author: Justice Souter Chief Justice Rehnquist, Justice Thomas,

text:
    KELLY v. SOUTH CAROLINA
    No. 00-9280.
    Argued November 26, 2001
    Decided January 9, 2002

      Souter, J., delivered the opinion of the Court, in which Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Kennedy, J., joined, post, p. 258. Thomas, J., filed a dissenting opinion, in which Scaua, J., joined, post, p. 262.

      David I. Brack, by appointment of the Court, 534 U. S. 809, argued the cause for petitioner. With him on the briefs was Robert M. Dudek.

      S. Creighton Waters, Assistant Attorney General of South Carolina, argued the cause for respondent. With him on the brief were Charles M. Condon, Attorney General, John W. McIntosh, Chief Deputy Attorney General, and Donald J. Zelenka, Assistant Deputy Attorney General.
   Justice Souter

delivered the opinion of the Court.

Last Term, we reiterated the holding of Simmons v. South Carolina, 512 U. S. 154 (1994), that when “a capital defendant’s future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process entitles the defendant ‘to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.’ ” Shafer v. South Carolina, 532 U. S. 36, 39 (2001) (quoting Ramdass v. Angelone, 530 U. S. 156, 165 (2000) (plurality opinion)). In this ease, the Supreme Court of South Carolina held Simmons inapposite for two reasons: state law provided the jury with a third sentencing alternative, and future dangerousness was not at issue. Each reason was error.

I

In 1996, the State of South Carolina indicted petitioner William Kelly for an extraordinarily brutal murder, kidnap-ing, and armed robbery, and for possession of a knife during the commission of a violent crime. The jury convicted Kelly on all charges.

The trial then proceeded to a separate sentencing phase calling for the jury to determine whether any aggravating factor had been shown and, if so, to choose between recommendations of death or life imprisonment. The prosecutor began by telling the jurors that “I hope you never in your lives again have to experience what you are experiencing right now. Being some thirty feet away from such a person. Murderer.” App. 64. He went on to present testimony that while in prison, Kelly had made a knife (or shank) and had taken part in an escape attempt, even to the point of planning to draw a female guard into his cell where he would hold her hostage. See id., at 129-132,140-141. The prosecutor’s cross-examination of a psychologist brought out evidence of Kelly’s sadism at an early age, see id., at 218, and his inclination to kill anyone who rubbed him the wrong way, see id., at 195.

After presentation of this evidence but before closing arguments, Kelly’s counsel relied on Simmons in requesting the judge to instruct the jurors that if Kelly received a sentence of life imprisonment, he would be ineligible for parole. The instruction she sought was a near-verbatim excerpt of S. C. Code Ann. § 16-3-20 (2000 Cum. Supp.):

“‘[L]ife imprisonment’ means imprisonment until the death of the offender. No person sentenced to life imprisonment is eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory life imprisonment required by law.” 343 S. C. 350, 360, 540 S. E. 2d 851, 856 (2001).

The prosecutor objected that “I’m not going to argue future dangerous[ness]. So that takes it out of Simmons anyhow.” App. 245. The defense responded that “the State ha[d] already raised future dangerousness” through presentation of sentencing phase evidence, “calling correctional officers to testify to an escape attempt, to testify to the fact that [Kelly] had possession of a shank, by calling inmates who testified to [Kelly’s] behavior in the jail. . . [and] his plan to take a female guard hostage.” Ibid. Defense counsel argued that the State’s cross-examination of the psychologist reinforced the other evidentiary indications of Kelly’s future dangerousness. Id., at 245-246. The trial court denied the requested instruction, saying that the State’s evidence went to Kelly’s character and characteristics, not to future dangerousness. Id., at 249.

The sentencing proceeding then closed with arguments in which the prosecutor spoke of Kelly as “the butcher of Bates-burg,” “Bloody Billy,” and “Billy the Kid.” Id., at 267-268. The prosecutor told the jurors that “[Kelly] doesn’t have any mental illness. He’s intelligent. . . . He’s quick-witted. Doesn’t that make somebody a little more dangerous — ” id., at 269. Defense counsel interrupted the prosecutor in mid-sentence with an objection, presumably for raising Kelly’s future dangerousness. The prosecutor nonetheless went on immediately, “ — for this lady, this crime on January the 5th, doesn’t that make him more unpredictable for [the victim] Shirley Shealy.” Ibid. Kelly’s counsel did not renew her objection, and the trial court never ruled on the objection entered. The prosecutor continued that “murderers will be murderers. And he is the cold-blooded one right over there.” Id., at 272.

