No. 00-1519 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA, PETITIONER 

v. 

RALPH ARVIZU 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

REPLY BRIEF FOR THE UNITED STATES 

THEODORE B. OLSON 

Solicitor General 

Counsel of Record 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

TABLE OF CONTENTS 

Page 

A. A basic principle of Fourth Amendment law is 

that facts consistent with innocent conduct can, 

in combination, give rise to reasonable suspicion 

of criminal activity ................................................................. 

2 

B. Reasonable suspicion analysis that is grounded in 

the contextual significance of all the facts protects 

against arbitrary stops ......................................................... 

5 

C. The totality of the facts of this case supported a 

reasonable suspicion of criminal activity and was 

not, as respondent argues, indicative of a family 

outing ....................................................................................... 9 

TABLE OF AUTHORITIES 

Cases: 

Brown v. Texas, 443 U.S. 47 (1979) .................................... 

3 

Hodgers-Durgin v. De La Vina, 174 F.R.D. 469 (D. 

Ariz. 1997), aff’d in part, 199 F.3d 1037 (9th Cir. 

1999) ......................................................................................... 8 

Illinois v. Gates, 462 U.S. 213 (1983) ................................. 

5, 7 

Illinois v. Wardlow, 528 U.S. 119 (2000) ....................... 

3, 4, 14 

Ornelas v. United States, 517 U.S. 690 (1996) ........ 

6, 7, 8, 10 

Reid v. Georgia, 448 U.S. 438 (1980) ................... 

5, 12, 13, 14 

Terry v. Ohio, 392 U.S. 1 (1968) ........................................ 

11, 13 

United States v. Brignoni-Ponce, 422 U.S. 873 

(1975) ........................................................................................ 

3, 14 

United States v. Cortez, 449 U.S. 411 (1981) ..................... 

3, 6, 8 

United States v. Montero-Camargo, 208 F.3d 1122 

(9th Cir.), cert. denied, 531 U.S. 889 (2000) ...................... 

5 

United States v. Sokolow, 490 U.S. 1 (1989) ..................... 

4, 5, 9 

Constitution: 

U.S. Const. Amend. IV ........................................................... 4, 5, 7 

(I) 

In the Supreme Court of the United States 

No. 00-1519 

UNITED STATES OF AMERICA, PETITIONER 

v. 

RALPH ARVIZU 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

REPLY BRIEF FOR THE UNITED STATES 

Respondent’s brief is founded on a contradiction. On 
the one hand, respondent argues that in reviewing 
reasonable-suspicion determinations, courts of appeals 
must provide “guidance” to law enforcement officers by 
identifying factors the officers may and may not con- 
sider; this, he asserts, will provide “uniformity across 
cases.” Resp. Br. 18-23. On the other hand, respondent 
maintains that the court of appeals did nothing more 
than conduc an unremarkable analysis of whether, on 
the totality of the circumstances in this case, reasonable 
suspicion existed. Id. at 23-31. Respondent is wrong on 
both counts. De novo appellate review of reasonable- 
suspicion determinations does entail an independent 
analysis of each case, but it does not require, as the 
court of appeals thought, the establishment of 
categorical rules about the factors that officers may and 

(1) 

2 

may not consider. And the court of appeals did self- 
consciously purport to lay down categorical rules for 
future cases, thereby departing from this Court’s 
totality-of-the-circumstances test. See Pet. App. 12a 
(“Thus we attempt here to describe and clearly delimit 
the extent to which certain factors may be considered 
by law enforcement officers in making stops such as the 
stop involved here.”). Neither respondent’s effort to 
raise the threshold for reasonable-suspicion determina- 
tions nor his argument against the validity of the stop 
in this case has merit. The judgment of the court of 
appeals should be reversed. 

A. A Basic Principle of Fourth Amendment Law Is 

That Facts Consistent With Innocent Conduct 
Can, In Combination, Give Rise to Reasonable 
Suspicion Of Criminal Activity 

1. Respondent attempts to justify the court of ap- 
peals’ exclusion of certain types of facts from its 
analysis by making two observations about the nature 
of reasonable suspicion that are uncontroversial, but 
also inapplicable to the question of whether categories 
of facts may be put off-limits to officers. First, respon- 
dent notes that “the degree of suspicion that attaches to 
conduct may be so low that no reasonable officer would 
rely on that fact * * * in deciding to make an 
investigative stop.” Resp. Br. 14. It is self-evident that 
not every fact known to an investigating officer will 
contribute to a suspicion of illegal activity. There 
doubtless were many facts about respondent and his 
passengers that Agent Stoddard observed but that did 
not add to his suspicion. See, e.g., J.A. 68 (testimony of 
Agent Stoddard that nothing in the appearance of the 
occupants of the minivan was suspicious). That does 
not mean, however, that categories of facts can be ruled 

