No. 00-1519 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA, PETITIONER 

v. 

RALPH ARVIZU 

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

PETITION FOR A WRIT OF CERTIORARI 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 

JOHN C. KEENEY 

Acting Assistant Attorney 

General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

AUSTIN C. SCHLICK 

Assistant to the Solicitor 

General 

LISA SIMOTAS 

Attorney 

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

QUESTIONS PRESENTED 

1. Whether the court of appeals erroneously de- 
parted from the totality-of-the-circumstances test that 
governs reasonable-suspicion determinations under the 
Fourth Amendment by holding that seven facts 
observed by a law enforcement officer were entitled to 
no weight and could not be considered as a matter of 
law. 

2. Whether, under the totality-of-the-circumstances 
test, the Border Patrol agent in this case had rea- 
sonable suspicion that justified a stop of a vehicle near 
the Mexican border. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Constitutional provision involved ............................................... 
2 

Statement ........................................................................................ 2 

Reasons for granting the petition ............................................... 
11 

Conclusion ....................................................................................... 23 

Appendix A ..................................................................................... 
1a 

Appendix B ..................................................................................... 
21a 

TABLE OF AUTHORITIES 

Cases: 

Almeida-Sanchez v. United States, 413 U.S. 266 

(1973) ........................................................................................ 21 

Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 

1994) ......................................................................................... 22 

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

13 

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

14, 15, 18, 20 

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

13, 14, 16, 16 

United States v. Anderson, 923 F.2d 450 (6th Cir.), 

cert. denied, 499 U.S. 980 and 500 U.S. 936 (1991) .......... 

17 

United States v. Barron-Cabrera, 119 F.3d 1454 

(10th Cir. 1997) ....................................................................... 

16 

United States v. Bloomfield, 40 F.3d 910 (8th 

Cir. 1994), cert. denied, 514 U.S. 1113 (1995) ................... 

19 

United States v. Brignoni-Ponce, 442 U.S. 873 

(1975) ........................................................................................ 17 

United States v. Ceniceros, 204 F.3d 581 (5th Cir. 

2000) ......................................................................................... 17 

United States v. Cortez, 595 F.2d 505 (9th Cir. 

1979), rev’d, 449 U.S. 411 (1981) ............. 

11, 12, 15, 18, 20, 23 

United States v. Cruz-Hernandez, 62 F.3d 1353 

(11th Cir. 1995) ................................................................... 

17, 19 

United States v. Glover, 957 F.2d 1004 (2d Cir. 

1992) ......................................................................................... 19 

(III) 

IV 

Cases—Continued: Page 

United States v. Gonzalez, 190 F.3d 668 (5th Cir. 

1999) ......................................................................................... 17 

United States v. Guerrero-Barajas, 240 F.3d 428 

(5th Cir. 2001) ......................................................................... 

17 

United States v. Leyba, 627 F.2d 1059 (10th Cir. 

1980) ......................................................................................... 17 

United States v. Lopez-Martinez, 25 F.3d 1481 

(10th Cir. 1994) ................................................................... 

16, 17 

United States v. Massie, 65 F.3d 843 (10th Cir. 

1995) ......................................................................................... 19 

United States v. McCarthur, 6 F.3d 1270 (7th 

Cir. 1993) ................................................................................. 

19 

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

(9th Cir.), cert. denied, 121 S. Ct. 211 (2000) .................... 

9, 22 

United States v. Sokolow, 831 F.2d 1413 (9th Cir. 

1987), rev’d, 490 U.S. 1 (1989) ............................. 

12, 13, 15, 22 

United States v. Sowers, 136 F.3d 24 (1st Cir.), cert. 

denied, 525 U.S. 841 (1998) .................................................. 

19 

United States v. Thomas, 211 F.3d 1186 (9th Cir. 

2000) ......................................................................................... 22 

United States v. Villalobos, 161 F.3d 285 (5th Cir. 

1998) ..................................................................................... 

16, 17 

United States v. Zapata-Ibarra, 212 F.3d 877 

(5th Cir.), cert. denied, 121 S. Ct. 412 (2000) .................... 

17 

Constitution and statute: 

U.S. Const. Amend. IV .................................................... 

2, 11, 13 

21 U.S.C. 841(a)(1) .................................................................... 2 

In the Supreme Court of the United States 

No. 00-1519 

UNITED STATES OF AMERICA, PETITIONER 

v. 

RALPH ARVIZU 

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

PETITION FOR A WRIT OF CERTIORARI 

The Acting Solicitor General, on behalf of the United 
States, petitions for a writ of certiorari to review the 
judgment of the United States Court of Appeals for the 
Ninth Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals, as amended 
(App., infra, 1a-20a) is reported at 232 F.3d 1241. The 
oral decision of the district court (App., infra, 21a-27a) 
is unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
July 7, 2000. A petition for rehearing was denied on 

(1) 

2 

December 1, 2000 (App., infra, 3a). On February 16, 
2001, Justice O’Connor extended the time within which 
to file a petition for a writ of certiorari to and including 
March 31, 2001. The jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1). 

CONSTITUTIONAL PROVISION INVOLVED 

The Fourth Amendment to the Constitution of the 
United States provides in pertinent part: 

The right of the people to be secure in their per- 
sons, houses, papers, and effects, against unrea- 
sonable searches and seizures, shall not be violated 

* * * . 

STATEMENT 

Following the denial of his motion to suppress 
evidence in the district court, respondent entered a 
conditional plea of guilty to the charge of possessing 
marijuana with intent to distribute it, in violation of 21 
U.S.C. 841(a)(1). Respondent was sentenced to ten 
months’ imprisonment, to be followed by three years’ 
supervised release. The court of appeals reversed. 

1. On the afternoon of January 19, 1998, Border 
Patrol Agent Clinton Stoddard was working at a 
permanent Border Patrol checkpoint at the intersection 
of Highway I-191 and Rucker Canyon Road, near the 
border town of Douglas, Arizona. The checkpoint, 
which is 30 miles north of the Mexican border, was open 
and conducting vehicle inspections. App., infra, 4a-5a; 
12/7/98 Tr. 8-10, 12, 14. Stoddard is an experienced 
agent who has trained other agents on smuggling 
detection techniques. 12/7/98 Tr. 4-7. 

At approximately 2:15 p.m., a sensor monitored by 
the Border Patrol detected a vehicle traveling north on 
Leslie Canyon Road. That road begins near the border 

3 

in Douglas and parallels both I-191, which is to the 
west, and the boundary of the Coronado National 
Forest, which is to the east. App., infra, 4a; see Tr. 10- 
11 & Exh. 40.1 A vehicle traveling north from Douglas 
can use Leslie Canyon Road to bypass the Border 
Patrol checkpoint on I-191. App., infra, 5a; 12/7/98 Tr. 

12. Like most of Leslie Canyon Road, the portion of 
road where the sensor is located is unpaved dirt. App., 
infra, 4a; 12/7/98 Tr. 13. That portion of Leslie Canyon 
Road is used mostly by ranchers, Forest Service 
personnel, and the Border Patrol. App., infra, 4a; 
12/7/98 Tr. 12. On a typical day, the sensor detects a 
vehicle passing by only once every two hours or so. 
12/7/98 Tr. 39-40; see App., infra, 5a n.5. 

The fact that the sensor gave an alert at about 2:15 

p.m. was significant to Stoddard because that was 
approximately the time at which the agents who 
patrolled the area around the I-191 checkpoint normally 
returned to the checkpoint for their 3 p.m. shift change. 
Smugglers commonly time their passages to coincide 
with a shift change because the change leaves the back 
roads free of Border Patrol surveillance. App., infra, 5a 
& n.6; 12/7/98 Tr. 11, 31. 

Agent Stoddard left the I-191 checkpoint and drove 
east on Rucker Canyon Road, toward Leslie Canyon 
Road, to investigate the sensor report. As he drove, a 
second sensor located north of the first sensor reported 
traffic, indicating that the vehicle had turned west on 
Rucker Canyon Road and was coming toward Stoddard 

1 The court of appeals incorrectly stated that Leslie Canyon 
Road is in the Coronado National Forest. App., infra, 4a. Exhibits 
1A and 40, introduced into evidence at the suppression hearing, are 
maps that show that the road is entirely outside the national 
forest. 

4 

and I-191. App., infra, 5a. The vehicle was now headed 
away from recreation areas in the national forest, which 
can be reached by driving east on Rucker Canyon 
Road. 12/7/98 Tr. 14-15, 36. If the vehicle next turned 
right (north) onto Kuykendall Cutoff Road, it would 
circumvent the I-191 checkpoint and could proceed to 
cities such as Tucson and Phoenix with very little 
chance of being stopped by the Border Patrol. That 
route along dirt roads (north on Leslie Canyon Road 
paralleling I-191, west on Rucker Canyon Road away 
from the national forest, and then north on Kuykendall 
Cutoff Road before reaching the I-191 checkpoint) is “a 
notorious route” used by illegal aliens and drug 
smugglers. Id. at 14-16. 

As Stoddard drove east on Rucker Canyon Road to 
intercept the vehicle coming west, he spotted a mini- 
van. Based on the timing of the sensor alarms and the 
absence of any other traffic, Stoddard believed that the 
minivan was the vehicle that had tripped the sensors. 
12/7/98 Tr. 16-17. Stoddard pulled his Border Patrol 
vehicle to the side of the road so that he could get a 
good look at the minivan when it passed. App., infra, 
5a; 12/7/98 Tr. 17. The minivan slowed dramatically 
when it approached Stoddard’s parked Border Patrol 
vehicle, cutting its speed from approximately 50 to 55 
miles per hour to approximately 25 to 30 miles per hour. 
App., infra, 6a; 12/7/98 Tr. 17, 40. 

Stoddard saw five people in the minivan. Respon- 
dent was driving, an adult woman was in the front seat, 
and three children were in the back seats. App., infra, 
6a; 12/7/98 Tr. 17-19. Respondent appeared rigid and 
nervous. He gripped the steering wheel tightly, and 
avoided eye contact with Stoddard. App., infra, 6a; 

5 

12/7/98 Tr. 17-18.2 The adult passenger also appeared 
nervous. 12/7/98 Tr. 18. The two children in the 
rearmost seat sat with their knees unusually high, as if 
their feet were resting on top of an object on the floor of 
the vehicle. App., infra, 6a; 12/7/98 Tr. 19. 

