United States v. Eddie Louis Taylor

DAMON J. KEITH, Circuit Judge,

dissenting, joined by Chief Judge MERRITT; and MARTIN and JONES, Circuit Judges.

Laying aside the legality of the seizure and the subsequent search of Taylor under established fourth amendment principles for the moment, the Drug Enforcement Agency (“DEA”) personnel stopped Eddie Louis Taylor (“Taylor”) in the Memphis airport on October 3, 1988 solely because he was an African-American. The majority opinion cavalierly dismisses this controversial and important fact and categorically concludes:

[Bjecause the district court — in factual findings anchored in credibility assessments — expressly determined that the initial curbside encounter between Taylor and the officers was consensual, and because the district court also expressly concluded that the initial search of Taylor’s bag was equally consensual and uncoerced, it is unnecessary to consider or decide either the specific factual question of whether the officer’s surveillance of Taylor was motivated to any degree by his race, or the broader constitutional issue of whether the alleged incorporation of a racial component into the DEA’s drug profile, if true, violates an individual’s rights to due process and equal protection of the laws.

Majority op. at 578 (emphasis added). We cannot accept the majority’s evasive and cursory disclaimer or its characterization of this police-citizen encounter as “consensual and uncoercive” given the objective facts. We, therefore, must dissent.

I.

The record strongly indicates that racial assumptions provided the basis for the DEA officers’ initial contact with Taylor. Clearly, the officers must operate within the dictates of the established fourth amendment doctrine for the proscription of “unreasonable” searches and seizures. See Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We acknowledge that the Supreme Court has recognized the existence of a threshold governmental practice whereby officers may stop citizens and secure cursory information. Florida v. Bostick, — U.S. -, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), see also Tracey Maclin, The Decline of the Right to Locomotion: The Fourth Amendment on the Streets, 75 Cornell L.Rev. 1258 (1990). In Bostick, the Supreme Court explained this “right to inquire” and firmly established that an officer may approach an individual and ask general questions of that individual (e.g., identification and request for consent to search his or her luggage), “so long as a reasonable person would feel free to disregard the police and go about his business” and “as long as the police do not convey a message that compliance with their requests is required.” Bostick, 111 S.Ct. at 2386. Before reaching *581the Bostick inquiry, however, we would emphasize that the Constitution’s fourteenth amendment prohibits state actors from denying persons the equal protection of the laws. U.S. Const, amend. XIY, sec. I. See also J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1986) and Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). Equal protection principles simply prohibit átate actors from using a citizen’s race to catalyze this “right to inquire.”

Recently, the Fifth Circuit observed: “the 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 (5th Cir.1991). The crucial distinction when applying equal protection principles is that made between government and private actors. Reynolds v. Little Rock, 893 F.2d 1004, 1008 (8th Cir.1990).

Traditionally, any state action singling out a person solely on the basis of race has been given the strictest scrutiny, and generally, that action has been condemned by the courts. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (holding the City of Richmond’s voluntary affirmative action plan was not “narrowly tailored to remedy prior discrimination,” a compelling governmental interest). In Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), the Supreme Court stated:

Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact — in the jury cases for example, the total of seriously disproportionate exclusion of Negroes from jury venires — may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.

Id. at 242, 96 S.Ct. at 2048-49. See also Arlington Heights v. Metropolitan Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450 (1977). While Washington v. Davis rejected the notion that a law is invalid under an equal protection analysis “simply because it may affect a greater proportion of one race than another”, Washington v. Davis, 426 U.S. at 242, 96 S.Ct. at 2049, the Supreme Court was concerned with the practice of inferring a subjective, purposeful intent solely from statistical disparate impact. Here, not only does a disproportionate impact exist,1 but also the DEA has all but reduced to writing a practice of singling out African-Americans for drug courier inquiries, a facially discriminatory policy. See Sheri Lyn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 214, 234 (1983) (“Although the DEA has refused to commit the entire [drug courier] profile to writing, the profile clearly contains a racial component.”). See generally Morgan Cloud, Search and Seizure By The Numbers: The Drug Courier Profile and Judicial Review of Investigative Formulas, 65 B.U.L.Rev. 843 (1985) (discussing the history and use of drug profiles).

