Investigatory Stop Was Justified by Reasonable Suspicion Under Totality of Circumstances

In United States v. Arvizu (2002) ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 02 CDOS 380, 2002 Daily Journal DAR 499, 2002 WL 46773, a border patrol agent stopped a minivan carrying defendant, who was driving, an adult woman, and three children on an unpaved road in a remote area of southeastern Arizona. The road did not provide convenient access to any of the recreational areas in the vicinity. This and a number of other factors made the agent suspect that the minivan was being used to smuggle drugs. On obtaining the driver's consent to search the vehicle, the agent found over 100 pounds of marijuana. In his motion to suppress the marijuana, defendant argued that the officer did not have reasonable suspicion to stop the vehicle as required by the Fourth Amendment. The district court determined that the agent did have reasonable suspicion for the stop, pointing to a number of details. The Court of Appeals reversed, stating that multifactor tests for reasonable suspicion introduce "a troubling degree of uncertainty and unpredictability" into Fourth Amendment analysis. Held, the stop was reasonable within the meaning of the Fourth Amendment.

(a) The protection of the Fourth Amendment against unreasonable search and seizure extends to brief investigatory stops falling short of arrest. The Fourth Amendment does not require probable cause to justify these stops, but is satisfied if the officer making the stop has a reasonable suspicion that criminal activity is occurring or is about to occur. In making reasonable suspicion determinations, reviewing courts must consider the “totality of the circumstances” of each case to determine whether the detaining officer had a “particularized and objective basis” for making the stop. (02 CDOS 381, 2002 Daily Journal DAR 501, citing Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §249, United States v. Cortez (1981) 449 U.S. 411, 110 S.Ct. 690, 66 L.Ed.2d 621, and United States v. Sokolow (1989) 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1.)

(b) The Court of Appeals characterized the district court’s analysis as relying on 10 factors, 7 of which carried little or no weight in the reasonable suspicion analysis, including defendant’s slowing down on seeing the agent's vehicle and failing to acknowledge the agent, the raised position of the knees of two children who were sitting in the very back seat, as if cargo was stowed under their feet, and odd waiving by three children. The remaining factors--the road’s use by smugglers, defendant’s trip at the time of the agents’ shift change, and the use of minivans by smugglers--were insufficient to render the stop permissible. This approach does not take into account the “totality of the circumstances” as the United States Supreme Court has interpreted that phrase. The Court of Appeals indicated that each observation by the agent that could be given an innocent interpretation was not entitled to any weight in the reasonable suspicion analysis. But this sort of “divide-and-conquer” analysis does not comport with Terry v. Ohio, which determined that a series of actions each of which was “perhaps innocent in itself,” when taken together “warranted further action.” Similarly, United States v. Sokolow held that factors that by themselves were “quite consistent with innocent travel” collectively amounted to reasonable suspicion. (02 CDOS 381, 382, 2002 Daily Journal DAR 501.)

(c) Ornelas v. United States (1996) 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911, 6 Cal. Crim. Law (3d), Criminal Appeal, §140, held that the appellate court should review a reasonable suspicion determination de novo, rather than employ an abuse of discretion standard. This approach would prevent the affirmance of opposite decisions on identical facts and allow appellate courts to clarify legal principles. It would also unify precedent and give law enforcement officers tools to make correct determinations beforehand. However, the Court of Appeals approach here goes far beyond the Ornelas reasoning. For example, the Court of Appeals determined that slowing down on spotting the agent’s vehicle and failing to acknowledge the agent’s presence were fully consistent with innocent behavior. But while these actions might be unremarkable in some areas, such as a busy highway, they were unusual here. An agent or officer “is entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.” While a totality of the circumstances rule may make appellate review less circumscribed by precedent, this is simply the nature of the rule. (02 CDOS 382, 2002 Daily Journal DAR 501.)

(d) Here even if the facts suggest, as defendant argues, a family on a holiday outing, the determination of reasonable suspicion need not rule out the possibility of innocent conduct. Although each factor taken alone is susceptible to innocent explanation, and some are more probative than others, taken as a whole they suffice to provide a particularized and objective basis for stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment. (02 CDOS 382, 2002 Daily Journal DAR 502.)

One concurring justice, while stating that the majority’s analysis results in “a peculiar sort of de novo review,” concluded that “even holding the Ninth Circuit to no more than the traditional methodology of de novo review, its judgment here would have to be reversed.” (02 CDOS 382, 2002 Daily Journal DAR 502.)

Witkin References

On exclusionary rule, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §1 et seq.

On stop on reasonable suspicion, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §240.

On conduct consistent with innocent activity, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §242.

On border or checkpoint searches, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §308 et seq.

On standard of review for reasonable suspicion stop, see 6 Cal. Crim. Law (3d), Criminal Appeal, §140.