United States v. Sokolow, 87-1295

• Court: United States Supreme Court
• Citation: 109 S.Ct. 1581,490 U.S. 1,104 L.Ed.2d 1
• Docket Number: No. 87-1295,87-1295
• Parties: UNITED STATES, Petitioner v. Andrew SOKOLOW
• Decision Date: 03 April 1989

490 U.S. 1

109 S.Ct. 1581

104 L.Ed.2d 1

UNITED STATES, Petitioner

v Andrew SOKOLOW.

No. 87-1295.

Argued Jan. 10, 1989.

Decided April 3, 1989.

Syllabus

Drug Enforcement Administration (DEA) agents stopped respondent upon his arrival at Honolulu International Airport. The agents found 1,063 grams of cocaine in his carry-on luggage. When respondent was stopped, the agents knew, inter alia, that (1) he paid $2,100 for two round-trip plane tickets from a roll of $20 bills; (2) he traveled under a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours, even though a round-trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous durin his trip; and (6) he checked none of his luggage. Respondent was indicted for possession with intent to distribute cocaine. The District Court denied his motion to suppress the evidence, finding that the stop was justified by a reasonable suspicion that he was engaged in criminal activity, as required by the Fourth Amendment. The Court of Appeals disagreed and reversed respondent's conviction, applying a two-part test for determining reasonable suspicion. First, ruled the court, at least one fact describing "ongoing criminal activity"—such as the use of an alias or evasive movement through an airport—was always necessary to support a reasonable-suspicion finding. Second, "probabilistic" facts describing "personal characteristics" of drug couriers—such as the cash payment for tickets, a short trip to a major source city for drugs, nervousness, type of attire, and unchecked luggage were only relevant if there was evidence of "ongoing criminal activity" and the Government offered "[e]mpirical documentation" that the combination of facts at issue did not describe the behavior of "significant numbers of innocent persons." The Court of Appeals held the agents' stop impermissible, because there was no evidence of ongoing criminal behavior in this case.

Held: On the facts of this case the DEA agents had a reasonable suspicion that respondent was transporting illegal drugs when they stopped him. Pp. 7-11.

(a) Under Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889, the police can stop and briefly detain a person for investigative purposes if they have a reasonable suspicion supported by articulable facts that criminal activity "may be afoot," even if they lack probable cause under the Fourth Amendment. Reasonable suspicion entails some minimal level of objective justification for making a stop—that is, something more than an inchoate and unparticularized suspicion or "hunch," but less than the level of suspicion required for probable cause. P. 7.

(b) The Court of Appeals' two-part test creates unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment. Under this Court's decisions, the totality of the circumstances must be evaluated to determine the probability, rather than the certainty, of criminal conduct. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621. The Court of Appeals' test draws an unnecessarily sharp line between types of evidence, the probative value of which varies only in degree. While traveling under an alias or taking an evasive path through an airport may be highly probative, neither type of evidence has the sort of ironclad significance attributed to it by the Court of Appeals, because there are instances in which neither factor would reflect ongoing criminal activity. On the other hand, the test's "probabilistic" factors also have probative significance. Paying $2,100 in cash for airline tickets from a roll of $20 bills containing nearly twice that amount is not ordinary conduct for most business travelers or vacationers. The evidence that respondent was traveling under an alias, although not conclusive, was sufficient to warrant consideration. Of similar effect is the probability that few Honolulu residents travel for 20 hours to spend 48 hours in Miami during July. Thus, although each of these factors is not by itself proof of illegal conduct and is quite consistent with innocent travel, taken together, they amount to reasonable suspicion that criminal conduct was afoot. Pp. 7-10.

(c) The fact that the agents believed that respondent's behavior was consistent with one of the DEA's "drug courier profiles" does not alter this analysis, because the factors in question have evidentiary significance regardless of whether they are set forth in a "profile." P. 10.

(d) The reasonableness of the decision to stop does not, as respondent contends, turn upon whether the police used the least intrusive means available to verify or dispel their suspicions. Such a rule would unduly hamper the officers' ability to make on-the-spot decisions here, respondent was about to enter a taxicab—and would require courts to indulge in unrealistic second-guessing. Florida v. Royer, 460 U.S. 491, 495, 103 S.Ct. 1319, 1322-23, 75 L.Ed.2d 229, distinguished. Pp. 10-11.