3 

irrelevant in the abstract. Officers making investi- 
gative stops and courts reviewing stops must consider 
“the totality of the circumstances—the whole picture” 
of the particular case. United States v. Cortez, 449 U.S. 
411, 417 (1981). The Ninth Circuit violated that rule 
when it “circumscribed” the “factors law enforcement 
officers may consider.” Pet. App. 11a. 

Second, respondent notes that some facts “standing 
alone” will not support an investigative stop. Resp. Br. 
14-15 (emphasis added). That observation likewise has 
no application to this case, because Agent Stoddard’s 
reasonable suspicion of illegal smuggling arose from the 
collective significance of all the facts known to him. See 
Pet. App. 21a-25a. There is nothing novel about the 
principle that a fact that would not alone establish rea- 
sonable suspicion may nevertheless support reasonable 
suspicion in conjunction with other facts. In Illinois v. 
Wardlow, 528 U.S. 119 (2000), for instance, the Court 
held that an individual’s presence in an area known for 
drug trafficking could be a factor supporting an investi- 
gative stop, notwithstanding that, under Brown v. 
Texas, 443 U.S. 47, 52 (1979), such presence is not suffi- 
cient grounds for a stop. 528 U.S. at 124. Similarly, the 
fact that an individual is driving a minivan would not 
alone justify an investigative stop, but, in the border 
context, driving a minivan that is capable of carrying 
concealed aliens or a large quantity of hidden drugs is 
potentially relevant to reasonable-suspicion analysis— 
particularly where, as here, the vehicle is out of charac- 
ter for the dirt road and smugglers have used minivans 
in the same area in the past. Pet. App. 22a, 23a; U.S. 
Br. 6; see United States v. Brignoni-Ponce, 422 U.S. 
873, 885 (1975) (noting that “[a]spects of the vehicle 
itself may justify suspicion” and specifically mentioning 
station wagons). 

4 

2. Starting from those propositions that (1) some 
facts may be immaterial in some contexts and (2) some 
facts will never alone justify an investigative stop, re- 
spondent suggests a new Fourth Amendment test. 
Although “ordinary, innocuous facts” may contribute to 
reasonable suspicion, respondent states, “there must be 
‘other information or surrounding circumstances of 
which the police are aware’ ” before an investigative 
stop may be made. Resp. Br. 24 (quoting Pet. App. 
10a); see id. at 27 (same); id. at 13 (arguing that “[o]b- 
servations of neutral and common facts” are insufficient 
to support reasonable suspicion and that there must be 
a particular factor that “objectively single[s] out a 
person from the general law-abiding population”); see 
also Brief of DKT Liberty Project (DKT Br.) 16-18 
(making similar argument). 

This Court’s analysis in United States v. Sokolow, 490 
U.S. 1 (1989), forecloses respondent’s approach. In 
Sokolow, the Ninth Circuit had held that characteristics 
that are not unique to drug couriers (such as the in- 
dividual’s itinerary, luggage, or method of payment for 
his ticket) cannot justify an investigative stop unless 
other facts indicate ongoing criminal activity. See id. at 
6 (summarizing court of appeals’ holding). This Court 
disagreed, noting that such evidentiary rules have no 
place in reasonable-suspicion analysis, which should 
instead involve a commonsense assessment of the whole 
picture seen by the investigating officer. Id. at 7-9. 
Each of the factors supporting the airport stop, the 
Court explained, was “quite consistent with innocent 
travel,” but “taken together,” the facts nevertheless 
amounted to reasonable suspicion. Id. at 9; see also id. 
at 9-10. Other decisions of this Court are to the same 
effect. Wardlow, 528 U.S. at 125 (lawful conduct that is 
“ambiguous and susceptible of an innocent explanation” 

5 

can nevertheless contribute to reasonable suspicion); 
Reid v. Georgia, 448 U.S. 438, 441 (1980) (per curiam) 
(“there could, of course, be circumstances in which 
wholly lawful conduct might justify the suspicion that 
criminal activity was afoot”); cf. Illinois v. Gates, 462 
U.S. 213, 244 n.13 (1983) (“innocent behavior frequently 
will provide the basis for a showing of probable cause”). 

