UNITED STATES v. SOKOLOW

Transcript: 

ORAL ARGUMENT OF PAUL J. LARKIN, JR. ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument first this morning in Number 87-1295, United States against Andrew Sokolow.

Mr. Larkin, you may proceed whenever you are ready.

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

This case stems from the detention of Respondent outside the Honolulu airport on the ground that he was suspected of narcotics trafficking.

The question presented by this case involves the type of evidence on which a law enforcement officer may rely in making that type of judgment.

It's our submission that the reasonable suspicion inquiry in this context should be answered in the same way that that question is answered in any other context, by looking to the totality of the circumstances, viewing the facts in a common sense manner, and giving weight to the reasonable inferences that a trained and experienced law enforcement officer can draw.

Respondent was detained just as he was about to board a cab outside the Honolulu airport.

At that time the agents knew the following: They knew that Respondent had purchased two round trip open return tickets from Honolulu to Miami for $2,100 by handing the airline ticket agent a $4,000 roll of $20 bills.

The agents knew that Respondent had just spent 20 hours flying 12,000 miles to spend only two days at his destination, which happens to be the nation's principal source city for cocaine.

The agents had reason--

Unidentified Justice: I didn't understand that.

I, I thought it was an open ticket coming back?

Mr. Larkin: --Yes.

At the time they stopped him, they knew he had only spent two days in Miami.

Unidentified Justice: And when they stopped him in Los Angeles you mean?

Mr. Larkin: Well, they stopped him in Los Angeles on the same day that they stopped him in Honolulu.

Unidentified Justice: How did they know... how did the police in Los Angeles know this man was coming back on this flight?

Mr. Larkin: It's not clear from the record who first told them.

It's clear that they told the people in Honolulu that Respondent was seen in the waiting area waiting for a connecting flight from L.A. to Honolulu, but it's not clear who exactly--

Unidentified Justice: The record doesn't--

Mr. Larkin: --told them that Respondent may have been coming back on that day.

They knew; that is, the agents in Honolulu knew on July 24th that Respondent had booked a flight to return on July 25th, the following day.

It's possible, then, that the agents in Honolulu may have told the agents in L.A. to be on the lookout.

Unidentified Justice: --Well, I suppose... how did they know... when did they find out that he was going to make the return flight... that he booked the flight on the 24th and came back on the 25th?

Mr. Larkin: Let me explain it this way.

He left on the 22nd of July.

Unidentified Justice: Right.

At that time with an open ticket.

Mr. Larkin: Open ticket.

On the 24th, they learned that he had booked a return for the following day, the 25th.

Unidentified Justice: And how did they learn that?

Mr. Larkin: That's not clear from the record.

Unidentified Justice: That's what I was trying to trace.

Okay.

Mr. Larkin: At the time the Respondent was stopped, the agents also had reason to suspect that he was traveling under an alias because there was a discrepancy between the name that he gave to the airline and the name listed for the telephone number at which Respondent's voice was on an answering machine.

The agents also knew the Respondent appeared nervous when he first purchased his tickets in Honolulu, and that he appeared nervous and was looking all around the waiting area in the L.A. airport awaiting a connecting flight back.

The agents also knew the Respondent had purchased his tickets shortly before his departure from Honolulu and that he and his companion had checked none of their four bags for either leg of their journey.

From all of those facts, a trained and experienced law enforcement officer could draw the following four inferences.

Unidentified Justice: Can I ask you another question?

Do you have to be a trained and experienced law enforcement officer to draw those inferences?

Mr. Larkin: I think it certainly helps because it cuts down on the time necessary for someone to go through the process.

We, for example, in our brief have explained in detail why each of these factors is relevant.

A law enforcement officer with the type of experience that these people had doesn't need to write that out or go through the detail that we did.

You can easily, if you have the experience that these people have, make that judgment.

Now, if you were a new law enforcement officer and had been trained by other people who are experienced to look for these certain factors, then a new law enforcement officer making a common sense judgment in a case like this where the evidence is this strong, I think, could easily reach the same conclusion.

So, the difference is really, I guess, just a matter of time.

It's intuitive for someone with the type of experience that these law enforcement officers had.

But for someone who may be new, I think he would certainly come to the same conclusion, but he may just have to think about it a little.

Unidentified Justice: Well, along the same lines, how many of these items do you need?

Mr. Larkin: Only three.

Unidentified Justice: What three?

Mr. Larkin: The cash purchase of airline tickets, the 12,000 mile trip and the 20 hours in the air for only a two day stay at the destination, and the fact that the destination was Miami.

In our view, those three facts alone amount to reasonable suspicion because they make it unlikely that someone traveled for a business reason.

They make it unlikely that someone traveled for a vacation.

Unidentified Justice: He was on business, all right.

[Laughter]

Mr. Larkin: He was, but let me say legitimate business reason, then.

Unidentified Justice: You don't use nervousness any more, do you?

Mr. Larkin: No.

It is a factor among others.

Unidentified Justice: I mean, since these crashes every other day, I don't think you use nervousness any more, do you?

