United States v. Cortez – Oral Argument – December 01, 1980

Media for United States v. Cortez

Audio Transcription for Opinion Announcement – January 21, 1981 in United States v. Cortez

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Warren E. Burger:

We’ll hear arguments first this morning in the United States against Cortez.

And Mrs. Etkind, you may proceed whenever you are ready.

Barbara E. Etkind:

Thank you, Mr. Chief Justice and may it please the Court:

This case is here on the government’s petition to review a decision of the United States Court of Appeals for the Ninth Circuit.

The single question presented is whether Border Patrol officers have founded suspicion to stop the camper in which Respondents were traveling during the early morning hours of January 31st, 1977.

Respondents were indicted in the United States District Court for the District of Arizona on six counts of knowingly transporting illegal aliens, in violation of 8 U.S.C. 1324(a)(2).

Both Respondents moved to suppress the fruits of the search of the camper in which they were apprehended, on the ground that the initial stop of the vehicle was not supported by founded suspicion.

The evidence derived from the stop included the illegal aliens themselves, their testimony, a flashlight, and the physical evidence of a Chevron design on the soles of the shoes worn by Respondent, Hernandez-Loera.

The District Court denied the motion to suppress, and both Respondents were found guilty on all counts.

The Court of Appeals reversed the conviction on the grounds that the Border Patrol officers did not have founded suspicion to stop Respondents’ camper.

In our view, the stop at issue was the culmination of brilliant detective work on the part of the Border Patrol officers.

In holding that the fruits of that stop should have been suppressed, the Court of Appeals departed egregiously from this Court’s holding that an articulable founded suspicion justifies the minimal intrusion upon the right to travel, that is occasioned by a roving Border Patrol stop of a vehicle.

Because the question of whether founded suspicion exists is a fact-bound one, I shall begin by describing the facts of this case in some detail.

For some months prior to the stop at issue, Border Patrol officers had been investigating groups of footprints leading from the Mexican border north to Route 86, an east-west highway running generally parallel to the Mexican border and at a distance of between 25 and 50 miles from it.

The footprints followed roughly the same 27-mile path, through a sparsely populated desert area known to be heavily used by aliens illegally entering the country.

The tracks would reach Route 86, around mile post 119, and then continue eastward for three miles, to mile post 122, where they disappeared.

The groups contained between 7 and 18 pairs of footprints, and in each group there recurred the shoeprint of a distinctive Chevron design.

That is the front part of the sole containing 8 forward-pointing V’s and the back, the heel, contained 4 backward-pointing V’s.

The Chevron design appeared to be the lead print in each group, and Border Patrol officers in the area concluded that a person, whom they called the Chevron, was guiding groups of aliens across the Mexican border and north to a pick-up point on Route 86.

In fact, a group of illegal aliens that were previously apprehended had identified Respondent Hernandez-Loera as the wearer of the Chevron-soled shoes and as the man who was to guide them to meet a smuggler off Route 86.

Border Patrol officer Wayne Gray, who participated in the stop of Respondents’ camper on January 31st, himself had tracked the footprints from mile post 119 to mile post 122 on January 4th, and all the way from the Mexican border to mile post 122, on January 16th.

From the physical attributes of the footprints, the officers were able to make several deductions.

They concluded that Chevron traveled on or near weekends, that he and the aliens he led walked in darkness, from shortly after beginning their journey; that it took them from 8 to 12 hours to reach the highway, and that they were met there by a camper, van, or similar vehicle that could hold a large number of people without arousing suspicion.

The officers also knew that overland border crossings generally are made in good weather.

William H. Rehnquist:

Mrs. Etkind, this is a fairly remote and deserted part of Arizona, is it not?

Barbara E. Etkind:

Yes, it is, sir.

Finally–

Harry A. Blackmun:

Let me continue, while you are interrupted.

Did the officers have any idea as to the aliens ultimate destination?

Barbara E. Etkind:

–Yes.

Barbara E. Etkind:

From the fact that the footprints once they reached the highway, continued eastward along the highway, the officers concluded that the aliens’ ultimate destination was somewhere east of the pick-up point, and that–

Harry A. Blackmun:

But that’s all?

Just somewhere east?

Barbara E. Etkind:

–Yes, yes.

And they also considered that the pick-up vehicle would be approaching the area from the east as well.

Based on these facts and–

Harry A. Blackmun:

From the east or from the west?

Approaching the aliens from the east?

Barbara E. Etkind:

–Yes.

Harry A. Blackmun:

Taking them back to the east?

Barbara E. Etkind:

Yes.

Based on the–

John Paul Stevens:

But how could they tell from the footprints that it took 6 to 8 hours and that they walked in the dark?

Barbara E. Etkind:

–I’m sorry, 8 to 12 hours that they were walking in the dark.

John Paul Stevens:

Oh, 8 to 12, that’s right.

Barbara E. Etkind:

Well it was an approximately, 27-mile journey, and the officers, from their previous experience, estimated that forced marches of this type take two and a half to three miles per hour, so from that, they came to 8–

John Paul Stevens:

So that really wasn’t just based on the footprints, it’s based on their experiences?

Barbara E. Etkind:

–Also on their experience, yes, but on the fact that the footprints indicated a forced march, there weren’t stops, no evidence of snacking along the way or taking breaks.

John Paul Stevens:

I see.