The disproportionate number of African-Americans who are stopped indicates that a racial imbalance against African-Americans does exist and is implicitly sanctioned by the law enforcement agency. The assumption that seventy-five percent of those persons transporting drugs and other contraband through public modes of transportation are African-American is impermissible. It flies in the face of reason and legitimates a negative stereotype of African-Americans. Surely, this practice must “be subjected to the strictest scrutiny and [can be] justified only by the weightiest of considerations.” Rogers v. Lodge, 458 U.S. 613, 619, 102 S.Ct. 3272, 3276, 73 L.Ed.2d 1012 (1981). If our “right of locomotion”, “right to be let alone,” or simply our right *582to be free from capricious and arbitrary government interference in public places is to mean anything, then this race-based practice must stop. See generally, The Decline of the Right to Locomotion, 75 Cornell L.Rev. at 1260-64.

We cannot allow law enforcement officers to cloak what may fairly be characterized as a racist practice in a generic drug courier profile that openly targets African-Americans. The actions of these officers were particularly egregious. Taylor was one of the first few people to deplane the Miami flight. At the time that he was stopped, Taylor was the only black who had deplaned. In fact, the officers testified that they believed Taylor may have been the only black person on the flight. As we discuss below, their purported reasons for stopping Taylor were questionable.2 The only truly objective fact that could have given rise to the officers’ suspicion was that Taylor was black. Yet the majority ignores this clear evidence that the DEA agents, state personnel, targeted Taylor when it carried out its law enforcement duties.

We believe that facts show that the DEA singled out Taylor and stopped him solely because he was an African-American male. The majority, by refusing to address the clear evidence of race-based conduct, has endorsed the frightening proposition that a defendant’s subsequent, alleged consent legitimates a governmental practice that violates the principles embodied in the equal protection clause. This court, in effect, permits a state actor to inject racist attitudes into the carrying out of what should be color-blind law enforcement. This court has embarked upon a dangerous journey by revisiting the practice of issuing “general warrants”3 for police action. See Potter Stewart, The Road to Mapp v. Ohio and Beyond: the Origins, Development, and Future of the Exclusionary Rule in Search and Seizure Cases, 83 Colum.L.Rev. 1365, 1369 (1983). Only this time, these “general” warrants have “specific” targets — African-Americans. The use of an immutable characteristic as the basis of suspicion for criminal activity is patently unconstitutional, and the notion that DEA agents and like state personnel can consider race in carrying out its duties is nothing short of outrageous and cannot be permitted.

A highly publicized example of the potential abuse to which such a practice is subject occurred in 1988 when baseball Hall of Famer Joe Morgan was accosted by state agents in the Los Angeles International Airport. L.A. Times, Aug. 11, 1990, at B6, col. 1. Morgan was on a layover during a trip from Oakland, California where he is a successful businessman, to Tuscon, Arizona, where he was to participate in a golf tournament. Id. While he was making a phone call, an officer approached Morgan and asked him for identification.4 Id.

*583Although the events of the next few moments are in dispute, it is clear that Morgan attempted to identify himself;5 and the officer grabbed Morgan, threw him to the floor, and handcuffed him before a crowd of onlookers. UPI Press Release, Feb. 15, 1991 (NEXIS, Los Angeles Dateline). The officer then led him away to a closed room with his hands over his mouth. Id. The officer testified in the civil suit brought by Morgan against the City of Los Angeles and the officer that he approached Morgan because the former baseball player acted suspiciously and threw him to the floor only after Morgan became belligerent. L.A. Times, Feb. 15, 1991, at Bl, col. 2. After awarding Mr. Morgan $540,000 in compensatory and punitive damages, some jurors expressed the belief, however, that Mr. Morgan was singled out because he was black and that he was victimized by the officer. Id. Moreover, testimony in the civil suit indicated that when the officer led Morgan away he stated: “I’m an authority figure and Fm going to show you what authority is all about.” Id.

