Chаrles Steven Ballard appeals from a conviction pursuant to 18 U.S.C.A. § 841(a)(1) (1976), for possession of heroin with intent to distribute. The sole issue on appeal is whether the evidence seized during a search of defendant’s bаggage should have been suppressed. We agree with the defendant that the evidence was improperly admitted at trial; therefore, we reverse.
Defendant was arrested following an investigatory stop and subsеquent search at the New Orleans airport. The following sequence of events led up to his arrest. On April 4, 1977, an anonymous tip was received by the drug unit of the New Orleans Police Department. The substance of this tip was that a black male, surnamed “Tullos,” five feet nine inches tall, weighing 140 pounds, with a thin face and torso, would be arriving that evening at the New Orleans airport on a flight from Los Angeles. In response to this information, Special Agent Jоhn D. Donald, of the Drug Enforcement Administration, began observing passengers arriving on flights from Los Angeles. In addition to the physical attributes mentioned in the tip, agent Donald looked for characteristics listed on the “airport drug courier profile,” a compilation of factors considered by the DEA to be indicative of drug activity. Included among those characteristics listed are: (a) unusual nervousness; (b) no luggage or very limited luggage; (c) pоssession of an unusually large amount of cash, especially when in bills of small denominations; (d) unusual itinerary, taking circuitous routes from cities known to be source cities for narcotics, such as flying to New Orleans from Los Angelеs by way of St. Louis; (e) arriving from a known narcotics source city; (f) paying for an airline ticket in currency of small denominations; (g) purchasing a one-way ticket; (h) use of an alias; (i) use of a false telephone number оn an airline reservation; (j) placing a telephone call immediately upon arrival at the airport; and (k) travel by a known narcotics trafficker.
Observing flights arriving at 8:05 p. m., 9:02 p. m., and 10:20 p. m., Agent Donald detected no one fitting either the tip or the profile. Finally, at 3:39 a. m. on April 5, 1977, Delta flight number 196 arrived from Dallas. Defendant, a black male, six feet tall and weighing approximately 170 pounds was a passenger on flight 196. Agent Donald observed the defendant leave the plane and walk hurriedly down the concourse carrying a thin plastic suit bag. According to the agent, defendant appeared to be very nervous, looking back over his shoulder at least once. Defendant sought directions from an airport employee, who pointed toward an escalator leading to both the baggage area and taxi stand. After descending the escalator, defendant turned аnd began heading for the taxis, instead of continuing to the baggage area. At this point he was stopped by Agent Donald who identified himself as a drug agent. They were immediately joined by another police officer who hаd been assisting the surveillance. Defendant, in response to an inquiry *915 by Agent Donald, was unable to produce any identification other than his airplane ticket, which was in the name of James Bishop. Defendant was asked tо accompany the two officers to a police office, 100 feet away. Once at the office, defendant agreed to allow a search. The resulting search of his person and his luggage revealed the heroin. Defendant was then formally arrested and apprised of his constitutional rights.
Defendant contends that the investigatory stop was illegal and that the evidence obtained during the search was tainted by that initial illegality and therefore should have been suppressed under the “fruit of the poisonous tree” doctrine.
Wong Sun v. United States,
The government first argues that there was probable cause to stop Ballard. They assert that the tip was corroborated by Agent Donald’s observations and further reinforcеd by the presence of several characteristics listed on the drug courier profile. This position is totally without merit. The only similarity between the individual described in the tip and Ballard is that they are both black males. The nаme and physical appearance are obviously dissimilar, and the agents, at the time of the stop, had no knowledge of Ballard’s city of departure, because flight 196 carried passengers from San Francisco, Las Vegas, and Dallas in addition to Los Angeles. In short, the tip was in no way corroborated by the agent’s observations.
Nor can it be said that the elements of the courier profile, considered alone or in сonjunction with the tip, were sufficient to provide probable cause. It is argued that defendant fit four characteristics: he was nervous, he was traveling from a known narcotics source city, he was carrying limited luggage, and he was walking rapidly. Of these four we can immediately discount two. Although defendant had in fact boarded the plane in Los Angeles, the officers did not possess that knowledge at the time of the stop; and the fact that defendant carried limited luggage would be helpful only if the agents were more certain of that fact at the time they stopped Ballard. Because defendant was stopped before he left the building, the agеnts had no way of knowing whether defendant was going to get a breath of fresh air, was going to get a taxi to wait while remaining luggage was retrieved, was going to see if a friend were there to meet him, or was in fact leaving the airport carrying but a single light bag. Considering the remaining factors of the profile and the elements of the tip which were corroborated, the presence of á nervous black male walking rapidly through the airport in Nеw Orleans, falls far short of establishing the probable cause required to justify the search.
The government next contends that the stop, which was only an investigatory stop, can be upheld if the officers had reasonablе suspicion to believe that the defendant was engaged in criminal activity. It has been recognized that police officers may briefly stop an individual and make inquiries if the officer reasonably suspects that the dеtained individual is engaged in some sort of illegal activity.
United States v. McDaniel,
This does not mean that the evidence was necessarily admitted improperly. In response to appellant’s contention that the searсh was tainted by the illegal stop, the government contends that Ballard consented to the search and thus removed the taint of the stop. We disagree, and find that the trial court erred when it held Ballard’s consent to havе been voluntarily given. Although in this circuit, consent can, in proper circumstances, valídate a search following an illegal arrest, those circumstances are not present here. In
Bretti v. Wainwright,
While warnings prior to a consensual search may not have the same indispensability as those required prior to a confession . . . they do help insure that the consent is free, voluntary, and untainted by the arrest’s possible illegality. In the instant case the presence of these warnings leads us to cоnclude that any coercion flowing from the possible illegality of appellant’s arrest was dissipated.
REVERSED.