cusimano had not chanced upon the scene that morning and Mr. Herrmann had carried on with his occupational mission of driving his boss either to his home in Anne Arundel County or his place of employment to make out the payroll. Following the desertion of Mr. Herrmann in the face of trouble, the appellant played his trump card. He recanted his story about having gone to Florida on business and now confessed that he had been visiting with a woman and did not want his wife to know about the adulterous liaison.

He did not explain, however, why he would fly to Fort Lauderdale and return immediately to Baltimore on the same afternoon, leaving little more than an hour or two at the airport for a strangely slapdash and haphazard adulterous session. Nor did he explain why he would carry with him extra underwear, some old jeans, and a pair of tennis shoes for a single afternoon’s adultery. The appellant was consistently reassured that he was not under arrest and was free to go. He was also told that the bag was going to be confiscated if he did not consent to its inspection.

He then protested that the bag contained some "necessary clothes.” He was informed by Corporal Cusimano that he had earlier stated that the bag contained only dirty underwear, some jeans, and tennis shoes, and that since he was now at home, moreover, he would have all the clothes he needed. The appellant then claimed that he had to make some telephone calls and see some people. The Delta Airlines label attached to the bag contained the legible first name "William” but an illegible last name. The ¹⁴ address on the label was "7918 Bower Street, Baltimore, Maryland,” but the appellant stated his address was "7916 Tower Court Road, Severn, Maryland.” Corporal Cusimano testified that such deliberate confusion of name and address was, once again, a significant characteristic of the "drug courier profile.” The appellant suddenly appeared to become very confused and stated that the bag was not his, because his bag did not have a tag like that.

The Corporal asked him if he was disclaiming ownership. At first he said yes but then said no, stating it looked like the bag that he carried but that it might not be his. The Corporal seized the bag and the appellant left the scene. At that juncture, any reasonably prudent police investigator and any reasonably prudent reviewing judge would have been possessed of well-nigh mathematical certainty that that little bag contained "powerful big” evidence of crime.

A fortiori, there was abundant probable cause for just such a belief. It is the clear teaching of United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753 , 99 S.Ct. 2586 , 61 L.Ed.2d 235 (1979), that probable cause to believe that a suitcase contains evidence of crime will justify, at the very least, the warrantless seizure of that suitcase for purposes of detaining it while a search warrant is being applied for and hopefully obtained. The Supreme Court has justified this warrantless activity because of the exigency posed by the likelihood of imminent disappearance of the container and its probable contents. In the present case, the police would have been unconscionably derelict and society would have been shamefully ill-served if the appellant had been permitted to drive wantonly away with his contaminating satchel full of plague-spreading contagion.

Even then, the investigating officers were a model of restraint. They carried the seized suitcase into the airport and exposed it, scrupulously unopened, to the trained nose of a cocaine-sniffing police dog. The dog promptly and emphatically "alerted.” Adding this additional probability to ¹⁵ the abundant probable cause already possessed, the police applied for and obtained a constitutionally unassailable search and seizure warrant. Under authority of that warrant, they opened the suitcase for the first time and retrieved all of the contraband hereinbefore described.

With respect to the unquestioned propriety of subjecting the suspect suitcase to the trained canine, the Supreme Court was most emphatic in Florida v. Royer, supra, at 75 L.Ed.2d 241 -242 n. 10: "Courts of Appeals are in disagreement as to whether using a dog to detect drugs in luggage is a search, but no Court of Appeals has held that more than an articulable suspicion is necessary to justify this kind of a warrantless search if indeed it is a search.... ... [W]e hold here that the officers had reasonable suspicion to believe that Royer’s luggage contained drugs, and we assume that the use of dogs in the investigation would not have entailed any prolonged detention of either Royer or his luggage which may involve other Fourth Amendment concerns. ... In the case before us, the officers, with founded suspicion, could have detained Royer for the brief period during which Florida authorities at busy airports seem able to carry out the dog-sniffing procedure.” [In the case at bar, the appellant, unlike Royer, was not detained at all but was allowed to drive away]. In the present case, moreover, unlike Florida v. Royer, there was no detention of the suitcase for even the briefest of periods for purposes of the canine sniffing, because at the time of the canine sniffing, the suitcase was already in lawful police custody under the authority of United States v. Chadwick, supra, and Arkansas v. Sanders, supra. The only colorable Fourth Amendment argument the appellant can even strain to make is that the accumulation of probable cause, as one bizarre and incredible response ¹⁶ piled upon another, was the poisoned fruit of the unconstitutional detention of the appellant in the first instance.