After the closing arguments, the trial judge instructed the jury that in choosing between recommendations of death and life imprisonment, it should consider the possible presence of five statutory aggravating circumstances, and three possible statutory mitigating circumstances. The judge explained “that the terms ‘life imprisonment’ and ‘death sentence’ are to be understood in this ordinary and plain meaning.” Id., at 289. But, in accordance with the earlier ruling, the court did not say that under South Carolina law, a convicted murderer sentenced to life imprisonment was ineligible for parole, nor did the court instruct that Kelly’s future dangerousness was not in issue. At the end of the charge, Kelly’s counsel renewed her objection to the court’s refusal to give her requested Simmons instruction or, in the alternative, to inform the jury that the State had stipulated that future dangerousness was not in issue in the case. App. 304. After deliberating for 43 minutes, the jury found five statutory aggravating circumstances beyond a reasonable doubt and returned a recommendation of death, id., at 305-307, to which the trial court acceded.

On appeal to the Supreme Court of South Carolina, Kelly assigned error to the trial court’s refusal to instruct that he would be ineligible for parole under a life sentence. The State Supreme Court ruled otherwise and gave two alternative grounds for affirming the sentence. First, it followed the trial court in saying that the State’s evidence at sentencing did not raise future dangerousness and so did not trigger Simmons: “[W]e agree with the trial court that the State’s evidence at sentencing did not implicate future dangerousness. ... In our opinion, the evidence presented by the State in the penalty phase was designed to show that Kelly would not adapt to prison life ....” 343 S. C., at 362, 540 S. E. 2d, at 857. Second, relying on its own ruling in State v. Shafer, 340 S. C. 291, 531 S. E. 2d 524 (2000), rev’d, Shafer v. South Carolina, 532 U. S. 36 (2001), the state court held that Simmons had no application to the sentencing regime in place at Kelly’s trial. 343 S. C., at 364, 540 S. E. 2d, at 858. The State Supreme Court committed error on each point. We granted certiorari, 533 U. S. 928 (2001), and now reverse.

HH HH

We take the State Supreme Court’s reasons out of order, for the second one can be answered with little more than citation to Shafer, in which we reversed a South Carolina judgment last Term. The state court said that “Simmons is inapplicable under [South Carolina’s] new sentencing scheme because life without the possibility of parole is not the only legally available sentence alternative to death.” 343 S. C., at 364, 540 S. E. 2d, at 858. That statement mistakes the relationship of Simmons to the state sentencing scheme. It is true that a defendant charged with murder carrying the possibility of a death sentence can, under some circumstances, receive a sentence less than life imprisonment. But, as we explained in Shafer, under the South Carolina sentencing scheme a jury now makes a sentencing recommendation only if the jurors find the existence of an aggravating circumstance. When they do make a recommendation, their only alternatives are death or life without parole. 532 U. S., at 49-50. We therefore hold, as we did in Shafer, that the state court’s reasoning is not to the point.

The State Supreme Court’s first ground, that Kelly’s future dangerousness was not “at issue,” is unsupportable on the record before us. It is not that the state court failed to pose the legal issue accurately, for in considering the applicability of Simmons it asked whether Kelly’s future dangerousness was “a logical inference from the evidence,” or was “injected into the case through the State’s closing argument.” 343 S. C., at 363, 540 S. E. 2d, at 857; see also Shafer, supra, at 54-55 (whether prosecutor’s evidence or argument placed future dangerousness in issue); Simmons, 512 U. S., at 165, 171 (plurality opinion) (future dangerousness in issue because “State raised the specter of... future dangerousness generally” and “advanced] generalized arguments regarding the [same]”); id., at 174 (Ginsburg, J., concurring); id., at 177 (O’Connor, J., concurring in judgment). The error, rather, was on the facts: the evidence and argument cited by the state court are flatly at odds with the view that “future dangerousness was not an issue in this case.” 343 S. C., at 363, 540 S. E. 2d, at 857.