Barbara E. Etkind:

Based on these facts and inferences Officer Gray and his partner, Ronald Evans, made the following arrangements in an attempt to capture the Chevron.

During the early morning hours of Monday, January 31st, which was the first clear night after three days of rain, the officers stationed themselves at milepost 149, on Route 86, 27 miles east of the anticipated pick-up point.

Because they expected the departure by Chevron and his group, at or shortly after nightfall which occurred around 6 p.m., and an 8 to 12-hour journey by them, the officers watched for a camper, van, or similar vehicle that would pass them heading westward and then return past them heading eastward around one and a half hours later.

The round trip to be made, approximately between the hours of 2 and 6 a.m.–

The officers began their surveillance at 1 a.m. and at 4:30, a greenish-yellow pick-up truck with a camper shell and a license plate number beginning GN-88 passed the officers heading westward.

At 6:12 a.m. a vehicle of the same description passed the officers heading east.

After verifying that the camper’s license plate number was GN-8804, the officers stopped the vehicle and in it they found the Respondents and six illegal aliens.

The soles of the shoes Respondent Hernandez-Loera was wearing bore the distinctive Chevron design.

The Court of Appeals appeared to accept the facts I have outlined, but nonetheless held that they did not establish founded suspicion to stop Respondents’ camper.

According to the Court of Appeals, the only suspicious fact connected with the camper was its passing the officers heading west and returning past them heading east in the pre-dawn hours.

That fact, the Court held, was consistent with too many innocent explanations to make the officers’ suspicions reasonably warranted.

Barbara E. Etkind:

In the first place, a possible innocent explanation does not preclude the existence of founded suspicion.

After all, if an innocent explanation were less likely than a guilty one there would be probable cause.

But more important for the purpose of the present case, in holding as it did, the Court of Appeals completely ignored all of the clues and inferences that were available to the officers from their extensive investigation of previous illegal border crossings led by Respondent Hernandez-Loera.

There is nothing in the prior decisions of this Court that supports the distinctions drawn by the Court of Appeals between, on the one hand suspicious characteristics of an individual or vehicle directly observable at the time of apprehension and on the other hand, physical clues left by a suspect at the scene of his prior offenses, indicative of a very specific modus operandi.

Beginning with Terry v. Ohio, this Court has established that where the founded suspicion justifying an investigative stop exists depends on the totality of the circumstances of which an officer is cognizant.

Indeed, it could hardly be otherwise.

Because almost any characteristic of a vehicle or person that in isolation may seem entirely innocent, when viewed together with other circumstances may be quite indicative of criminal activity and the converse is also true.

In Adams v. Williams, this Court upheld an investigatory stop based on a tip from an informant who had provided information in the past.

This case made clear that information need be of no particular type in order to serve as the basis for founded suspicion.

As the Court stated

“informant’s tip, like all other clues and evidence coming to a policeman on the scene, vary greatly in their value and reliability. “

“One simple rule will not cover every situation. “

“In United States v. Brignoni-Ponce, in which this Court applied the founded suspicion test to investigatory stops by roving Border Patrols makes clear that it is the totality of circumstances that controls in this context as well. “

Or if the founded suspicion test were to require that some aspect of a vehicle or its occupants in and of itself warrants suspicion, the following factors listed by the Court in Brignoni-Ponce would be irrelevant or superfluous, in this case, the Court said that officers may consider the characteristics of the area in which they encounter a vehicle, its proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic are all relevant.

They also may consider information about recent illegal border crossings in the area.

All of these factors were present in this case.

The country involved was sparsely populated desert terrain, the Mexican border was located approximately 25 miles from the pick-up point and 50 miles from the point of apprehension.

Potter Stewart:

It is not contended in this case, is it, Mrs. Etkind, that this stop was, the locus of this stop was the border or its equivalent?

Barbara E. Etkind:

The border or its, i’m sorry, I didn’t–

Potter Stewart:

Or its equivalent?

Barbara E. Etkind:

–No, it is not contended.

Only about 15 to 20 cars had traveled west and only about 6 to 10 cars had traveled east, past the officers, during their entire five-hour surveillance period.

Both officers had worked in the area as Border Patrol officers for 2 to 3 years.

And more significantly, not only were they aware of the high degree of alien smuggling in the area in general, but they were also specifically aware of recent smuggling expeditions led by the very person for whom they were watching.

In Brignoni-Ponce the Court also listed factors concerning the driver’s behavior and the appearance of the vehicle and its occupants.

Such factors are present here as well.

As the Court suggested, the type of vehicle employed; in this case, the camper is significant.

Moreover, the fact that the camper was making an early morning one and a half hour round trip on a lightly traveled road in an area known for alien smuggling, is, we submit, itself grounds for founded suspicion.

William H. Rehnquist:

Mrs. Etkind?

Barbara E. Etkind:

Yes.

William H. Rehnquist:

Here the Court of Appeals majority reversed the finding of the District Court.

Do you think that the question of founded suspicion as the Brignoni-Ponce test has come to be called, is a question of law, a question of fact, or a mixed question of law and fact?

Barbara E. Etkind:

Well I think the ultimate question of whether founded suspicion exists is a question of law.

But the question is not whether all–

John Paul Stevens:

Mrs. Etkind, may I ask you another question about founded suspicion?

What’s the source of that phrase, founded suspicion; is that in the Ninth Circuit opinions or is that in any opinion of this Court?