The state may not separate all drug couriers into two classes — one black class and one white class — and then adopt and execute a policy of enforcement against the black class only. The Second Circuit has explicitly rejected such a practice. See United States v. Ceballos, 654 F.2d 177, 185-86 (2d Cir.1981). In Ceballos, the police attempted to justify an arrest by claiming that a defendant fit a “profile” of customers of suspected narcotics dealers because he was a “hispanic male.” Id. Concluding that the government lacked probable cause to arrest Ceballos, the Second Circuit stated:

[T]he government’s contention that Ce-ballos fit an alleged “profile” of [a narcotic’s dealers] customers (hispanic males) is an inappropriate attempt to broaden the limited acceptance which has been given to the DEA’s drug courier profile in the context of airport Terry stops.

Id. (emphasis added).

We must recognize the wisdom of our sister circuit. Equal protection principles simply forbid this type of state action. The government, under the majority’s rationale, legally can continue to engage in this type of race-based profile. The majority effectively holds that federal courts will not consider this volatile issue if subsequent consent by a defendant occurs or if the party has not yet been seized within the meaning of the fourth amendment. Yet the majority offers no citation of authority for the proposition that race discrimination in law enforcement is unreviewable or constitutional. We would be abdicating our judicial responsibility by endorsing a racist law enforcement policy, sub silencio. By refusing to address the racial element that is at the forefront of this case, the majority has deferred to a potentially abusive and constitutionally impermissible practice. We simply cannot and will not join such an opinion.

II.

Additionally, Taylor contends that the district court erred in finding that he was not seized in violation of the fourth amendment. Taylor maintains that his fourth amendment rights were violated when the officers seized him on the sidewalk outside of the Memphis International Airport terminal. We agree.

A.

The fourth amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated_” U.S. Const, amend. IV. The fourth amendment requires the existence of objective justifications for all searches and seizures “including seizures that involve only a brief detention short of traditional arrest.” Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, *5842753, 65 L.Ed.2d 890 (1980) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975)). Although there are some circumstances under which a person may be detained briefly, without probable cause,6 “any curtailment of a person’s liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” Reid, 448 U.S. at 440, 100 S.Ct. at 2754. See also Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640-41, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); Brignoni-Ponce, 422 U.S. at 878, 95 S.Ct. at 2578; Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-79, 20 L.Ed.2d 889 (1968).

We recognize that our government is in the midst of waging a “war on drugs.” Yet, the valiant effort of our law enforcement officers to rid society of the drug scourge cannot be done in total disregard of an individual’s constitutional rights. In United States of America v. Radka, 904 F.2d 357 (6th Cir.1990), we addressed this problem:

Presently, our nation is plagued with the destructive effects of the illegal importation and distribution of drugs. At this critical time, our Constitution remains a lodestar for the protections that shall endure the most pernicious affronts to our society.... The drug crisis does not license the aggrandizement of governmental power in lieu of civil liberties. Despite the devastation wrought by drug trafficking in communities nationwide, we cannot suspend the precious rights guaranteed by the Constitution in an effort to fight the ‘War on Drugs.’

Id. at 361 (emphasis added). Law enforcement officers cannot ignore the protections guaranteed by our Constitution — law enforcement officers cannot subject individuals to random invasions of their privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (discussing the expectation of privacy embodied in the principles of the fourth amendment).

Each case raising a fourth amendment issue “must be judged on its own facts.” United States v. Saperstein, 723 F.2d 1221, 1227 (6th Cir.1983) (quoting United States v. Mendenhall, 446 U.S. 544, 565 n. 6, 100 S.Ct. 1870, 1883 n. 6, 64 L.Ed.2d 497 (1980)). Here, the initial issue to be resolved is whether Taylor was seized and, if so, when. The test for determining whether a seizure has occurred is “whether, under the totality of the circumstances, a reasonable person would have believed he or she was not free to walk away.” Saperstein, 723 F.2d at 1225 (citations omitted). See also Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877; United States v. Clardy, 819 F.2d 670, 672 (6th Cir.1987); United States v. Lucci, 758 F.2d 153, 155 (6th Cir.), cert. denied, 474 U.S. 843, 106 S.Ct. 129, 88 L.Ed.2d 106 (1985). 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 compliance with the officer’s request might be compelled.” Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 (emphasis added). See also Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16.