Stoddard was familiar with the local vehicles in the 
area, but he did not recognize the minivan. App., infra, 
7a; 12/7/98 Tr. 22. The minivan also was out of charac- 
ter for the area because most vehicles that use the dirt 
back roads are four-wheel drive vehicles. 12/7/98 Tr. 46. 
The Border Patrol had discovered a minivan smuggling 
drugs in the same area a few weeks earlier, and 
Stoddard knew that smugglers commonly use minivans 
to carry aliens and drugs. Id. at 12, 18. 

Stoddard followed the minivan. All three children in 
the vehicle then began simultaneously waving in an 
abnormal manner, on and off, for about five minutes 
while facing forward, without ever turning around to 
look at Stoddard. Stoddard suspected that the waving 
—which he testified “wasn’t in a normal pattern”—was 
being choreographed by the adults in the vehicle. App., 
infra, 6a; 12/7/98 Tr. 20, 43-44, 55. 

After turning his blinker on, then off, then on again, 
respondent abruptly turned north onto Kuykendall 
Cutoff Road, the final turn on the route that would 
bypass the I-191 checkpoint. App., infra, 6a; 12/7/98 Tr. 
20-22. Around that time, Stoddard ran a license check 
and learned that the vehicle was registered to an 

2 The district court rejected as not credible respondent’s asser- 
tion that he was relaxed when he saw the Border Patrol vehicle. “I 
find it very difficult to believe,” the district court stated, “that 
somebody carrying 125 or 128 pounds of marijuana in their vehicle 
is going to be relaxed when they see a law enforcement officer.” 
App., infra, 24a. 

6 

address in Douglas. Stoddard recognized the address 
as being just four blocks north of the Mexican border, 
on a street that smugglers frequently used as a staging 
area for transporting aliens and narcotics further into 
the United States. App., infra, 7a; 12/7/98 Tr. 22-23, 48- 

49. 
Stoddard stopped the minivan. Respondent leaned 
out of the driver’s window and greeted Stoddard 
excitedly. When Stoddard asked where respondent was 
going, respondent said he was headed to a park, but he 
could not remember the name of the park.3 Stoddard 
observed that respondent’s hands were shaking and his 
forehead was sweaty, even though it was January and 
not hot outside. App., infra, 7a; 12/7/98 Tr. 25-27. 
Stoddard asked for and received consent to search the 
vehicle. App., infra, 7a; 12/7/98 Tr. 27-28. He opened 
the side door, smelled marijuana, and saw a black duffel 
bag under the feet of the two children in the back seat. 
12/7/98 Tr. 28-29. Respondent consented to a search of 
the duffel bag, whereupon Stoddard discovered mari- 
juana wrapped in cellophane. Border Patrol agents 
later found another bag of marijuana behind the rear 
seat. Id. at 29-30. The weight of the marijuana found in 
the minivan was approximately 125 pounds. Id. at 138. 

2. Respondent moved to suppress the marijuana on 
the ground that Stoddard lacked reasonable suspicion 
to stop the minivan and lacked authority to search it. 
After taking testimony from Stoddard, 12/7/98 Tr. 3-58, 
an investigator employed by respondent’s counsel, id. 
at 58-82, respondent, id. at 82-98, and respondent’s 

3 Respondent testified at the suppression hearing that he was 
going to a location known as Turkey Creek to meet a man whom he 
did not know, who would be driving a Ford pickup truck. 12/7/98 
Tr. 95-96. 

7 

adult passenger (who was his sister), id. at 98-111, and 
after hearing argument on the motion, id. at 111-134, 
the district court ruled that Stoddard had reasonable 
suspicion to stop the minivan. Stating that the evi- 
dence had to be considered “in the context of what was 
going on out there and in the context of the information 
available to the officer,” App., infra, 22a, the district 
court identified ten specific facts that supported Stod- 
dard’s suspicion of illegal activity: 

(1) The minivan was on “poorly traveled” roads 
that are “used to circumvent the [I-191 Border 
Patrol] checkpoint.” Id. at 22a-23a; see also id. at 
23a (Leslie Canyon Road “certainly isn’t a heavily 
traveled road by any stretch of the imagination”). 

(2) The minivan had passed the only recreation 
area in the vicinity (at Rucker Canyon Road), and 
the next recreation area was “quite a few miles to 
the north,” at the Chiricahua National Monument. 
Id. at 22a. That distant recreation area was accessi- 
ble by taking I-191 to I-181, which would avoid 
having to make a “40-mile trip at least, through a 
dirt road.” Ibid. 

(3) The minivan appeared to slow “appreciably” 
when it saw Stoddard’s Border Patrol vehicle. Id. at 
23a. 

(4) The minivan’s trip coincided with the Border 
Patrol’s shift change, when agents return to the 
checkpoint and leave the area open to smugglers. 
Ibid. 

(5) Smugglers were known to use minivans, and 
the Border Patrol had recently stopped a similar 

8 

minivan in the same area with a load of marijuana. 
Id. at 23a-24a. 

(6) Respondent appeared nervous and his de- 
meanor was consistent with illegal activity. Id. at 
24a. 

(7) Stoddard, having worked in the area, did not 
recognize the minivan as a local vehicle. Ibid. 

(8) The position of the children’s legs suggested 
that there was cargo on the rear floor of the mini- 
van. Id. at 24a-25a. 

(9) The children waved in a “methodical,” “me- 
chanical way” without looking at Stoddard, which 
“was a fact that is odd and would certainly lead a 
reasonable officer to wonder why are they doing 
this.” Id. at 25a. 

(10) The minivan was registered to “an often- 
used smuggling area.” Ibid. 

On the basis of those ten factors, collectively, the 
district court found that Stoddard had reasonable 
suspicion to stop the minivan. App., infra, 25a. The 
district court further found that respondent voluntarily 
consented to the search of his minivan, without any 
coercion by Stoddard. Id. at 25a-26a. The court 
concluded that respondent’s consent extended to the 
duffel bags and, in any event, Stoddard had probable 
cause to search the bags after he smelled marijuana in 
the vehicle. Id. at 26a. 

9 

3. The court of appeals reversed.4 The court of 
appeals recited established standards for determining 
whether reasonable suspicion exists, see App., infra, 
8a-11a, but indicated concern that the “fact-specific 
weighing of circumstances” required by these stan- 
dards “introduces a troubling degree of uncertainty and 
unpredictability into the process” of making reasonable 
suspicion determinations. Id. at 12a (quoting United 
States v. Montero-Camargo, 208 F.3d 1122, 1142 (9th 
Cir.) (en banc) (Kozinski, J., concurring), cert. denied, 
121 S. Ct. 211 (2000)). Accordingly, the court of appeals 
was of the view that “[w]hat factors law enforcement 
officers may consider in deciding to stop and question 
citizens minding their own business should, if possible, 
be carefully circumscribed and clearly articulated.” Id. 
at 11a. To that end, the court stated that it intended to 
use this case “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.” Id. at 12a. 

Specifically, the court of appeals held that the district 
court had “improperly relied on” seven factors that 
were “neither relevant nor appropriate to a reasonable 
suspicion analysis in this case” and should not have 
been considered “as a matter of law.” App., infra, 12a, 
14a. First, “slowing down after spotting a law enforce- 
ment vehicle is an entirely normal response that is in no 
way indicative of criminal activity” and cannot 

4 The court of appeals issued its initial opinion on July 7, 2000. 
See App., infra, 1a. On December 1, 2000, the court revised its 
opinion and, based on the amended opinion, denied the govern- 
ment’s petition for rehearing or rehearing en banc. Id. at 1a-20a. 
The changes made to the initial opinion are identified at pages 1a 
to 3a of the Appendix to this petition. 

10 

contribute to reasonable suspicion of unlawful activity. 
Ibid. Second, respondent’s failure to acknowledge 
Stoddard as he drove by “provides no support for 
Stoddard’s reasonable suspicion determination.” Id. at 
13a. Third, the children’s “odd act” of waving to 
Stoddard without looking at him “carries no weight in 
the reasonable suspicion calculus.” Id. at 13a-14a. 
Fourth, “[t]he fact that one minivan stopped in the past 
month on the same road contained marijuana is insuffi- 
cient to taint all minivans with suspicion.” Id. at 14a. 
Fifth, the officer’s failure to recognize the minivan as a 
local vehicle “fails to contribute to the reasonable 
suspicion calculus” because “the area in question is one 
that is used for many purposes by different kinds of 
people.” Ibid. Sixth, the fact that the minivan was 
“registered to an address in a block notorious for 
smuggling is also of no significance.” Id. at 15a. 
Seventh, and finally, the appearance that there was 
cargo on the floor of a minivan that was carrying adults 
and children was “all too common to be of any rele- 
vance.” Id. at 17a. 

The court of appeals deemed only three factors 
relevant to its reasonable suspicion analysis: the road 
used by the minivan was sometimes used by smugglers; 
the minivan was traveling around the time of the 
Border Patrol’s shift change; and, as a general matter, 
smugglers sometimes use minivans. App., infra, 17a. 
The court concluded that those three factors, con- 
sidered in isolation from the other factors that the court 
had ruled were irrelevant, did not “constitute reason- 
able suspicion either singly or collectively.” Ibid. The 
route taken by respondent, in the view of the court, “is 
of only moderate significance” because the road “is used 
for a number of entirely innocuous purposes.” Id. at 
17a-18a. The shift change, the court stated, “is of little 

11 

probative value” because the minivan tripped the first 
sensor approximately 45 minutes before the shift 
change. Id. at 18a. And minivans, the court concluded, 
“although sometimes used by smugglers, are among the 
best-selling family car models in the United States.” 
Ibid. 

Based on that analysis, the court of appeals held that 
the stop was unlawful. It then held that respondent’s 
consent to Stoddard’s search of the vehicle was tainted 
by the illegal stop. App., infra, 18a-19a. The court of 
appeals therefore reversed the district court’s denial of 
respondent’s motion to suppress evidence and re- 
manded the case to the district court. Id. at 20a. 

REASONS FOR GRANTING THE PETITION 

The court of appeals has departed fundamentally 
from this Court’s totality-of-the-circumstances test for 
determining whether reasonable suspicion exists. By 
declaring as a matter of law that law enforcement 
officers may not consider certain facts when forming a 
suspicion of illegal activity, the court of appeals has 
created a direct conflict with decisions of this Court and 
other courts of appeals, incorrectly excluded critical 
evidence in this case, and undermined effective law 
enforcement in the Ninth Circuit. 