As we have already noted, we conclude that Corporal Cusimano’s conversation with the appellant was a mere accosting and not even a minimal, Terry-type, seizure of the person within the contemplation of the Fourth Amendment. We find highly persuasive in this regard the fact that the co-suspect, Mr. Herrmann, freely walked away first to make a telephone call and then to relieve a babysitter. We find persuasive that the appellant was repeatedly told that he was free to go, although his unsearched suitcase was not. We find persuasive that there was no frisk of the appellant, which is frequently attendant upon a Terry-type stop.

We find persuasive that the appellant was at no time taken to a room or office of any sort for questioning, but was questioned simply as he sat behind the wheel of his automobile on the parking lot. Even if this encounter on the parking lot had been a Terry-type stop instead of a mere accosting, however, it would have been constitutionally unassailable. If, at some moment during the course of that encounter, the accosting could be deemed to have ripened into a Terry-type stop, not only the initial observations but every incredible and highly suspicious response that had occurred up to that moment would be part of the articulable suspicion accumulation. There was at work a direct proportion.

For every minute that the conversation was prolonged, the justification for prolonging that conversation still further became more compelling. With every increasing degree of intrusiveness, there was an increased need for intruding. Even in dealing with full-blown Terry-type seizures of the person, the Supreme Court has indicated the balancing that will permit a minor Fourth Amendment intrusion to be outweighed by the substantial governmental interest in preventing and detecting crime. Michigan v. Summers, 452 U.S. 692, 699 , 101 S.Ct. 2587 , 69 L.Ed.2d 340, 348 (1981), commented upon this balancing: ¹⁷ "[S]ome seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity.” In United States v. Brignoni-Ponce, 422 U.S. 873 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975), the Supreme Court was dealing with police activity aimed at stopping the flood of illegal immigration across the Mexican border, a national problem but hardly one of the dimensions of the narcotics traffic.

In justifying limited searches and seizures as "a valid method of protecting the public and preventing crime,” the Supreme Court again spoke of the necessary balancing of interests, at 422 U.S. 881 -882: "[B]ecause of the importance of the governmental interest at stake, the minimal instrusion of a-brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion. As in Terry, the stop and inquiry must be 'reasonably related in scope to the justification for their initiation.’ 392 U.S., at 29, 88 S.Ct. 1868 , 20 L.Ed.2d 889 . The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances....” For precisely the same reasons, we conclude that Corporal Cusimano was entitled to "question the driver” here and to "ask [him] to explain suspicious circumstances.” Even more emphatically to the point is the teaching of Adams v. Williams, 407 U.S. 143, 145-146 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972): ¹⁸ "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response....

A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” For precisely the same reasons, we conclude that Corporal Cusimano was not constrained "to simply shrug his shoulders and allow a crime to occur.” For precisely the same reasons, we conclude that Corporal Cusimano was reasonably entitled "to maintain the status quo momentarily while obtaining more information.” Adams v. Williams, moreover, involved an actual frisk of the suspect, which the present case, of course, did not. We find absolutely dispositive of this appeal the two Supreme Court decisions of United States v. Mendenhall, supra, and Florida v. Royer, supra. Both involved airport stops of suspicious persons who satisfied various characteristics of the "drug courier profile.” Both decisions are initially of more than average difficulty in applying, because neither speaks through a single, constitutionally binding majority opinion. Upon careful analysis, however, each opinion does involve some constitutionally binding principles of law that wind as common threads through enough plurality, concurring, and dissenting opinions to command clear majorities of the Court.

We turn our attention first to Mendenhall . DEA agents were there present at the Detroit Metropolitan Airport "for the purpose of detecting unlawful traffic in narcotics,” just as Corporal Cusimano was present at BWI for the same purpose. Sylvia Mendenhall arrived at that airport from a "source city” (Los Angeles), just as the appellant here ¹⁹ arrived from a "source city” (Fort Lauderdale). Mendenhall there "proceeded past the baggage area without claiming any luggage,” just as the appellant did here.

Mendenhall there changed airlines for her flight out of Detroit, just as the appellant had changed from Eastern Airlines to Delta Airlines for his flight back from Fort Lauderdale. Mendenhall there appeared to be very nervous, just as the appellant here appeared very nervous. Two agents there approached Mendenhall as she was walking through the concourse, just as Corporal Cusimano here approached the appellant on the parking lot. The agents there requested to see Mendenhall’s identification (her driver’s license) and her airline ticket, just as the appellant here produced upon request a driver’s license and ultimately two airline tickets.