As the Court indicated in Sokolow, respondent’s 
proposed approach of classifying potentially relevant 
facts would “create[] unnecessary difficulty” in applying 
the Fourth Amendment. 490 U.S. at 7. Judge Kozinski 
has described the sort of approach urged by respondent 
as establishing “different classes of factors—regular 
and jumbo.” United States v. Montero-Camargo, 208 
F.3d 1122, 1142 (9th Cir.) (en banc) (Kozinksi, J., con- 
curring), cert. denied, 531 U.S. 889 (2000). Judge 
Kozinski noted that he “ha[s] no clue” how those classi- 
fications bear on the Fourth Amendment’s reason- 
ableness standard, “which makes [him] think that cops 
on their beats * * * will have some trouble figuring it 
out as well.” Ibid. 

B. Reasonable Suspicion Analysis That Is Grounded 

In The Contextual Significance Of All The Facts 
Protects Against Arbitrary Stops 

1. Respondent next maintains that, if the stop in this 
case is upheld, investigative stops will be immune from 
effective judicial review and “anything an officer says 
[in support of a stop will be] sufficient” to pass Fourth 
Amendment muster. Resp. Br. 14; see id. at 33-34; see 
also Brief of National Association of Criminal Defense 
Lawyers, et al. (NACDL Br.) 6-11. That argument is 
unfounded. 

6 

The United States has not suggested that “all rea- 
sons agents offer [for a stop] are entitled to incrimina- 
tory weight.” Resp. Br. 33. Instead, this Court’s 
decisions require courts to review each case on its facts 
and to consider the significance of each fact known to an 
officer in light of the other facts known to the officer. 
See U.S. Br. 15-31. There is no inconsistency between 
that approach and effective judicial review. A court’s 
role is to determine whether the officer considered all 
of the relevant circumstances, and whether, in light of 
those circumstances, the officer had a particularized 
and objective basis for suspicion. See Cortez, 449 U.S. 
at 417-418; Ornelas v. United States, 517 U.S. 690, 696 
(1996). The records of those judicial inquiries constitute 
a body of “unif[ied] precedent,” id. at 697, and guide 
law enforcement officers as they face analogous and 
related situations. That process lends predictability to 
reasonable-suspicion analysis despite its inherently 
fact-specific character. See id. at 697- 698. 

The district court in this case performed the requisite 
analysis. “View[ing] the case in the context of what 
was going on out there” and what was known to Agent 
Stoddard (Pet. App. 22a), the district court culled the 
relevant facts from the testimony (id. at 22a-25a) and 
found “reasonable and objective and articulable facts to 
support the stop of the vehicle” (id. at 25a). The district 
court determined that some of the facts on which Agent 
Stoddard had relied, such as respondent’s route around 
the Border Patrol’s I-191 checkpoint and the minivan’s 
capacity for carrying a large amount of concealed cargo, 
were particularly “important” parts of the total picture. 
Id. at 22a, 23a. And it gave specific reasons for reject- 
ing respondent’s argument that “there [wa]s really 
nothing to separate [respondent] and his vehicle from a 
law-abiding citizen.” J.A. 134 (argument of respon- 

7 

dent’s counsel); see Pet. App. 22a-25a. In sum, the 
district court’s proceedings confirm the correctness of 
this Court’s longstanding assessment that a “‘practical,’ 
‘nontechnical,’ and ‘common sense’” approach to Fourth 
Amendment analysis need not be “overly permissive,” 
and that lower courts can be trusted “to ‘hold the 
balance true.’ ” 

Gates, 462 U.S. at 241 (quoting 
Brennan, J., dissenting, id. at 290). 

2. The totality-of-the-circumstances rule also does 
not suggest that courts of appeals will rubber-stamp 
district courts’ determinations of reasonable suspicion. 
In Ornelas, the Court held that although appellate 
courts should “review findings of historical fact only for 
clear error and * * * give due weight to inferences 
drawn from those facts by resident judges and local law 
enforcement officers,” 517 U.S. at 699, they must decide 
de novo whether the officer did or did not have rea- 
sonable suspicion, id. at 695-699. The Ornelas Court 
reaffirmed the totality-of-the-circumstances test and 
that reasonable suspicion cannot “readily, or even 
usefully, [be] reduced to a neat set of legal rules” (id. at 
695-696) (internal quotation marks omitted), even as it 
instructed the courts of appeals to undertake the 
“thorough, plenary review” that respondent urges 
(Resp. Br. 34). Respondent does not suggest, much less 
show, that the courts of appeals have been unable to 
undertake the independent review required by Ornelas 
while adhering to the totality-of-the-circumstances 
approach. 

