United States v. Cortez, 79-404

• Decision Date: 21 January 1981
• Docket Number: No. 79-404,79-404
• Citation: 66 L.Ed.2d 621,101 S.Ct. 690,449 U.S. 411
• Parties: UNITED STATES, Petitioner, v. Jesus E. CORTEZ and Pedro Hernandez-Loera
• Court: U.S. Supreme Court

449 U.S. 411

101 S.Ct. 690

66 L.Ed.2d 621

UNITED STATES, Petitioner,

v Jesus E. CORTEZ and Pedro Hernandez-Loera.

No. 79-404.

Argued Dec. 1, 1980.

Decided Jan. 21, 1981.

Syllabus

Based on their discovery of sets of distinctive human footprints in the desert, Border Patrol officers deduced that on a number of occasions groups of from 8 to 20 persons had been guided by a person, whom they designated "Chevron," from Mexico across an area of desert in Arizona, known to be heavily trafficked by aliens illegally entering the country. These groups of aliens proceeded to an isolated point on a road to be picked up by a vehicle; the officers deduced the vehicle probably approached from the east and returned to the east after the pickup. They also surmised, based on the times when the distinctive tracks were discovered, that "Chevron" generally traveled on clear nights during or near weekends, and arrived at the pickup point between 2 a. m. and 6 a. m. On the basis of this information, the officers stationed themselves at a point east of the probable pickup point on a night when they believed there was a strong possibility that "Chevron" would be smuggling aliens. The officers observed a pickup truck with a camper shell suitable for carrying sizable groups pass them heading west and then observed the same vehicle return within the estimated time for making a round trip to the pickup point. The officers stopped the vehicle, which was being driven by respondent Cortez and in which respondent Hernandez-Loera, who was wearing shoes with soles matching the distinctive "chevron" shoeprint, was a passenger. Cortez voluntarily opened the door of the camper and the officers then discovered illegal aliens. Prior to trial on charges of transporting illegal aliens, respondents sought to suppress the evidence of the presence of the aliens discovered as a result of the stopping of their vehicle, contending that the officers did not have adequate cause to make the investigative stop. The District Court denied the motion, and respondents were convicted. The Court of Appeals reversed, holding that the officers lacked a sufficient basis to justify stopping the vehicle and thus respondents' Fourth Amendment rights were violated.

Held : The objective facts and circumstantial evidence justified the investigative stop of respondents' vehicle. Pp. 417-422.

(a) In determining what cause is sufficient to authorize police to stop a person, the totality of the circumstances—the whole picture—must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. The process of assessing all of the circumstances does not deal with hard certainties, but with probabilities, and the evidence collected must be weighed as understood by those versed in the field of law enforcement. Also, the process must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Pp. 417-418.

(b) This case implicates all these principles—especially the imperative of recognizing that, when used by trained law enforcement officers, objective facts, meaningless to the untrained, allow for permissible deductions from such facts to afford a legitimate basis for suspicion of a particular person and action on that suspicion. Pp. 418-421.

(c) The intrusion upon privacy associated with this stop was limited and "reasonably related in scope to the justification for [its] initiation." Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889. Based upon the whole picture, the officers, as experienced Border Patrol agents, could reasonably surmise that the particular vehicle they stopped was engaged in criminal activity. Pp. 421-422.

9 Cir., 595 F.2d 505, reversed.

Barbara E. Etkind, Philadelphia, Pa., for petitioner.

Bernardo P. Velasco, Tucson, Ariz., for respondent Hernandez-Loera.

S. Jeffrey Minker, Tucson, Ariz., for respondent Cortez.

Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari, 447 U.S. 904, 100 S.Ct. 2983, 64 L.Ed.2d 852, to consider whether objective facts and circumstantial evidence suggesting that a particular vehicle is involved in criminal activity may pro- vide a sufficient basis to justify an investigative stop of that vehicle.

I

Late in 1976, Border Patrol officers patrolling a sparsely populated section of southern central Arizona found human footprints in the desert. In time, other sets of similar footprints were discovered in the same area. From these sets of footprints, it was deduced that, on a number of occasions, groups of from 8 to 20 persons had walked north from the Mexican border, across 30 miles of desert and mountains, over a fairly well-defined path, to an isolated point on Highway 86, an east-west road running roughly parallel to the Mexican border.