1. This Court’s decisions leave no doubt that reason- 
able-suspicion analysis under the Fourth Amendment 
requires consideration of the totality of the circum- 
stances surrounding an officer’s decision to make a 
particular stop. Twice before, the Ninth Circuit has 
attempted to graft bright-line rules onto that necessar- 
ily fact-specific inquiry. Twice before, this Court has 
rejected the Ninth Circuit’s approach. 

a. In United States v. Cortez, 449 U.S. 411 (1981), 
this Court rejected the Ninth Circuit’s view that rea- 

12 

sonable suspicion to stop a vehicle near the border 
requires “something * * * in the activities of the 
person being observed or in his surroundings that 
affirmatively suggests particular criminal activity,” a 
test that led the court of appeals to invalidate a stop 
because the activity observed by Border Patrol agents 
was consistent with “innocent inferences.” United 
States v. Cortez, 595 F.2d 505, 508 (9th Cir. 1979). In 
reversing that holding, and finding that reasonable 
suspicion existed in that case, the Court explained that 
“the essence” of the reasonable-suspicion test “is that 
the totality of the circumstances—the whole picture— 
must be taken into account.” 449 U.S. at 417. The 
Court emphasized that all of the circumstances known 
to the officer must be considered, and those circum- 
stances must be assessed in light of the “inferences and 
deductions” that a trained law enforcement officer 
properly may make. Id. at 418. The Court made clear 
that the question is not, as the Ninth Circuit had 
suggested, whether some specific fact “affirmatively 
suggests particular criminal activity,” 595 F.2d at 508 
(emphasis omitted), but “whether, based upon the 
whole picture, [the officer] could reasonably surmise 
that the particular vehicle they stopped was engaged in 
criminal activity,” 449 U.S. at 421-422. 

Six years after Cortez, in United States v. Sokolow, 
490 U.S. 1 (1989), the Court once again reviewed an 
attempt by the Ninth Circuit to narrow the totality-of- 
the-circumstances test. Sokolow involved a stop of an 
airline passenger at an airport, on suspicion of being a 
drug courier. See id. at 4-5. The district court denied a 
motion to suppress the drugs found by law enforcement 
agents, and the court of appeals reversed. Id. at 5-6. 
The court of appeals held that facts bearing on rea- 
sonable suspicion are appropriately divided into two 

13 

categories: “facts describing ‘ongoing criminal activity,’ 
such as the use of an alias or evasive movement through 
an airport,” and “facts describing ‘personal characteris- 
tics’ of drug couriers, such as [a] cash payment for 
tickets, a short trip to a major source city for drugs, 
nervousness, type of attire, and unchecked luggage.” 
Id. at 6 (quoting United States v. Sokolow, 831 F.2d 
1413, 1419, 1420 (9th Cir. 1987)). In the court of 
appeals’ view, facts in the second category are relevant 
to reasonable suspicion only if (1) they are accompanied 
by facts in the first category, and (2) the government 
shows “that the combination of facts at issue d[oes] not 
describe the behavior of ‘significant numbers of 
innocent persons.’ ” Ibid. (quoting 831 F.2d at 1420). 

This Court rejected the Ninth Circuit’s effort to 
disaggregate and categorize the facts surrounding an 
officer’s suspicion of illegal activity. “The concept of 
reasonable suspicion,” the Court stated, “is not ‘readily, 
or even usefully, reduced to a neat set of legal rules.’ ” 
490 U.S. at 7 (quoting Illinois v. Gates, 462 U.S. 213, 
232 (1983)). To the contrary, the Ninth Circuit’s “effort 
to refine and elaborate the requirements of ‘reasonable 
suspicion’ ” created “unnecessary difficulty” in applying 
the Fourth Amendment. Id. at 7-8. Under the proper 
analysis, a factor may support reasonable suspicion 
even though it is “quite consistent with innocent travel” 
if considered without reference to the surrounding 
facts. Id. at 9. Applying those principles, this Court 
reversed and held that the agents had sufficient 
grounds to stop the airline passenger. Id. at 8-11. 

More recent decisions of this Court are to the same 
effect. In Ornelas v. United States, 517 U.S. 690 (1996), 
the Court reaffirmed that reasonable suspicion is a 
“fluid,” “commonsense” concept that takes its substan- 
tive content from contextual application, not legal rules. 

14 

Id. at 695-696; see id. at 696 (“[e]ach case is to be 
decided on its own facts and circumstances”) (internal 
quotation marks omitted). Because reasonable-suspi- 
cion analysis requires a court to analyze a “mosaic” of 
facts, one application of the standard will rarely control 
another. Id. at 698. Furthermore, the Court held, 
although reasonable-suspicion determinations are sub- 
ject to de novo appellate review, a court of appeals 
should “give due weight to inferences drawn from th[e] 
facts by resident judges and local law enforcement 
officers.” Id. at 699. 

In Illinois v. Wardlow, 528 U.S. 119 (2000), the Court 
built on the same principle. In that case, which in- 
volved a stop of an individual who ran when he spotted 
police officers in a high-crime area, the Court once 
again considered whether lawful conduct that is “am- 
biguous and susceptible of an innocent explanation” can 
nevertheless contribute to reasonable suspicion. Id. at 
125. The Court rejected the holding of the Illinois 
Supreme Court that some conduct must be considered 
innocent as a matter of law. See id. at 122-123. Instead, 
the Court reaffirmed that an officer may give weight to 
ambiguous conduct when making “commonsense judg- 
ments and inferences” about the likelihood that illegal 
activity is occurring. Id. at 125 (citing, inter alia, 
Cortez). 

Notwithstanding this Court’s repeated and con- 
sistent instruction, the Ninth Circuit has again held 
that the reasonable suspicion inquiry does not allow an 
investigating officer to consider all the circumstances 
known to him. By “attempt[ing] * * * to describe and 
clearly delimit the extent to which certain factors may 
be considered by law enforcement officers in making 
stops,” App., infra, 12a, the court of appeals articulated 
precisely the sort of inflexible legal rules that are 

15 

neither useful nor permissible under the rubric of 
reasonable suspicion. See Sokolow, 490 U.S. at 7. By 
ruling that “some of the factors on which the district 
court relied are neither relevant nor appropriate to a 
reasonable-suspicion analysis in this case,” App., infra, 
12a, the court of appeals departed from the cardinal 
principle that reasonable-suspicion analysis requires a 
court to view “the whole picture” seen by the officer. 
Cortez, 449 U.S. at 417. And, by holding that some 
behavior, such as slowing down a vehicle upon seeing a 
law enforcement officer or carrying cargo in a family 
van, are too common and innocent ever to contribute to 
reasonable suspicion, App., infra, 12a, 16a-17a, the 
court of appeals violated the rule that typically innocent 
conduct may contribute to reasonable suspicion in light 
of the surrounding circumstances. See Sokolow, 490 
U.S. at 8-10; Wardlow, 528 U.S. at 125. 

The court of appeals also erred by substituting its 
own assessment of the facts for the inferences drawn by 
the officer on the scene and the local district court. For 
example, the district court agreed with Stoddard that 
the seemingly coached waving by the children in 
respondent’s vehicle (which Stoddard demonstrated at 
the suppression hearing, see 12/7/98 Tr. 20) was suspi- 
cious; the court of appeals should have accorded that 
finding “due weight.” Ornelas, 517 U.S. at 699, 700; see 
App., infra, 25a. Yet the court of appeals excluded that 
factor from its analysis without discussing the district 
court’s finding. Id. at 13a-14a. Similarly, the federal 
judge sitting in the District of Arizona was well- 
positioned to determine, in light of “[t]he background 
facts,” Ornelas, 517 U.S. at 700, that respondent’s vehi- 
cle was not following a logical route to any established 
recreation area. App., infra, 22a. The court of appeals 
erroneously ignored that finding, and relied instead on 

16 

the general proposition that “the road in question is 
used for a number of entirely innocuous purposes.” Id. 
at 17a-18a. Such disregard for the “inferences drawn 
from th[e] facts by resident judges and local law 
enforcement officers” directly contravenes this Court’s 
holding in Ornelas, 517 U.S. at 699; see ibid. (noting 
that “[a] trial judge views the facts of a particular case 
in light of the distinctive features and events of the 
community; likewise, a police officer views the facts 
through the lens of his police experience and 
expertise.”). 

b. The court of appeals’ departure from the totality- 
of-the-circumstances approach, and its attempt to put 
certain fact patterns off-limits, has brought it into 
conflict with other courts of appeals. For instance, the 
Fifth Circuit and the Tenth Circuit, which share 
jurisdiction over Mexican border areas with the Ninth 
Circuit, both have held that a Border Patrol agent may 
give weight to a driver’s reduction in speed upon seeing 
a Border Patrol vehicle.5 

The decision below, however, 
announces the contrary rule that “slowing down after 
spotting a law enforcement vehicle is * * * in no way 
indicative of criminal activity” and may not be con- 
sidered. App., infra, 12a. 

So too, the Fifth and Tenth Circuits have deemed it 
relevant that a Border Patrol agent did not recognize a 

5 See United States v. Villalobos, 161 F.3d 285, 291 (5th Cir. 
1998) (“noticeable deceleration in the presence of a patrol car can 
contribute to reasonable suspicion”); United States v. Barron- 
Cabrera, 119 F.3d 1454, 1462 (10th Cir. 1997) (slowing to nearly 10 
miles per hour below the speed limit supports reasonable 
suspicion); United States v. Lopez-Martinez, 25 F.3d 1481, 1486 
(10th Cir. 1994) (“maintaining a noticeably slow speed in the 
presence of a police officer may suggest nervousness” and support 
reasonable suspicion). 

17 

vehicle as being local. See United States v. Zapata- 
Ibarra, 212 F.3d 877, 883 (5th Cir.), cert. denied, 121 
S. Ct. 412 (2000); United States v. Ceniceros, 204 F.3d 
581, 583-585 (5th Cir. 2000); United States v. Gonzalez, 
190 F.3d 668, 672 (5th Cir. 1999); United States v. 
Villalobos, 161 F.3d 285, 291 (5th Cir. 1998); United 
States v. Leyba, 627 F.2d 1059, 1063-1064 (10th Cir. 
1980). The Ninth Circuit, by contrast, dismissed 
Stoddard’s failure to recognize respondent’s minivan as 
entirely irrelevant, because (as will almost always be 
the case) outsiders sometimes have legitimate reasons 
to come into the area where the stop occurred. App., 
infra, 14a. 