Is it used in Brignoni-Ponce?

Barbara E. Etkind:

–I think–

John Paul Stevens:

And if so, where?

Barbara E. Etkind:

–I think the words in Brignoni-Ponce may be reasonable suspicion.

John Paul Stevens:

That’s the way I read it, too.

Barbara E. Etkind:

Oh–

John Paul Stevens:

Do you think it’s a different test than the test of Terry against Ohio?

Barbara E. Etkind:

–No, I don’t think so.

I think the idea of specific and articulable factors that lead the officer to believe that criminal activity may be afoot.

Potter Stewart:

Terry v. Ohio was–

Barbara E. Etkind:

I think–

Potter Stewart:

–a decision that limited… that is justification for a frisk for a weapon or a gun, wasn’t it?

Barbara E. Etkind:

–That’s true.

And–

Potter Stewart:

That’s not this case?

Barbara E. Etkind:

–No, that’s not this case.

In Brignoni-Ponce… the Court found that the justification there for allowing–

Potter Stewart:

Brignoni-Ponce is the case?

Barbara E. Etkind:

–Yes, it is.

In any event, the–

John Paul Stevens:

But your, the government’s position is that the founded suspicion test is the same as the Terry test?

Barbara E. Etkind:

–The Brignoni-Ponce test–

John Paul Stevens:

Because that’s reasonable suspicion?

Barbara E. Etkind:

–Yes.

William H. Rehnquist:

Well you can only slice a cheese so thin, from probable cause to founded suspicion to reasonable suspicion.

In the end, you end up with phrases that really merge into one another, do you not?

And that’s why I asked, whether you are asking for different test or not, there only can be so many tests and as Mr. Justice Rehnquist suggests, one would think that reasonable suspicion and founded suspicion would probably be the same thing.

Barbara E. Etkind:

I think that’s right.

I’m not asking for a different–

John Paul Stevens:

You’re not asking us to slice the cheese any more thinly than–

Barbara E. Etkind:

–Oh, I certainly am not, and in fact, the case certainly would not require that.

In our view, this case presents probable cause, the facts of this case.

But the Court may not reach that decision.

But certainly you don’t need to slice anything–

Byron R. White:

–Of course, you may have been only paying some deference to the language that this Court has used?

But my point was, this Court didn’t use the language you chose, the founded suspicion language.

That’s why I was wondering why you picked it up.

Barbara E. Etkind:

–It is the language that the Court of Appeals used in this case.

Right, I understand.

Barbara E. Etkind:

And I do think it is the same as the reasonable suspicion that was referred to in Terry v. Ohio.

Warren E. Burger:

Have we not said in some opinions, in common with a good many courts of appeals, that in making this evaluation we are not to do it from the point of view of a judge sitting in a library, but from… as seen through the eyes and understanding of the trained law enforcement officer, words to that effect?

Barbara E. Etkind:

I think that’s right, yes.

In any event, the question is not whether all of the factors listed in Brignoni-Ponce are present, but whether the totality of the circumstances gives rise to founded suspicion.

In that connection, this Court emphasized that any number of factors may be taken into account, but each case must turn on the totality of its particular circumstances and that in all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling.

Brignoni-Ponce controls the present case and it requires reversal of the decision of the Court of Appeals.

What occurred in the present case is detective work of the highest caliber which should be encouraged and not disparaged by the Court.

The Court of Appeals here denigrated the officers’ actions in this case as being based solely on a profile.

While we certainly do not eschew the use of profiles in appropriate circumstances… no profile, as that term is commonly used, was employed by the officers in this case.

A profile is a set of typical characteristics of a certain type of criminal, such as an airplane hi-jacker or a drug courier, that is developed by law enforcement agents on the basis of their pooled experience with large numbers of criminals of a particular sort.

In contrast, in the present case, Border Patrol officers discerned the modus operandi of their particular suspect, the Chevron, not from their prior general experience of alien smuggling, in large part, but from the physical clues left at the scene of Respondent Hernandez-Loera’s previous journey.

To find clues and deduce them in identifying features of the culprit is the essence of good detective work.

While there may be a question of semantics, but certainly none of substance, as to whether the identification of a suspect’s individualized modus operandi may constitute a profile, there is no question but that such a profile represents precisely the kind of rational assessment of the likelihood of criminal activity that the Fourth Amendment demands.

Contrary to the Court of Appeals suggestion, it is exactly this type of reasoned investigative work that diminishes the number of police intrusions based on unarticulated hunches or random guesswork.

And finally, with respect to the quantity of evidence necessary to establish founded suspicion, we submit that the present case is at the far end of the continuum from what was present in Brignoni-Ponce.

Barbara E. Etkind:

In that case, in which this Court suppressed the fruits of the stop, the only basis for the stop was the occupant’s apparent Mexican ancestry.

Here on the other hand, the officers had all the clues and inferences arising from them that I have described, which were corroborated when Respondents’ camper passed the officers heading west and then backtracked past them, heading east, during the early morning hours of January 31st.

As I stated, in our view these facts provided not only founded suspicion but probable cause as well.

Of course this Court need not reach the question of whether there was probable cause, but for the guidance of the lower federal courts and of law enforcement officers in the field, we submit that the facts possessed by the officers in this case are far above the minimum necessary to justify an investigatory stop of the vehicle.

Unless there are further questions I’d like to reserve the rest of my time for rebuttal.

