POLICE CAN USE EXPERIENCE, SUSPICION TO MAKE STOPS

WASHINGTON - The Supreme Court ruled unanimously Tuesday that in evaluating
whether "reasonable suspicion" existed for a police officer to detain a
suspect briefly for questioning, courts should pay more attention to the
officer's experience and the event's overall context than to possibly
innocent explanations for individual parts of the incident.

The case concerned a stop by a federal border patrol agent of a minivan
carrying two adults and three children on an unpaved road in a remote area
of southern Arizona. The vehicle was found to be carrying 128 pounds of
marijuana, but the federal appeals court in San Francisco ruled that the
stop was unconstitutional.

The appeals court broke down the incident's narrative into 10 separate
components, such as the fact that the minivan's driver slowed abruptly when
he saw the border patrol car, avoided eye contact with the agent, and the
fact that the children in the back seat waved at the agent in an oddly
mechanical manner, as if they had been instructed to do so.

"Singly and collectively," these events were either irrelevant or innocuous
and were "insufficient to give rise to reasonable suspicion," the 9th U.S.
Circuit Court of Appeals said in granting the motion filed by the driver,
Ralph Arvizu, to suppress the evidence.

In his opinion on Tuesday, Chief Justice William Rehnquist referred to the
appeals court's assessment of the individual factors as a
"divide-and-conquer analysis" and said it was inconsistent with the Supreme
Court's insistence in its precedents that reasonable suspicion be based on
a "totality of the circumstances." The chief justice said the border patrol
agent, Clinton Stoddard, "was entitled to make an assessment of the
situation in light of his specialized training and familiarity with the
customs of the area's inhabitants." He continued: "We think it quite
reasonable that a driver's slowing down, stiffening of posture, and failure
to acknowledge a sighted law enforcement officer might well be unremarkable
in one instance (such as a busy San Francisco highway) while quite unusual
in another (such as a remote portion of rural southeastern Arizona)."

The dirt road some 30 miles north of the Mexican border is commonly used by
smugglers of aliens and narcotics who want to avoid a checkpoint on the
parallel paved highway.

Rehnquist said that while police officers should base their actions on more
than a "hunch," he said the officer does not have to exclude the
possibility that an innocent explanation exists for the conduct.

The court accepted the government's appeal, United States v. Arvizu, No.
00-1519, last June, and briefs were filed before the events of Sept. 11
brought new significance to the question of the government's investigatory
authority when it has some basis for suspicion that does not meet the
strict test of probable cause that is necessary for a search or arrest
warrant.

When the case was argued in November, it was evident that recent events
were on the minds of at least some justices.

"We live in a perhaps a more dangerous age today than we did when this
event took place," Justice Sandra Day O'Connor said then of Arvizu's
arrest, which took place in 1998. Addressing Victoria A. Brambl, an
assistant federal public defender from Tucson who was representing Arvizu,
O'Connor asked: "Are we going to back off from 'totality of the
circumstances' in an era when it may become very important to us to have
that as the overall test?" She continued: "I'm concerned that the 9th
Circuit opinion seemed to be a little more rigid "than our precedents
require" or "that common sense would dictate today."

Lawrence S. Lustberg, a lawyer from Newark, N.J., who filed a brief for
Arvizu on behalf of the National Association of Criminal Defense Lawyers,
said the decision amounted to the justices telling the lower courts that
"you can't define totality of the circumstances and we're not going to."
The decision "essentially immunizes police judgment from review without
giving the courts any standard to go on," he said in an interview.