It also is well-established that the apparent presence 
of a substantial amount of cargo in a vehicle can support 
a Border Patrol agent’s reasonable suspicion of illegal 
smuggling activity. See United States v. Brignoni- 
Ponce, 422 U.S. 873, 885 (1975); United States v. 
Guerrero-Barajas, 240 F.3d 428, 433 (5th Cir. 2001); 
United States v. Cruz-Hernandez, 62 F.3d 1353, 1355 
(11th Cir. 1995); United States v. Lopez-Martinez, 25 
F.3d 1481, 1483-1484 (10th Cir. 1994); United States v. 
Anderson, 923 F.2d 450, 457 (6th Cir.), cert. denied, 499 
U.S. 980 and 500 U.S. 936 (1991). The court of appeals 
nevertheless deemed that factor wholly irrelevant, 
stating that a minivan carrying adults and children 
presents “an entirely different situation.” App., infra, 
16a-17a. The court’s minivan exception ignores that 
smugglers have been known to use minivans, id. at 17a, 
and there is no suggestion in the record that smugglers 
never carry children. The presence of cargo, while not 

18 

in itself criminal, must be assessed in light of all the 
facts known to the officer.6 

Although those multiple conflicts between the Ninth 
Circuit’s decision in this case and the holdings of sister 
circuits warrant resolution by this Court, the critical 
point is that such conflicts are the inevitable result of 
the Ninth Circuit’s attempt to exclude whole categories 
of facts from the reasonable suspicion inquiry. Correct- 
ing the Ninth Circuit’s fundamental analytic error is 
the appropriate way to resolve the specific conflicts 
described above, and to prevent the development of 
related conflicts as the Ninth Circuit applies its 
incorrect approach to other fact patterns. 

2. Because of its methodological errors, the court of 
appeals reached the wrong result in this case. The 
court of appeals never purported to consider “the whole 
picture” seen by Agent Stoddard. Cortez, 449 U.S. at 
417. As discussed above, the court of appeals improp- 
erly excluded from its analysis numerous relevant 
considerations, such as respondent’s dramatic reduction 
in speed upon seeing a Border Patrol vehicle, respon- 
dent’s visible nervousness,7 the children’s unnatural 

6 Unlike the court of appeals, the district court considered 
Stoddard’s observation that the minivan appeared to have cargo in 
light of all the facts known to Stoddard. App., infra, 25a (“Could 
have been camping equipment, I suppose, had not all the other 
facts been there pointing to the possibility of illegal activity.”). 

7 The court of appeals characterized the evidence about respon- 
dent’s nervous demeanor as a involving a mere “failure to acknowl- 
edge Agent Stoddard.” App., infra, 13a. Stoddard actually testi- 
fied that respondent “became stiff and rigid” and appeared nerv- 
ous when he passed the Border Patrol vehicle. 12/7/98 Tr. 17-18, 
42-43. The district court found Stoddard’s testimony credible. 
App., infra, 24a, 26a-27a. And apparent nervousness indisputably 
was relevant to the reasonable suspicion analysis. See Wardlow, 
528 U.S. at 124 (“[N]ervous, evasive behavior is a pertinent factor 

19 

waving, the registration of the minivan to a non-local 
address that is very close to the Mexican border and on 
a street that is used as a staging area for smuggling, 
and indications that there was bulky cargo on the floor 
of the minivan. The court of appeals also overlooked 
the district court’s finding that respondent was not 
headed toward nearby recreation areas and was not 
following a sensible route to recreation areas farther 
north. App., infra, 22a. That finding, considered 
together with Stoddard’s failure to recognize the 
minivan as being local traffic, see id. at 24a, left no 
obvious explanation for respondent’s appearance on the 
dirt roads of a sparsely populated area—except that 
respondent was following a “notorious” smuggling 
route to avoid the I-191 checkpoint. 12/7/98 Tr. 15. 

The court of appeals likewise erred in attaching 
“little probative value” to the fact that respondent’s 
minivan triggered the first sensor on Leslie Canyon 
Road 45 minutes before the Border Patrol’s scheduled 
shift change. App., infra, 18a. The court of appeals 
reasoned that the fact that there would be a shift 

in determining reasonable suspicion.”); United States v. Sowers, 
136 F.3d 24, 27 (1st Cir.) (nervousness following traffic stop), cert. 
denied, 525 U.S. 841 (1998); United States v. Massie, 65 F.3d 843, 
849 (10th Cir. 1995) (nervousness at border checkpoint); Cruz- 
Hernandez, 62 F.3d at 1356 n.2 (“A driver who glances ‘repeatedly 
and nervously’ at a border patrol agent as the driver passes * * * 
gives the agent cause to consider the behavior suspicious.”); 
United States v. Bloomfield, 40 F.3d 910, 919 n.10 (8th Cir. 1994) 
(en banc) (“[W]e have often held that nervousness and other 
‘subjective perceptions’ [of law enforcement officers] are valid 
factors supporting reasonable suspicion.”), cert. denied, 514 U.S. 
1113 (1995); United States v. McCarthur, 6 F.3d 1270, 1278 (7th 
Cir. 1993) (train passenger’s nervousness and shaky hands); United 
States v. Glover, 957 F.2d 1004, 1010 (2d Cir. 1992) (sweating and 
nervous looking-around upon exiting bus). 

20 

change in 45 minutes did not “add much to the mix.” 
Ibid. But that reasoning ignored the time it takes 
agents to drive back to the checkpoint for a shift 
change. Consistent with Agent Stoddard’s testimony, 
see 12/7/98 Tr. 11, 31, the district court found that the 
sensor was triggered at approximately the same time 
that “agents are returning to the checkpoint [for the 
3 p.m. shift change,] leaving this area open” to smug- 
glers. App., infra, 23a. 

The question before the court of appeals was not 
whether the facts known to Stoddard when he stopped 
the minivan constituted probable cause for an arrest or 
a search (they would not have), or whether the factors 
individually supported reasonable suspicion or were 
flatly inconsistent with innocent travel, see Wardlow, 
528 U.S. at 125. The question, instead, was whether the 
totality of the circumstances identified by Stoddard and 
the district court justified a brief stop of the vehicle to 
investigate. They did. 

3. Correcting the court of appeals’ erroneous nar- 
rowing of the reasonable-suspicion inquiry is a matter 
of great importance to law enforcement, and particu- 
larly to the national effort to halt smuggling and 
transportation of illegal aliens away from border areas. 
This Court has recognized “the enormous difficulties 
of patrolling a 2,000-mile open border and the patient 
skills needed by those charged with halting illegal entry 
into this country.” Cortez, 449 U.S. at 418-419. We are 
advised by the Immigration and Naturalization Service 
that in Fiscal Year 2000, federal agents conducted 
nearly 438 million inspections along the land borders 

21 

with Canada and Mexico, and there were more than 1.6 
million apprehensions by the Border Patrol.8 

Because the Border Patrol lacks constitutional 
authority to conduct random searches of vehicles that 
may be carrying illegal aliens or narcotics from border 
areas into the interior of the country, it must rely 
heavily upon its powers to inspect vehicles at fixed 
checkpoints in the vicinity of the border, and to make 
those checkpoints effective by stopping suspicious 
vehicles that circumvent them. See Almeida-Sanchez 

v. United States, 413 U.S. 266, 268, 272-273 (1973). If 
facts that suggest smuggling activity to a trained 
officer under the particular circumstances can be disag- 
gregated and individually dismissed as they have been 
in this case, then the Border Patrol’s ability to prevent 
smuggling and evasion of its checkpoints will be greatly 
compromised. 

The court of appeals’ approach, moreover, will under- 
mine, rather than further, the court’s stated objective 
of reducing the “uncertainty and unpredictability” 
associated with application of the reasonable-suspicion 
standard in all areas of law enforcement. App., infra, 
12a (internal quotation marks omitted).9 As this Court 

8 Two-thirds of the Border Patrol’s apprehensions occurred 
within the Ninth Circuit. At its southern edge, the Ninth Circuit 
contains the busiest border crossing in the world (at San Diego, 
where 125,000 people cross every day). At its northern edge, it 
contains the border in Washington State, which logged 5.5 million 
recorded crossings in 1999. 

9 The court of appeals’ parsing of the reasonable suspicion 
analysis into a series of hurdles that law enforcement must 
separately surmount is not an aberration, and it is not limited to 
the border context. In several decisions since Sokolow, the Ninth 
Circuit, using the same approach, has eliminated factors from 
consideration in the reasonable suspicion analysis as a matter of 

22 

has held, “neat * * * legal rules * * * create[] 
unnecessary difficulty” in applying reasonable-suspicion 
analysis. Sokolow, 490 U.S. at 7. Confirming the 
validity of that conclusion, the rules articulated by the 
court of appeals in this case prevent law enforcement 
officers from relying on their own assessments of the 
circumstances before them, as seen through the lens of 
their training and experience. Whenever a fact 
observed by an officer already has been found irrele- 
vant as a matter of law under the Ninth Circuit’s 
approach, the officer must attempt to exclude the fact 
from his or her split-second assessment of the situation, 
and is left to speculate about what degree of suspicion 
would exist in the absence of the forbidden fact. 
Officers must also attempt to anticipate whether other 
factors they deem significant under the totality of the 
circumstances might fail an ill-defined standard of 
“sufficient” relevance when isolated from the surround- 
ing facts. The court of appeals’ approach thus requires 
officers to ignore facts that, based on their training and 
experience, contribute to reasonable suspicion. The 
appellate court’s substitution of “library analysis” for 
“commonsense conclusions * * * by those versed in 

law. See Gonzalez-Rivera v. INS, 22 F.3d 1441, 1446 (1994) (“[A] 
driver’s failure to look at the Border Patrol cannot weigh in the 
balance of whether there existed reasonable suspicion for a stop.”); 
United States v. Thomas, 211 F.3d 1186, 1191 (2000) (marijuana 
bales cannot make a distinctive sound when thrown); United States 

v. Montero-Camargo, 208 F.3d 1122, 1131-1136 (en banc) 
(individual’s Hispanic appearance and looking at a law enforcement 
vehicle in a rear view mirror may not be considered), cert. denied, 
121 S. Ct. 211 (2000). This case, however, is unique inasmuch as 
the court of appeals expressly sought to provide law enforcement 
officers with guidance that would apply under the full range of 
circumstances. See App., infra, 11a-12a. 

