Investigatory stops and the Fourth Amendment.

• Author: Pelic, Jennifer
• Position: Case Note

United States v. Arvizu, 534 U.S. 266 (2002)

1. INTRODUCTION

   In United States v. Arvizu, (1) the Supreme Court held that the Fourth Amendment does not prohibit investigatory stops as long as the facts and circumstances lead to a reasonable suspicion that the driver is engaged in criminal activity. This Note (2) argues that the decision in United States v. Arvizu is correct in spite of counterarguments that the decision encourages racial profiling and permits an officer to stop a vehicle for any reason. First, the prior investigatory stop cases of United States v. Sokolow, (3) United States v. Cortez, (4) and United States v. Brignoni-Ponce, (5) which hold that an officer may make an investigatory stop if the totality of the circumstances leads to a reasonable suspicion that criminal activity is afoot, support the Arvizu decision. Second, examining the facts and circumstances of each case is the best method of determining whether the investigatory stop is constitutional. Third, the reasonable suspicion analysis should view the facts and circumstances from the perspective of law enforcement because of their experience and familiarity with criminal behavior and their knowledge of common practices in illegal drug and alien smuggling. Finally, the suggested effects of facial profiling and an officer's ability to stop a vehicle for any reason will not occur because the analysis requires specific, articulable facts.

2. BACKGROUND

   1. FROM PROBABLE CAUSE TO REASONABLE SUSPICION

      The Fourth Amendment, which protects individuals "against unreasonable searches and seizures," (6) applies to investigatory stops where the individual has not violated any law. (7) Generally, the Fourth Amendment requires individual suspicion and probable cause to conduct a search. (8) However, in certain circumstances, individual suspicion and probable cause are replaced with reasonable suspicion due to the necessity for "swift action predicated upon the on-the-spot observations of the officer on the beat." (9)

      In Terry v. Ohio, an officer observed two men standing on a street corner. (10) Over a period of approximately ten minutes, the officer observed the men walk down the street, peer into a store window, and return to the street corner almost twelve times between the two of them. (11) A third man next appeared, briefly spoke to the two men, and walked away. (12) The two men then walked back to the store window where they met the third man again. (13) Believing that the men were casing the store for a robbery, the officer approached the men and asked for their names. (14) When the men responded inaudibly, the officer grabbed one of the men and patted him down, discovering a gun. (15)

      The Supreme Court held that the officer did not need probable cause to search for weapons because the governmental interest in detecting and preventing crime efficiently and effectively outweighed the brief intrusion on the individual's rights. (16) Instead, the officer must rely on specific, objective facts and any inferences from those facts that "reasonably warrant that intrusion." (17) This objective test inquires whether "the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate." (18) An officer must not rely on hunches, but only "specific reasonable inferences ... in light of his experience." (19)

   2. ROVING BORDER PATROLS AND THE TOTALITY OF THE CIRCUMSTANCES TEST

      Smugglers of illegal aliens and drugs use Arizona as a route from Mexico. (20) In 2001, federal law enforcement officials seized almost 219,000 kilograms of marijuana and about 3345 kilograms of cocaine in Arizona. (21) Additionally, in the first six months of 2000, federal law enforcement officers apprehended almost 177,000 illegal aliens trying to cross the Arizona-Mexico border. (22)

      The cost of detaining smugglers and illegal aliens is enormous. (23) In 1999, Arizona spent $41,217,601 detaining illegal aliens for over 900,000 days of incarceration in state and local prisons. (24) Furthermore, illegal smuggling caused over thirteen accidents in 1999 due to overcrowded vehicles. (25) One Arizona hospital estimated that its expense for treatment of illegal aliens is over $100,000. (26)

      Checkpoints near the United States-Mexico border attempt to combat the illegal alien and drug smuggling problems, (27) but smugglers use scarcely populated back roads to avoid the checkpoints. (28) As a result, the United States Border Patrol conducts roving patrols along these back roads using investigatory stops to catch smugglers trying to avoid the checkpoints. (29)