831 F.2d 1413 (CA9 1987), reversed and remanded.

REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 11.

Paul J. Larkin, Jr., Washington, D.C., for petitioner.

Robert P. Goldberg, Honolulu, Hawaii, for respondent.

Chief Justice REHNQUIST delivered the opinion of the Court.

Respondent Andrew Sokolow was stopped by Drug Enforcement Administration (DEA) agents upon his arrival at Honolulu International Airport. The agents found 1,063 grams of cocaine in his carry-on luggage. When respondent was stopped, the agents knew, inter alia, that (1) he paid $2,100 for two airplane tickets from a roll of $20 bills; (2) he traveled under a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours, even though a round-trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his trip; and (6) he checked none of his luggage. A divided panel of the United States Court of Appeals for the Ninth Circuit held that the DEA agents did not have a reasonable suspicion to stop respondent, as required by the Fourth Amendment. 831 F.2d 1413 (CA9 1987). We take the contrary view.

This case involves a typical attempt to smuggle drugs through one of the Nation's airports.¹ On a Sunday in July 1984, respondent went to the United Airlines ticket counter at Honolulu Airport, where he purchased two round-trip tickets for a flight to Miami leaving later that day. The tickets were purchased in the names of "Andrew Kray" and "Janet Norian" and had open return dates. Respondent paid $2,100 for the tickets from a large roll of $20 bills, which appeared to contain a total of $4,000. He also gave the ticket agent his home telephone number. The ticket agent noticed that respondent seemed nervous; he was about 25 years old; he was dressed in a black jumpsuit and wore gold jewelry; and he was accompanied by a woman, who turned out to be Janet Norian. Neither respondent nor his companion checked any of their four pieces of luggage.

After the couple left for their flight, the ticket agent informed Officer John McCarthy of the Honolulu Police Department of respondent's cash purchase of tickets to Miami. Officer McCarthy determined that the telephone number respondent gave to the ticket agent was subscribed to a "Karl Herman," who resided at 348-A Royal Hawaiian Avenue in Honolulu. Unbeknownst to McCarthy (and later to the DEA agents), respondent was Herman's roommate. The ticket agent identified respondent's voice on the answering machine at Herman's number. Officer McCarthy was unable to find any listing under the name "Andrew Kray" in Hawaii. McCarthy subsequently learned that return reservations from Miami to Honolulu had been made in the names of Kray and Norian, with their arrival scheduled for July 25, three days after respondent and his companion had left. He also learned that Kray and Norian were scheduled to make stopovers in Denver and Los Angeles.

On July 25, during the stopover in Los Angeles, DEA agents identified respondent. He "appeared to be very nervous and was looking all around the waiting area." App. 43-44. Later that day, at 6:30 p.m., respondent and Norian arrived in Honolulu. As before, they had not checked their luggage. Respondent was still wearing a black jumpsuit and gold jewelry. The couple proceeded directly to the street and tried to hail a cab, where Agent Richard Kempshall and three other DEA agents approached them. Kempshall displayed his credentials, grabbed respondent by the arm, and moved him back onto the sidewalk. Kempshall asked respondent for his airline ticket and identification; respondent said that he had neither. He told the agents that his name was "Sokolow," but that he was traveling under his mother's maiden name, "Kray."

Respondent and Norian were escorted to the DEA office at the airport. There, the couple's luggage was examined by "Donker," a narcotics detector dog, which alerted on respondent's brown shoulder bag. The agents arrested respondent. He was advised of his constitutional rights and declined to make any statements. The agents obtained a warrant to search the shoulder bag. They found no illicit drugs, but the bag did contain several suspicious documents indicating respondent's involvement in drug trafficking. The agents had Donker reexamine the remaining luggage, and this time the dog alerted on a medium-sized Louis Vuitton bag. By now, it was 9:30 p.m., too late for the agents to obtain a second warrant. They allowed respondent to leave for the night, but kept his luggage. The next morning, after a second dog confirmed Donker's alert,...