The objective facts of this case indicate that the officers seized Taylor as he stood outside the airport and prepared to cross the street. Taylor testified that upon exiting the airport terminal, Officer Eldridge grabbed his arm and forced him back from the curb to talk to him:

Q: Okay. Now, when was the first time that you knew that a police officer was following you?
A: Well, I didn’t really know that a police officer was following me at all. What I done, (sic) when I got ready to step off the sidewalk, as I got ready to step off the sidewalk, someone said, excuse me, sir. I didn’t even bother to look back. And then they (sic) said, excuse *585me, sir, again. And as he said, excuse me, sir, the second time, he’s pulling my arm, he’s got me by the arm pulling me back. I am referring to Sergeant El-dridge. ...
Q: And the first time — what were you, how were you physically standing in relationship to the curb or the sidewalk when this officer seized your elbow?
A: I was standing right at the edge of it. My toes were almost on the edge, almost where they would hang off. I was standing there. And when this one car passed by, I started to step down. When I started to step down, that is when he pulled me completely back up on the sidewalk....

Joint Appendix at 131-33. Transcript at 348-50. Taylor further testified that the officers surrounded him. The officers, albeit plainclothed, positioned themselves so that Taylor could not pass.7 Both Sergeant Eldridge and Officer Bevel asked Taylor a barrage of questions that he felt compelled to answer, particularly since he felt he could not leave. Moreover, on two separate occasions during the evidentiary hearing, Sergeant Eldridge testified that if Taylor attempted to leave at any point during the questioning — before the cocaine was found — he would have given pursuit.8 This admission lends credence to the assumption that he communicated that intent to Taylor.

Accordingly, under the totality of the circumstances and factors enunciated in Mendenhall, a reasonable person would not have felt free to walk away. Several officers were present and positioned so that Taylor would reasonably understand that he was not free to go. Additionally, Officer Eldridge grabbed Taylor’s arm and physically pulled him back onto the sidewalk. Finally, the officers asked Taylor a number of questions that clearly cannot be characterized as information solely for identification purposes such as that referred to in Florida v. Bostick, 111 S.Ct. at 2386. Therefore, we believe that Taylor was seized when he was stopped on the sidewalk outside of the terminal.

B.

Since the record clearly established that the officers seized Taylor, we must now determine whether the seizure was constitutionally permissible. For fourth amendment purposes, a brief investigatory detention is permissible if “supported by a reasonable and articulable suspicion of criminal activity.” Lucci, 758 F.2d at 155—56; See also Reid, 448 U.S. at 440, 100 S.Ct. at 2754; Clardy, 819 F.2d at 672. The totality of the circumstances are considered in determining which suspicions are “reasonable and articulable.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

In Cortez, the Supreme Court established a two-step inquiry to determine the legality of a seizure. Id. First, the law *586enforcement officials must demonstrate the existence of “some objective manifestation that the person stopped is, or is about to be engaged in criminal activity.” Id. In this case, a showing that the defendant met several characteristics of the drug courier profile is relevant to determining the legality of the seizure.9 Merely satisfying the drug courier profile, however, “does not, standing alone, justify a seizure.” United States v. Tolbert, 692 F.2d 1041, 1047 (6th Cir.1982), cert. denied, 464 U.S. 933, 104 S.Ct. 337, 78 L.Ed.2d 306 (1983). See also Reid, 448 U.S. at 441, 100 S.Ct. at 2754. Second, under the totality of the circumstances, these objective observations must raise an articulable suspicion that the “particular” individual stopped is engaged in criminal activity. Cortez, 449 U.S. at 417, 101 S.Ct. at 694-95.

