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 

REPLY BRIEF FOR THE PETITIONER 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

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

TABLE OF AUTHORITIES 

Cases: Page 

Atwater v. City of Lago Vista, No. 99-1408 (Apr. 

24, 2001) ................................................................................... 

6 

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

4, 8 

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

1, 2, 4, 6, 9 

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

(1975) ........................................................................................ 9 

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

1, 3 

United States v. Diaz, 977 F.2d 163 (5th Cir. 

1992) ......................................................................................... 4 

United States v. Edmonds, 240 F.3d 55 (D.C. Cir. 

2001) ......................................................................................... 

5, 6 

United States v. Samaguey, 180 F.3d 195 (5th Cir. 

1999) ......................................................................................... 4 

United States v. Sigmond-Ballesteros, No. 00-50408, 

20001 WL 396562 (9th Cir. Apr. 20, 2001) ......................... 

3 

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

1, 3, 4, 5, 7 

Constitution: 

U.S. Const. Amend. IV ............................................................ 3, 6 

(I) 

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 

REPLY BRIEF FOR THE PETITIONER 

The court of appeals in this case “circumscribed,” “as 
a matter of law” (Pet. App. 11a, 14a), the facts that law 
enforcement officers may consider when determining 
whether there is reasonable suspicion of illegal activity. 
The court of appeals’ categorical exclusion of certain 
types of facts from the reasonable-suspicion calculus 
violates the totality-of-the-circumstances rule estab- 
lished by this Court. Pet. 11-16; see, e.g., United States 

v. Cortez, 449 U.S. 411 (1981); United States v. Sokolow, 
490 U.S. 1 (1989); Ornelas v. United States, 517 U.S. 690 
(1996). The Ninth Circuit’s departure from the totality- 
of-the-circumstances approach also has put it in conflict 
with other circuits that review Border Patrol stops like 
the stop in this case. Pet. 16-18. And, because the court 
of appeals failed to consider all the facts and failed to 

(1) 

2 

defer to the “inferences drawn from those facts by [the] 
resident judge[] and local law enforcement officer[],” 
Ornelas, 517 U.S. at 699, it wrongly suppressed the 
evidence of drug trafficking in this case. Pet. 18-20. 

1. Respondent makes no effort to defend categorical 
exclusion of facts from the reasonable-suspicion cal- 
culus. Rather, respondent argues that “[t]he opinion [in 
this case] does not hold that agents cannot consider the 
totality of the circumstances,” and that the court of 
appeals merely “ruled that some of the factors [relied 
upon by Agent Stoddard] had no weight, under the 
circumstances of this case.” Br. in Opp. 18; see also id. 
at 36. Respondent is incorrect. The court of appeals 
forthrightly stated its intent “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.” Pet. App. 12a. Con- 
sistent with that intent, the court eliminated seven 
different facts observed by Agent Stoddard from the 
reasonable-suspicion calculus “as a matter of law” (id. 
at 14a), without limiting its exclusions to this one case. 
The court of appeals, for instance, stated without 
qualification that “slowing down after spotting a law 
enforcement vehicle is * * * in no way indicative of 
criminal activity” and may not be considered. Pet. App. 
12a. Similarly, when holding that a “vehicle [cannot] be 
stopped because children who were passengers in the 
car” waved at a law enforcement officer (id. at 14a), the 
court never addressed the distinctive facts of this case, 
in which the district court found that “the methodical 
way, mechanical way, abnormal way that the children 
waved * * * without even turning around to look at 
the agent * * * would certainly lead a reasonable 
officer to wonder why are they doing this and would 
certainly lend some weight to a reason for stopping” the 

3 

vehicle (id. at 25a). The court of appeals also flatly 
stated, without focusing on the facts of this case, that 
“one’s place of residence is simply not relevant to a 
determination of reasonable suspicion.” Id. at 15a. 

A very recent decision of the court of appeals makes 
clear that it does not share respondent’s narrow view of 
the holding in this case. In United States v. Sigmond- 
Ballesteros, No. 00-50408, 2001 WL 396562 (9th Cir. 
Apr. 20, 2001), the court cited the decision below for the 
proposition “that only ‘certain factors may be consid- 
ered by law enforcement officers in making stops’ ” of 
traffic near the border. Id. at *2 (quoting Pet. App. 
12a). The holding in this case thus transcends particu- 
lar facts. 

