The Supreme Court is expected to decide soon whether the Constitution permits police to use "profiles" containing the characteristics of criminals they've arrested in the past in their investigation of new suspects. The use of statistical tables to apprehend criminals may at first seem like a page out of George Orwell or a panel from Dick Tracy, but there are compelling reasons to believe that such devices can promote effective law enforcement without disturbing fundamental constitutional principles.
Before the court is a case in which narcotics detectives at the Miami airport noticed, among other things, that Mark Royer paid for his ticket to New York in small bills, did not fill out the tags on his baggage and kept looking nervously around the concourse. In doing so, he fit the profile of the "typical" drug trafficker that the Drug Enforcement Administration has developed from its past cases. The officers asked Royer to open his suitcase. He did, and 65 pounds of drugs fell out.
Royer was convicted of possession with the intent to sell a controlled substance. He challenges his conviction on the ground that the "reasonable suspicion" the court has required of police to stop a citizen for investigation was not present simply because he fit a statistical profile, and, since he was unconstitutionally "stopped," the eventual arrest was also unconstitutional.
Is a resemblance to people who have committed past crimes enough reason to justify a suspicion that someone is a criminal who should be stopped by police? Civil libertarians argue no. It is poor people, they say, who are most likely to pay for plane tickets in small bills (since that's all they have) and to be nervous in airports (with which they're unfamiliar). These people would be subject to police harassment if profiles were approved by the courts. And what law, they ask, makes it a crime to leave your baggage tags blank?
The government argues in response that however "innocent" the individual items in the various profiles might appear, taken together they do in fact identify a group with a very high proportion of lawbreakers in it. They cite a study at the Detroit airport which found that of 141 persons approached by the police with the help of profiles, 122 were found to be in possession of illegal narcotics.
Just how, the government asks, are police supposed to find drug couriers if they don't rely upon their "shared experience" in similar cases in the past, which is all the profiles really are? Since few people are blatant enough to arrive at an airport looking like Cheech or Chong in a movie role, police must rely upon the relatively subtle cues included in the profiles. The government makes no claim that a person fitting a profile may be arrested without additional evidence. Its claim is only that a profile justifies an initial police stop for investigation. Innocent travelers who fit the profile are sent on their way after a few brief questions and perhaps producing some identification. Only those for whom additional evidence comes to light ultimately are arrested.
There is something disturbing about the "birds of a feather" assumption underlying the use of profiles. The idea that a person has a right to be treated as an individual, and not as a percentage point in a probability statement, is deeply rooted in our society. To use a profile to convict a suspect, for example, would clearly offend our sense of individual dignity, regardless of how accurate the profile was.
Yet we have become inured to "skyjacker profiles" singling out certain airline passengers for a closer look by the police. We know that to the extent these profiles are accurate, our chances of landing as scheduled rather than in Havana are increased. And the IRS has long and profitably used computer profiles of potential tax evaders to determine whom to audit. If controlling other crimes, such as drug smuggling, is as important to society as controlling skyjacking and tax fraud, there is little reason to deny police the use of profiles in other areas of investigation as well. In terms of the inevitable mistakes that will be made with the use of profiles--or any more traditional means of selecting people for questioning, such as waiting for a "tip," for that matter--the consequences are no more heinous in drug cases than in those we already tolerate. Most of us would rather be asked by the police to produce a plane ticket than be audited by the IRS any day.
Perhaps with an increasing number of crimes, the courts, however reluctantly, will accept the fact that in a large and anonymous society, statistical justice is better than no justice at all.