In the present case, the district court found that both inquiries of Cortez were satisfied as Taylor: (1) arrived on a plane from Miami, Florida — a drug source city; (2) walked away from the gate nervously, hurriedly and moved faster than the other passengers; (3) constantly looked backwards as he walked; (4) carried a tote bag that he held tightly to his body; and (5) left the terminal walking very fast. The district court held the above factors provided the officers with a reasonable, articulable suspicion that Taylor was engaged in criminal activity at the time he was stopped. See Joint Appendix at 72. Order Denying Motion to Suppress Evidence, United States v. Taylor, 88-20270-H. We find that the objective facts do not satisfy the Cortez inquiry.

The officers’ actions are not justified under Cortez because Taylor’s actions are common among many who deplane in busy airports. First, travel to and from an alleged drug source city is inherently unsus-picious behavior. In United States v. Andrews, 600 F.2d 563 (6th Cir.1979), we explained:

[Tjravel from Los Angeles cannot be regarded as in any way suspicious. Los Angeles may indeed be a major narcotics distribution center, but the probability that any given airplane passenger from that city is a drug courier is infinitesimally small. Such a flimsy factor should not be allowed to justify — or help justify— the stopping of travelers from the nation’s third largest city. Moreover, our experience with DEA agent testimony in other cases makes us wonder whether there exists any city in the country which a DEA agent will not characterize as either a major narcotics distribution center or a city through which drug couriers pass on their way to a major narcotics distribution center.

Id. at 567.10 Accordingly, arrival on a flight from Miami is objectively unsuspi-cious.

Second, the officers believed that Taylor met the characteristics of a drug courier by walking quickly and nervously through the terminal. It is well-known that police manuals instruct officers to become familiar with their beat and to identify people who do not “belong.” See, e.g., Johnson, Race & the Decision to Detain a Suspect, 93 Yale L.J. 214, 226 (1983). Sergeant El-dridge testified that Taylor appeared “different” from other deplaning passengers:

*587Q: All right. Now go ahead now, how did the defendant appear on this occasion?
A: He appeared [in] kind of a grunnchy (sic) type work clothes. He had a dirty black baseball cap with something wrote (sic) across the front of it, and little squirrley, kind of like captains wear, the little gold squirrels across the bill....
Q: In the military — called scrambled eggs?
A: There you go — scrambled eggs. And he had on, I think it was, a blue shirt with “Pace” or something written across the pocket. A pair of blue trousers, white tennis shoes.
Q: And why do you say he — why did he stick out?
A: Well, the rest of the passengers that usually come from Miami flights is (sic) either business people or resort type people, people getting off in real casual nice looking clothes. Like I say, it was just different seeing somebody getting off there looking like Mr. [Taylor] looked that night.

Joint Appendix at 87. Transcript at 11 (emphasis added). This observation is inherently subjective and, therefore, subject to great abuse because people are clad in a wide array of clothing whether or not they are coming from or going to a typical vacation spot. Using the flawed analysis employed by Sergeant Eldridge, anyone, including the only African-American to deplane, can not “belong” and fit the drug courier profile merely by their appearance.

Officer Bevel testified that primarily Taylor’s nervous behavior caused her to believe that he had or was in the process of committing a crime. See Joint Appendix at 120. Transcript at 240. However, people constantly hurry through airports — they are often looking for the party meeting them or rushing to board a connecting flight. Walking fast or even running is not uncommon in an airport. Many people do not check baggage to save time. All of these actions constitute perfectly lawful behavior. Yet, when the officers saw Taylor hurrying through the airport, looking around, and not stopping at the baggage area, they determined that he fit the drug courier profile. This determination was inappropriate because observing an individual walking quickly through an airport or nervously looking around is insufficient to warrant a search and seizure.

The Cortez Court recognized that an officer “versed in the field of law enforcement”, may arguably view these factors as suspicious. Cortez, 449 U.S. at 418, 101 S.Ct. at 695. In this case, however, the officers — particularly Sergeant Eldridge who led the pursuit — had little training in identifying a drug courier. Sergeant El-dridge had been with the Memphis Police Department twenty-two years, yet, in October 1988, he had been with the airport drug task force only six months.