As respondent acknowledges, “[a]gents in the field 
may, and should, consider everything.” Br. in Opp. 18. 
A fact observed by an officer is relevant to reasonable- 
suspicion analysis if it suggests unlawful activity 
when viewed “in combination” with the officer’s other 
observations. Id. at 19; see, e.g., Sokolow, 490 U.S. at 7- 
10; Cortez, 449 U.S. at 417-422. The court of appeals’ 
approach, by contrast, requires a court to assess the 
constitutional significance of particular facts in isolation 
from “the whole picture” seen by the officer. Sokolow, 
490 U.S. at 8 (quoting Cortez, 449 U.S. at 417). That 
approach prevents consideration of the officer’s action 
in the context of all the facts known to the officer, as 
this Court’s cases require. See id. at 7-10; Cortez, 449 
U.S. at 417-418. 

Respondent argues that “[t]he totality-of-the-circum- 
stances test does not obligate courts to attribute weight 
to a factor that has no probative value.” Br. in Opp. 19. 
That argument misses the point. Reasonable-suspicion 
analysis under the Fourth Amendment requires appel- 
late courts to draw conclusions from the “mosaic” of 

4 

facts known to the law enforcement officer, giving due 
weight to the inferences of the officer and the local trial 
court. Ornelas, 517 U.S. at 696, 698-700. Courts need 
not consider whether a particular piece of the mosaic 
has “weight” standing alone, because none of the pieces 
of the mosaic should be assessed apart from the others. 
It is “the whole picture” that matters, Sokolow, 490 
U.S. at 8, which is why conduct that is “ambiguous and 
susceptible of an innocent explanation” can neverthe- 
less support reasonable suspicion or probable cause 
when viewed in context, Illinois v. Wardlow, 528 U.S. 
119, 125 (2000). 

2. Respondent does not directly challenge our show- 
ing (Pet. 16-18) that the circuits are divided on whether 
particular factors that the court of appeals deemed 
irrelevant as a matter of law ever can contribute to 
reasonable suspicion. In fact, respondent notes that the 
Fifth and Ninth Circuits together “address a lion’s 
share of the roving-patrol-stop cases” (Br. in Opp. 32), 
which underscores the importance of resolving the 
conflicts between those two circuits that the petition 
identifies. 

Respondent does imply that there is no conflict with 
the Fifth Circuit with respect to the relevance of 
deceleration, invoking the Fifth Circuit’s statements 
that it is common for a driver to slow down after seeing 
a marked patrol car. Br. in Opp. 24-25 (citing United 
States v. Diaz, 977 F.2d 163, 165 (5th Cir. 1992), and 
United States v. Samaguey, 180 F.3d 195, 197-198 (5th 
Cir. 1999)). Those statements, however, do not suggest 
agreement with the Ninth Circuit’s rule that consider- 
ing deceleration in reasonable-suspicion analysis “is 
squarely prohibited.” Pet. App. 12a. To the contrary, 
the Fifth Circuit deems sudden deceleration upon see- 

5 

ing a patrol car potentially relevant to the reasonable- 
suspicion inquiry. See Pet. 16 & n.5 (citing cases). 

3. Respondent implicitly confirms the importance of 
this case. He recognizes that the decision “provides 
explicit guidance to those involved in roving-patrol 
stops,” and suggests that it is a “landmark decision[].” 
Br. in Opp. 33, 34. Although respondent also says that 
“[t]he Ninth Circuit has conducted factor-by-factor 
[reasonable-suspicion] analysis in numerous cases” (id. 
at 20), this hardly counsels against granting certiorari. 
In this case, the court of appeals expressly sought to 
provide clearer guidance than existed before, see Pet. 
App. 12a, and its erroneous guidance cannot be dis- 
missed as an aberration in the Ninth Circuit’s cases, see 
Pet. 21-22 n.9.* 
Respondent emphasizes (Br. in Opp. 33) that this 
case—even if it is limited to the border context—will 
affect a large number of law enforcement officers. That 
fact also suggests the importance of correcting the 