The court acknowledged the prosecutor’s “[e]vidence that Kelly took part in escape attempts and carried a shank,” id., at 362, 540 S. E. 2d, at 857, and that “he had been caught carrying a weapon and planning or participating in escape attempts,” ibid. The court concluded, however, that this evidence was not the sort contemplated by Simmons, that is, evidence demonstrating future danger ‘“if released from prison.’ ” 343 S. C., at 362, n. 8, 540 S. E. 2d, at 857, n. 8 (quoting Simmons, supra, at 163) (emphasis added by state court). The court saw the evidence as going only to Kelly’s likely behavior in prison, or to his proclivity to escape from it; the state court said that Kelly was allowed to rebut this evidence of his inability to adapt to prison life, but that explaining parole ineligibility would do nothing to rebut evidence that Kelly was an escape risk. 343 S. C., at 362-363, 540 S. E. 2d, at 857.

Even if we confine the evidentiary consideration to the evidence discussed by the State Supreme Court, the court’s conclusion cannot be accepted. To the extent that it thought that “[e]vidence that Kelly took part in escape attempts and carried a shank ... is not the type of future dangerousness evidence contemplated by Simmons,” id., at 362, 540 S. E. 2d, at 857, it overlooked that evidence of violent behavior in prison can raise a strong implication of “generalized ... future dangerousness.” Simmons, supra, at 171. (And, of course, the state court’s reasoning says nothing about the evidence of the crime, or of Kelly’s sadism generally, and his mercurial thirst for vengeance.) A jury hearing evidence of a defendant’s demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior, whether locked up or free, and whether free as a fugitive or as a parolee.

The fallacy of the State Supreme Court’s attempt to portray the thrust of the evidence as so unrealistically limited harks back to a comparable mistake by the trial judge, who spoke of the evidence as going, not to future dangerousness, but “to [Kelly’s] character and characteristics.” App. 249. The error in trying to distinguish Simmons this way lies in failing to recognize that evidence of dangerous “character” may show “characteristic” future dangerousness, as it did here. This, indeed, is the fault of the State’s more general argument before us, that evidence of future dangerousness counts under Simmons only when the State “introduces] evidence for which there is no other possible inference but future dangerousness to society.” Brief for Respondent 27 (emphasis in original). Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms.

The prosecutor accentuated the clear implication of future dangerousness raised by the evidence and placed the case within the four corners of Simmons. He had already expressed his hope that the jurors would “never in [their] lives again have to experience . . . [b]eing some thirty feet away from such a person” as Kelly. App. 64. The State Supreme Court made no mention of this, despite its thrust: since the jurors were unlikely to be spending any time in prison, they would end up 30 feet away from the likes of Kelly only if he got out of prison, as he might if parole were possible. The argument thus echoed the one made in Simmons itself, that the imposition of the death penalty was an act of “self-defense.” Both statements “implied that petitioner would be let out eventually if the jury did not recommend a death sentence.” 512 U. S., at 178 (O’Connor, J., concurring in judgment) (emphasis in original).

And there was more. The state court to be sure considered the prosecutor’s comparison of Kelly to a notorious serial killer, variously calling him a “dangerous” “bloody” "butcher.” The court nonetheless thought it could somehow cordon off these statements as raising nothing more than a call for retribution. 343 S. C., at 363, 540 S. E. 2d, at 857. But the import of the argument simply cannot be compartmentalized this way. Characterizations of butchery did go to retribution, but that did not make them any the less arguments that Kelly would be dangerous down the road. They complemented the prosecutor’s submissions that Kelly was “more frightening than a serial killer,” App. 260, and that “murderers will be murderers,” id., at 272. Thus was Kelly’s jury, like its predecessor in Simmons, invited to infer “that petitioner is a vicious predator who would pose a continuing threat to the community.” Simmons, supra, at 176 (O’Connor, J., concurring in judgment).