Mr. Larkin: Well... it depends.

It's a factor that has to be looked at in context.

There are numerous air travelers who are nervous, and we're not arguing that nervousness by itself in an airport is indicative of criminal conduct.

Unidentified Justice: You're really arguing with gut reaction, aren't you?

Mr. Larkin: I'm sorry, Your Honor?

Unidentified Justice: You know what a gut reaction is?

Mr. Larkin: Yes.

Unidentified Justice: Isn't that really what you're arguing?

Mr. Larkin: That's, that's another way of describing intuition, and intuition is something that is built on experience and training.

Unidentified Justice: Can't find intuition anyplace in the Constitution, can you?

Mr. Larkin: Well, It's part of the type of judgment that this court in Terry said, a reasonable officer is entitled to take into account.

Unidentified Justice: All right.

Terry was no intuition.

Terry was... the man was standing there, locking, casing the joint.

Mr. Larkin: Well, here you have a different type of facts because you have a different type of crime.

Smuggling is a crime of stealth.

It's not like a bank robbery or a package store robbery.

All that's necessary to complete the crime of smuggling is concealment and escape.

Someone who is experienced, therefore, has to be able to draw on a variety of different subtle clues.

That's the type of clues that this... these officers drew on, and they drew, as I started to say, the following four inferences.

First, Respondent did not--

Unidentified Justice: May I ask one other question.

Don't you need a inference... fourth factor in order to make your, your trio hold up, and that is the absence of any apparent justification?

For example, if on Super Bowl weekend someone flew from Honolulu to Miami and back, and they, they had a pretty obvious explanation for a three-day trip, I suppose.

Mr. Larkin: --Yes, if, if there was--

Unidentified Justice: So, don't you need that, at least, also?

Mr. Larkin: --Yes.

There, there, there was in this case no sort of obvious, apparent explanation.

Unidentified Justice: Might he not argue a motion in an important case, or something like that?

Mr. Larkin: Well, the cash purchase of airline tickets might, I think, be a reasonable explanation for why there was no business trip.

Unidentified Justice: But you said you needed... you wouldn't say every cash purchase is enough?

Mr. Larkin: No.

No, no.

Unidentified Justice: You had the three things: You had the cash purchase, the short period of time for a long trip, and Miami.

Mr. Larkin: Well, for example, a lot of people use cash to purchase a ticket on a shuttle going from New York to Washington, so we're not saying that the simple fact that someone has paid for a ticket in cash is necessarily indicative of criminal conduct.

But this was a $2,100 purchase out of a $4,000 roll of $20 bills.

Unidentified Justice: Are you sure that that alone wouldn't be enough?

I mean, that's rather extraordinarily, isn't it, just handing over to somebody a $4,000 roll of $20 bills?

Mr. Larkin: It is rather extraordinary, and one of the striking features about this case is that's the sort of conclusion the Court of Appeals said in its first opinion.

In its first opinion in this case, it said that the cash purchase of airline tickets by itself was cause for reasonable suspicion.

One of the most striking features of the two opinions the Court of Appeals issued in this case, was by the time the court got to its second opinion, that fact had dropped out entirely; and the court gave it no weight at all.

Unidentified Justice: Well, I wouldn't even put it the cash purchase alone.

I, I suppose if for some reason if he had two $1,000 bills and a $100 bill, it wouldn't trouble me so much.

It's just a $4,000 roll of 20s.

[Laughter]

Mr. Larkin: I can't disagree with you on that, Your Honor.

[Laughter]

The four inferences that are reasonable to draw in this case are: The Respondent didn't travel on business for precisely the reason you gave.

Business travelers normally use a credit card or a travel agency to make their trips.

They don't normally pay with a $4,000 roll of $20 bills.

The second inference that is unlikely, Respondent went for a vacation.

Few people who live in Honolulu are going to take a summer vacation in Miami, but fewer still are going to travel 12,000 miles and 20 hours just to spend two days there.

Unidentified Justice: Are we going to hear the argument that even if the curbside stop was legitimate, the subsequent detention and removal of the Petitioner to the customs area was not?

Mr. Larkin: I'm not going to address that... the arguments... the issues that arose after the initial detention because we did not present those to this Court in our certiorari petition.

The dissent below, Judge Wiggins addressed those issues, but the majority did not.

If this court were to reverse the judgment of the Court of Appeals, those sorts of issues would be open for reconsideration on remand.

But we do believe--

Unidentified Justice: So, all we have before us is the curbside stop and that if you prevail on that, we then remand?

Mr. Larkin: --Correct.

If the detention was valid under Terry, then the remaining issues would have to be addressed below, and there is nothing in the Court of Appeals majority opinion that addresses them.

Unidentified Justice: And the whole case on the invalidity of the stop?

Mr. Larkin: Correct.

The third inference that an officer could draw is that Respondent didn't travel for another innocent personal reason, like going to the Super Bowl.

Most people who go to the Super Bowl or to a wedding or a funeral are not likely to use an alias, and the agents had reasonable reason to suspect the Respondent was doing so.

