When attempting to justify the reasonableness of a questionable search or seizure, prosecutors frequently argue that police had probable cause because police observed the property owner doing something that drug dealers are known to do. Missing from the argument is any qualifier showing that the activity is exclusive to the drug trade. Thus, being nervous--or not nervous enough--becomes suspicious, and probative of drug-activity. Similarly, driving to or from a city that is a known drug source--which is every American city because drugs are bought, sold, and consumed in every American city-- is suspicious, according to law enforcement. Using the nation's interstate highways involves suspiciously travelling on known 'drug-trafficking corridors,' because drug dealers are known to use these highways to move drugs and drug proceeds. Indeed, according to prosecutors, nearly everything is probative of drug activity, if they can point to any suggestion that drug dealers are thought to have done the activity.
Prosecutors then bullet these suspicious indicators together and argue that, viewed from the totality of circumstances, police had probable cause to conduct the search or seizure, or that the property is subject to forfeiture.
Over the years, we've watched as prosecutors have argued that eating fast food, having a clean car, having a dirty car, visiting relatives, taking scenic routes, renting a car, having too much luggage, having too little luggage, carrying cash, using items to secure cash--like rubber bands or containers, having cash freely strewn about, using GPS, using cell phones, using maps, using motels, and not using motels are all suspicious of drug-trafficking.
And, too frequently, judges buy these arguments without examining the argument to find out if there is something exclusive to drug dealers in the supposedly suspicious behaviour, or recasting the argument to show the absurdity of the argument (viz., some drug dealers drink milk, therefore drinking milk is indicative of drug-dealing; or drug dealers breathe air, therefore breathing air is indicative of drug-dealing).
Kudos are deserved, then, when a judge sees through this legerdemain and denounces the practice, as U.S. District Judge Monti L. Belot did yesterday in the matter of U.S. v. $39,440.00 in United States Currency.