Perhaps because this is so undeniable, the State in its argument before us takes a tack never pursued by the state court, in claiming there was no need for instruction on parole ineligibility, because “there is nothing whatsoever to indicate that the jurors were concerned at all with the possibility of [Kelly’s] future release when they decided death was appropriate.” Brief for Respondent 47. But it cannot matter that Kelly’s jury did not ask the judge for further instruction on parole eligibility, whereas the Simmons and Shafer juries did. See Shafer, 532 U. S., at 44; Simmons, supra, at 160. A trial judge’s duty is to give instructions sufficient to explain the law, an obligation that exists independently of any question from the jurors or any other indication of perplexity on their part. Cf. C. Wright, Federal Practice and Procedure §485, p. 375 (3d ed. 2000) (“It is the duty of the trial judge to charge the jury on all essential questions of law, whether requested or not”). Time after time appellate courts have found jury instructions to be insufficiently clear without any record that the jury manifested its confusion; one need look no further than Penry v. Johnson, 532 U. S. 782 (2001), for a recent example. While the jurors’ questions in Simmons and Shafer confirmed the inadequacy of the charges in those cases, in each case it was independently significant that “[displacement of ‘the longstanding practice of parole availability’ remains a relatively recent development [in South Carolina], and ‘common sense tells us that many jurors might not know whether a life sentence carries with it the possibility of parole.’ ” 532 U. S., at 52 (quoting Simmons, supra, at 177-178 (O’Connor, J., concurring in judgment)).

Nor is there any reason to believe that Kelly’s jury was better informed than Simmons’s or Shafer’s on the matter of parole eligibility. The State, to be sure, emphasizes defense counsel’s opening statement that the jury’s recommendation would be “the sentence actually imposed and the sentence that will actually be carried out,” Record 1660, as well as counsel’s closing, which stressed that Kelly would be in prison for the rest of his life and would “never see the light of daylight again,” id., at 2060. The State stresses that the judge told the jury that the terms “life imprisonment” and “death sentence” should be understood in their plain and ordinary meanings. App. 289.

But the same things could be said of Shafer, where we explicitly noted defense counsel’s statement to the jury that Shafer would “ ‘die in prison’ after ‘spending] his natural life there,’ ” as well as the trial judge’s instructions that “ ‘life imprisonment .means until the death of the defendant.’ ” 532 U. S., at 52 (emphasis deleted). We found these statements inadequate to convey a clear understanding of Shafer’s parole ineligibility, id., at 53-54, and Kelly, no less than Shafer, was entitled to his requested jury instruction.

The judgment of the Supreme Court of South Carolina is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Chief Justice Rehnquist,

with whom Justice Kennedy joins, dissenting.

In Simmons v. South Carolina, 512 U. S. 154 (1994), the prevailing opinion said:

“In a State in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact. Likewise, if the prosecution does not argue future dangerousness, the State may appropriately decide that parole is not a proper issue for the jury’s consideration even if the only alternative sentence to death is life imprisonment without possibility of parole.
“When the State seeks to show the defendant’s future dangerousness, however, the fact that he will never be released from prison will often be the only way that a violent criminal can successfully rebut the State’s case. . . . And despite our general deference to state decisions regarding what the jury should be told about sentencing, I agree that due process requires that the defendant be allowed to do so in cases in which the only available alternative sentence to death is life imprisonment without possibility of parole and the prosecution argues that the defendant will pose a threat to society in the future.” Id., at 176-177 (O’Connor, J., concurring in judgment).

But today, while purporting to merely “apply” Simmons, the Court converts a tenable due process holding into a “truth in sentencing” doctrine which may be desirable policy, but has almost no connection with the due process rationale of Simmons.

In some States — Texas, for example, see Tex. Crim. Proc. Code Ann. §§ 37.071(b) and (g) (2001) — “future dangerousness” is itself a ground for imposing the death penalty in a capital case. In California v. Ramos, 463 U. S. 992 (1983), we held that such a system was consistent with the Eighth Amendment. But South Carolina’s capital punishment system does not work that way. There are 11 statutory aggravating factors which may be found by the jury that must be weighed against mitigating factors. See S. C. Code Ann. § 16-3-20(C) (2001). At the sentencing phase of petitioner’s trial, the State argued, and the jury found, the statutory ag-gravators that the murder was committed while in the commission of: kidnaping; burglary; robbery while armed with a deadly weapon; larceny with use of a deadly weapon; and physical torture. Once a South Carolina jury has found the necessary aggravators, it may consider future dangerousness in determining what sentence to impose.