Unidentified Justice: Well, they also go in January and not July.

[Laughter]

Mr. Larkin: That's right.

The only reasonable inference, the fourth one I'd like to mention, is that Respondent was smuggling cocaine back into Hawaii.

That, in fact, is the only inference that accounts for all of the facts that were known to the officers in this case.

Now, Respondent has argued that that inference is unreasonable basically for two reasons.

One is that it could have been wrong and another is that each of the facts on which the agents relied could have an innocent explanation.

Both of those arguments, in our view, are foreclosed by well settled case law in this court.

It's well settled in cases such as Cortez and Gates that all the facts must be considered.

And that is, in fact, what the DEA agent, Agent Kempshall, did in this case, as he testified at pages 59 to 61 of the suppression hearing transcript.

He considered all of the facts because he said there may be an innocent explanation for each fact when each fact on a trip is considered.

It's also settled law that an agent need not conclusively prove that a person is in possession of narcotics.

Terry only requires that a rational, objectively based inference be used to support an intention.

Now, the Court of Appeals disagreed with us both as to the bottom line and as to the reasoning.

According to the Court of Appeals, the central flaw in our position was that the government had, and I'm quoting,

"unwittingly equated evidence of behavior that a criminal may engage in with behavior indicating an ongoing crime. "

To remedy that type of error the Court of Appeals created a new reasonable suspicion test.

It consists of two categories.

The first category of evidence consists of evidence of what the Court of Appeals believes was an ongoing crime, such as the use of an alias.

The second category which the Court of Appeals termed probabilistic evidence consists of conduct that a drug courier may engage in, such as the cash purchase of airline tickets.

The Court of Appeals then set up a mechanism for analyzing the evidence once it's fit into one of these two categories.

To establish reasonable suspicion, the government must prove at least one factor from the first category.

Factors from the second category only serve to confirm or refute the presence of reasonable suspicion based on evidence from the first category.

But even to serve that limited confirmatory function, the government must first show that the factors on which it relies have statistical or empirical validity in that they describe only someone who is presently engaged in criminal activity and not someone who is merely a criminal or who is innocent of any crime.

Otherwise, all the factors that fit into category two, such as the ones I mentioned before, are in the Court of Appeals' terms irrelevant to the suspicion analysis.

The Ninth Circuit applied that test in this case in a very mechanical way.

It said that there was no evidence that Respondent was using an alias.

It then went on to say there was no evidence that Respondent's nervousness was due to fear of apprehension rather than fear of a mid-air collision.

At that point it stopped its analysis entirely.

It didn't consider any of the remaining evidence even though in its first opinion it said the cash purchase alone was close to establishing reasonable suspicion.

Now, no decision by this Court remotely suggests that the facts should be pigeonholed into two categories in this manner.

The Cortez case and the Gates case to us seem to make clear that all of the facts must be considered.

Unidentified Justice: Well, Gates suggests quite the opposite, doesn't it, that the Court does not favor hairsplitting when you're talking about reasonableness of Fourth Amendment, that you don't divide it into a whole bunch of legal categories.

Mr. Larkin: Precisely.

The Gates case made that point in the context of the probable cause determination, and the same point applies even more forcefully in the reasonable suspicion context.

Unidentified Justice: Mr. Larkin, what worries me is why a man of just ordinary intelligence, knowing about these profiles, and any courier certainly must know about them, why they would lay themselves open to it?

Mr. Larkin: Well, Your honor, It's difficult to answer that.

Unidentified Justice: I mean the $2,400... $4,000 in $20 bills.

He should have known about that.

Mr. Larkin: It certainly wasn't very smart for him to go about paying for the tickets that way.

Unidentified Justice: You know, it reminds me of the cases where the thugs always have their TV set they've stolen sitting right in the window so the police can see it.

Mr. Larkin: Well, to the extent what you're concerned about is that these... the facts that we have here may not be the facts that occurred in the real world.

That's a question for the District Court to handle because those sorts of matters are questions of historical fact.

The defendant has the opportunity to testify.

He has the opportunity to cross-examine the officers.

Unidentified Justice: Right.

Mr. Larkin: And the District... and he has the opportunity to persuade the District Court that the officers' story is an after-the-fact fabrication.

The Defendant had that opportunity in this case, and the District Court found against him.

Unidentified Justice: I guess we're getting stupid drug couriers off the street.

[Laughter]

Mr. Larkin: The Court of Appeals test is arbitrary because there is no material difference between the types of facts that fit into category one and category two.

There's no difference in a material sense between a fact like the use of an alias and the fact like a cash purchase of airline tickets, although the Court of Appeals described the second type of fact as only a probabilistic fact.

All evidence is probabilistic.

The appropriate question, as the court made clear in the Gates case, is not whether conduct is innocent or guilty, but is the degree of suspicion that attaches to certain types of conduct.

The Court of Appeals test is erroneous for another reason as well.

It leaves no room for the judgment of experienced officers, and the officers in this case had considerable experience.

