U.S. v. ARVIZU U.S. Supreme Court January 15, 2002

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1 U.S. v. ARVIZU U.S. Supreme Court January 15, 2002 (A unanimous Court affirms that the test for determining reasonable suspicion for Terry v. Ohio investigative stops, including vehicles, is a liberal, open-ended police interpretation of the totality of the circumstances. And, even more importantly, officers may draw on their own experiences and specialized training to make inferences from and deductions about the cumulative information available to them... ) At the time of this incident, U.S. Border Patrolman Clint Stoddard had been assigned to the U.S. Border Patrol station at Douglas, Arizona, for more than 2 years, becoming, no doubt, an unofficial expert on gila monsters, lizards, rattle snakes, coyotes, road runners and the true definitions of arid and dehydration. During much of his tenure he worked at, or near, a permanent Border Patrol checkpoint north of the town of Douglas and 30 miles from the Mexican border, at the intersection of U.S. I-191 and Rucker Canyon Road. He had received training on detecting illegal-alien and narcotics smuggling. He was himself also an instructor and had trained others on smuggling detection techniques. While working alone on roving patrols he had stopped more than 50 vehicles carrying illegal aliens or drugs. One January day, at about the time of the 3:00 p.m. shift-change (wellknown by smugglers) at the checkpoint, Officer Stoddard, always alert to efforts to circumvent the checkpoint, was alerted by a sensor that a vehicle was traveling

2 on a dirt road paralleling I-191. Larry Welch That particular road is used mostly by area ranchers, U.S. Forest Service personnel (near boundary of Coronado National Forest) and the U.S. Border Patrol. Stoddard later testified that,... you can sit on that road for hours and not see a vehicle go by. Anyway, it s checkpoint shift-change time (known to smugglers) and a U.S. Border Patrol sensor has been triggered by an approaching vehicle on our seldom-used dirt road. Stoddard is interested in determining what vehicle is using the seldomused dirt road, on which there are signs reading Primitive Road Drive, and, accordingly, he leaves the I-191 checkpoint and heads toward the activated sensor. A second sensor is activated, tipping Stoddard now to the vehicle s direction of travel and Stoddard placed himself in a position to observe the vehicle as it eventually passed him. As the vehicle approached Stoddard, he saw it was a minivan, further arousing his suspicions, because local residents only used four-wheel drive vehicles on the area s dirt roads. When the minivan s driver, Ralph Arvizu, saw Stoddard s parked Border Patrol truck, he slowed suddenly from approximately 50 to 55 miles per hour, to approximately 25 to 30 miles per hour. Stoddard saw 5 people in the van. An adult woman was in the front seat with the male driver and 3 children, ages 12, 10 and 7, as it turned out, were in the back seats. The adults appeared nervous and surprised to Stoddard and they avoided eye contact with him. The 2 children in the rear-most seat sat with their knees unusually high, Stoddard noted, as though their feet were atop some -2-

3 object or objects on the floor. Larry Welch Stoddard s experience was that smugglers often used minivans. He did not recognize the minivan and a check on the license plate determined the vehicle was registered to an address in Douglas. Stoddard recognized the address as being just 4 blocks north of the Mexican border and on a street notorious for illegal-alien and narcotics smuggling. Stoddard followed the minivan. For 5 minutes the 3 children waved, mechanically, strangely, without ever turning around to actually look at Stoddard, as he followed the slowly-moving minivan. Stoddard stopped the vehicle and found the driver to be nervous and excited, with shaking hands and heavy perspiration. The officer asked the driver s destination and he replied that he was headed to a park. He could not recall the park s name and Stoddard was well aware there was no park, or anything similar, in the direction of the minivan s travel. Stoddard asked routine questions about INS status and cargo. He then requested and received consent to search. The officer opened the van s side door and was immediately overwhelmed with the odor of marijuana. (O.K., he wasn t exactly overwhelmed, but he was, at least whelmed with the odor.) He observed a large black duffel bag under the feet of the 2 children in the back seat. Arvizu then consented to the opening of the duffel bag and, in that bag and another, Stoddard found almost 125 pounds of marijuana, wrapped in cellophane, worth $99,000 in Douglas. (There goes the Father of the Year Award for Ralph Arvizu!) The defendant is charged with possession of marijuana with intent to -3-

