Court found that the investigatory stop was not justified because "the appellant's activity was no different from the activity of other pedestrians in the neighborhood." Id. at 52. Additionally, the court noted that "the fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal activity." Brown, 443 U.S. at 362.
Indeed, cases which have upheld a finding of reasonable suspicion have done so on the basis of relatively particularized information. Factors articulated by an officer may not be so few or mundane that "they describe too many individuals." Hernandez-Alvarado, 891 F.2d at 1418. The courts are keenly aware that "at stake in these case[s] is the 'right of every person to the possession and control of his own person, free from all restraint of others, unless by clear and unquestionable authority of law.'" U.S. v. Rodriguez, 976 F.2d 592, 596 (9th Cir. 1992) (citation omitted).
An instructive example of how much particularity is required to support a reasonable suspicion is found in United States v. Hernandez-Alvarado, 891 F.2d 1414 (9th Cir. 1989). Despite a proffer of several particular factors, the Ninth Circuit ruled that a stop that was made some eighteen kilometers from the Mexican boarder was not justified by reasonable suspicion. Id. at 1415-16. In addition to the border's proximity, the officer articulated six factors as the basis for reasonable suspicion: (1) the nervous demeanor of both the defendant and his passengers as they drove in their vehicle while the officer drove beside them; (2) the driver's post-surveillance reduction of speed from 65 to 55 m.p.h. in a 65 m.p.h. zone; (3) the presence of a two-way antenna on the trunk of the vehicle; (4) defendant's residence in a neighborhood on the U.S. - Mexican border which was under investigation for narcotics activity; (5) the license plate bracket on defendant's vehicle indicating that the car had been purchased from a dealership associated with drug trafficking; and (6) the large size of the car's trunk. Id. at 1416. The court concluded that, "considered jointly, these factors are insufficient to justify an investigatory stop. While they may allow certain inferences to be drawn, they describe too many individuals to create a reasonable suspicion that the particular defendant is engaged in criminal activity." Id.
By way of illustrative contrast, two other relatively recent opinions offer some guidance as to the kinds of particularized articulations of factors that can be sufficient to support a finding of reasonable suspicion. In United States v. Sokolow , 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989), the Supreme Court, reversing a Ninth Circuit panel, held that officers had reasonable suspicion to stop the defendant on his return to the Honolulu airport when they "knew, inter alia, that (1) he paid $ 2100 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." Sokalow, 490 U.S. at 3. Here, the multi-faceted pattern of defendant's conduct was held to justify the suspicion that he had illegal drugs in his bags.
Somewhat similarly, in Guam v. Ichiyasu, 838 F.2d 353 (9th Cir. 1988), the Ninth Circuit found reasonable suspicion where a police officer stopped a taxi carrying the defendant based on the following factors: (1) the officer had received several radio dispatches describing a hit and run accident, a description of the car involved, and the direction it was traveling; (2) the last of these indicated that the suspect vehicle had turned down Route 11, a dead-end road that terminated at a pier; (3) it was two o'clock in the morning; (4) the officer knew the dead-end road was non-residential and that sailors and power-plant workers were the only people likely to be present at that hour; and (5) when he reached the outlet of the dead-end road, minutes after the suspect car entered it, he noticed a taxi leaving the road which contained an elderly, well-dressed man in the back seat who did not acknowledge or look at the police car. Ichiyasu, 838 F.2d at 354. The court upheld the legality of the stop, noting that the Ninth Circuit "has upheld investigatory stops where facts known to the police make apparently innocuous behavior suspicious to the police." Id. at 356. Where an officer has information that a specific crime has taken place, and the defendant seems a likely suspect based on that information combined with other perhaps innocuous behavior, an investigatory stop is reasonable. See also, United States v. Bautista, 684 F.2d 1286 (9th Cir. 1982) (holding that robbery suspects found on likely escape route, meeting description of robbers and dressed inappropriately for the weather may be stopped) cert. denied, 459 U.S. 1211, 75 L. Ed. 2d 447, 103 S. Ct. 1206 (1983).
As this review of authorities indicates, the courts address each case in the specific totality of circumstances that it presents, but generally have required a relatively high degree of particularity to justify an investigatory stop. Observations leading to an "inchoate hunch" that some kind of criminal activity is afoot are insufficient to justify detention, Terry v. Ohio, 392 U.S. 1, 22, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and the Fourth Amendment is not satisfied if the factors articulated would cast too wide a net over persons likely to be engaged only in lawful activity.
It is against this background that we must consider the dictum in the footnote in California v. Hodari D., 113 L. Ed. 2d 690, U.S. , 111 S. Ct. 1547, 1549 n.1 (1991) that the government contends strongly supports the conclusion that the stop in the case at bar by Ranger Martini was supported by reasonable suspicion. In Hodari, two plain-clothes police officers were patrolling in an unmarked car, wearing jackets embossed with "Police" on both front and back. Id. at 1549. As they rounded a corner, they saw four or five youths, including Hodari, huddled around a car on a street in Oakland that all parties apparently conceded was in a "high crime" area. Id. When the youths saw the officers' car approaching, they fled "in panic." Id. at 1549 n.1. Hodari ran through an alley, emerged on 62nd Avenue and ran north, looking behind himself as he ran. Id. One of the officers, meanwhile, had guessed Hodari's escape route and was running south on 62nd. Id. He subsequently tackled Hodari, shortly after Hodari jettisoned what turned out to be some "crack" cocaine. Id.
Because the State of California had conceded that the arresting officer did not have reasonable suspicion to stop Hodari solely because Hodari had broken into a run when he saw the two police officers approach, the issue that the Supreme Court resolved in this opinion was whether Hodari had been "seized" within the meaning of the Fourth Amendment by virtue of the officers' pursuit of him. Despite the fact that the issue of reasonable suspicion was not before the Court, Justice Scalia's opinion included a footnote questioning the concession by the State of California on the reasonable suspicion issue:
California conceded below that Officer Pertroso did not have the "reasonable suspicion" required to justify stopping Hodari. That it would be unreasonable to stop, for brief inquiry, young men who scatter in panic upon the mere sighting of the police is not self-evident, and arguably contradicts proverbial common sense. See Proverbs 28:1 (The wicked flee when no man pursueth"). We do not decide that point here, but rely entirely upon the State's concession.