Two of them alone, Officer McCarthy, the Honolulu police officer who was first approached by the United Airlines ticket agent, and the DEA agent who made the detention, Agent Kempshall--

Unidentified Justice: Mr. Larkin, the thing that bothers me about your relying on the expertise of the officer, doesn't he have to have reasonable... even the expert officer has to have reasons he can articulate and that you can review.

It would not be enough to say I've been in this business 50 years, and I think I can spot... I can smell a drug courier?

That wouldn't be enough, would it?

Mr. Larkin: --No.

That would be what the court--

Unidentified Justice: Doesn't he have to have reasons that he can state and a judge can listen to and decide whether they constitute reasonable suspicion?

Mr. Larkin: --Well, he has to be able to point to the facts that he believes were suspicious.

Unidentified Justice: And if those facts aren't enough, would the fact that he'd been in the business for 50 years make a difference?

Mr. Larkin: No.

Unidentified Justice: Then I really don't see how you can rely on this expertise argument at all.

He's an expert in spotting things.

He can tell us what they are.

But if what he tells us doesn't persuade us, the fact that he's an expert, I don't see adds, adds anything to your case.

Mr. Larkin: Well, it's in the last step and whether what he says is persuasive.

Unidentified Justice: That's right.

Mr. Larkin: He can... he can explain and make judgments based on his experience as to why a particular fact is significant.

Unidentified Justice: And then the court later has a duty to decide whether that judgment based on those facts amounts to reasonable suspicion.

I don't think it becomes more reasonable because he's been in the business 50 years.

Mr. Larkin: Well, the judge has the independent duty to decide whether these facts are reasonable or not.

Unidentified Justice: But it seems to me if they're reasonable, they're reasonable if he's a brand new officer.

Mr. Larkin: Well, it can in certain, certain cases where the facts are this obvious amount to that.

But where the facts may be more subtle, where... where the officer relies on a fact that maybe the District Court would not on its own have thought suspicious, the officer could explain that.

Unidentified Justice: But he has to be able to explain it, doesn't he?

Mr. Larkin: That's right.

Unidentified Justice: He can't just say I, I can... I can smell drug couriers.

Mr. Larkin: No.

That's absolutely right.

That would be the type of unarticulated hunch that is insufficient under Terry.

My, my point about experience is that if--

Unidentified Justice: Even a man who's been in the business for 30 years can't get away with pure hunches.

Mr. Larkin: --Absolutely.

Unidentified Justice: All right.

Mr. Larkin: Now, the only explanation for the Court of Appeals' very mechanical test is that it believed the DEA agents were also relying on a very mechanical test.

The Court of Appeals believed that the agents were relying on a drug courier profile that contained a variety of different characteristics that the agents just mechanically used in selecting people at an airport.

That's not true in this case, and it's not true in general.

In this case, Agent Kempshall testified, and his testimony is reprinted at page 59 of the Joint Appendix, that he relied on the totality of the circumstances, and he did so, as he explained on pages 60 to 61, because individual factors may have an innocent explanation.

DEA agents in general are taught to approach the problem that way.

They're not taught just to engage in a checklist sort of analysis of the facts.

Now, when they are taught what to look for, some of the factors that they are taught to look for are factors that have proven reliable to other agents.

But that is the same way police officers operate in any other type of context.

It would be irrational to denigrate an officer's judgment on the ground that what he saw in a particular case and what he believed to be suspicious had also been seen in other cases and had been found by other agents equally suspicious.

In fact, what's ironic about the Ninth Circuit's test is that if the Ninth Circuit was responding to what it believed was a drug courier profile, then the Ninth Circuit's opinion created its own drug courier profile in an attempt to respond.

The Court of Appeals created two categories of evidence.

It required that all the evidence be put into one category or the other, and then it adopted a very mechanical means of analyzing all the facts.

For all the reasons we have given, that type of approach is worse than anything the Court of Appeals feared that the agents engaged in.

In fact--

Unidentified Justice: Mr. Larkin, I, I... we've had a lot of these cases like this around here.

Does the government view this, this airport stop... is it really an important tool in the... in trying to stop the drug traffic?

Mr. Larkin: --Yes, it is, Your Honor.

Airports are used to traffic in drugs because they're the quickest way to travel from point A to point B.

Unidentified Justice: But I just wonder how often it... how often it really... how often using this profile comes up with anything.

Mr. Larkin: Well, the agents normally are taught to use the factors to help distinguish--

Unidentified Justice: Well, I know, but how often does it bear fruit?

Mr. Larkin: --We don't... the DEA does not have statistics on the general number nationwide of stops that are engaged in for the time.

Unidentified Justice: But I suppose if they, if they... it really was a... produced something very rarely, they wouldn't put all this manpower into it.

Mr. Larkin: No.

It has been very effective.

For example, it--

Unidentified Justice: Well, how do you know?

You say there isn't any statistics.

Mr. Larkin: --Well, they have some general impressionistic judgments based, for example, in the L.A. airport, on the amount of money that they have obtained over the past several years.