3. Respondent represents that the United States 
contends that a reviewing court should consider only 
the totality of the facts that the investigating officer 
identified as significant, “not the whole picture” (Br. 26), 
and, further, that the quantity of factors identified by 
the officer has primary importance (Br. 34). Respon- 

8 

dent is again incorrect. As noted above, the first re- 
sponsibility of a court undertaking reasonable-suspicion 
analysis is to identify all of the relevant circumstances. 
See Cortez, 449 U.S. at 417; Ornelas, 517 U.S. at 696. 
Whatever their number, those circumstances collec- 
tively form the basis for reasonable-suspicion analysis. 

4. Respondent’s amici suggest that this case has 
some bearing on the issue of “racial profiling.” NACDL 
Br. 15-16; DKT Br. 6-15. Yet, as respondent notes (Br. 

6), Agent Stoddard testified that his decision to stop the 
minivan was not influenced by the physical appearance 
of its occupants. See J.A. 68. Unlike the circumstances 
of a stop that is based solely on broad and unjustified 
generalizations about the targeted racial group, each of 
the ten factors that the district court deemed suppor- 
tive of the stop in this case relates to specific activities 
of respondent or his passengers, or particular facts 
about their vehicle. See U.S. Br. 8-10 (listing factors).1 

1 Relying primarily on arguments made by the class-action 
plaintiffs in Hodgers-Durgin v. De La Vina, 174 F.R.D. 469 (D. 
Ariz. 1997) (No. Civ. 95-029 TUC-JMR), aff’d in part, 199 F.3d 1037 
(9th Cir. 1999), amicus DKT Liberty Project maintains that the 
Border Patrol makes a high percentage of groundless stops. See 
DKT Br. 8; DKT App. 1a-2a. Although the Hodgers-Durgin case 
was dismissed on standing grounds, the government introduced 
evidence rebutting the assertions on which DKT relies. The gov- 
ernment’s analysis of the radio logs used by the plaintiffs showed 
that out of 682 vehicle stops, 101 (approximately 15%) resulted in 
an arrest. Border Patrol agents, moreover, do not always make an 
arrest when they uncover illegal activity. For example, agents 
may allow illegal aliens to return voluntarily to Mexico, or they 
may allow aliens who are authorized to work only in a particular 
area of the United States to return voluntarily to that area. More 
generally, the miscellaneous reports on which amicus relies (DKT 
Br. 7-12) cannot be accepted as reliable indications of the per- 
centage of suspects who are stopped on proper Terry grounds 

9 

C. The Totality Of The Facts Of This Case Sup- 
ported A Reasonable Suspicion Of Criminal 
Activity And Was Not, As Respondent Argues, 
Indicative Of A Family Outing 

Turning to the facts of this case, respondent argues 
that they “indicated only a family in a minivan on a 
holiday outing, not criminal behavior.” Resp. Br. 34. 
That argument is untenable in light of the “essentially 
undisputed” (ibid.) record evidence and the district 
court’s findings of historical fact. See U.S. Br. 31-35. 

Like the court of appeals (Pet. App. 12a-18a), respon- 
dent attempts (Br. 35-46) to show that each factor cited 
by the district court is not independently suspicious. 
The relevant question, however, is whether “the whole 
picture” created by all the facts “taken together” sup- 
ported a reasonable suspicion of illegal activity. Soko- 
low, 490 U.S. at 8, 9. When forming his suspicions, 
Agent Stoddard thus was entitled to rely on the mutu- 
ally reinforcing character of respondent’s route, timing, 
and vehicle, and the behavior of respondent and his pas- 
sengers. 

To the limited extent that respondent considers the 
interrelationship of the facts, he suggests that, even if 
some of the facts might independently have aroused 
suspicion, Agent Stoddard should have disregarded 
them because, in other respects, the minivan had the 
appearance of carrying a family on an outing. For in- 
stance, respondent argues (Br. 43) that Agent Stoddard 
should have ignored the raised position of the children’s 
knees on the assumption that it indicated the presence 
of camping equipment or suitcases. Respondent simi- 
larly contends that his route around the I-191 check- 

(rather than in a consensual stop or otherwise) and later are 
subject to arrest. 