Warren E. Burger:

Very well.

Mr. Velasco.

Bernardo P. Velasco:

Mr. Chief Justice and may it please the Court:

This case presents a question that centers upon whether a vehicle may be seized simply because it travels on an east-west highway and returns to the direction from which it came.

The government suggests to the Court that the totality of circumstances is that this behavior or this exhibited conduct is sufficient to lead to the rational conclusion that a crime or criminal activity was taking place.

The Supreme Court, in dealing with reasonable suspicion cases, has adopted the term reasonable suspicion.

The Ninth Circuit, after the Brignoni-Ponce decision came out and several other cases, stated that they had been using the founded suspicion test or doctrine, but that in fact was equivalent–

William H. Rehnquist:

Actually, in Martinez-Fuerte, the term is that rational inferences from those facts that reasonably warrant suspicion, is it not?

Bernardo P. Velasco:

–Yes, Your Honor.

William H. Rehnquist:

And again, if you want to make fine points about distinctions, you consider that slightly different than reasonable suspicion?

Bernardo P. Velasco:

Founded suspicion?

The Ninth Circuit has said that it’s the same thing.

The manner in which any seizure by a police officer is evaluated, is done by the Court, because the Court has a very important function in these types of cases.

The Court clearly has the obligation to view the matter through… in light of the officer’s experience.

However, the reasonable suspicion test requires specificity and objectivity.

If the Court must look at the evidence and must analyze it objectively to determine whether the officer’s experience and observations are reasonable.

If the Court is not to look at this objectively and specifically, then what you have simply is the Court accepting any rationale by any police officer, which then would eliminate the Court’s function in Fourth Amendment cases and would in fact preclude any assertion that the officer’s conduct is unreasonable.

William H. Rehnquist:

Well what about the situation you have here where you have a divided panel of the Court of Appeals and the dissenting member is from Arizona and the District Court has found, presumably on the eyewitness testimony before him that there is articulable suspicion.

Isn’t the panel required to give some weight to the testimony… or the conclusion of the District Court?

Bernardo P. Velasco:

In this case the District Court made no finding; the court simply heard the evidence.

If the Court would look at the record carefully, it’s clear from the testimony of Agent Gray and Agent Rayburn that in cross-examination, when questions were asked of them about the area, they really weren’t that familiar with the area.

They didn’t know how many people really lived in Sells, they didn’t know that Sells was the capital.

It’s our position that the trial judge and the court appellate judge really cannot take judicial notice of things that this is a remote area.

Arizona is not any different than California, Nevada and Texas.

Warren E. Burger:

Are you saying… are you telling us that they may not take judicial notice of the geography of the area?

Bernardo P. Velasco:

Generally,… the Court can do that.

The ruling usually provide that judicial notice is to be taken of something that the Court will notify counsel so they have an opportunity to question or to present evidence on that issue.

William H. Rehnquist:

And there’s also a rule that if a defendant on trial for a particular offense wishes to suppress evidence, the burden is on the person moving to suppress, is it not?

Bernardo P. Velasco:

Yes, that’s correct.

And the problem is that when the… all the defendant needs to do is show a prima facie… some showing that the search is unreasonable, where there is no warrant and clearly there has been no warrant obtained in this case.

And we submit to the Court that under the facts in this case, it’s clearly established that the government had to go forward with proof to justify the seizure.

And I don’t think it’s apparent–

William H. Rehnquist:

Well, supposing there’s been no warrant and the government is operating on a theory that there was founded suspicion or whatever one wants to call it, the defendant claims there is none.

Now, when that evidence is tendered into evidence, it’s up to the defendant to object and to make clear the objection, is it not?

It’s not up to the government to show why it should go in evidence.

Bernardo P. Velasco:

–Yes, yes.

But there’s nothing, as I see it, in this case, there’s nothing which the government has produced that suggests that the criminal activity that they believe is occurring is in any way connected to the Defendant.

The record clearly reflects that this route, that this area of suspicion by these two agents is used less frequently than any other place on the border.

So, an objective evaluation of this suspicion of criminal activity doesn’t advance the nexus or connection to believe that the crime, if it’s being committed, is rationally connected to the Defendant.

William H. Rehnquist:

Well did the defendant object in the trial court on Fourth Amendment grounds?

Bernardo P. Velasco:

Yes, Your Honor.

So what we have in this particular case, is the Court has various decisions regarding this problem.

The Court has said that you simply can’t stop the vehicle or a person, you can’t stop the vehicle because it’s on the highway, you can’t stop a Mexican simply because he’s in a vehicle, you need something more.

The Court–

Warren E. Burger:

Couldn’t the government, by statute or regulation, or the Bureau, declare that any vehicle over 5 tons, 4 tons, within 25 miles of the border or 15 miles of the border, should be stopped and searched?

Bernardo P. Velasco:

–I don’t believe so.

If the state were to pass a law like that, the Court would strike that down as an undue burden on interstate commerce.

Warren E. Burger:

Well how do the states then get by, to use the vernacular, with having these pull-off areas and requiring every truck over a certain tonnage to stop to be checked and weighed?

Bernardo P. Velasco:

The Court has taken the position that those types of intrusions are made as a regulatory matter that the public has the ability to know that if they are driving these types of vehicles that there will be these checkpoints.

Every person driving these vehicles is subject to seizure, every person knows that a certain seizure will take place.