They've obtained several million dollars in cases like this because the money is... if it's associated with narcotics trafficking is later forfeited.

So, they don't have any precise statistics, and certainly not the type of statistics the Ninth Circuit demanded in this case.

But it is the judgment of the people at the Drug Enforcement Administration it has been a very valuable program because it has allowed them to intercept narcotics trafficking at a point above the more traditional undercover operation, but below that of the massive type of importations that can occur by ship.

My final point is this.

At the end of the day, the Ninth Circuit's analysis is precisely the type of analysis that this Court rejected in the Gates case.

For all the reasons we have given in our brief and the reasons I have tried to summarize here today, that analysis adopted by the Ninth Circuit is not only inconsistent with this Court's precedents and principles, it's inconsistent with any common sense approach to this problem.

Unless the Court has any further questions, I have nothing further to add.

Chief Justice William H. Rehnquist: Thank you, Mr. Larkin.

Mr. Goldberg, we'll hear now from you.

ORAL ARGUMENT OF ROBERT P. GOLDBERG ON BEHALF OF THE RESPONDENT

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

My first address... the issue of the totality of the circumstances.

The Solicitor General has suggested that Ninth Circuit did not use the Gates test or the totality of the circumstances in looking at the whole picture.

In fact, in looking at the Ninth Circuit opinion, it did state specifically just as Officer Kempshall did at the Honolulu International Airport, he considered the total picture.

He considered the totality of the circumstances.

In coming to that... in looking at the totality of the circumstances, he looked at each element.

And in looking at each element, gave it whatever weight or value he thought was appropriate, just like what the Ninth Circuit did.

The Ninth Circuit went one more step further in looking at these elements is that they looked at elements that were... that covered almost any innocent traveler and then they looked at those few elements that possibly showed criminal activity being afoot.

And they found that in the cases... in prior cases before this Court such criminal activity was use of an alias or possibly walking through an airport in such a manner as to try to hide their identity.

Unidentified Justice: Of course, that could conceivably be innocent.

You know, maybe you're trying to avoid your wife.

Mr. Goldberg: Absolutely, Your Honor.

Unidentified Justice: So, it really isn't any big difference in kind between the Ninth Circuit's two factors.

There really is just differences in degree, isn't it?

Mr. Goldberg: That is correct, Your Honor.

I feel that Ninth... how can we not look at the total picture without looking at each of the elements that make this picture be put together?

I find... and let me go one step in, in just responding to the questions put to Solicitor General.

Not everyone in this country are lucky enough to be able to have a credit card, and other of us maybe are afraid to have a credit card because maybe we don't know how to control ourselves.

There's no gambling in Honolulu, in Hawaii.

My mother lives in Florida.

On the flight over I was with another attorney whose mother was in Florida and he was going to visit her.

They have racetracks in Florida.

If you don't have a credit card, and if I was flying to... whenever I fly to Florida to visit my family, you know how... it would be difficult to cash a check.

I do take a lot of cash.

And hundred dollar bills are often difficult to spend.

Most places do not take them.

You have to go into a bank and get change for them.

In the hindsight, which is exactly what the government used in looking at these factors, we can come up with numerous purposes and reasons why an individual may carry a relatively small amount of cash, $4,000, when you consider the tickets were $2,100, especially if they intend to gamble, and people in Hawaii do enjoy gambling.

Unidentified Justice: Well, Mr. Goldberg, didn't the Court recognized in the Terry case that a collection of possibly innocent actions when viewed in their totality can, can amount to reasonable suspicion to justify a detention, I don't think the Court has ever said that any of the factors couldn't be innocent acts.

Mr. Goldberg: I... I do not disagree with Your Honor.

I would only suggest that I think in the Royer matter the factors were almost exactly similar to the Sokolow case except for a few... except it was even more damaging to Royer than it was to Sokolow.

And in that case, I believe, Justice Rehnquist and yourself indicated that without knowing that there was an alias, that the reasonable suspicion would not have been... that it would not have reached a basis of reasonable suspicion in order to justify a seizure.

In, in this case we have... I believe the government itself is saying that we're looking at the $2,100... $4,000.

The alias in this case is extremely interesting.

Rents in Hawaii are expensive.

Agent McCarthy testified below at the district court level that it's not unusual for individuals to share apartments.

It's almost a necessity.

He also testified when that occurred the telephone number was always in one of the two roommates' name.

Mr. Sokolow, if he's trying to hide his identity or trying to hide hisself by... in any manner, why does he give his correct telephone number?

He gives his correct telephone number, which immediately the agents know exactly where Mr. Sokolow lives.

They call up that telephone number and his voice is on the answering machine.

They know where he lives, they know his telephone number, they know where he's going, they know when he's returning.

There is no evidence indicative of an... of an attempt to use an alias here.

They did not know there was an alias until they grabbed him by the arm outside and pulled him up onto the sidewalk and sat him down and grabbed his girlfriend and told them they were going to take his bags in the back and search them.

There was no notice of an alias to that time.

Unidentified Justice: Excuse me.