4 distribute and, of course, with Felony Stupid. He was convicted in U.S. District Court, sentenced to 10 months in the federal joint, followed by 36 months of supervised release. Unfortunately, the U.S. 9 th Circuit Court of Appeals reversed the conviction, holding, primarily, that there was not sufficient reasonable suspicion to justify Stoddard s stop of the minivan. Here, the U.S. Supreme Court says to the 9 th Circuit, You gotta be kidding. (My quote, but it s what the Big Court meant.) Actually, in referring to the Circuit Court s decision, the Big Court said, We hold that the Court of Appeals methodology was contrary to our prior decisions and that it reached the wrong result in this case. This decision provided an excellent review of our old best friend, Terry v. Ohio, 392 U.S. 1 (1968), the Genesis of reasonable suspicion, stop and frisk, temporary or brief investigative detention, etc. You remember. More than a mere hunch. Less than probable cause. There s a possibility that criminal activity may be afoot. It s not a Fourth Amendment violation, under circumstances amounting to reasonable suspicion, to temporarily stop or detain a person or vehicle, thanks to God, Detective McFadden of the Cleveland, Ohio Police Department, Terry v. Ohio and the U.S. Supreme Court. Here, Officer Stoddard and the U.S. District Court relied on 10 circumstances or facts to constitute reasonable suspicion and justify the vehicle stop: (1) A poorly traveled road used to circumvent a Border Patrol checkpoint; (2) No recreation area in the vicinity; (3) The minivan slowed suddenly upon observing the government vehicle; (4) The minivan s travel coincided with the shift-change at the checkpoint, well -4-

5 known to smugglers; (5) Stoddard s experience was that smugglers used minivans; (6) Arvizu appeared nervous when he first drove by Stoddard; (7) Stoddard, well-acquainted with area vehicles and residents, did not recognize the minivan; (8) The raised position of the children s legs suggested cargo on the rear floor; (9) The children waved for 5 minutes in a methodical, mechanical, abnormal, odd, orchestrated manner; (10) The minivan was registered to an area Stoddard knew to be a smuggling area. However, on appeal of the conviction, the U.S. Circuit Court held that 7 of the 10 circumstances were not relevant or not appropriate for a reasonable suspicion analysis. The appeals court said that only circumstances #1, #4 and #5 were relevant to reasonable suspicion and those 3 did not constitute reasonable suspicion. Therefore, the stop itself violated the Fourth Amendment and the resulting search and seize were constitutionally wrong. The facts simply suggested a family in a minivan on a holiday. (Don t forget, California is in the 9 th Circuit.) conviction. The U.S. Supreme Court, 9-0, restores reason, common sense and the When discussing how reviewing courts should make reasonable suspicion determinations, we have said repeatedly that they must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspected legal wrongdoing. This process allows officers to draw on their own experience and specialized training to make -5-

6 inferences from and deductions about the cumulative information available to them that might well elude an untrained person.... Although an officer s reliance on a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause and it falls considerably short of satisfying a preponderance of the evidence standard... The appeal court s evaluation and rejection of 7 of the factors in isolation from each other does not take into account the totality of the circumstances... a determination that reasonable suspicion exists need not rule out the possibility of innocent conduct... Having considered the totality of the circumstances and given due weight to the factual inferences drawn by the law enforcement officer and District Court Judge, we hold that Stoddard had reasonable suspicion to believe that respondent (Arvizu) was engaged in illegal activity. And the Court closed with, Undoubtedly, each of these (10) factors alone is susceptible to innocent explanation... Taken together, we believe they sufficed to form a particularized and objective basis for Stoddard s stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment. -6-

7 (Bottom line? With 1,000 more U.S. Border Patrolmen like Clint Stoddard on our Mexican border, with his work ethic, energy, initiative and determination, the drug pipeline from that country into southwest Kansas would be in serious jeopardy very soon.) -7-