23 

the field of law enforcement,” Cortez, 449 U.S. at 418, 
defies sound logic as well as this Court’s decisions. 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

JOHN C. KEENEY 

Acting Assistant Attorney 

General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

AUSTIN C. SCHLICK 

Assistant to the Solicitor 

General 

LISA SIMOTAS 

Attorney 

APRIL 2001 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 99-10229 
D.C. No. CR-98-00157-FRZ 

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE 

v. 

RALPH ARVIZU, DEFENDANT-APPELLANT 

Appeal from the United States District Court 
for the District of Arizona 
FRANK R. ZAPATA, District Judge, Presiding 

Argued and Submitted 
March 15, 2000—San Francisco, California 

[Filed July 7, 2000 
Amended December 1, 2000] 

ORDER 

Before: HENRY A. POLITZ,1 STEPHEN REINHARDT, and 

MICHAEL DALY HAWKINS, Circuit Judges. 

Opinion by Judge Reinhardt 

* * * * * 

1 The Honorable Henry A. Politz, Senior United States 
Circuit Judge for the Fifth Circuit Court of Appeals, sitting by 
designation. 

(1a) 

2a 

The Opinion filed July 7, 2000 is amended as follows: 

1. Slip op. page 7483, immediately following the first 
full paragraph, insert the following paragraph: 

“ ‘What factors law enforcement officers may 
consider in deciding to stop and question citizens 
minding their own business should, if possible, be 
carefully circumscribed and clearly articulated. 
When courts invoke multi-factor tests, balancing 
of interests or fact-specific weighing of circum- 
stances, this introduces a troubling degree of 
uncertainty and unpredictability into the pro- 
cess; no one can be sure whether a particular 
combination of factors will justify a stop until a 
court has ruled on it.’ Montero-Camargo, 208 
F.3d at 1142 (Kozinski, J. concurring). Thus we 
attempt here to describe and clearly delimit the 
extent to which certain factors may be con- 
sidered by law enforcement officers in making 
stops such as the stop involved here.” 

2. Slip op. page 7483, in the sentence beginning “In 
reaching our conclusion” at the beginning of the second 
full paragraph, add the words “in this case” after the 
words “are neither relevant nor appropriate to a 
reasonable suspicion analysis . . . .” 

3. Slip op. page 7485, in the second full paragraph, 
delete the first sentence which begins “As we have 
previously held,” and replace it with the following: 

“As we have previously held, ‘factors that have such 
a low probative value that no reasonable officer 
would have relied on them to make an investigative 
stop must be disregarded as a matter of law.’ 

3a 

Montero-Camargo, 208 F.3d at 1132 (citation 
omitted).” 

4. Slip op. page 7485, in the second full paragraph, in 
the sentence beginning “An examination of four addi- 
tional factors,” replace the words “too fall in this 
category” with the words “have little or no weight 
under the circumstances.” 

5. Slip op. page 7488, in the first sentence, add 
the words “in this case” after the words “are not 
relevant . . . .” 

With those amendments, the panel has voted 
unanimously to deny the Petition for Rehearing; Judges 
Reinhardt and Hawkins have voted to deny the Peti- 
tion for Rehearing En Banc, and Judge Politz has so 
recommended. The full court was advised of the Peti- 
tion for Rehearing En Banc, and no judge of the court 
has requested a vote on that petition. Fed. R. App. P. 

35. 

The Petition for Rehearing and Petition for Re- 
hearing En Banc are DENIED. 

OPINION 

REINHARDT, Circuit Judge: 

Ralph Arvizu appeals from the district court’s denial 
of his motion to suppress marijuana found in his van by 
a border patrol agent. Arvizu raises two issues before 
this court: first, whether the stop of his van by a Border 
Patrol agent was justified by reasonable suspicion; and 
second, whether he validly consented to the subsequent 
search of his van. Because the district court erred in 
finding that the stop was justified by reasonable sus- 
picion, we reverse. 

4a 

1. Factual Background 

The events in question took place on the afternoon of 
January 19, 1998 on Leslie Canyon Road near Douglas, 
Arizona. Leslie Canyon Road is a largely unpaved, flat, 
and well-maintained road in the Coronado National 
Forest that parallels Highway 191. The road, which 
runs north south, begins at Highway 80 and ends at 
Rucker Canyon Road. Although Border Patrol Agent 
Stoddard asserted that the road is rarely travelled by 
anyone other than ranchers and forest service per- 
sonnel and is “very desolate,” at its southern end, it is 
paved for about ten miles, and there are residences on 
both sides.2 

Moreover, there is a national forest in the 
area, as well as the Chiricahua National Monument, 
both of which attract a number of visitors. There are 
also campgrounds and picnic areas around Rucker 
Canyon.3 An investigator for the defense who had lived 
in Douglas for four years testified that people who live 
in Douglas frequently use the area for recreation. 
There are also a number of communities in the area, 
and for those heading towards the ones that are 
situated along the roadway between 191 and 186 from 
Douglas, driving along Leslie Canyon Road is shorter 
than driving out to I-191 and driving north. 

The Douglas, Arizona border station is located about 
30 miles from the border on the highway at the inter- 
section of I-191 and Rucker Canyon Road. The station 
is not operational every day of the year, although on 

2 There are also homes around the nearby Hunt Canyon, “all 
along” Highway 191 and along the road leading to the Chiricahua 
National Monument. The community of Sunizona, with schools and 
homes, is also on I-191. 

3 In particular, there is a Boy Scouts camp around Rucker 
Canyon, and a number of people use the area for biking. 

5a 

January 19 it was. On that occasion, Border Patrol 
Agent Stoddard was working at the Douglas station.4 
At about 2:15 p.m. that afternoon, a sensor alerted him 
to the fact that a car was travelling north on Leslie 
Canyon Road.5 Stoddard testified that this made him 
suspicious for three reasons: first, the timing—the car 
passed by around 2 p.m. and officers change shifts at 
3 p.m. According to Officer Stoddard, smugglers often 
try to synchronize their movements with shift changes.6 
Second, cars travelling north sometimes use the sur- 
rounding, unpaved roads to bypass the station. Third, 
another officer had stopped a minivan heading north on 
that road a month earlier and had found marijuana. 

His curiosity piqued, Stoddard drove east on Rucker 
Canyon Road to intersect with Leslie Canyon Road. As 
he drove, he received another report of sensor activity, 
indicating that the vehicle was heading west on Rucker 
from Leslie Canyon. After Stoddard passed Kuy- 
kendall Road, he noticed a Toyota minivan approaching 
him in a cloud of dust. Stoddard proceeded to pull over 
to the side of the road to observe the minivan as it 
approached. Although he did not have a radar gun, 

4 At the suppression hearing, Stoddard testified that he had 
been assigned to the Douglas station for over two years. He 
estimated that he found illegal aliens in approximately 50 stops 
made while he was on roving patrol during those years. On cross- 
examination, however, he admitted that he had never made any 
drug-related stops in the area. 

5 On cross-examination, Stoddard estimated that the sensors 
went off at least four times in each eight-hour shift. In other 
words, according to Stoddard, approximately 4380 cars pass by 
every year. The roughly 50 stops in which Agent Stoddard was 
involved over a period of two years and in which some violation of 
the law were found represent approximately 1% of this number. 

6 At that time, there were three shift changes a day. 

6a 

the agent guessed that the van was travelling at 50 to 
55 miles per hour when he first spotted it. According 
to Stoddard, the minivan slowed as it neared his car. In 
the minivan was Ralph Arvizu, accompanied by his 
sister, Julie Reyes, and her three children—Julisa, 
Renato, and Guillermo. 

As the Toyota passed, Stoddard observed the two 
adults in the front, and three children in the back. 
According to Stoddard, the driver appeared rigid and 
nervous. Stoddard based this conclusion on the fact that 
Arvizu had stiff posture, kept both hands on the 
steering wheel, and did not acknowledge him. Accord- 
ing to Stoddard, this was unusual because drivers in the 
area habitually “give us a friendly wave.” Stoddard 
also noticed that the knees of the two children sitting in 
the very back seat were higher than normal, as if their 
feet were resting on some object placed below the seat. 

As the minivan passed, Stoddard decided to follow it. 
As he did, the children began to wave. According to 
Stoddard, this seemed odd because the children did not 
turn around to wave at him; rather, they sat in their 
seats and continued to face forward. The “waving” 
continued off and on for about four to five minutes. 
Based on this, Stoddard believed that the children had 
been instructed to wave at him by the adults in the 
front seat. 

As the two cars approached the intersection with 
Kuykendall Road, Stoddard noticed that the Toyota’s 
right turn signal was flashing. It was turned off briefly, 
but was turned on again shortly before the intersection. 
The Toyota then turned on to Kuykendall, an action 
which Stoddard also found suspicious because Kuy- 
kendall was the last road a car would take to avoid the 
border station on Highway 191. (Stoddard also found it 

7a 

suspicious that he did not recognize the vehicle in 
question, although he conceded that tourists visited the 
area to see the forest and national monument.) 

At this point, Stoddard ran a vehicle registration 
check and discovered that the van’s license plates were 
valid, and that the car was registered to Leticia Arvizu 
at 403 4th Street in Douglas, Arizona. At the suppres- 
sion hearing, Stoddard testified that the neighborhood 
in which 403 4th Street was located was “one of the 
most notorious areas” for drug and alien smuggling.7 
On cross-examination, Stoddard conceded that he had 
no information about smuggling activities either at 403 
4th Street in particular or on the part of Leticia Arvizu, 
in whose name the minivan was registered. 

At this point, Stoddard decided to stop the van. As 
he approached the driver’s side, he noticed that there 
was something underneath the children’s feet. As 
Stoddard approached the Toyota, Arvizu leaned out the 
window and said “Good morning, officer. How are you 
doing?” According to Stoddard, Arvizu appeared ner- 
vous, and did not remember the name of the park to 
which he was driving. When Stoddard asked Arvizu 
about his citizenship, Arvizu replied that he was in fact 
an American citizen, as were all of the minivan’s occu- 
pants. When Stoddard asked if Arvizu had anything or 
anyone hidden in the van, Arvizu said no. Neverthe- 
less, Stoddard asked if he could look around the van, a 
request which Arvizu said he interpreted as a request 
to look around the outside of the vehicle, not to look 
inside. (At the suppression hearing, both Arvizu and his 

7 On cross-examination, Stoddard explained that the “general 
area” was one in which aliens were often stashed before being 
transported north. 