      The Supreme Court first discussed "Terry stops" (30) in the context of roving border patrols in United States v. Brignoni-Ponce. (31) There, an officer patrolling the United States-Mexico border stopped a vehicle and questioned the occupants about their citizenship solely because the occupants looked Mexican. (32) The officer learned that all three occupants were illegally in the country and arrested them. (33)

      The Court held that the stop violated the Fourth Amendment. (34) Ethnicity alone was not enough to create a reasonable belief that the individuals were illegal aliens because many United States citizens, especially in California, "appear" Mexican. (35) However, race may be a factor for an immigration investigatory stop because the probability that a Mexican is an alien is high enough to make it relevant. (36) Regardless, an officer must have "specific articulable facts, together with rational inferences from those facts ... that the vehicles contain [illegal] aliens." (37)

      The Court then articulated certain factors that may be used in examining reasonable suspicion. (38) First, the characteristics of the area may be relevant, including "its proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic." (39) Second, "information about recent illegal border crossings in the area" may be relevant. (40) Third, "[t]he driver's behavior may be relevant, [such] as erratic driving or obvious attempts to evade officers." (41) Fourth, the type of vehicle may be considered in a reasonable suspicion analysis. (42) Fifth, "[t]he vehicle may appear to be heavily loaded, it may have an extraordinary number of passengers, or the officers may observe persons trying to hide." (43) Finally, the ethnicity of the individual can be considered, assuming a trained officer is able to determine ethnicity based on haircut or dress, but it cannot be the sole factor. (44) Although these factors may be relevant, the outcome of any given case depends on the totality of the circumstances. (45)

      United States v. Cortez formally adopted the totality of the circumstances test for a reasonable suspicion analysis. (46) This test contains two elements. (47) First, the assessment must examine all the circumstances of the case, including "objective observations, information from police reports ... and consideration of the modes or patterns of operation of certain kinds of lawbreakers." (48) Based upon this information, officers draw on their experience and training in law enforcement to make inferences. (49) Second, all facts and inferences must amount to a reasonable suspicion that the individual is engaged in criminal activity. (50)

      After Cortez, many appellate courts developed a restrictive list of permissible factors in an attempt to refine the totality of the circumstances test, (51) but the Supreme Court rejected these attempts. (52) According to the Court, not only is the notion of reasonable suspicion not easily "reduced to a neat set of legal rules," (53) but also refining the analysis "creates unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment." (54)

   3. THE STANDARD OF REVIEW FOR A REASONABLE SUSPICION ANALYSIS

      In Ornelas v. United States, the Supreme Court stated that appellate courts must review reasonable suspicion cases de novo, while giving due weight to the factual inferences of the trial judge and law enforcement. (55) The Court employed a de novo review rather than deferring to the trial judge's determination for three reasons. (56) First, deference would create inconsistent results because each trial judge may draw different inferences from the same set of facts. (57) Second, de novo review allows "appellate courts ... to maintain control of, and to clarify, the legal principles," because "the legal rules for ... reasonable suspicion acquire content only through application." (58) Third, de novo review allows appellate courts to create uniform rules, giving law enforcement clearer rules to follow when deciding whether to conduct an investigatory stop. (59)

      Although reasonable suspicion cases rarely have identical facts, making it difficult for a case to act as a guide to law enforcement, prior cases will have facts similar enough to current cases to provide a guide on how the case will be resolved. (60) Also, officials can view cases collectively to create a useful "body of law on the subject." (61)

      De novo review is subject to the appellate court giving due weight to both local judges and law enforcement. (62) Local judges examine the facts and the inferences from those facts "in light of the distinctive features and events of the community." (63) Similarly, law enforcement officers examine the facts in light of their experience and expertise in law enforcement. (64)

      Justice Scalia vigorously dissented from the Ornelas decision. (65) According to Scalia, appellate courts should review reasonable suspicion cases with deference to the trial court rather than de novo. (66) Reasonable suspicion cases are fact-intensive, making a de novo review practically useless. (67)

      According to Scalia, precedent indicates that appellate courts should review cases with deference when: (1) "the district court is 'better positioned' than the...