* Respondent suggests that other courts of appeals exclude 
factors from the reasonable-suspicion inquiry in a manner akin to 
the Ninth Circuit’s approach. Br. in Opp. 21-23. That suggestion is 
misplaced. Although courts routinely and properly identify and 
separately articulate the individual factors that are the ingredients 
of reasonable suspicion, see, e.g., Sokolow, 490 U.S. at 8-9 (listing 
factors that “together * * * amount to reasonable suspicion”), the 
other courts of appeals do not routinely do what the Ninth Circuit 
did here, i.e., isolate, weigh, and discard individual factors without 
considering them in relation to the total mix of information. The 
lower courts generally grasp the distinction between separate 
articulation and separate weighing. See, e.g., United States v. 
Edmonds, 240 F.3d 55, 59-63 (D.C. Cir. 2001) (noting that the D.C. 
Circuit “does not separately scrutinize each factor relied upon by 
the officer conducting the search,” yet discussing individual factors 
in the course of determining whether “the combination of several 
factors” gave rise to reasonable suspicion). 

6 

error below, particularly given the degree to which the 
decision, if allowed to stand, would compromise and 
confuse the work of Border Patrol agents. See Pet. 20- 

23. This Court recently noted that “the Fourth Amend- 
ment has to be applied on the spur (and in the heat) of 
the moment, and the object in implementing its com- 
mand of reasonableness is to draw standards suffi- 
ciently clear and simple to be applied with a fair 
prospect of surviving judicial second-guessing months 
and years after an arrest or search is made.” Atwater 

v. City of Lago Vista, No. 99-1408 (Apr. 24, 2001), slip 
op. 26. Excluding particular factors from reasonable- 
suspicion analysis requires officers to attempt to ignore 
what they know to be true and believe to be relevant 
based on their training and experience. See United 
States v. Edmonds, 240 F.3d 55, 59 (D.C. Cir. 2001) 
(“An officer on the beat does not encounter discrete, 
hermetically sealed facts.”). Even if such walling-off is 
possible “in the heat of[] the moment,” the Ninth 
Circuit’s rule surely magnifies the difficulty of applying 
the Fourth Amendment, and increases the likelihood of 
error. See Pet. 21-22. 

4. Respondent maintains (Br. in Opp. 24-31) that the 
result reached by the court of appeals—suppression of 
approximately 125 pounds of marijuana—was correct. 
Respondent essentially repeats the reasoning of the 
court of appeals. As the petition explains, however, the 
court of appeals disregarded key facts found by the 
district court, as well as inferences reasonably drawn 
by the officer on the scene. See Pet. 18-20; see Ornelas, 
517 U.S. at 699 (“[A] reviewing court should take care 
both to review findings of historical fact only for clear 
error and to give due weight to inferences drawn from 
those facts by resident judges and local law enforce- 
ment officers.”). Together, those facts and inferences 

7 

established reasonable suspicion. See Sokolow, 490 
U.S. at 7 (the level of suspicion needed for reasonable 
suspicion “is considerably less than proof of wrongdoing 
by a preponderance of the evidence,” and also less than 
the probable cause standard of “a fair probability that 
contraband or evidence of a crime will be found”) (inter- 
nal quotation marks omitted). 

Respondent repeatedly suggests (Br. in Opp. 3, 4, 25, 

27) that his route over back roads was a common way to 
reach various recreation areas. But, consistent with 
Agent Stoddard’s testimony, the district court found 
that respondent was neither heading toward any near- 
by recreation area when he was stopped, nor taking a 
logical route to recreation areas located farther north. 
Pet. App. 22a. Furthermore, while respondent disputes 
(Br. in Opp. 4) whether the passage of one vehicle ap- 
proximately every two hours makes Leslie Canyon 
Road “seldom-used,” the district court concluded 
that the portion used by respondent “certainly isn’t a 
heavily traveled road by any stretch of the imagina- 
tion.” Pet. App. 23a. 