In the present case, the prosecutor did not argue future dangerousness — as he did in Simmons — in any meaningful sense of that term. But the Court says that he need not, in order for the defendant to invoke Simmons; it is enough if evidence introduced to prove other elements of the case has a tendency to prove future dangerousness as well. Gone is the due process basis for the rule — that where the State argues that the defendant will be dangerous in the future, the defendant is entitled to inform the jury by way of rebuttal that he will be in prison for life. Thus, the Simmons rule is invoked, not in reference to any contention made by the State, but only by the existence of evidence from which a jury might infer future dangerousness. And evidence there will surely be in a case such as the present one, correctly described by the Court as “an extraordinarily brutal murder.” Ante, at 248.

That today’s decision departs from Simmons is evident from the Court’s rejection of the South Carolina Supreme Court’s distinction between evidence regarding danger to fellow inmates and evidence regarding danger to society at large. Simmons itself recognized this distinction. Immediately after holding that the defendant should be allowed to show that “he never would be released on parole and thus, in his view, would not pose a future danger to society,” 512 U. S., at 165 (emphasis added), Simmons noted that “[t3he State is free to argue that the defendant will pose a danger to others in prison and that executing him is the only means of eliminating the threat to the safety of other inmates or prison staff,” id., at 165, n. 5. See also id., at 177 (O’Con-nor, J., concurring in judgment) (noting that where a parole ineligibility instruction is given, “the prosecution is free to argue that the defendant would be dangerous in prison”). This makes eminent good sense, for when the State argues that the defendant poses a threat to his cellmates or prison guards, it is no answer to say that he never will be released from prison.

But the test is no longer whether the State argues future dangerousness to society; the test is now whether evidence was introduced at trial that raises an “implication” of future dangerousness to society. Ante, at 253. It is difficult to envision a capital sentencing hearing where the State presents no evidence from which a juror might make such an inference. I would hazard a guess that many jurors found the sheer brutality of this crime — petitioner bound the hands of the victim (who was six months pregnant) behind her back, stabbed her over 30 times, slit her throat from ear to ear, and left dollar bills fastened to her bloodied body — indicative of petitioner’s future threat to society. Yet all of this evidence was introduced not to prove future dangerousness, but to prove other elements required by South Carolina law, including the statutory aggravating factor that the murder was committed while in the commission of physical torture. To be sure, the prosecutor’s arguments about the details of the murder, as well as the violent episodes in prison, demonstrated petitioner’s evil character. Yet if this were what Simmons intended with the phrase “future dangerousness,” it would have held that the Constitution always required an instruction about parole ineligibility. It plainly did not.

Justice Thomas,

with whom Justice Scalia joins, dissenting.

The Chief Justice, in dissent, concludes that, with the Court’s opinion, “[g]one is the due process basis for the [Simmons] rule — that where the State argues that the defendant will be dangerous in the future, the defendant is entitled to inform the jury by way of rebuttal that he will be in prison for life.” Ante, at 260. I write separately because I continue to believe that there never was a “basis for such a pronouncement.” Simmons v. South Carolina, 512 U. S. 154, 178 (1994) (Scalia, J., dissenting). Indeed, the decision today merely solidifies my belief that the Court was wrong, in the first instance, to hold that the Due Process Clause requires the States to permit a capital defendant to inform the jury that he is parole ineligible in cases where the prosecutor argues future dangerousness.

While we were informed in Simmons that the Court’s intent was to create a requirement that would apply in only a limited number of cases, today’s sweeping rule was an entirely foreseeable consequence of Simmons. See id., at 183. The decisive opinion noted that “if the prosecution does not argue future dangerousness, the State may appropriately decide that parole is not a proper issue for the jury’s consideration even if the only alternative sentence to death is life imprisonment without possibility of parole.” Id., at 176-177 (O’Connor, J., concurring in judgment). One might think from this language that the Court meant to preserve in most cases the State’s role in determining whether to instruct a jury regarding a defendant’s eligibility for parole. But the decisive opinion seriously diminished the State’s discretion in this area, holding that due process requires that “[w]hen the State seeks to show the defendant’s future dangerousness ... the defendant should be allowed to bring his parole ineligibility to the jury’s attention.” Id., at 177 (emphasis added). Applying this rule, the Court concluded that the prosecution “put [Simmons’] future dangerousness in issue” and that due process required that the instruction be given. Id., at 177-178.

