GEORGE P. POLLACK, PETITIONER V. UNITED STATES OF AMERICA No. 90-5363 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A17) is reported at 895 F.2d 686. JURISDICTION The judgement of the court of appeals was entered on February 1, 1990. A petition for rehearing was denied on April 29, 1990. The petition for a writ of certiorari was filed on August 3, 1990, and is therefore out of time under Rule 13.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether Border Patrol agents had reasonable suspicion to stop petitioner's car. 2. Whether the agents, after stopping the car, had probable cause to arrest petitioner and search the car. STATEMENT After a jury trial in the United States District Court for the District of New Mexico, petitioner was convicted on one count of possession of marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced under the Sentencing Reform Act of 1984 to a term of 18 months' imprisonment, to be followed by a two-year term of supervised release. The court of appeals affirmed. Pet. App. A1-A17. 1. The evidence adduced at the pretrial suppression hearing and trial showed that at approximately 3:00 a.m. on May 6, 1989, a red Datsun pickup arrived at the United States Border Patrol checkpoint on northbound Interstate I-25, in Truth or Consequences, New Mexico. The occupants of the truck, after identifying themselves as United States citizens, asked Agents Carroll and Sanchez for the nearest gas station north of town. The agents told them that the gas station in that direction was 70 miles away, but that there was one back at Truth or Consequences. About 45 minutes later, after the truck had driven away, the agents had two simultaneous "hits" on Sensor 1185. That sensor covered old Highway 85, a well-documented alien smuggling route that circumvents the Border Patrol checkpoint on the interestate. /1/ The two "hits" showed that two vehicles were travelling one behind the other. Pet. App. A2-A3. Agents Carroll and Sanchez then drove to the interchange that intersects Highway 85 and the interstate in order to intercept the vehicles. At the interchange, the agents saw the red Datsun pickup followed closely by a 1972 Buick with Colorado plates. The agents considered the Buick suspicious for several reasons: the car's size made it capable of carrying a load of passengers, the car "appeared to be heavily loaded and riding lower in the rear end," and "Colorado is a common destination for loads of illegal aliens." Pet. App. A3. The agents thus believed that the Buick's appearance together with the pickup's actions -- driving through the checkpoint, finding a reason to return to Truth or Consequences, and then driving back north through a route that circumvents the checkpoint -- "was a classic alien-smuggling pattern." Ibid. As the Buick tried to enter the interstate northbound, the agents stopped the car and asked petitioner, the driver, for identification. Petitioner nervously produced a Colorado driver's license and explained that the "car belonged to someone else." Pet. App. A4. Agent Sanchez, after noting that the back seat appeared to contain a lot of trash, asked petitioner for consent to search the trunk. Petitioner refused, telling Agent Sanchez that he "needed a search warrant to look into the trunk." Id. at A3. Agent Sanchez then left Agent Carroll to stay with petitioner and pursued and stopped the Datsun pickup. For safety reasons, the agents directed both vehicles and their occupants back to the checkpoint. There, the agents opened the trunk of the Buick and seized a dufflebag that contained marijuana. Id. at A3-A4; Tr. 15-19. 2. Before trial, petitioner filed a motion to suppress the marijuana, contending that the agents' initial stop of his car and later search of its contents violated the Fourth Amendment. After a hearing, the district court denied that motion. Pet. App. A6-A7; Tr. 82-86. 3. The court of appeals affirmed. Pet. App. A1-A17. The court found that the undisputed facts establish that (petitioner) was stopped between 3:00 and 3:45 a.m. on a well-documented alien smuggling route; (petitioner) was driving a large vehicle capable of hauling a large number of people; (petitioner) was intercepted after road sensors indicated two vehicles traveling one behind the other on a highway circumventing the Border Patrol checkpoint * * *; the red Datsun pickup traveling directly in front of (petitioner) had originally gone to the checkpoint, found a reason to return to Truth or Consequences, and thereafter had come back north through the smuggling route, followed by (petitioner), circumventing the checkpoint in a classic alien smuggling pattern; traffic was very unlikely on Highway 85 (at that time); and, at that hour, a very, very small percentage of traffic stopped on Highway 85 was legitimate traffic. Id. at A11. These factors, the court held, "when considered in the aggregate * * * gave rise to a reasonable suspicion justifying stopping (petitioner)." Ibid. Turning to petitioner's contention that the agents lacked probable cause to arrest him, the court held that the following facts established the requisite level of proof: after the stop, "petitioner's hands were shaking; the car appeared to be heaily loaded; * * * the back bumper was lower than the front bumper, and (Agent Sanchez) was relatively sure that there was a load in the trunk of the Buick." Pet. App. A12. And the