Warren E. Burger:

Well that’s my hypothesis, that every truck, every vehicle over X-tons, let’s make it 2 tons, may be stopped.

Bernardo P. Velasco:

But in this particular case, there’s no rational basis for that, and there’s no notice to the public–

Warren E. Burger:

No, no.

Now you’re linking this case up with my hypothetical and I’m just asking you an abstract, hypothetical question.

Could it constitutionally be ordered that every truck over that given, every vehicle over that size, be stopped?

Bernardo P. Velasco:

–I don’t believe so.

A vehicle, simply because a presence in an area, would not justify a seizure.

There would have to be some basis for a seizure, otherwise everything is subject to seizure, whether or not there’s a reason to believe that there’s any criminal activity–

Byron R. White:

Well can a state require that all trucks be stopped?

Bernardo P. Velasco:

–The Court hasn’t–

Byron R. White:

Every state does it, doesn’t it?

Bernardo P. Velasco:

–I’m not aware of whether every state does it–

Byron R. White:

Well, at a border when a truck is going through the state?

Bernardo P. Velasco:

–The state does not do that.

That’s the federal government that stops–

William H. Rehnquist:

Well certainly, going from Arizona to California or California to Arizona, both states stop trucks and cars as well.

That’s for the fruit.

Bernardo P. Velasco:

–For purposes of inspecting fruit.

Byron R. White:

Oh.

But they stop… at the border of Colorado, and there isn’t any fruit to inspect, they just stop them to see what, see if they are in compliance with the laws.

Bernardo P. Velasco:

Yes, but the Court has… has two ways of looking at this.

The seizure is whether there’s specific and objective facts justifying the seizure of a particular individual, and then the Court has also suggested, or certain areas where discretion of the officers is limited, where the policy decisions for stopping vehicles has been made by persons higher in the government, the discretion of the officer in the field is limited so that he may not make… stops at night simply because he has a belief that criminal activity is occurring and has a belief that that criminal activity is connected to the vehicle.

This Court has already rendered decisions where simply being in an area is insufficient to justify seizure.

Certainly, a proposition can be made that in Ybarra v. Illinois, that simply being in bar where there’s probable cause to believe That the bar has narcotics, that person is not subject to seizure.

He’s there.

In Sibron, the Court said merely talking to drug addicts is insufficient to justify seizure.

So,–

William H. Rehnquist:

But In Ybarra nobody was on the move, the people were simply standing around the bar.

This is a case of crossing a state line.

Bernardo P. Velasco:

–In this case, let me make an even closer case then, that would be… in this case there’s no crossing a state line.

A similar example would be, as in Brown v. Texas, where an individual was coming out of an area of high incidence where he had been seen with another person and that isn’t sufficient.

What we have in this case, we don’t have the vehicle in the area, no reason to believe from looking at the vehicle that it’s been in the area.

We have a vehicle, we can’t stop it because it’s a vehicle… you can’t stop it if all you’ve got is the vehicle in the area.

The government now suggests that if the vehicle is suspected without more of going into the area, it’s not enough.

And that clearly can’t be the test, because then the next thing that happens is, any vehicle driving north can be seized, any vehicle… just, on the record here, really, there is no basis to rationally conclude that the seizure was justified.

John Paul Stevens:

Mr. Velasco, we have a round trip here.

Bernardo P. Velasco:

Your Honor, without more, and that’s all.

That might be–

John Paul Stevens:

It’s fairly significant isn’t it?

Bernardo P. Velasco:

–It might be–

John Paul Stevens:

In a deserted area, unless, I mean, you did suggest maybe they were picking up astronomers or something like that, but at this hour of the night it’s not totally without reason to assume it has some connection, is it?

Bernardo P. Velasco:

–Well, it’s not reasonable to seize the person, but it might be a basis for focusing suspicion.

Clearly, if you look at something and you say well that’s strange, then the Court considers well, officers are entitled to look at things and decide if they are strange.

The question then becomes is there a need for immediate action, is there something beyond their suspicion.

And you look at the vehicle and if it’s going to have 20 people in it, that should have an effect on the vehicle.

Warren E. Burger:

Well are you suggesting that perhaps the regulation could have been met by following that vehicle to its destination and watch the illegal aliens disgorge from the camper?

Bernardo P. Velasco:

Well certainly–

Warren E. Burger:

Is that the way to do it?

Bernardo P. Velasco:

–Certainly they could have done that, Your Honor.

But the point is that they could have done something to watch the vehicle and determine whether it really required any further action.

Warren E. Burger:

How many illegal aliens were in the camper?

Bernardo P. Velasco:

There were six in this camper, they expected 8 to 20, at least.

So, we submit that based on prior law, this really… the stop is infamous; what the government really seeks to do, is to say that they can… make any hypothesis or any deduction of criminal activity that that places them under reasonable suspicion.

And clearly it does not, that cannot be correct, if you try to evaluate the evidence and the totality of circumstances, there comes a point as the Court has recognized in Reid, where simply looking at officers suspicions, the Court has to say it’s not reasonable or it’s not reasonable, for purposes of the Fourth Amendment.

William H. Rehnquist:

What deference do you think the Court of Appeals was required to give to the findings of the District Court in a case like this?

Bernardo P. Velasco:

The Court, the Ninth Circuit has adopted the clearly erroneous test, where the Court, the lower court makes findings.