8a 

sister testified that Stoddard had his hand on his gun 
when he approached the vehicle and asked to look 
around. Stoddard denied this.) Stoddard did not tell 
Arvizu that he had a right to refuse, nor did he read 
Arvizu his Miranda rights. When Arvizu agreed to let 
Stoddard look around, the agent walked around to the 
passenger’s side and opened the sliding door. Stoddard 
testified that as he did so, he saw a black duffel bag and 
smelled marijuana. Stoddard proceeded to open the 
bag and discovered marijuana inside. 

Arvizu was charged with possession with intent 
to distribute marijuana, in violation of 21 U.S.C. 
§ 841(a)(1). At a suppression hearing, Arvizu argued 
first, that Stoddard did not have reasonable suspicion to 
stop the minivan, and second, that he did not give 
voluntary consent to the search of his van. The district 
court rejected both arguments and denied the motion to 
suppress. Arvizu then entered a conditional guilty plea, 
under which he reserved the right to appeal the denial 
of his motion to suppress. This appeal followed. 

2. Legal Background 

In order to satisfy the Fourth Amendment’s stric- 
tures, an investigatory stop may be made only if the 
officer in question has “a reasonable suspicion sup- 
ported by articulable facts that criminal activity may be 
afoot . . . .” United States v. Sokolow, 490 U.S. 1, 7, 

109 S. Ct. 1581, 104 L.Ed.2d 1 (1989) (internal quotation 
omitted) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 
1868, 20 L.Ed.2d 889 (1968)). In determining whether 
reasonable suspicion exists, we must take into account 
the totality of the circumstances. Sokolow, 490 U.S. at 
7-8, 109 S. Ct. 1581 (quoting Illinois v. Gates, 462 U.S. 
213, 232, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983)). At the 
same time, however, factors that have so little pro- 

9a 

bative value that no reasonable officer would rely on 
them in deciding to make an investigative stop must be 
disregarded. Gonzalez-Rivera v. INS, 22 F.3d 1441, 
1446 (9th Cir. 1994). 

Although the level of suspicion required for a brief 
investigatory stop is less demanding than that required 
to establish probable cause, the Fourth Amendment 
requires an objective justification for such a stop. 
Sokolow, 490 U.S. at 7, 109 S. Ct. 1581. Thus, the 
Supreme Court has held that reasonable suspicion does 
not exist where an officer can articulate only “an 
‘inchoate and unparticularized suspicion or ‘hunch’ of 
criminal activity.’ ” 

Illinois v. Wardlow, 528 U.S. 119, 
124, 120 S. Ct. 673, 676, 145 L.Ed.2d 570 (2000). Rather, 
reasonable suspicion exists only when an officer is 
aware of specific, articulable facts which, when con- 
sidered with objective and reasonable inferences, form 
a basis for particularized suspicion.8 United States v. 

8 In Brignoni-Ponce, the Court listed factors which officers 
might permissibly take into account in deciding whether reason- 
able suspicion exists to stop a car. Those factors include: (1) the 
characteristics of the area in which they encounter a vehicle; (2) 
the vehicle’s proximity to the border; (3) patterns of traffic on the 
particular road and information about previous illegal border 
crossings in the area; (4) whether a certain kind of car is frequently 
used to transport contraband or concealed aliens; (5) the driver’s 
“erratic behavior or obvious attempts to evade officers;” and (6) a 
heavily loaded car or an unusual number of passengers. United 
States v. Brignoni-Ponce, 422 U.S. 873, 884-885, 95 S. Ct. 2574, 45 
L.Ed.2d 607 (1975). We note, however, that reasonable suspicion is 
not a numbers game. Different factors have varying levels of signi- 
ficance, depending on their context. See Montero-Camargo, 208 
F.3d at 1130, n.12; see also Sokolow, 490 U.S. at 10, 109 S. Ct. 1581. 
Thus, where a stop is based upon a number of factors, each of 
which carries only minimal probative weight, quantity does not 
necessarily make up for the lack of quality. 

10a 

Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 66 L.Ed.2d 621 
(1981); United States v. Salinas, 940 F.2d 392, 394 (9th 
Cir. 1991). In turn, particularized suspicion means a 
reasonable suspicion that the particular person being 
stopped has committed, or is about to commit, a crime. 
Cortez, 449 U.S. at 418, 101 S. Ct. 690. 

At times, conduct that may be entirely innocuous 
when viewed in isolation may nevertheless properly be 
considered in determining whether or not reasonable 
suspicion exists. Sokolow, 490 U.S. 1, 10, 109 S. Ct. 
1581 (citations and footnotes omitted) (citing Illinois v. 
Gates, 462 U.S. 213, 243-44, n.13, 103 S. Ct. 2317, 76 
L.Ed.2d 527 (1983)). Put another way, “conduct that 
is not necessarily indicative of criminal activity may, in 
certain circumstances, be relevant to the reasonable 
suspicion calculus.” United States v. Montero- 
Camargo, 208 F.3d 1122, 1130 (9th Cir. 2000) (en banc); 
Wardlow, 528 U.S. at 125, 120 S. Ct. at 677. At the 
same time, innocuous conduct does not justify an 
investigatory stop unless other information or sur- 
rounding circumstances of which the police are aware, 
considered together with the otherwise innocent 
conduct, provides sufficient reason to suspect that 
criminal activity either has occurred or is about to take 
place. Guam v. Ichiyasu, 838 F.2d 353, 355 (9th Cir. 
1988). 

In all circumstances, law enforcement officials are 
entitled to assess the facts in light of their experience. 
Brignoni-Ponce, 422 U.S. at 885, 95 S. Ct. 2574. Never- 
theless, “[w]hile an officer may evaluate the facts sup- 
porting reasonable suspicion in light of his experience, 
experience may not be used to give the officers 
unbridled discretion in making a stop.” Nicacio v. INS, 
797 F.2d 700, 705 (9th Cir. 1986), overruled in part on 

11a 

other grounds in Hodgers-Durgin v. De La Vina, 199 
F.3d 1037, 1045 (9th Cir. 1999); see also United States v. 
Jimenez-Medina, 173 F.3d 752, 754 (9th Cir. 1999). 
Thus, while an officer’s experience may furnish the 
background against which the relevant facts are to be 
assessed as long as the inferences he draws are ob- 
jectively reasonable, Cortez, 449 U.S. at 418, 101 S. Ct. 
690, experience is not an independent factor in the 
reasonable suspicion analysis. Montero-Camargo, 208 
F.3d at 1131-32. 

3. Analysis 

In finding that the stop by Agent Stoddard was 
justified by reasonable suspicion, the district court 
relied on the following list of factors: 1) smugglers used 
the road in question to avoid the border patrol station; 

2) Arvizu drove by within an hour of a Border Patrol 
shift change; 3) a minivan stopped on the same road a 
month earlier contained drugs; 4) minivans are among 
the types of vehicles commonly used by smugglers; 5) 
the minivan slowed as it approached the Border Patrol 
vehicle; 6) Arvizu appeared rigid and stiff, and did not 
acknowledge the officer; 7) the officer did not recognize 
the minivan as a local car; 8) the children’s knees were 
raised, as if their feet were resting on something on 
the floor of the van; 9) the children waved for several 
minutes but not towards the officer; and 10) the van 
was registered to an address in a neighborhood notori- 
ous for smuggling. Based on these factors, the district 
court concluded that reasonable suspicion did exist. We 
disagree. 

“What factors law enforcement officers may consider 
in deciding to stop and question citizens minding their 
own business should, if possible, be carefully circum- 
scribed and clearly articulated. When courts invoke 

12a 

multi-factor tests, balancing of interests or fact-specific 
weighing of circumstances, this introduces a troubling 
degree of uncertainty and unpredictability into the 
process; no one can be sure whether a particular com- 
bination of factors will justify a stop until a court 
has ruled on it.” Montero-Camargo, 208 F.3d at 1142 
(Kozinski, J. concurring). 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. 

In reaching our conclusion, we find that some of the 
factors on which the district court relied are neither 
relevant nor appropriate to a reasonable suspicion 
analysis in this case, and that the others, singly and 
collectively, are insufficient to give rise to reasonable 
suspicion. We begin by considering the factors the 
district court improperly relied on, before turning to 
those which it properly took into account. 

One of the factors on which the district court 
relied—namely, the fact that the minivan slowed as it 
approached the Border Patrol vehicle—is squarely 
prohibited by our precedent. United States v. Montero- 
Camargo, 208 F.3d at 1136; United States v. Garcia- 
Camacho, 53 F.3d 244, 247 (9th Cir. 1995). We note 
that Agent Stoddard never claimed that Arvizu broke 
any traffic laws. Nor, for that matter, did he assert that 
Arvizu drove erratically or evasively. Rather, Arvizu 
simply slowed down. As we have previously noted, 
slowing down after spotting a law enforcement vehicle 
is an entirely normal response that is in no way 
indicative of criminal activity. Id. at 247; United States 

v. Hernandez-Alvarado, 891 F.2d 1414, 1419 (9th Cir. 
1989). 

13a 

A second factor relied on by the district court, 
Arvizu’s failure to acknowledge Agent Stoddard, is of 
“questionable value . . . generally”9 and carries 
weight, if at all, only under special circumstances. See 
Hernandez-Alvarado, 891 F.2d at 1419 n.6 (“avoidance 
of eye contact has been deemed an inappropriate factor 
to consider unless special circumstances make innocent 
avoidance of eye contact improbable”) (internal quota- 
tions omitted). As we have held previously, a failure 
to acknowledge a law enforcement officer by look or 
gesture, while possibly indicating a lack of neighbor- 
liness, ordinarily does not provide a basis for suspecting 
criminal activity. Garcia-Camacho, 53 F.3d at 247; 
Gonzalez-Rivera, 22 F.3d at 1446. Although we have 
held that the lack of eye contact may be considered 
under some circumstances, we have always treated that 
factor with appropriate “skepticism” because “reliance 
upon ‘suspicious’ looks [or, as the case may be, the 
failure to look] can . . . easily devolve into a case of 
damned if you do, equally damned if you don’t.” 
Montero-Camargo, 208 F.3d at 1136; see also Gonzalez- 
Rivera, 22 F.3d at 1446-47; Nicacio, 797 F.2d at 704; 
United States v. Mallides, 473 F.2d 859, 861 n.4 (9th 
Cir. 1973) (collecting cases). Because no “special cir- 
cumstances” rendered “innocent avoidance . . . 
improbable,” Arvizu’s failure to acknowledge Stod- 
dard’s presence by waving, or by indicating some other 
form of recognition, Hernandez-Alvarado, 891 F.2d at 
1419 n.6, provides no support for Stoddard’s reasonable 
suspicion determination. 

