# United States v. Sokolow

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## Dissenting Opinion

    Marshall
United States Supreme Court
490 U.S. 1
United States v. Sokolow
No. 87-1295 Argued: Jan. 10, 1989. --- Decided: April 3, 1989
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.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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