Potter Stewart:

Well that’s the standard of Rule 52(a), that’s the Ninth Circuit.

Bernardo P. Velasco:

But that’s the standard.

And the deference… we have an effect of an open record here, the Court simply denied the motion, granted counsel an exception.

William H. Rehnquist:

Well isn’t there a presumption that when denies a motion it makes every finding that is necessary for the denial of that motion?

Bernardo P. Velasco:

That may be the case.

But even as… even with the record, at the best that the government states it, there isn’t enough to objectively say that there is a reasonable suspicion of criminal activity and a particularized suspicion that this vehicle was engaged in that suspicion.

There’s no nexus justifying a seizure.

Warren E. Burger:

Can you point out which of the suppositions that the officers were making in reaching their total conclusion, proved to be untrue?

The round trip, for example, that Mr. Justice Stevens referred to, and all the other facts?

Bernardo P. Velasco:

Well that’s, in a hindsight evaluation, that’s… it’s not possible.

Warren E. Burger:

Well of course, it is hindsight now.

The judges, the business of judges is necessarily hindsight.

Bernardo P. Velasco:

Well of course.

But if this seizure had resulted in the seizure of some other group of aliens, the Court would look at this and say they’ve had this hypothesis designed to catch Mr. Cortez and Mr. Hernandez, however, it resulted in the apprehension of some totally unrelated group, it would make it sound less reasonable.

And I think that’s what the Court has to do in this case; to look at… do they have about criminal activity.

They merely had a suspicion that criminal activity took place, and we submit that there is no nexus.

Warren E. Burger:

Mr. Minker.

S. Jeffrey Minker:

Mr. Chief Justice, and may it please the Court:

In cases of founded suspicion or probable cause, the party having the burden of proof is permitted to use direct or circumstantial evidence or any combination thereof.

This has always been the law in founded suspicion cases, it’s the law in the Ninth Circuit.

And the case to look at for an example is a case cited by the government which is the United States v. Clark.

Clark, the facts there, are interesting when you compare them to our case.

There were four relevant facts in Clark: one, there was the proximity to the border, one mile; two, the agent received a radio call that aliens were coming over the border; three, there were no other vehicles in the area where the aliens were coming over the border, and four, the Defendant was seen leaving the border on the only north-south road going from the border.

Our case does not involve any new tests.

The decision of the Ninth Circuit simply says that the government did not meet the requirement of the founded suspicion test.

Even Judge Chambers, in his dissent, does not talk about a new test or a different test being created, he quarreled with the analysis of the facts by the majority.

Potter Stewart:

Two questions, Mr. Minker.

You began by talking about the person with the burden of persuasion, the burden of proof, the person who has the burden of proof.

Who do you think that is?

S. Jeffrey Minker:

I think basically, in the practical day-to-day experience of the District Courts, the Defendant who has been seized without a warrant, simply comes forward and says I have been seized without a warrant, my constitutional rights have–

Potter Stewart:

Well yes, he has to first say that, and that gives him–

S. Jeffrey Minker:

–Yes.

Potter Stewart:

–a burden, doesn’t it?

S. Jeffrey Minker:

Yes.

That’s what happens.

Potter Stewart:

Generally, when the government seeks to introduce evidence, or proposes to introduce evidence, according to whether it’s a motion to suppress or objection to the introduction evidence, the person who makes the motion to suppress or the person who objects to the introduction of the evidence has the burden, doesn’t he?

S. Jeffrey Minker:

That is correct.

Potter Stewart:

Not the government, not the prosecution?

S. Jeffrey Minker:

Well, all you really do is make the motion, the prosecution, as happened in this case, the transcript clearly shows the government proceeds on to make its case, the government started its case, the government called its witnesses Agent Rayburn and Agent Gray and the other agent and this is what happens in all of these cases.

S. Jeffrey Minker:

So once the defendant raises the issue in the District Court and says there has been an unreasonable search or seizure in violation of the Fourth Amendment–

Potter Stewart:

Well he has to do more than just say that, doesn’t he?

S. Jeffrey Minker:

–Well, he files a memorandum pointing out why he feels–

Potter Stewart:

First of all, that the search or the seizure was without a warrant, doesn’t he?

S. Jeffrey Minker:

–Yes.

Potter Stewart:

Without probable cause, and in the Ninth Circuit without founded suspicion.

And that’s my second question, isn’t that a phrase that’s peculiar to their, or at least, was born in the Ninth Circuit, it’s not a phrase to be found in an opinion of our Court, is it?

S. Jeffrey Minker:

No, I believe it was born in the Ninth Circuit, and the Ninth Circuit has said that they are using that phrase the same as reasonable suspicion.

The Ninth Circuit does not make any distinction.

Every day in the district courts of this country, cases are fought out involving founded suspicion or probable cause.

William H. Rehnquist:

Well Mr. Minker, I have some trouble with the printed appendix here, in that, it seems to be solely a hearing on a motion to suppress.

Was there ever any trial beyond that, or was this simply an appeal of a denial of a motion to suppress?

S. Jeffrey Minker:

No, there was a trial, in the case of Mr. Cortez, there was… there were two trials, the first ended in a hung jury, and in the second, there was a conviction.

But the cases were severed and Cortez and Hernandez had separate trials.

William H. Rehnquist:

And what was the verdict in the Hernandez case?

S. Jeffrey Minker:

On the second trial he was found guilty.