I thought they... they had the phone number and they checked with the telephone company whose name that phone number was listed under.

Mr. Goldberg: It was in the name of Mr. Herman, Karl Herman.

Unidentified Justice: Didn't it appear to them at that time that he was using an alias?

Mr. Goldberg: When they called the telephone number, they recognized the voice--

Unidentified Justice: That's right.

Mr. Goldberg: --of the traveler.

Unidentified Justice: And that voice is coming from a phone number that is listed in the name... in a name different from the name that he gave to the travel agent.

Mr. Goldberg: That is correct.

Unidentified Justice: Now, they may have been wrong about whether he was using an alias, but it certainly seemed that he was using an alias, wouldn't you say?

Mr. Goldberg: I would... knowing Hawaii and Honolulu, I would suggest no.

I would suggest that it was indicative that there was possible a roommate or that possibly... one of the possibilities of the number of possibilities is he was using an alias.

Unidentified Justice: Sure, there are a lot of possibilities and for all of these things.

You can see a man walking into a bank with a gun in his hand, and he could... he could have a friend in there who's a gunsmith to clean it, but it's not likely.

And you put all of them together, and that's what builds the case.

Mr. Goldberg: I understand that, but I would suggest that in this case, as Agent McCarthy testified, it's not unusual for a telephone to be in one of a number of roommates' names.

Further, I believe what the government, the DEA or the... attempt to use these elements for is as an investigative tool, why can't they investigate?

Why wouldn't they go up to Mr.... Mr. Sokolow while he was in Los Angeles or while he was walking down the corridor?

Excuse me, sir, may I ask you a few questions?

Why couldn't they determine whether this was a one-bedroom or two bedroom residence?

They didn't do any investigation whatsoever.

Unidentified Justice: Because if... if they had done that, they would have only gotten the rest of the $4,000 that he had in his pocket which it's not illegal to carry.

They were obviously going to follow him and wait until he came back from Miami with... you know, with what he came back with.

I think that was pretty smart, don't you?

Mr. Goldberg: Well--

Unidentified Justice: Why should... why should they arrest him before he's committed the crime that they suspect him of, of, of engaging in?

Mr. Goldberg: --I, I believe if they... what remained of the $4,000 was approximately $1,900, which is not a very large amount of money to buy narcotics.

And if that was the circumstances, it would be more than likely that Hawaii, being a source city for marijuana, that he was carrying marijuana to Florida.

But they didn't stop him or arrest him at the airport in Miami.

Unidentified Justice: He wasn't necessarily buying it.

He was just carrying it for somebody else who already owned it at both points.

Mr. Goldberg: In, in hindsight, it is possible to come up with... to verify the hunch or suspicion or whatever it was that made this... made these individuals choose to stop Mr. Sokolow.

I believe one of the serious problems in this type of investigative tool is every one of us have inert prejudices.

Maybe someone reminds you of your ex-wife.

Maybe somebody reminds you of some kid that you had problems with once.

And something happens.

You go... something makes you draw their attention and you start looking around.

You go well, he is young, well he is about this age.

His hair is kind of long.

Well, he is paying cash for his ticket.

He only has carry-on baggage, which is indicative of a short trip anyway.

But the result of that is we are no longer... it's not just that we're not free to walk around anymore without being stopped.

It's now when I go into an airport... and my hair is short now... when I went to San Francisco, I paid cash for my ticket because I did not have a credit card, and I was afraid maybe there would be problems with my check and my hair was kind of long, I wore blue jeans and I carried a carry-on with my suit on it for the Ninth Circuit case.

And McCarthy and Kempshall testified that San Francisco is a source city.

And when I was at the airport I got nervous and I got nervous because I was afraid that I was hitting the profile and I was afraid that a DEA agent was going to approach me and give me a hard time.

I don't want to have to walk around with that fear.

I want to be able to walk around feeling I can be free from being messed with unless there's a really good reason for it.

Unidentified Justice: Fear of what?

In fear that, that a policeman will come up and ask if a dog can sniff your, your trunk?

I mean, isn't this all a matter of how much of a constraint upon all of our liberties we're willing to put up with in, in order to enable crime to be stopped.

And you, you think that is an excessive price to pay?

Mr. Goldberg: I think the fear or the paranoia that goes around... I don't think we have to... I don't think we should have to walk around thinking of the government intruding on our lives.

Unidentified Justice: I don't mind a dog smelling my luggage at, at all if I'm not carrying drugs in it.

It really doesn't... it doesn't fill me with paranoia at all.

Mr. Goldberg: I believe if... if Your Honor, I'm sure if Your Honor was stopped in an airport that it would upset you.

I would assume that.

And the other question that's never really been asked is for giving up all these freedoms and rights, how much... and again for over ten years they've been using the so-called profile and they still don't have any percentages on right and wrong... how much have they actually, for us giving up these rights to walk around free... what have they actually taken off the streets in relationship to the tons of junk that's come into this country?

How much can you carry on your person in relationship to how much stuff is all over the place?

I'd like to know that, too.

I want to know what price I'm paying for giving up those rights.