Officers observed that one recurring shoeprint bore a distinctive and repetitive V-shaped or chevron design. Because the officers knew from recorded experience that the area through which the groups passed was heavily trafficked by aliens illegally entering the country from Mexico, they surmised that a person, to whom they gave the case-name "Chevron," was guiding aliens illegally into the United States over the path marked by the tracks to a point where they could be picked up by a vehicle.

The tracks led into or over obstacles that would have been avoided in daylight. From this, the officers deduced that "Chevron" probably led his groups across the border and to the pickup point at night. Moreover, based upon the times when they had discovered the distinctive sets of tracks, they concluded that "Chevron" generally traveled during or near weekends and on nights when the weather was clear.

Their tracking disclosed that when "Chevron's" groups came within 50 to 75 yards of Highway 86, they turned right and walked eastward, parallel to the road. Then, approximately at highway milepost 122, the tracks would turn north and disappear at the road. From this pattern, the officers concluded that the aliens very likely were picked up by a ve- hicle probably one approaching from the east, for after a long overland march the group was most likely to walk parallel to the highway toward the approaching vehicle. The officers also concluded that, after the pickup, the vehicle probably returned to the east, because it was unlikely that the group would be walking away from its ultimate destination.

On the Sunday night of January 30-31, 1977, Officers Gray and Evans, two Border Patrolmen who had been pursuing the investigation of "Chevron," were on duty in the Casa Grande area. The latest set of observed "Chevron" tracks had been made on Saturday night, January 15-16. January 30-31 was the first clear night after three days of rain. For these reasons, Gray and Evans decided there was a strong possibility that "Chevron" would lead aliens from the border to the highway that night.

The officers assumed that, if "Chevron" did conduct a group that night, he would not leave Mexico until after dark, that is, about 6 p. m. They knew from their experience that groups of this sort, traveling on foot, cover about two and a half to three miles an hour. Thus, the 30-mile journey would take from 8 to 12 hours. From this, the officers calculated that "Chevron" and his group would arrive at Highway 86 somewhere between 2 a. m. and 6 a. m. on January 31.

About 1 a. m., Gray and Evans parked their patrol car on an elevated location about 100 feet off Highway 86 at milepost 149, a point some 27 miles east of milepost 122. From their vantage point, the officers could observe the Altar Valley, an adjoining territory they had been assigned to watch that night, and they also could see vehicles passing on Highway 86. They estimated that it would take approximately one hour and a half for a vehicle to make a round trip from their vantage point to milepost 122. Working on the hypothesis that the pickup vehicle approached milepost 122 from the east and thereafter returned to its starting point, they focused upon vehicles that passed them from the east and, after about one hour and a half, passed them returning to the east.

Because "Chevron" appeared to lead groups of between 8 and 20 aliens at a time, the officers deduced that the pickup vehicle would be one that was capable of carrying that large a group without arousing suspicion. For this reason, and because they knew that certain types of vehicles were commonly used for smuggling sizable groups of aliens, they decided to limit their attention to vans, pickup trucks, other small trucks, campers, motor homes, and similar vehicles.

Traffic on Highway 86 at milepost 149 was normal on the night of the officers' surveillance. In the 5-hour period between 1 a. m. and 6 a. m., 15 to 20 vehicles passed the officers heading west, toward milepost 122. Only two of them—both pickup trucks with camper shells—were of the kind that the officers had concluded "Chevron" would likely use if he was to carry aliens that night. One, a distinctively colored pickup truck with a camper shell, passed for the first time at 4:30 a. m. Officer Gray was able to see and record only a partial license number, "GN 88-." ¹ At 6:12 a. m., almost exactly the estimated one hour and a half later, a vehicle looking like this same pickup passed them again, this time heading east.

The officers followed the pickup and were satisfied from its license plate, "GN 8804" that it was the same vehicle that had passed at 4:30 a. m. At that point, they flashed their police lights and intercepted the vehicle. Respondent Jesus Cortez was the driver and owner of the pickup; respondent Pedro Hernandez-Loera was sitting in the passenger's seat. Hernandez-Loera was wearing shoes with soles matching the distinctive "chevron" shoeprint.

The officers identified themselves and told Cortez they were conducting an immigration check. They...