Based on the officers’ limited experience and the circumstances they observed, we conclude that they reasonably could not have suspected, as a matter of law, that Taylor was engaged in criminal activity.11 We find it particularly relevant that the least qualified officer, Sergeant Eldridge, led the pursuit. The evidence relied upon — Taylor’s arriving on a plane from Miami, Florida and walking quickly through the terminal, clutching luggage— “describes a large category of presumably innocent travelers, who would be subject to virtually random seizures were [we] to conclude that as little foundation as there was in this case could justify a seizure.” Reid, 448 U.S. at 441, 100 S.Ct. at 2754. Therefore, we believe the objectivity required in the first inquiry of Cortez was not achieved.

Thus, the officers also failed to meet the second inquiry of Cortez because the totality of the factors that they relied upon evidenced unsuspicious behavior. We have held “certain behavior characteristics [are] inherently unsuspicious [of criminal activity] and thus, entitled to no weight in the calculation.” Saperstein, 723 F.2d at 1228 *588(emphasis added). See, e.g., United States v. Andrews, 600 F.2d 563, 566 (6th Cir.), cert. denied sub nom. Brooks v. United States, 444 U.S. 878, 100 S.Ct. 166, 62 L.Ed.2d 108 (1979) (nervousness deemed consistent with behavior among innocent airport travelers and is entitled to no weight); United States v. McCaleb, 552 F.2d 717, 720 (6th Cir.1977) (circumstances where DEA agent observed three persons, two of whom were nervous, return on nonstop flight from Los Angeles to Detroit after short trip with only one suitcase did not provide specific and articulable facts to warrant investigatory stop). The totality of the circumstances, in the present case, did not yield particularized suspicions that warranted a seizure based on a reasonable and articulable suspicion of criminal activity. Thus, we would find Taylor’s seizure unconstitutional and believe that the evidence obtained as a result of that seizure should be suppressed.

III.

Taylor further contends that even if the initial seizure of his person was justified, he never gave the officers verbal or written consent to search his bag. The government argues that Taylor explicitly consented to the search of his bag. The district court found as a matter of fact that Taylor consented to the search. We conclude, however, that such a finding was clearly erroneous.

It is well-settled that without a search warrant and in the absence of probable cause and exigent circumstances, the validity of a search depends on the defendant’s purported consent. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983). Furthermore, where the validity of the search rests on consent, the government has the “burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” Id. See also Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 99 S.Ct. 2319, 2326, 60 L.Ed.2d 920 (1979); Schneckloth v. Bustamonte, 412 U.S. 218, 233-34, 93 S.Ct. 2041, 2050-51, 36 L.Ed.2d 854 (1973); United States v. Williams, 754 F.2d 672, 674-75 (6th Cir.1985).

Whether Taylor’s consent was voluntary or the product of coercion, express or implied, rests upon an analysis of the totality of the circumstances. See Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48. We have held that consent “must be proved by clear and positive testimony and must be unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion.” Williams, 754 F.2d at 675. See also McCaleb, 552 F.2d at 721.

There is sufficient evidence of coercion by the officers to negate any belief that Taylor voluntarily consented to the search of his bag. Sergeant Eldridge followed Taylor and pulled him back from the curb and onto the sidewalk. The officers surrounded Taylor so that he felt he could not leave without cooperating. These circumstances set the stage for the officers to elicit a positive response from Taylor to search his bag. Furthermore, the transcript of the evidentiary hearing shows that there was a clear contradiction between Taylor’s and the officers’ account as to what occurred. The record below, therefore, was not clear and unequivocal. Taylor testified that although he did not consent, he unzipped the bag, looked through it and told the officers he had nothing of interest to them. Officer Bevel stated Taylor did consent to the search. Taylor testified that Officer Bevel jerked the bag from him and violently searched it causing some of the contents to fall on the sidewalk.

Moreover, the officers never informed Taylor that he had the right not to consent to the search of his bag.12 Even though *589the Constitution does not require “ ‘proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search/ [,Schneckloth, 412 U.S. at] 234 [93 S.Ct. at 2051] (footnote omitted), such knowledge [or lack thereof is] highly relevant to the determination that there had been consent.” Mendenhall, 446 U.S. at 558-59, 100 S.Ct. at 1879.13 At no time during the stop did the officers inform Taylor that he did not have to cooperate and was free to withhold his consent. Considering the totality of the circumstances, we find that Taylor did not freely and voluntarily consent to the search of his bag.