After Simmons, we were left with a due process requirement that hinged on a factual inquiry as to whether the State somehow “show[ed] the defendant’s future dangerousness,” “argue[d] future dangerousness, ” or “put... future dangerousness in issue.” Id., at 176-177. Given such an imprecise standard, it is not at all surprising that the Court today easily fits the State’s argument during Kelly’s proceedings into the universe of arguments that trigger the Simmons requirement. But the Court goes even further. In making this factual judgment, the Court dilutes the Simmons test, now requiring that a parole ineligibility instruction be given where the prosecution makes arguments that have a “tendency to prove dangerousness in the future.” Ante, at 254 (emphasis added).

This expansion is not surprising when one considers that in Simmons the Court applied its own rule loosely. Placed in context, the prosecutor there neither “emphasized] future dangerousness as a crucial factor” nor even mentioned “future dangerousness outside of prison.” 512 U. S., at 181 (Scalia, J., dissenting). Thus, while I agree with The Chief Justice that the prosecutor here did not argue future dangerousness, an effort to distinguish this case from Simmons amounts to hairsplitting, demonstrating that the Court’s inability to construct a limited rule inhered in Simmons itself. Today, the Court acknowledges that “the evidence in a substantial proportion, if not all, capital cases will show a defendant likely to be dangerous in the future.” Ante, at 254, n. 4. “All” is the more accurate alternative, given that our capital jurisprudence has held that routine murder does not qualify, but only a more narrowly circumscribed class of crimes such as those that “reflec[t] a consciousness materially more ‘depraved’ than that of any person guilty of murder,” Godfrey v. Georgia, 446 U. S. 420, 433 (1980) (plurality opinion). See also Lowenfield v. Phelps, 484 U. S. 231, 246 (1988) (“Here, the ‘narrowing function’ was performed by the jury at the guilt phase when it found defendant guilty of three counts of murder under the provision that ‘the offender has a specific intent to kill or to inflict great bodily harm upon more than one person’ ”). It is hard to imagine how, for example, the depravity of mind that such a crime displays will not always have a “tendency” to show future dangerousness. And it is of little comfort that today’s opinion technically requires not merely evidence with this tendency, but argument by the prosecutor, ante, at 254-255, n. 4. When does a. prosecutor not argue the evidence, and when will argument regarding depravity not also constitute argument showing dangerousness? Thus, today the Court eviscerates the recognition in the Simmons' decisive opinion that “[t]he decision whether or not to inform the jury of the possibility of early release is generally left to the States.” 512 U. S., at 176 (O’Connor, J., concurring in judgment).

Today’s decision allows the Court to meddle further in a State’s sentencing proceedings under the guise that the Constitution requires us to do so. I continue to believe, without qualification, that “it is not this Court’s role to micromanage state sentencing proceedings.” Shafer v. South Carolina, 532 U. S. 36, 58 (2001) (Thomas, J., dissenting). As a matter of policy, it may be preferable for a trial court to give such an instruction, but these are “matters that the Constitution leaves to the States.” Ibid.

For these reasons, I respectfully dissent.

       Although the State Supreme Court referred to this portion of the prosecutor’s argument, it did not indicate that defense counsel had objected between the prosecutor’s description of Kelly as “dangerous” and his subsequent characterization of Kelly as dangerous to the victim. 343 S. C. 350, 360, 540 S. E. 2d 851, 856 (2001).

       Under South Carolina law, capital jurors first must decide whether the State has proven the existence of any statutory aggravating circumstance beyond a reasonable doubt. If the jury cannot agree unanimously on the presence of such a circumstance, it cannot make a sentencing recommendation; the judge is then charged with sentencing the defendant either to life imprisonment without parole or to a prison term of at least 30 years. S. C. Code Ann. §§ 16 — 8—20(B), (C) (2000 Cum. Supp.); State v. Starnes, 340 S. C. 312, 328, 531 S. E. 2d 907, 916 (2000). But, if the jury does unanimously find a statutory aggravating circumstance, it recommends one of two possible sentences: death or life imprisonment without the possibility of parole. §§ 16-3-20(A), (B). The jury has no other sentencing option.