10 

point (id. at 35), his use of a minivan capable of carrying 
a large amount of concealed cargo (id. at 38), and 
Agent’s Stoddard’s failure to recognize the minivan (id. 
at 42) should have carried no weight because they were 
consistent with a family trip. See also id. at 2-3, 35 
(arguing that respondent’s route of travel was custo- 
mary for recreation vehicles). 

Respondent’s arguments depend on his assertion (Br. 
3 n.5) that his “route of travel would not have been 
unusual” for a family attempting to reach a camping or 
picnic site. But that is nothing more than a challenge to 
the factual findings of the district court. The district 
court determined that respondent was not taking a 
logical route to any recreation area when he was 
stopped. See Pet. App. 22a; see also U.S. Br. 33. 
Respondent made no effort on appeal to show that the 
district court’s findings about that “distinctive feature[] 

* * * of the community” were clearly erroneous, 
Ornelas, 517 U.S. at 699, and the court of appeals did 
not make any such determination. The trial court, 
moreover, amply explained why it found petitioner’s 
reliance on the existence of the Chiricahua National 
Monument and other recreation areas north of Rucker 
Canyon Road (see Resp. Br. 2 n.4, 3 n.5) unpersuasive. 
Those recreation areas, the court noted, are “accessible 
through paved road I-[1]91 and then taking paved road 
181. And picking up the road from there, paved I-181, 
all the way to that area does not require * * * a 40- 
mile trip at least, through a dirt road.” Pet. App. 22a; 
see J.A. 157 (map). The very limited traffic on the back 
roads used by respondent makes it apparent that the 
vast majority of innocent travelers do in fact take the 

11 

highway when going from Douglas to the northern 
recreation areas. See U.S. Br. 4.2 

The district court therefore was correct that respon- 
dent’s route around the Border Patrol checkpoint 
colored the other facts known to Agent Stoddard. See 
Pet. App. 23a; see also U.S. Br. 32-33. “It would have 
been poor police work indeed,” Terry v. Ohio, 392 U.S. 
1, 23 (1968), for Agent Stoddard to ignore the impli- 
cations of respondent’s route and to presume con- 
clusively that respondent was on an innocent family 
outing, just because respondent was in the vicinity of 
recreation areas and had a woman and three children in 
his vehicle. 

That is all the more true because respondent tripped 
the first sensor on Leslie Canyon Road at approxi- 
mately 2:15 p.m., around the time when the agents who 
patrolled the area suspended their surveillance and 
began returning to the I-191 checkpoint for a 3 p.m. 

2 Respondent observes that a driver who lives on Leslie Can- 
yon Road might go north on the dirt roads rather than heading 
south to Douglas and taking the highway from there. See Resp. 
Br. 3, 35; J.A. 26. But Agent Stoddard did not recognize respon- 
dent’s minivan as a local vehicle, and he knew that it was regis- 
tered to an address in Douglas. See Pet. App. 24a; U.S. Br. 32-33. 
Agent Stoddard therefore had compelling reasons to believe that 
the minivan started its trip in Douglas, rather than along Leslie 
Canyon Road. In that regard, respondent argues (Br. 42) that 
Agent Stoddard’s failure to recognize the minivan was insignificant 
because Stoddard supposedly “was not ‘real familiar’ with the 
area.” What Agent Stoddard actually said (J.A. 52) was that he 
was “[n]ot real familiar” with the Chiricahua National Monument, 
which, as the district court explained, is “quite a few miles to the 
north” and not logically accessed by the roads Agent Stoddard 
patrolled (Pet. App. 22a). Agent Stoddard specifically testified 
that he had “spen[t] enough time out there” to be familiar with 
“the normal traffic, which is ranchers and so forth.” J.A. 37. 