Next, we must determine whether Taylor, when taken to the security office, consented to the continued search of the bag and the opening of one of the packages in which cocaine was found. Here again, we find that Taylor did not consent.

The fourth amendment limits the search and seizure powers “in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976). A search warrant issued by a neutral and detached magistrate protects individuals from capricious governmental interference. See Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948). Therefore, warrantless searches are per se unreasonable under the fourth amendment. They are upheld only in limited circumstances.14

From the testimony, it is evident that the officers asked Taylor to sign both a written statement and a consent to search form. Taylor refused both requests. Absent consent, exigent circumstances or one of the exceptions, a search warrant was needed for the officers to lawfully search Taylor’s bag. See Katz v. United States, 389 U.S. 347, 356-59, 88 S.Ct. 507, 514-16, 19 L.Ed.2d 576 (1967); 3 C. Wright, Federal Practice and Procedure: Criminal 2d § 666 (1982). The officers had sufficient time and ample opportunity to secure a search warrant; nevertheless a search warrant was never obtained. Because the bag was searched and the package opened without a search warrant, the search was impermissible. See Katz, 389 U.S. at 357, 88 S.Ct. at 514. Since we believe that Taylor’s consent, if any, was not voluntary, we would conclude that the search was not permissible. Therefore, the cocaine recovered from Taylor’s bag should be suppressed as the product of an illegal search and seizure.

IV.

The mere fact that an African-American is observed walking quickly through an airport terminal does not raise the suspicion of criminal activity. Any attempt to detain such an individual, therefore, must *590be conducted within the parameters of the fourth amendment. In this instance, the fourth amendment’s protections were ignored. The officers failed to establish that a reasonable, articulable suspicion existed to warrant Taylor’s detention. Moreover, the facts do not indicate that Taylor consented to the search. Therefore, we would order the suppression of evidence seized pursuant to this unconstitutional arrest, search and seizure. Although we recognize the importance of curtailing illicit drug use in our society, the “War on Drugs” can never license law enforcement officials to disregard the rights guaranteed by the fourth amendment or the principles embodied in the equal protection clause of the fourteenth amendment to our Constitution.

For the foregoing reasons, we would REVERSE the judgment of the district court and REMAND the case for further consideration consistent with this opinion.

. One of the officers admitted at the evidentiary hearing that at least seventy-five percent of those followed and questioned in these consensual police stops are black. See Joint Appendix at 117. Transcript at 211 (Officer Bevel testifying).

. For example, Sergeant Eldridge testified that Taylor appeared “different” from the other deplaning passengers because he was clad in clothing that was not typical of "the passengers that would come from Miami [on] flights in real casual nice looking clothes". This observation is inherently subjective and subject to great abuse. Anyone, especially the only African-American among the first few passengers to deplane, may appear "different".

. Described as the most powerful legal weapon against critics of the crown in pre-Revolution-ary War England, these warrants were "issued without a showing of probable cause and often without suspicion of criminal wrongdoing; no particular individual was charged with violating the law; no name appeared on the warrants; and [they were] valid for the duration of the life of the monarch under whose name they were issued." Potter Stewart, The Road to Mapp v. Ohio and Beyond: the Origins, Development, and Future of the Exclusionary Rule in Search and Seizure Cases, 83 COLUM.L.REV. 1365, 1369 (1983).

Former Justice Stewart asserts that the framers of the fourth amendment were wary of this practice and adopted the fourth amendment to guard against use of the general warrant to "jeopardize the liberty of every citizen.” Id. We must be concerned that if we allow such a process to continue under the guise of a "war on drugs”, we will be jeopardizing the fundamental liberty that the framers sought to secure.

.The officer later stated that he and a Drug Enforcement Agent were assigned to investigate drug smuggling activity at the Airport; and they thought that Morgan may have been travelling with another African-American man, Tony Floyd, whom the DEA had handcuffed nearby. Note that the agents found no drugs in Floyd’s luggage or on Morgan’s person. N.Y. Times, Feb. 16, 1991, sec. 1, page 46, col. 5.