William H. Rehnquist:

And how about–

S. Jeffrey Minker:

Did you say in Hernandez or in Cortez?

I’m sorry–

William H. Rehnquist:

–I said Hernandez.

S. Jeffrey Minker:

–He was guilty.

When a party loses a motion to suppress in the District Court, in most cases the matter ends there.

In a few cases, there is an appeal to the Circuit Court of Appeals as there was in this case, to the Ninth Circuit.

When the decision is reached in the Ninth Circuit, that is usually the end of the matter.

But in this case, the Justice Department has come here, and has said, we want a reversal.

And reading their brief, they really, I submit, do not want a reversal simply based on an argument of the facts; they want a new test to create it.

They want another slice of the pie.

They, no matter how ornately you christen their new test, it will be known in the inelegant vernacular as the hunch test, and a hunch will give an agent the right to make a stop based on a gut feeling or a hunch.

Hunches do play a very proper role in police work.

The Second Circuit talks about that in a case called Price, where they said a hunch tells an agent to keep an eye out for what’s going to happen, but it does not give the basis to make a seizure.

S. Jeffrey Minker:

In this case, there is a hunch that led to a seizure and–

Warren E. Burger:

Was it not a series of hunches, rather than one?

S. Jeffrey Minker:

–Well, if you call their profile one hunch and there’s no question that the agent said I had a profile here, and he says it at page 78 and 79 of the joint appendix, he is questioned, and he says I have a profile, the profile is based on the fact that any car, virtually any car but a sedan… and excluding linen trucks, for some reason commercial vans, that’s capable of carrying 8 to 20 aliens fits my profile.

And we are going to stop and search every one of those vehicles that met that profile provided they went and returned within an approximate time of an hour and a half.

Well, when–

Byron R. White:

But that… wasn’t all over the state.

S. Jeffrey Minker:

–I beg your pardon?

Byron R. White:

They didn’t stop every truck in the north end of the state–

S. Jeffrey Minker:

Well I said south–

Byron R. White:

–That was going east or west at a certain time.

This was at a certain location?

Interstate 86.

S. Jeffrey Minker:

–Highway 86.

William H. Rehnquist:

interstate 86, it’s way south… it’s south of I-10, very close to the Mexican border.

S. Jeffrey Minker:

It is Highway 86, and to–

Byron R. White:

And not just anywhere on Highway 86.

S. Jeffrey Minker:

–Well, in our opposition we attached a map.

The map clearly shows where the interstate is, and it clearly shows where Highway 86 is.

It shows where the agents were, at a place called Three Points.

It indicates where Sells, Arizona, the capital of the Papago Nation is, it also indicates where Kitt Peak National Observatory, probably the most famous, one of the most famous world observatories in the world is.

And it shows all these things they’re on a highway it is approximately 25-30 miles north of the border and it goes east-west and the highway does not itself directly go to the border.

The highway, eventually, as the map shows, goes to Tucson, or up to Phoenix.

You can take, go to either city; you have metropolitan cities, of a half million, which is Tucson, or Phoenix, which is a million, and you’re talking about an hour’s distance or so.

William H. Rehnquist:

But no one would take 86 from Phoenix to Tucson, they’d take I-10.

S. Jeffrey Minker:

Well, I respectfully disagree.

There are plenty of areas in Arizona that I personally have traveled where I do not take the interstate; where I will take sideroads simply because they are much more scenic.

William H. Rehnquist:

Well but–

–At night?

At night?

S. Jeffrey Minker:

Only if I’m hoping for a very pretty daybreak.

S. Jeffrey Minker:

Well, the agents know they are on an east-west road 30 miles or so from the border.

They also know exactly where the aliens cross the border and come into the United States and they know exactly where they go.

They know that the aliens come in near an Indian village called Itek and they go directly to milepost 122.

Now knowing that, the agents have certain things that they should have done.

They, if they are going to eliminate an interference to innocent travelers, they have a duty to minimize things.

There is talk in the transcript about sensors.

Well, a sensor could have been placed at Itek and the agents would then know that an alien is coming, that there are hits on the sensor, a number of hits, you know a number of people have just crossed the border.

You also put a sensor at milepost 122, the agents talked about a culvert.

Well, you put another sensor there.

Now you have something.

But more important than all of this, you go to milepost 122.

If the agents are so sure, even though there’s been no activity for two weeks, they have not looked for a track in two weeks, they haven’t heard of any alien smuggling in two weeks, they have not had a tip from an informant in two weeks about aliens coming over.

And when you compare that with Clark that we talked about before, in Clark you have a tip, in Clark you have an area one mile from the border.

You have a car seen going from that area.

We don’t know where this car went; the agents are 27 miles away, the car goes by them and comes back and that is the key factor.

These are trained agents, they could see a license number.

Well I submit to you, if they can see a license number, these trained agents who are expecting a vehicle to pick up 8 to 20 aliens… 8 to 20 aliens is 1500 to 3000 pounds; a simple pick-up, camper, if it goes by and they can see the license number and if it comes back and they can again see a license number, they are pretty close to that vehicle.

It is going to be riding significantly lower.

And there are a myriad of cases saying… where you take other things into account, the lowness of the vehicle is important.

Well if these agents had seen the vehicle riding low, that would have indicated to them that there would have been an added weight in the hour and a half that they had seen it.