       The Chief Justice's dissent correctly notes that a required instruction on parole eligibility does not bar a prosecutor from arguing dangerousness in prison as a ground for choosing the death penalty. See post, at 261. The plurality acknowledged this possibility in Simmons v. South Carolina, 512 U. S. 154, 165, n. 5 (1994) (“[T]he fact that a defendant is parole ineligible does not prevent the State from arguing that the defendant poses a future danger”); see also id., at 177 (O’Connok, J., concurring in judgment) (when the defendant “bringfs] his parole ineligibility to the jury’s attention” “the prosecution is free to argue that the defendant would be dangerous in prison”). But the plurality also recognized that even if a “State [were] free to argue that the defendant will pose a danger to others in prison,” id., at 165, n. 5, the State was not free to “mislead the jury by concealing accurate information about the defendant’s parole ineligibility,” ibid.

       As The Chief Justice says, see post, at 261 (dissenting opinion), it may well be that the evidence in a substantial proportion, if not all, capital cases will show a defendant likely to be dangerous in the future. See Simmons, supra, at 163 (plurality opinion) (noting that “prosecutors in South Carolina, like those in other States that impose the death penalty, frequently emphasize a defendant’s future dangerousness in their evidence and argument at the sentencing phase”). But this is not an issue here, nor is there an issue about a defendant’s entitlement to instruction on a parole ineligibility law when the State’s evidence shows future dangerousness but the prosecutor does not argue it. The only questions in this case are whether the evidence presented and the argument made at Kelly’s trial placed future dangerousness at issue. The answer to each question is yes, and we need go no further than Simmons in our discussion.

       Nor, as the State Supreme Court thought, was evidence, elicited by the prosecution, that Kelly “took part in escape attempts,” 343 S. C., at 362, 540 S. E. 2d, at 857, somehow distinct from indications of dangerousness. It is true that evidence of propensity to escape does not necessarily put future dangerousness at issue, but here, the prosecution proffered evidence of at least one violent escape attempt. The evidence of Kelly’s plan to take a female guard hostage with a shank underscored a propensity for violence in addition to a predilection to escape.

       The latter statement, in fact, speaks not to Kelly’s past conduct, but to his future deportment.

       Whether this history of penology should suffice to require a Simmons instruction regardless of the details of evidence and argument going to future dangerousness is a question not raised by this case, in which evidence and argument did place dangerousness in issue.

       If Kelly’s counsel had read the law verbatim to the jury with the judge’s manifest approval, that might have sufficed, but the State does not claim that defense counsel had any such opportunity, and conceded at oral argument that it is “very unlikely” that the trial judge would have permitted defense counsel to read to the jury the relevant section of the South Carolina Code. See Tr. of Oral Arg. 51.

      The statutory aggravating factors are:
      “(1) The murder was committed while in the commission of the following crimes or acts:
      “(a) criminal sexual conduct in any degree;
      "(b) kidnapping;
      "(c) burglary in any degree;
      “(d) robbery while armed with a deadly weapon;
      "(e) larceny with use of a deadly weapon;
      “(f) killing by poison;
      “(g) drug trafficking as defined in Section 44-53-370(e), 44-53-375(B), 44-53-440, or 44-53-445;
      “(h) physical torture; or
      “(i) dismemberment of a person.
      “(2) The murder was committed by a person with a prior conviction for murder.
      “(3) The offender by his act of murder knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which normally would be hazardous to the lives of more than one person.
      "(4) The offender committed the murder for himself or another for the purpose of receiving money or a thing of monetary value.
      “(5) The murder of a judicial officer, former judicial officer, solicitor, former solicitor, or other officer of the court during or because of the exercise of his official duty.
      “(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
      “(7) The murder of a federal, state, or local law enforcement officer, peace officer or former peace officer, corrections employee or former corrections employee, or fireman or former fireman during or because of the performance of his official duties.
      “(8) The murder of a family member of an official listed in subitems (5) and (7) above with the intent to impede or retaliate against the official. ‘Family member’ means a spouse, parent, brother, sister, child, or person to whom the official stands in the place of a parent or a person living in the official’s household and related to him by blood or marriage.
      “(9) Two or more persons were murdered by the defendant by one act or pursuant to one scheme or course of conduct.
      “(10) The murder of a child eleven years of age or under.
      “(11) The murder of a witness or potential witness committed at any time during the criminal process for the purpose of impeding or deterring prosecution of any crime.” S. C. Code Ann. § 16-3-20(C) (2001).