Mendenhall’s airline ticket had been issued in the name of "Annette Ford,” whereas the appellant’s two tickets had been issued in the inconsistent names of "W. Grant” and "Fred Grant.” When asked for an explanation there as to the inconsistency, Mendenhall responded that she "just felt like using that name”; the appellant here explained that his employee didn’t know his right name. At that point, the similarity between Mendenhall and the present case ceases, as the intrusion in the Mendenhall case became much more significant. Mendenhall was asked to accompany the officers to the DEA office for further questioning. She did so.

She was there asked to consent to a search of her person and her handbag, and she did so. She was ultimately subjected, in the presence of a police matron, to a strip search and produced two small bags of heroin from her underclothing. A clear majority of the Supreme Court, five Justices, found the ultimate search to be constitutional. The two-Justice opinion for the Court and the three-Justice concurring opinion, however, travelled slightly different routes to that finding of constitutionality.

In dealing with the encounter between the DEA agents and Mendenhall up until the time that she consented to go with them to the DEA office (that part of the encounter that ²⁰ so closely resembles the total encounter in the present case), Justice Stewart, joined by Justice Rehnquist, concluded that no seizure of Mendenhall had occurred and that Fourth Amendment analysis was, therefore, not even called for. That opinion pointed out, at 446 U.S. 555 , that the "agents wore no uniforms” (as here) and that they "displayed no weapons” (as here). That opinion also pointed out that they "did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents” (as was, again, the situation here). That opinion pointed out that they "requested, but did not demand to see the respondent’s identification and ticket” (as was, again, the situation in this case).

They concluded that "[s]uch conduct, without more, did not amount to an intrusion upon any constitutionally protected interest.” They pointed out that "[t]he purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry.” 446 U.S. at 553 . 3 In finding that there was no detention within the contemplation of the Fourth Amendment, the Stewart opinion observed, at 446 U.S. 552 , quoting Terry v. Ohio, supra, at 392 U.S. 19 n. 16: " 'Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure” has occurred.’ ” and amplified that observation, at 446 U.S. 554 : "Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that com ²¹ pliance with the officer’s request might be compelled.” Arriving at the same result via a different rationale, the concurring opinion of Justice Powell, joined in by Chief Justice Burger and Justice Blackmun, did not necessarily disagree with the Stewart conclusion that there had been no seizure within the contemplation of the Fourth Amendment, but chose not to address that issue since it had not been decided by the court below. The concurring opinion travelled the route that even assuming, arguendo, a Terry-type seizure, adequate articulable suspicion was present to make such a seizure reasonable. That concurring opinion also recited the collection of suspicious circumstances already described and commented particularly, at 446 U.S. 563 -564, on the weight that should be given to the special expertise of the officer in evaluating otherwise ambiguous activity: "In reviewing the factors that led the agents to stop and question the respondent, it is important to recall that a trained law enforcement agent may be 'able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.’ Brown v. Texas, supra, at 52, n. 2 , 99 S.Ct. 2637 , 61 L.Ed.2d 357 . Among the circumstances that can give rise to reasonable suspicion are the agent’s knowledge of the methods used in recent criminal activity and the characteristics of persons engaged in such illegal practices.

Law enforcement officers may rely on the 'characteristics of the area,’ and the behavior of a suspect who appears to be evading police contact.” The plurality opinion pointed out the obligation of reviewing courts to give special credence to this expertise, at 446 U.S. 565 -566: "In applying a test of 'reasonableness,’ courts need not ignore the considerable expertise that law ²² enforcement officials have gained from their special training and experience.” 4 That plurality opinion concluded with specific reference to the great public interest in curbing the drug traffic and to the special enforcement problems "in an airport known to be frequented by drug couriers”: "The public interest in preventing drug traffic is great, and the intrusion upon respondent’s privacy was minimal. The specially trained agents acted pursuant to a well-planned, and effective, federal law enforcement program. They observed respondent engaging in conduct that they reasonably associated with criminal activity. Furthermore, the events occurred in an airport known to be frequented by drug couriers.” 446 U.S. at 565 .

The mere fact that Mendenhall enjoyed no majority opinion for its entire statement does not erode the precedential authority of those parts of the opinion which command a clear majority. Where two Justices hold that the activity of the police investigators was so minimal and unoffending as not even to require the satisfaction of Terry and where three other Justices hold that the activity of the police investigators was so reasonable as to satisfy Terry, even if Terry applied, the constitutionally binding common denominator is that the activity of the police investigators was not unreasonable under Terry (the highest standard that any of the five would apply) and that probative evidence will not, therefore, be suppressed. Leaving for academicians to ponder whether Terry is inapplicable or Terry is satisfied, the police activity in the present case was, by one theory or the other, clearly