Respondent’s insistence that the Border Patrol’s 
shift change did not present a seeming opportunity to 
run drugs or aliens around the I-191 checkpoint (Br. in 
Opp. 29) is flatly inconsistent with the district court’s 
determination that the shift change left the area open 
to smuggling. Pet. App. 23a; see also 12/7/98 Tr. 11, 31 
(Agent Stoddard’s testimony that the 3 p.m. shift 
change “leaves the area wide open” starting at approxi- 
mately 2:15 or 2:30 p.m., and that “the time of day they 
seem to do the most smuggling is when the agents are 
en route back to the checkpoint.”). 

Respondent also suggests (Br. in Opp. 5) that Agent 
Stoddard “could not have ‘known’ ” that respondent was 
taking a route that would avoid the I-191 Border Patrol 

8 

checkpoint. See also id. at 31 (arguing that “there was 
no clear checkpoint evasion”). While Stoddard did not, 
of course, have certain knowledge of respondent’s sub- 
jective intent, he could readily deduce from respon- 
dent’s route that it would achieve the effect of circum- 
venting the checkpoint, and he knew that respondent’s 
route is notoriously used for that purpose. Respon- 
dent’s Appendix A shows respondent’s northbound 
journey over “poorly traveled road[s]” (Pet. App. 22a) 
parallel to the interstate highway, followed by his turn 
onto Kuykendall Cutoff Road (between points (3) and 
(4) on the map) rather than proceeding straight on the 
road toward the Border Patrol checkpoint (point (1) on 
the map). See Br. in Opp. App. A. Agent Stoddard 
testified without contradiction that “this is a notorious 
route of travel that the aliens and narcotics smugglers 
have been using to circumvent the checkpoint” (12/7/98 
Tr. 15), and the district court noted in its decision that 
“this is a road used to circumvent the checkpoint” (Pet. 
App. 23a). Thus, while Agent Stoddard could not have 
been certain that respondent had planned his route in 
order to evade the I-191 checkpoint, respondent’s route 
strongly supported Stoddard’s decision to “detain the 
individuals to resolve the ambiguity” created by 
respondent’s trip. Wardlow, 528 U.S. at 125. 

Respondent dismisses the children’s seemingly 
coached waving by suggesting that abnormal behavior 
is irrelevant to reasonable-suspicion analysis unless it is 
“on the part of the person suspected of engaging in 
criminal activity.” Br. in Opp. 26. Respondent’s pro- 
posed rule is plainly incorrect. For example, if police 
observe the occupants of two cars carry out an ap- 
parent drug transaction, and one car speeds off when 
the police come into view, the high-speed flight of the 
first car would contribute to reasonable suspicion of 

9 

(and potentially probable cause to arrest) the occupants 
of the second car. Respondent’s suggested rule is, in 
any event, inapplicable, because Agent Stoddard sus- 
pected that the adults in respondent’s minivan were 
instructing the children to engage in their unusual 
waving, and he considered that coaching by the adults 
to be suspicious. See 12/7/98 Tr. 20, 44. 

Finally, respondent makes much of Agent Stoddard’s 
failure to testify in so many words that respondent’s 
minivan—which was carrying two adults and three 
children in addition to cargo—was “heavily laden.” Br. 
in Opp. 6, 27; see Pet. App. 6a. Stoddard testified that 
the children’s posture indicated that “[t]here was some 
type of cargo on the floor in their foot area.” 12/7/98 Tr. 

19. Respondent thus is suggesting a line of consti- 
tutional dimension between an officer’s observation 
that a vehicle “appear[s] to be heavily loaded” (which 
supports reasonable suspicion under United States v. 
Brignoni-Ponce, 422 U.S. 873, 885 (1975)) and an offi- 
cer’s observation that a vehicle appears to be carrying 
cargo out of view. Such a distinction would be unwor- 
kable for law enforcement officers in the field, and 
inconsistent with this Court’s “commonsense, non- 
technical” approach to reasonable-suspicion analysis. 
Ornelas, 517 U.S. at 695. 

* * * * * 

For the foregoing reasons and those stated in the 
petition, the petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

MAY 2001