dissenting.
In my original review of this case, I was particularly disturbed by the district court’s ■ apparently untroubled conclusion that probable cause supported Terrance William’s arrest, despite the undeniably significant racial component underlying that determination. Believing that my Colleagues shared my concern, but equally mindful of the extremely deferential stance from which we review a trial court’s factual findings, I concurred, albeit with some reservation, in this panel’s original statement that, “[although we view the issue as a close one, we cannot say the conclusion of the district court was clearly erroneous.” The majority now concludes, somewhat inexplicably, that we would have reached the same conclusion had our initial review been plenary. Because the passage of time has not lessened my conviction that race has no place in the assessment of probable cause, I dissent.
The district court found that the drug coui'ier profile employed by the officers in the instant case led them to focus their attention on travellers who were: (1) young African-American males; (2) arriving into Cleveland from Detroit; (3) using the Greyhound bus system; (4) arriving in the late evening or early morning hours; (5) carrying no luggage; and (6) not met by family members or acquaintances. Factors two, three, and four are in and of themselves hardly suspicious and, more important, gave the officers no logical grounds for suspecting Williams and his companion above any of the other passengers who deboarded the bus that evening. Cf. United States v. Andrews, 600 F.2d 563, 566 (6th Cir.) (holding that travel from a “source city” cannot be regarded as in any way suspicious), cert. denied, 444 U.S. 878, 100 S.Ct. 166, 62 L.Ed.2d 108 (1979). Nor did the government offer even a scintilla of evidence, statistical or otherwise, to rebut the entirely plausible, common-sense suppositions that many of those making the relatively short journey from Detroit to Cleveland would not be carrying luggage or would not necessarily have family or friends waiting to greet them. In short, the drug courier profile as used in this case creates the overwhelming impression that the officers singled out Terrance Williams primarily if not solely because he was a young African-American male, and thereby seriously draws into question whether the officers’ conduct does not run afoul of the protections guaranteed by the Equal Protection Clause against discriminatory treatment on the basis of race. As the Fifth Circuit has recently observed, “[t]he heart of the Equal Protection Clause is its prohibition of discriminatory treatment. If a governmental actor has imposed unequal burdens based upon race, it has violated the clause.” Samaad v. City of Dallas, 940 F.2d 925, 932 (5th Cir.1991).
That Williams was a young African-American male not only influenced the officers’ decision to trail Williams and his companion, but was explicitly relied upon by the district court in its determination that probable cause supported Williams’ apprehension and arrest. This court as well as others continue to operate under the misapprehension that race plays less of a role in this Nation’s treatment of its citizens, in particular through its law enforcement agents, than reality compels. The singling out of African Americans simply on the *223basis of race engenders and legitimates a negative stereotype of blacks, and undoubtedly is subject to the strictest scrutiny. See Rogers v. Lodge, 458 U.S. 613, 617 n. 5, 102 S.Ct. 3272, 3275 n. 5, 73 L.Ed.2d 1012 (1982). The use of an immutable characteristic such as race to support a probable cause determination is clearly unconstitutional. For this court to permit law enforcement officers to cloak blatantly racist attitudes in a generic drug courier profile is nothing short of outrageous.
I cannot come away from this case without feeling deeply troubled: troubled that this Nation’s citizens are receiving disparate treatment at the hands of police officers primarily on the basis of race, troubled that such unequal racial treatment is considered increasingly appropriate by trial courts, and most troubled by this court’s conclusion that such race-based treatment is entirely unobjectionable as a legal matter. It is undoubtedly tragic when a significant number of black Americans fear that they are presumptively under suspicion of criminal activity in the eyes of the law merely because of their race. Infinitely more tragic is the strong possibility that their fear may be justified.
I respectfully dissent.