12 

shift change. See U.S. Br. 4, 32 n.17. Respondent 
suggests (Br. 37) that it “makes no sense” for smug- 
glers to step-up their activity during a shift change, be- 
cause Border Patrol agents returning to the checkpoint 
might see them. The district court, however, did not 
question and apparently accepted (Pet. App. 23a) Agent 
Stoddard’s testimony that smugglers “seem to do the 
most smuggling * * * when the agents are en route 
back to the checkpoint.” J.A. 26; see J.A. 47-48. Re- 
spondent also ignores that a smuggler traveling north 
on the back roads before 3 p.m. would be traveling in 
the same direction as a Border Patrol agent returning 
to the I-191 checkpoint, which would minimize the 
smuggler’s chances of meeting the agent on the road. 
Finally, a smuggler could see the dust trail of a moving 
Border Patrol vehicle a half-mile away (see J.A. 31), 
whereas a parked Border Patrol vehicle monitoring the 
road would not give an early warning of its position. 

Contrary to respondent’s argument (Br. 36-37), Reid 

v. Georgia, 448 U.S. 438 (1980) (per curiam), does not 
undermine Agent Stoddard’s reliance on the time of re- 
spondent’s trip. In Reid, the early morning hour and 
other factors that the officers deemed suspicious collec- 
tively described “a very large category of presumably 
innocent travelers.” Id. at 441. Here, respondent’s 
unusual path over a “notorious” (J.A. 30) smuggling 
route, the precise time of his trip, his atypical use of a 
minivan rather than a four-wheel-drive vehicle (see 
U.S. Br. 6), the indication that he was carrying cargo 
even though he was not headed toward a local re- 
creation area, the fact that the minivan was not a famil- 

13 

iar local vehicle, and the Douglas registration of the 
minivan all cast particularized suspicion on respondent.3 

Agent Stoddard’s suspicion appropriately increased 
when respondent slowed dramatically and appeared 
nervous as he drove by. See U.S. Br. 5-6, 34. Respon- 
dent asserts that his sharp deceleration from approxi- 
mately 50 miles per hour to approximately 25 miles per 
hour “was not even unusual.” Resp. Br. 39. But Agent 
Stoddard testified that it is not common for drivers in 
that area to cut their speed in half when they see an 
officer, J.A. 57, and respondent did not introduce any 
contrary evidence. Agent Stoddard, moreover, did not 
cause respondent to slow down by parking “in the 
roadway” (Resp. Br. 46). Rather, Agent Stoddard 
parked his vehicle in “a little area” “off to the side of the 
road.” J.A. 32.4 

Agent Stoddard reasonably became still more sus- 
picious when the children in respondent’s van engaged 
in their unusual and apparently coached waving. See 
U.S. Br. 6-7, 34. Far from resting on an “inchoate and 
unparticularized suspicion or ‘hunch,’ ” Reid, 448 U.S. at 
441 (quoting Terry, 392 U.S. at 27), as respondent sug- 

3 Respondent argues (Br. 45-46) that the minivan’s registration 
had no legitimate significance. Elsewhere, however, respondent 
recognizes (id. at 42) that the registration to a Douglas address— 
like Agent Stoddard’s failure to recognize the minivan—suggested 
that respondent was not on a local trip. The address of the regis- 
tration was relevant because it reinforced particularized suspicion 
that respondent was on a smuggling run from the border to the 
interior of Arizona. See U.S. Br. 31. 

4 The point of respondent’s argument that there was no posted 
speed limit (Br. 39) is unclear, since respondent maintains (id. at 

40) that he was obeying all traffic laws. In any event, the roads 
used by respondent do have speed-limit signs. See J.A. 171, 179, 
181 (showing signs). 

14 

gests (Br. 44 & n.44), Agent Stoddard’s belief that the 
children were not waving on their own initiative was 
based on first-hand experience with the way that 
children normally wave to Border Patrol agents. J.A. 
61; see Brignoni-Ponce, 422 U.S. at 885 (“In all situa- 
tions the officer is entitled to assess the facts in light of 
his experience in detecting illegal entry and smuggl- 
ing.”). 

Respondent thus is incorrect when he asserts (Br. 9) 
that “[t]he factors [Agent Stoddard] relied upon would 
describe a large number of law-abiding citizens.” It is 
hard to imagine an “innocent traveler[],” Reid, 448 U.S. 
at 441, who would traverse the back roads around 
Douglas under the same suspicious circumstances. And 
the totality of the circumstances certainly gave Agent 
Stoddard the requisite “minimal level of objective 
justification for making the stop.” Wardlow, 528 U.S. at 
123. 

* * * * * 

For the reasons given above, as well as those in our 
opening brief, the judgment of the court of appeals 
should be reversed. 

Respectfully submitted. 

THEODORE B. OLSON 

Solicitor General 

SEPTEMBER 2001