Miami's a source city, San Francisco, Los Angeles, San... San Diego, Washington, we're all source cities.

I don't... I want to be able to walk around without worrying about the government intruding on my life, especially if somebody's just prejudiced against somebody who's young or who has long hair or maybe it's the wrong color or there's maybe an attractive female looks something like a female that turned you down for a dance the other night, who knows?

What evidence was there of actual criminal activity?

Unidentified Justice: Did you try this case?

Mr. Goldberg: Yes, I did, Your Honor.

When I tried the case I did--

Unidentified Justice: Didn't you make all of these arguments to the jury that you are now making?

Mr. Goldberg: --Your Honor, we made a conditional plea at the end of the suppression motion.

Unidentified Justice: Oh, that's right.

Yeah.

But you made the same arguments then?

Mr. Goldberg: Yes, I did, Your Honor.

We also argued that again, the facts in this case were so similar to Royer, and I believe... I believe Justice Blackmun stated that in Royer that... if in Royer there was not consent, then it would be much closer to Donna... U.S. versus Donna, is that Donna... if there is no consent, I believe as Justice Blackmun stated--

Unidentified Justice: Well, the case is here before us just on the curbside stop, is it not?

Mr. Goldberg: --It's here only in the case--

Unidentified Justice: So, we, we, we really don't get to the subsequent questioning and, and, and search of the luggage in the customs area.

Mr. Goldberg: --That is correct, Your Honor, but similar to, I believe, the Royer case where... I think it was Royer... where they did... where this court chose to determine that when he was held in a small room... in this case Sokolow was also taken to a small room.

If you hear the uncontroverted testimony in the transcript--

Unidentified Justice: But that's later.

All we're doing is talking about the curbside, as I understand it.

Mr. Goldberg: --That is correct, Your Honor.

Unidentified Justice: And the facts for the... supporting the initial detention, which we are examining, are virtually identical to Royer, aren't they?

Mr. Goldberg: Virtually identical, but even--

Unidentified Justice: So, why should... why should the Ninth Circuit reach a different result?

Mr. Goldberg: --I believe the Ninth Circuit did reach the same result because in the... you see, in this case you had an absolute, definite seizure at curbside.

Unidentified Justice: I thought the court found in Royer that there was sufficient cause for the initial detention.

It was what happened later.

Mr. Goldberg: The court was divided, Your Honor, on that.

I believe the... I'm sorry... my understanding of Royer was that Royer was determined... Royer was finally determined on the small room where, in fact, it was an arrest, even though it was not--

Unidentified Justice: That's right.

And as Justice O'Connor indicates, we stated quite clearly that cash, travelling under an assumed name, etcetera, was grounds for the initial stop and interrogation.

The plurality opinion so indicated.

And that's all we're dealing with here.

Mr. Goldberg: --That is correct.

But in that case as Your Honor stated that... the indication was that if there was not the use of the alias... and in this case they did not know there was an alias until after the seizure... unless you--

Unidentified Justice: Well, they certainly had reason to believe he was using an alias at the time of the detention, as you just explored with Justice Scalla.

Mr. Goldberg: --When he con... when they called and heard his name on the telephone machine.

Again, I would... as Justice Scalla stated, it would be a really stupid drug courier who gave out his telephone number and his address but then hid his name at the same time.

Unidentified Justice: But, you see, the Ninth Circuit had two categories, criminal characteristics that are apparently general characteristics, and indications of ongoing criminal activity.

But our cases don't support that, and it was very difficult for the Court of Appeals to use that.

They gave as an example a criminal trait, buying... going to a source city, as opposed to conduct, and so you can argue about that.

And it... and it seems to me that doing to a source city is conduct, considered together with all of the other factors in the case.

Mr. Goldberg: I believe that's what in my viewing the Ninth Circuit's opinion, they did state that things such as going to a source city, which in this case was dated San Francisco, Los Angeles, San Diego, Miami, et cetera, was something that a large group of innocent travelers do on a daily basis.

And that was placed in one grouping.

They placed a second grouping on facts that are... normally indicate criminal activity is afoot, and that is use of an alias.

Why would... although there's... in my brief I state there are a number of reasons why someone would use an alias for travel, anywhere from business to illicit affairs, none of which is, I believe, unconstitutional.

The use of an alias is something you look at.

Why is this individual looking?

Why is this person using a different name.

You don't think why is this person going to Chicago or Cleveland or Honolulu or Miami.

Miami happens to be a source city.

Miami also is a retirement city.

It's also a vacation city.

It may be a city where people choose to invest.

Any number of reasons.

Just because you go to Miami doesn't indicate any criminal activity.

The Ninth Circuit just considered that in coming and looking at the whole picture... at the totality.

They just considered that.

And after considering the totality of the circumstances, they felt there was no reasonable suspicion.

Unidentified Justice: Mr. Goldberg, do you know why we had two separate opinions in the Ninth Circuit by different justices, not concurring but successively different opinions?