court concluded that "(i)nasmuch as Agent Sanchez had probable cause to arrest (petitioner), the search of his car incident to that arrest was lawful." Id. at A13 (citations omitted). /2/ ARGUMENT 1. Petitioner contends (Pet. 9-17) that, on the record presented, the agents lacked reasonable suspicion to stop his car. As this Court has made plain, an assessment of reasonable suspicion -- in the border patrol context -- involves any number of factors giving rise to a determination that criminal smuggling activity may be afoot, including the characteristics of the area at issue, the area's proximity to the border, past incidents of alien traffic, the appearance of the vehicle under surveillance, and the driver's behavior. E.g., United States v. Brignoni-Ponce, 422 U.S. 873, 884-885 (1975); United States v. Cortez, 449 U.S. 411, 418 (1981); see also United States v. Sokolow, 109 S.Ct. 1581, 1585 (1989). In light of these governing standards, petitioner's fact-specific challenge is meritless. The court of appeals, like the district court, specifically determined that petitioner was stopped between 3:00 and 3:45 a.m. on a well-documented alien smuggling route; (petitioner) was driving a large vehicle capable of hauling a large number of people; (petitioner) was intercepted after road sensors indicated two vehicles traveling one behind the other on a highway circumventing the Border Patrol checkpoint * * *; the red Datsun pickup traveling directly in front of (petitioner) had originally gone to the checkpoint, found a reason to return to Truth or Consequences, and thereafter had come back north through the smuggling route, followed by (petitioner), circumventing the checkpoint in a classic alien smuggling pattern; traffic was very unlikely on Highway 85 (at that time); and, at that hour, a very, very small percentage of traffic stopped on Highway 85 was legitimate traffic. Pet. App. All; see Tr. 82-86. In these circumstances, the lower courts' conclusions that the agents had reasonable suspicion to stop petitioner's car are unexceptionable. 2. Contrary to petitioner's submission, the court of appeals' decision does not conflict with a trio of Fifth Circuit decisions -- United States v. Melendez-Gonzalez, 727 F.2d 407 (1984), United States v. Lamas, 608 F.2d 547 (1979), and United States v. Frisbie, 550 F.2d 335 (1977). First, the Fifth Circuit -- like the Tenth Circuit below, Pet. App. A7-A10 -- uses the multi-factor test endorsed by this Court in United States v. Brignoni-Ponce, supra. See Melendez-Gonzalez, 727 F.2d at 410-411; Lamas, 608 F.2d at 548-549; Frisbie, 550 F.2d at 337. Second, none of those decisions involved a comparable record showing that another vehicle had been on a scouting mission for the car subject to the stop. /3/ Indeed, in a more recent decision, the Fifth Circuit distinguished cases such as Melendez-Gonzalez and Frisbie, noting that the car at issue was involved in precisely such a "double-back" pattern indicative of smuggling. United States v. Espinoza-Seanez, 862 F.2d 526, 530-532 (1988). 3. Finally, petitioner contends (Pet. 17-19) that the agents, after stopping the car, lacked probable cause to arrest him and then search the car. Here, the agents had a reasonable suspicion that petitioner was committing a crime when they stopped his car. Further investigation revealed that petitioner's car was heavily loaded; that petitioner did not own the car that he was driving; and that he was nervous during questioning. At that point, the agents had probable cause to believe that petitioner's car contained illegal aliens or contraband in the trunk. See, e.g., United States v. Espinoza-Seanez, 862 F.2d at 533 (reasonable suspicion to stop car followed by suspect's nervousness during questioning and false explanation gave officers probable cause to arrest). /4/ And armed with the requisite probable cause, the agents were entitled to search petitioner's car without first obtaining a warrant, e.g., United States v. Ross, 456 U.S. 798 (1982), and to delay that search -- for reasons of safety -- until they had returned to the checkpoint, e.g., Texas v. White, 423 U.S. 67 (1975). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS E. BOOTH Attorney OCTOBER 1990 /1/ Highway 85 parallels the freeway and then connects with the freeway approximately two miles north of the checkpoint. Pet. App. A2-A3. Agent Sanchez was familiar with Highway 85, having served his entire ten-year career with the Border Patrol at the Truth or Consequences checkpoint. Id. at A4. /2/ In the alternative, the court held that even if the agents had not arrested petitioner until after the seizure of marijuana, "the actions of the agents did not exceed the limits of a lawful investigative detention." Pet. App. A16 (citing United States v. Sharpe, 470 U.S. 675, 676 (1985)). /3/ In Melendez-Lopez, for example, the court of appeals held that the agents lacked reasonable suspicion based solely on the facts that vehicles were travelling together on a known smuggling route and that one of the vehicles was "supposedly 'riding low.'" 727 F.2d at 412. And both the Lamas and Frisbie decisions involve similar sets of circumstances. See 608 F.2d at 549-550; 550 F.2d at 338. /4/ Since petitioner contests the court of appeals' holding with respect to probable cause, his reliance (Pet. 17-19) on United States v. Sokolow, supra, is wide of the mark.