. A witness at trial also testified that he attempted to intercede and explain to the officer who Joe Morgan was. The officer rebuffed any such attempt and told the witness not to interfere. UPI Press Release, Feb. 15, 1991 (NEXIS, Los Angeles Dateline).

. See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968)).

. At the evidentiary hearing, Taylor testified that he felt he was not free to leave:

Q: Were they [the officers] on either side of you or both on the same side of you or which way were they?
A: They were in front of me at an angle ... they had enough space ... to where I couldn’t go between them.

Joint Appendix at 137. Transcript at 357 (emphasis added).

. On cross-examination, Sergeant Eldridge testified:

Q: Okay. You would have just given pursuit but you wouldn’t have tackled?
A: Oh yeah, I would have kept after him.
******
Q: [I]f he tried to move, if he tried to run ... you were going to give pursuit?
A: No, sir, I said I would probably give pursuit.
Q: Why would you give pursuit if you weren’t going to stop, so you could run along and get your exercise?
A: No sir, I would follow him to where he was going.
Q: Follow him to where he was going?
A: Yes, sir ... If he took off, I would try to get some kind of communication and have somebody pull in behind him for some more surveillance.
Q: You would try to get him stopped?
A: Definitely. Somebody at this point, they are definitely involved in something if they take off running.
Q: They are definitely involved in something.
A: Yeah.

Joint Appendix at 109, 111. Transcript at 98, 105 (emphasis added).

. The “drug courier profile" is an abstract of characteristics found to be typical of persons transporting illegal drugs. Florida v. Royer, 460 U.S. 491, 493 n. 2, 103 S.Ct. 1319, 1322 n. 2, 75 L.Ed.2d 229 (1983). The Drug Enforcement Administration has not committed the profile to writing. The drug courier profile has not received unanimous approval by either the Supreme Court or this circuit, as the combination of factors looked for vary among agents. See Saperstein, 723 F.2d at 1228. Instead, courts are required to determine "whether in each particular case the combination of facts present and the manner in which they are exhibited justifies a stop.” Id.

. The government maintains another significant, suspicious factor is that Taylor purchased his one-way ticket to Memphis in cash. Drug couriers benefit from cash transactions because of its anonymity. See Saperstein, 723 F.2d at 1228. Here, however, Taylor purchased the ticket in his own name. Certainly, purchasing a ticket under one’s legal name is uncharacteristic behavior for a drug courier. This casts further doubt not only on the officers’ basis for stopping Taylor, but also on the reliability of the drug courier profile.

. The officer simply followed Taylor because he was black, a constitutionally impermissible action. See supra section I.

. At the evidentiary hearing, Sergeant Eldridge testified that it was not his responsibility to inform Taylor that he had the right not to consent:

Q: Everything that you consented to — you gave him no chance to consent or not to consent, did you, because you didn’t tell him that he had a right not to?
*589A: Well, — you are right, I didn’t tell him that he had a right not to.
******
Q: Okay. You did want him to know that he had the right to consent?
A: That’s up to him. Whether he had knew (sic) he had the right to consent or not, it is not up to me to advise him that he has the right. I can come up to any individual on the street and say I’m a police officer, but you don’t have to talk to me but will you talk to me.
Q: And you certainly didn't tell him he had a right to refuse you all to go in his bag?
A: No, sir, I did not.

Joint Appendix at 108. Transcript at 96 (emphasis added).

. In Mendenhall, twice the officers expressly told the respondent that she was free to decline to consent to the search. The Court found that these explanations by the officers substantially lessened the probability that their conduct reasonably could have appeared coercive. See Mendenhall, 446 U.S. at 558-59, 100 S.Ct. at 1879-80.

. The exceptions to the warrant requirement include: automobile searches, United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); consent searches, Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); searches incident to a lawful arrest, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); limited searches and seizures under the stop and frisk doctrine, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); searches and seizures in hot pursuit of a fleeing felon, United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); and searches and seizures to prevent the loss or destruction of evidence, Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).