For similar reasons, we find that the children’s con- 
duct carries no weight in the reasonable suspicion 

9 Montero-Camargo, 208 F.3d at 1136 (quoting United States 

v. Munoz, 604 F.2d 1160, 1160 (9th Cir. 1979) (per Kennedy, J.)). 

14a 

calculus. If every odd act engaged in by one’s children 
while sitting in the back seat of the family vehicle could 
contribute to a finding of reasonable suspicion, the vast 
majority of American parents might be stopped regu- 
larly within a block of their homes. More to the point, if 
a driver’s failure to wave at an officer provides no 
support for a determination to stop a vehicle, it would 
be incongruous to say that the vehicle could be stopped 
because children who were passengers in the car did 
wave. See, e.g., Garcia-Camacho, 53 F.3d at 247. 

As we have previously held, “factors that have such a 
low probative value that no reasonable officer would 
have relied on them to make an investigative stop must 
be disregarded as a matter of law.” Montero-Camargo, 
208 F.3d at 1132 (citation omitted). An examination of 
four additional factors—namely, the third, seventh, 
eighth, and tenth—demonstrate that they have little or 
no weight under the circumstances. The fact that one 
minivan stopped in the past month on the same road 
contained marijuana is insufficient to taint all minivans 
with suspicion. (In contrast, as we discuss below, 
evidence that in the Border Patrol’s experience, mini- 
vans are sometimes used by smugglers may be of some 
probative value, because the inference arises from more 
than a single, isolated incident.) 

The fact that the officer did not recognize the mini- 
van as belonging to a local resident also fails to con- 
tribute to the reasonable suspicion calculus. Evidence 
introduced at the suppression hearing made it clear 
that the area in question is one that is used for many 
purposes by different kinds of people—local residents 
use the roads as a shortcut, while both residents and 
tourists alike camp, hike, bike, picnic, and visit the local 
forest and national monument. Accordingly, it is hardly 

15a 

surprising that a Border Patrol agent would not re- 
cognize every passing car. 

Similarly, the fact that a van is registered to an ad- 
dress in a block notorious for smuggling is also of no 
significance and may not be given any weight. See 
United States v. Jimenez-Medina, 173 F.3d 752, 755 
(9th Cir. 1999) (holding that “coming from the wrong 
neighborhood” does not give rise to reasonable sus- 
picion). In arriving at this conclusion, we first consider 
the cases which involve an individual’s presence in a 
high crime area. The rule that controls such cases is 
that presence in a high crime area is not enough in and 
of itself to give rise to reasonable suspicion, Brown v. 
Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 61 L.Ed.2d 357 
(1979), but “officers are not required to ignore the rele- 
vant characteristics of a location” when an individual’s 
conduct, if considered in the context of that location, 
gives rise to reasonable suspicion that a crime has been 
or is being committed. Wardlow, 528 U.S. at 124, 120 
S. Ct. at 676 (quoting Adams v. Williams, 407 U.S. 143, 
144, 147-48, 92 S. Ct. 1921, 32 L.Ed.2d 612 (1972)). In 
contrast, where a person lives is an entirely different 
matter, and one’s place of residence is simply not rele- 
vant to a determination of reasonable suspicion. Other- 
wise, persons forced to reside in high crime areas for 
economic reasons (who are frequently members of 
minority groups) would be compelled to assume a 
greater risk not only of becoming the victims of crimes 
but also of being victimized by the state’s efforts to 
prevent those crimes—because their constitutional 
protections against unreasonable intrusions would be 
significantly reduced. 

Moreover, in Montero-Camargo, we cautioned that 
“courts should examine with care the specific data 

16a 

underlying” the assertion that an area is one in which 
“particular crimes occur with unusual regularity.” 

10 

Montero-Camargo, 208 F.3d at 1138. In this case, the 
data simply does not withstand that scrutiny. The only 
evidence in the record to support the “high crime” 
characterization is Stoddard’s assertion that the 400 
block was “one of the most notorious areas” for drug 
and alien smuggling. Agent Stoddard did not explain 
the factual basis for this assertion, nor did he identify 
the source of his information. For this reason as well, 
we conclude that the district court’s reliance on this 
factor was misplaced. See Montero-Camargo, 208 F.3d 
at 1143 (Kozinski, J., concurring in the result) (noting 
that “[j]ust as a man with a hammer sees every problem 
as a nail, so a man with a badge may see every corner of 
his beat as a high crime area”). 

Finally, we note that the fact that the children’s 
knees were raised, while consistent with the placement 
of their feet on packages of illicit substances, is equally 
(if not more) consistent with the resting of their feet on 
a cooler, picnic basket, camping gear, or suitcase. In 
determining whether reasonable suspicion exists, we 
have considered whether a car appears heavily loaded. 
Garcia-Camacho, 53 F.3d at 245-46; United States v. 
Franco-Munoz, 952 F.2d 1055, 1057 (9th Cir. 1991), 
overruled in part on other grounds by Montero- 
Camargo, 208 F.3d at 1134, n.22; United States v. 
Bugarin-Casas, 484 F.2d 853 (9th Cir. 1973). We have 
done so where the vehicle was riding low or responded 
sluggishly to bumps. Garcia-Camacho, 53 F.3d at 245; 

10 As we noted in that case, our citing of the area where the 
stop took place as a “high crime area” was conditioned on the 
unique circumstances of the area—an isolated, uninhabited locale 
not used for any legitimate purpose. 

17a 

Franco-Munoz, 952 F.2d at 1057. In general, however, 
we have not given that factor much weight, absent 
other circumstances that warrant attributing particular 
significance to it. Garcia-Camacho, 53 F.3d at 249 
(finding the fact that a truck with two passengers and a 
camper appeared heavily laden to be of little weight); 
United States v. Rodriguez, 976 F.2d 592, 596 (9th Cir. 
1992). In this case, moreover, we are faced with an 
entirely different situation, in which Officer Stoddard 
first inferred from the fact that the children’s knees 
were raised that their feet were resting on some sort of 
object. From this, he next inferred that whatever the 
children were using as a footrest might well be con- 
traband. That a family travelling in a minivan might 
put objects on the floor of the van and that children 
might use those objects as a footrest does not seem at 
all odd to us. In short, we find this factor also to be all 
too common to be of any relevance. 

Having considered those factors that are not relevant 
in this case, we must now turn to those that are 
—namely, that the road was sometimes used by 
smugglers, that Arvizu was driving on the road near 
the time that the Border Patrol shift changed, and that 
he was driving a minivan, a type of car sometimes used 
by smugglers. Although these factors are indeed both 
legitimate and probative to some degree, see, e.g., 
Franco-Munoz, 952 F.2d at 1057, they are not enough 
to constitute reasonable suspicion either singly or 
collectively. Jimenez-Medina, 173 F.3d at 752-56; 
Rodriguez, 976 F.2d at 594-96; Hernandez-Alvarado, 
891 F.2d at 1419-19; Garcia-Camacho, 53 F.3d at 247- 

49. 

As the testimony at the suppression hearing made 
clear, the road in question is used for a number of en- 

18a 

tirely innocuous purposes—including as a way of 
getting to camping grounds and recreational areas, and 
as a shortcut when travelling from one community to 
another. Thus, the fact that Arvizu’s car was using the 
road is of only moderate significance. Similarly, mini- 
vans, although sometimes used by smugglers, are 
among the best-selling family car models in the United 
States. Thus, although, under the applicable case law, 
the make of the car may be of some relevance in deter- 
mining whether reasonable suspicion exists, it does not 
carry particular weight here. United States v. 
Brignoni-Ponce, 422 U.S. 873, 885, 95 S. Ct. 2574, 45 
L.Ed.2d 607 (1975); United States v. Garcia-Barron, 
116 F.3d 1305, 1307 (9th Cir. 1997); Bugarin-Casas, 484 
F.2d at 855. We also find that the time at which Arvizu 
drove by the sensors on Leslie Canyon Road, although 
relevant, Franco-Munoz, 952 F.2d at 1057, is of little 
probative value, especially in the absence of other 
factors that tend more persuasively to demonstrate 
evasive behavior. Jimenez-Medina, 173 F.3d at 754-55. 
In this case, Arvizu’s car passed by the sensors at 
around 2:15 p.m., approximately 45 minutes before the 
scheduled shift change. While it makes sense to us 
that smugglers might wish to take advantage of shift 
changes, a car’s travelling on a road in the general area 
of a Border Patrol station three quarters of an hour 
before the actual shift change does not seem to us to 
add much to the mix. 

Given the above analysis, we hold that the stop by 
Agent Stoddard was not supported by reasonable sus- 
picion. The next question, then, is whether the 
illegality of the stop taints the evidence as a result of 
the search that ensued. We hold that it does. 

19a 

Under the Fourth Amendment, an illegal stop taints 
all evidence obtained pursuant to the stop, unless the 
taint is purged by subsequent events. United States v. 
Morales, 972 F.2d 1007, 1010 (9th Cir. 1992); United 
States v. Delgadillo-Velasquez, 856 F.2d 1292, 1299 (9th 
Cir. 1988). Accordingly, in Florida v. Royer, 460 U.S. 
491, 508, 103 S. Ct. 1319, 75 L.Ed.2d 229 (1983), the 
Supreme Court suppressed the evidence discovered 
as a result of a search following an illegal stop, even 
though the police obtained the defendant’s consent to 
the search, because the illegal stop tainted the sub- 
sequent consent. 

11 

In determining whether the taint of an illegal stop 
has been purged, “[t]he question we must ask is 
whether, granting establishment of the primary illegal- 
ity, the evidence . . . has been come at by exploitation 
of that illegality or instead by means sufficiently dis- 
tinguishable to be purged of the primary taint.” United 
States v. Millan, 36 F.3d 886, 890 (9th Cir. 1994) 
(internal quotations omitted). The government bears 
the burden of showing admissibility. United States v. 
Taheri, 648 F.2d 598, 601 (9th Cir. 1981); United States 

v. Perez-Esparza, 609 F.2d 1284, 1290 (9th Cir. 1979). 