Thurgood Marshall:

Or that it wasn’t equipped with shock absorbers that could be pushed up.

S. Jeffrey Minker:

Well–

Thurgood Marshall:

Which you can see in any store, any day, right?

S. Jeffrey Minker:

–Well I assume that–

Thurgood Marshall:

And you can pump them up, you pump up the shock absorber.

S. Jeffrey Minker:

–That can be done.

But the Ninth Circuit has held riding low is indicative, gives a basis for a stop.

Warren E. Burger:

Now when, take that episode now, down and back in 90 minutes, do you say that the inferences which the officers drew from that and all the other circumstances, was reasonable or was it irrational, or totally unfounded?

S. Jeffrey Minker:

It was not sufficient for the following three reasons.

You have Kitt Peak, you have Sells, Arizona, six miles down the road, the capital of the Indian nation, and finally, you have houses, one miles down the road from milepost 122.

S. Jeffrey Minker:

The transcript shows that there are houses on Highway 86 around milepost 121.

When you have all that kind of activity, the agents have a duty to go down, close to mile-post 122, get there earlier in the morning–

Warren E. Burger:

Well maybe your way would be better and maybe they should do it your way, but we have to deal with it the way it is here.

But do you say it was… the inferences they drew from this round trip in 90 minutes were unfounded?

S. Jeffrey Minker:

–Those inferences do not, in and by themselves, do not equal a founded suspicion.

They are a hunch, and they say to the officer… go do more.

Warren E. Burger:

That wasn’t my question.

I said added to all the other factors.

S. Jeffrey Minker:

Do not equal a founded suspicion.

Warren E. Burger:

And you say that’s not… that’s irrational?

S. Jeffrey Minker:

I say that is not founded suspicion.

I do not say the agents acted irrationally; they had, done certain no question there was some good police work done here, but as the Court said in Price, they had a good hunch, but they have to do more than a hunch and at the same time, they have to minimize the intrusion on travelers of the road.

And to set yourself up 25 miles down the road, well, next time it could be 50 miles or it could be 5 miles, there are no limits here.

I think this Court has to say and I think the Ninth Circuit said it, in its opinion, if you are going to intrude on what may well be innocent travelers, then you have to minimize the people who are going to be intruded upon and you have to limit the area, the scope of the area.

And in this case, the scope of the area, if the agents had gone to milepost 123 and set up their binoculars and watched, then there would be no innocent travelers basically, who could be interfered with, because they would be knowing the people would be going to milepost 122, because they’d watch them, and then if the aliens took off in their truck, they could pull them over.

William H. Rehnquist:

Does the record show how many innocent travelers were interfered with in the course of this search?

S. Jeffrey Minker:

The record shows that they saw 10 to 15 vehicles go by them in a westerly direction, five of which basically meet their profile but they didn’t stop those five.

The other ten, they did not… apparently were sedans.

William H. Rehnquist:

So they stopped only this vehicle, in other words?

S. Jeffrey Minker:

The other vehicle that met their profile had not come back as of the time they stopped this vehicle.

It was the second vehicle that went by at 10 minutes to 5, this vehicle went by at 4:30, but they also didn’t stop or keep track of, the three commercial vehicles that were certainly capable of holding 8 to 20 aliens and their–

William H. Rehnquist:

So, what your complaint is, they should have stopped more vehicles, not less?

S. Jeffrey Minker:

–I beg your pardon.

That is not what we are saying.

We are saying that their profile is so broad, virtually any vehicle on the highway can hold 8 to 20 aliens… the agents so testified to that.

That would say to them if they have a gut feeling, any large vehicle, any camper, any motor home, any mobile home, any type of vehicle whatsoever, can be stopped if the agents have a hunch.

John Paul Stevens:

Well and if it makes a round trip too, which not many did.

But Mr. Minker, can I ask you another question about the procedure in the Ninth Circuit?

How often do the trial judges make findings of fact on a motion to suppress, which he did not do here, at least, didn’t spell them out.

S. Jeffrey Minker:

I personally have had a relatively significant number of cases where I’ve even had written opinions on founded suspicion or probable cause cases.

S. Jeffrey Minker:

It depends on the judge.

This is not a… the judge in this case is not a District Court Judge from Arizona, he’s from New York.

John Paul Stevens:

Oh, I see.

But he sits in Tucson every winter, doesn’t he?

S. Jeffrey Minker:

This winter he did not choose to go out.

He’s sat out there for the last ten winters to avoid the unpleasant New York weather.

Warren E. Burger:

Very well.

Your time has expired, Mr. Minker.

Do you have anything further, Mrs. Etkind?

Barbara E. Etkind:

A couple of points, Your Honor.

Warren E. Burger:

All right.

Barbara E. Etkind:

With respect to the interference to innocent travelers, just to clarify it the only vehicle that was stopped during that entire five-hour surveillance period was the Respondents’ camper.

In response to the point of why the officers didn’t station themselves at milepost 122, as we mentioned in our reply brief, the officers were responsible for surveilling also the Altheim Valley, which is at the crossroads of Highway 86 and 286, and that’s where milepost 149 is located.

That’s why they were at 149, so that they could watch for both things.

And finally, in any event, the test under the Fourth Amendment is a test of reasonableness and it is not a test of the least restrictive alternative that Mr. Minker would suggest the officers should have followed.

Warren E. Burger:

Very well.

Thank you, counsel.

The case is submitted.