Mr. Goldberg: This is... regarding to Judge--

Unidentified Justice: Well, the first one was by Judge Norris, as I recall, and the second one was by Judge Ferguson.

Mr. Goldberg: --I believe--

Unidentified Justice: The second prompted by the rehearing petition en banc which was not granted, but--

Mr. Goldberg: --If I... if I had to state yes, it was the initial opinion, Judge Norris was so upset at the fact that... and it was clear to him that the reason Mr. Sokolow drew attention was because he chose to dress in a certain manner.

And that upset him so much that people were no longer free to dress as they wished in black with gold, blue jeans, whatever, that that's where the initial opinion was written.

I think after the... after we... both sides had filed additional briefs, they reconsidered the case based on the totality of the circumstances.

And in looking at the totality of the circumstances they determined that... and even this case the government says quite... in their brief they say the way a person is dressed and his age... of course, being under 35 is half our population... is not really something to be considered very strongly.

Considered, yes, but not very strongly.

All of which is indicative of innocent behavior.

Unidentified Justice: --Well, maybe Justice Kennedy can help me out.

Mr. Goldberg: Possibly.

Justice Kennedy, I believe, was sitting at the time the Ninth Circuit made their decision.

Again, I would suggest that the purpose of these types of stops are to... are to use this as an investigative tool.

And I would suggest in this case there was no investigation.

And I believe, according to the DEA's own profile, what they... according to their own training, what they're supposed to do is not even stand in front of an individual to ask them some questions.

Walk to the side, may I ask you a few questions, not grab you by the arm, pull you on the curb, drag you in a room, a little room, search you, have a dog sniff one of four bags, three of which the dog said had nothing in them.

Nothing turns out in the bag the dog does alert to, and then hold the guy 13 more hours until they can get another dog to sniff the three other bags.

Unidentified Justice: I don't think that question is before the court, Mr. Goldberg.

Mr. Goldberg: Yes, Your Honor, Mr. Chief Justice.

Justice Brandeis stated in Olmstead that the very basis of being an American is the right to be left alone, to be free to go wherever we want to go without worrying about intrusions, and I would suggest that the government... we have after ten years of these types of situations... and, and Professor Cloud in his Boston Law Review article states real clearly that after ten years, there's no indication that all these officers work on is some inert prejudice because every officer's program is different than the other officers'.

Some stop women.

Some stop Hispanics.

Some stop blacks.

Some stop long-haired kids.

Some stop, et cetera.

And what do we know we're getting for this?

We don't know how much is taken off the market.

We don't know how successful they are.

If they were extremely successful, I would assume we'd have some really good statistics showing us how accurate the DEA is.

Judge King in his decision in this case on the District Court level said we hear about all their successes, but we never hear about their failures.

After ten years we still don't have no statistics.

I would only beg the court to consider that I feel... that we are giving up a very basic, basic right for returns we have no knowledge.

If there are no additional questions.

Unidentified Justice: Mr. Larkin, you have seven minutes remaining.

REBUTTAL ARGUMENT OF PAUL J. LARKIN, JR.

Mr. Larkin: Unless the members of the Court have any further questions, I have nothing further.

Unidentified Justice: I have just one that your opponent prompted.

He mentioned that San Francisco, San Diego, Los Angeles, Honolulu are all source cities.

Do we know how many source cities there are that could be substituted for Miami and produce the same result?

Mr. Larkin: It varies, Your Honor.

Miami, for example, is just one of the cities in this whole south Florida area.

Unidentified Justice: For example, I suppose you'd say the same thing about Tampa, Fort Lauderdale, Key West and all of those?

Mr. Larkin: Well, no, Fort Lauderdale and West Palm Beach are close to Miami, and the DEA has informed me, therefore, that people will fly into and out of the different airports there.

Unidentified Justice: So, they're also source cities?

Mr. Larkin: They would be considered that simply because when we're talking about Miami, we're not saying that it's just the geographic confines of the city.

It's that entire south Florida area, Miami having the busiest airport.

When the agents talked about the West Coast, what he said was that narcotics are transported from Miami to the West Coast for transshipment then to Hawaii, for example, or for use on the West Coast itself.

For a long time narcotics in L.A. came from Miami.

I'm told that recently and unfortunately there is now narcotics coming in from Mexico as well.

So, when you say source city in this context, it involves taking a look at some of the facts.

Unidentified Justice: So, does that include San Diego, perhaps Houston, then, if they're coming in from Mexico, too.

Most any city or the border of the country could qualify.

Mr. Larkin: Any city is potentially eligible because factors of geography and tradition may make it an attractive port for smugglers.

There may be established distribution networks in that city so that once cocaine is brought in, it's easier then to send it out to the rest of the country.

But we're not saying that we can just pick at random any city that we happen to find in Rand McNally's and call it a source city.

Unidentified Justice: Not Peoria, surely.

Mr. Larkin: No.

That is not by any means a source city.

Miami has traditionally been a source city because of its access, easy access from Colombia, for example, to the southern Florida region.

Chief Justice William H. Rehnquist: Thank you, Mr. Larkin.

The case is submitted.