Federal courts have invariably found that consents to 
search at the time of or shortly following an illegal stop 
of a vehicle are unlawful because the search is tainted 
by the primary illegality and the taint has not been 

11 In the context of a confession obtained after an illegal arrest, 
this court held that, in order to be admissible, such statements 
must not only “meet the Fifth Amendment standard of volun- 
tariness but . . . be ‘sufficiently an act of free will to purge the 
primary taint.’ ” 
United States v. Ricardo D., 912 F.2d 337, 342 

(9th Cir. 1990). 

20a 

12 That makes sense to us. Ordinarily, when a 
car is illegally stopped, the search that follows will be a 
product of that stop, as will any consent to that search. 
Here, the interrogation, consent and search flowed di- 
rectly from the stop. United States v. Hernandez, 55 
F.3d 443, 447 (9th Cir. 1995); Millan, 36 F.3d at 890. No 
events occurred after the stop that served to purge the 
subsequent consent and search of the taint. Rather, the 
officer merely questioned Arvizu, became suspicious 
because of his answers, and asked for consent. This is a 
classic case of obtaining evidence through the exploita- 
tion of an illegal stop, as is the case in which an officer’s 
suspicions are aroused by what he observes following 
the stop, and on that basis obtains such consent. 
Accordingly, we hold that the taint of the illegal stop 
was not purged by intervening events. 

Because we conclude that the stop by Agent Stod- 
dard was not supported by reasonable suspicion and 
that there were no intervening events that purged the 
taint of the illegal stop, we reverse the district court’s 
denial of Arvizu’s motion to suppress. 

REVERSED and REMANDED. 

12 See, e.g., United States v. Chan-Jimenez, 125 F.3d 1324, 
1326-27 (9th Cir. 1997); United States v. McSwain, 29 F.3d 558, 
563-64 (10th Cir. 1994); United States v. Chavez-Villareal, 3 F.3d 
124, 127-28 (5th Cir. 1993); United States v. Valdez, 931 F.2d 1448, 
1452 (11th Cir. 1991). 

purged. 

21a 

APPENDIX B 

UNITED STATES DISTRICT COURT 
DISTRICT OF ARIZONA 

NO. CR 98-157-TUC-FRZ 

UNITED STATES OF AMERICA, PLAINTIFF 

v. 

RALPH ARVIZU, DEFENDANT 

[December 7, 1998] 

MOTIONS HEARING 

BEFORE: HONORABLE FRANK R. ZAPATA 

UNITED STATES DISTRICT COURT JUDGE 

55 E. BROADWAY 
TUCSON, ARIZONA 85701 

A P P E A R A N C E S 

FOR THE GOVERNMENT: MS. CHRIS CABANILLAS, 

Assistant United States Attorney. 

FOR THE DEFENDANT: MS. VICTORIA BRAMBL, 

Assistant Federal Public Defender. 

* * * * * 

[134] THE COURT: Thank you. 

[135] Well, the court finds that there was in fact a 
founded reasonable suspicion based upon reasonable 
objective and articulable facts for the stop in this case. 

22a 

The court has to view the case in the context of 
what was going on out there and in the context of the 
information available to the officer making the stop. 

First of all, there is a checkpoint out there at I-91 and 
Rucker Canyon Road. The road that the defendant was 
on is the only road east of that checkpoint that parallels 
I-91 that travels north away from the border, Leslie 
Road, starting at the border and traveling on north. 

Obviously that is an item and an issue that the agents 
have to be aware of. That is obviously supported by the 
fact that they have got sensor devices on this road that 
is some 30 miles from the border, obviously expecting 
traffic that would circumvent the checkpoint using that 
parallel and poorly traveled road parallel the I-91 and 
going north and avoiding the checkpoint at the same 
time. That is why the sensors are important. 

The fact that there was discussion about what is out 
there at the point that the vehicle was seen, it had 
already passed in that area the Rucker Canyon area 
that could be considered a recreation area. The next 
one is quite a few miles to the north up in the area of 
the Chiricahua National Monument. 

[136] But that road is—that area is accessible through 
paved road I-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 certainly a 40-to 50-mile 
trip, if the facts are correct, 40-mile trip at least, 
through a dirt road. 

It was a road that a vehicle sedan could travel on, 
from the information presented by Mr. Chacon. Pro- 
bably not the best road to have a minivan on but noth- 
ing that would prevent a minivan from being on there. 

23a 

The agent then certainly is alerted to some problem 
as far as the amount of traffic on the road. The only 
testimony that we had was that they receive a sensor 
hit about four times in an eight-hour shift which would 
be a car every two hours if you spread it out over the 
eight-hour period. 

That certainly isn’t a heavily traveled road by any 
stretch of the imagination if that is what is going on 
there and that it is all we have in terms of volume of 
traffic on that road in that particular area. 

When the agent comes out and sees in fact a vehicle 
traveling north on that dirt road and sees, to his esti- 
mation, that the vehicle slows down when the vehicle 
sees him, slows down appreciably, that is now an 
articulable fact. 

We put that together with the agent’s knowledge 
that, number one, this is a road used to circumvent the 
checkpoint; number two, they are on shift change about 
this [137] time and agents are returning to the check- 
point leaving this area open. And that is information 
that is available to the agent which he has to consider in 
determining whether or not he’s got a suspicious cir- 
cumstance or not, and clearly it is something that he 
could and did consider in this case. 

The type of vehicle that he observed here usually 
we hear testimony about some area being a notorious 
smuggling area. They talked about that. They also 
talked about the fact that a month before a very 
similar-type vehicle had been stopped in that very same 
area also carrying a load of marijuana; which clearly, 
given those two facts, the type of vehicle becomes im- 
portant and can also become an articulable fact. 

24a 

The agent himself testified having been involved in a 
number of stops there, all of them involving transporta- 
tion of aliens in similar-type vehicles. So that also 
becomes an articulable fact. 

The matter about posture, obviously the frozen stare, 
the failure to stare, all of that has been looked at. It 
doesn’t mean whole lot in terms of articulable suspicion. 
But if from this the person appears to be nervous and 
the demeanor of the person is one that is consistent 
with somebody who is involved in illegal activity, then 
that can be considered as part of the reasonable sus- 
picion as again a reasonable objective articulable fact. 

[138] What surprises me is the defendant’s testimony 
that he was relaxed when he saw the agent. I find it 
very difficult to believe that somebody carrying 125 or 
128 pounds of marijuana in their vehicle is going to be 
relaxed when they see a law enforcement officer. I 
think that does not bode well for the defendant’s 
position regarding that issue. 

The agent testified that he has worked that area, that 
he didn’t recognize this vehicle as being one from the 
ranches in that area. Obviously an agent is not going to 
know all of the vehicles nor all of the visitors that would 
come into an area, but, again, it is a fact that can be 
considered. It’s not going to carry the day certainly, but 
certainly it is something that is worthy of consideration. 

Certainly given this the agent had enough infor- 
mation to start observing this vehicle. When he started 
observing this vehicle, started to follow it, he saw some 
odd things about the vehicle. 

First, the manner about the way the children were 
sitting in the vehicle; making him, in his experience, to 
believe that there was something in behind that back 

25a 

seat and the children couldn’t put their feet down. 
Could have been camping equipment, I suppose, had 
not all the other facts been there pointing to the 
possibility of illegal activity. 

Secondly, the methodical way, mechanical way, ab- 
normal way that the children waved off and on for a 
period [139] of four to five minutes without even 
turning around to look at the agent. This certainly was 
a fact that is odd and would certainly lead a reasonable 
officer to wonder why are they doing this and would 
certainly lend some weight to a reason for stopping to 
see if in fact they are standing on a bundle of marijuana 
or there is other people lying on the floor of the vehicle 
or something of this nature. 

The registration check again, in and of itself, doesn’t 
mean a lot. But if you have already got this vehicle in 
an area that gives rise to the belief that it is avoiding a 
checkpoint and all these other facts about the vehicle 
and the occupants, the behavior of the occupants, that 
would certainly raise a suspicion, then the registration 
check that comes back to an area that they know to be 
an often-used smuggling area, then that can also be 
thrown in and considered as part of the basis for a 
founded suspicion in this case. 

So I find that there was in fact founded or reasonable 
suspicion based upon these facts and I find them to be 
reasonable and objective and articulable facts to sup- 
port the stop of the vehicle. 

Once the agent stops the vehicle, he approaches the 
driver, has some small talk, asks for his citizenship, and 
then asks him if he can search the vehicle. Now, the 
driver believes that what he consented to was that he 

26a 

was asked by the agent if he could take a look around 
the vehicle. 

[140] Now, I don’t think it is reasonable to believe that 
when a police officer stops you and asks you that, that 
what he wants to do is walk around your vehicle. It is 
clear what he wants to do is search your vehicle. There 
is no lack of clarity or uncertainty that the agent was 
asking to search the vehicle if the defendant consented 
to that. The defendant told him he could. There was a 
consent to the search. 

Now, the business about whether or not he had his 
hand on his gun or not, there was no testimony that the 
defendant was coerced in any way, he felt he was 
coerced in any way, talked about the agent having his 
hand on his gun, but that was it. So I don’t find that 
that shows any coercion, overbearing of his will, that 
would make the consent illegal. 

So there was a consent to search. And once the agent 
opened the door, smelled the marijuana, then there was 
obviously probable cause to search the bags within the 
vehicle. I specifically find that the consent covered the 
vehicle and anything within it. But if it didn’t cover the 
bags within it, there was probable cause for the search 
of that once he saw the black bag and smelled the mari- 
juana. 

Again, it is pretty difficult to believe that in January 
with all the windows rolled up, as the defendant stated 
that they were, and only rolled down when the officer 
came up to talk to him, there would be 123 pounds of 
marijuana [141] inside the cab of the vehicle in a duffel 
bag and that that would not produce any odor that 
was—that could be smelled by a person within the 
vehicle. 

27a 

I think the defendant’s testimony—the defendant’s 
testimony as to that is less credible than the agent’s 
given those facts. 

Based on those matters the motion to suppress is 
denied. 

Is there anything further? 

MS. BRAMBL: 
No, Your Honor. 

THE COURT: 

Thank you. We stand at recess. 

(The proceedings concluded at 2:55 p.m.)