       Justice Blackmun’s plurality opinion in Simmons was joined by three Members of the Court. Justice O’Connor, joined by The Chief Justice and Justice Kennedy, provided the necessary votes to sustain the judgment. Concurring in the judgment, Justice O’Connor therefore wrote the decisive opinion. See O'Dell v. Netherland, 521 U. S. 151, 158-159 (1997).

       The plurality opinion used broader language, stating that due process requires the instruction when the “prosecution allude[s]” to the defendant’s future dangerousness or “advances] generalized arguments regarding the defendant’s future dangerousness.” Simmons v. South Carolina, 512 U. S., at 164, 171.

       Turning to the statements upon which the Simmons plurality and concurring opinions relied, Justice Scalia noted that the prosecutor’s comment concerning “‘what to do with [petitioner] now that he is in our midst’ . . . was not made (as they imply) in the course of an argument about future dangerousness, but was a response to petitioner’s mitigating evidence.” Id., at 181-182. Similarly, “the prosecutor’s comment that the jury’s verdict would be an ‘act of self-defense’. . . came at the end of admonition of the jury to avoid emotional responses and enter a rational verdict.” Id., at 182. As Justice Scalia indicates, the reference “obviously alluded, neither to defense of the jurors’, own persons, nor specifically to defense of persons outside the prison walls, but to defense of all members of. society against this individual, wherever he or they might be. . . . [T]he prosecutor did not invite the jury to believe that petitioner would be eligible for parole — he did not mislead the jury.” Ibid.


source: Caselaw Access Project

author: Chief Justice Rehnquist Justice Scalia,

license: Public Domain

text:
    UNITED STATES v. ARVIZU
    No. 00-1519.
    Argued November 27, 2001
    Decided January 15, 2002

      Rehnquist, C. J., delivered the opinion for a unanimous Court. Scalia, J., filed a concurring opinion, post, p. 278.

      Austin C. Schlick argued the cause for the United States. With him on the briefs were Solicitor General Olson, Assistant Attorney General Chertoff, Deputy Solicitor General Dreeben, and Deborah Watson.

      Victoria A. Brambl argued the cause for respondent. With her on the brief was Fredric F. Kay.

      Briefs of amici curiae urging affirmance were filed for the DKT Liberty Project by Julia M. Carpenter; and for the National Association of Criminal Defense Lawyers et al. by Lawrence S. Lustberg and Risa E. Kaufman.

   Chief Justice Rehnquist

delivered the opinion of the Court.

Respondent Ralph Arvizu was stopped by a border patrol agent while driving on an unpaved road in a remote area of southeastern Arizona. A search of his vehicle turned up more than 100 pounds of marijuana. The District Court for the District of Arizona denied respondent’s motion to suppress, but the Court of Appeals for the Ninth Circuit reversed. In the course of its opinion, it categorized certain factors relied upon by the District Court as simply out of bounds in deciding whether there was “reasonable suspicion” for the stop. We hold that the Court of Appeals’ methodology was contrary to our prior decisions and that it reached the wrong result in this case.

On an afternoon in January 1998, Agent Clinton Stoddard was working at a border patrol checkpoint along U. S. Highway 191 approximately 30 miles north of Douglas, Arizona. App. 22, 24. See Appendix, infra (containing a map of the area noting the location of the checkpoint and other points important to this ease). Douglas has a population of about 13,000 and is situated on the United States-Mexico border in the southeastern part of the State. Only two highways lead north from Douglas. See App. 157. Highway 191 leads north to Interstate 10, which passes through Tucson and Phoenix. State Highway 80 heads northeast through less populated areas toward New Mexico, skirting south and east of the portion of the Coronado National Forest that lies approximately 20 miles northeast of Douglas.

The checkpoint is located at the intersection of 191 and Rucker Canyon Road, an unpaved east-west road that connects 191 and the Coronado National Forest. When the checkpoint is operational, border patrol agents stop the traffic on 191 as part of a coordinated effort to stem the flow of illegal immigration and smuggling across the international border. See id., at 20-21. Agents use roving patrols to apprehend smugglers trying to circumvent the checkpoint by taking the backroads, including those roads through the sparsely populated area between Douglas and the national forest. Id., at 21-22, 26, 80. Magnetic sensors, or “intrusion devices,” facilitate agents’ efforts in patrolling these areas. See id., at 25. Directionally sensitive, the sensors signal the passage of traffic that would be consistent with smuggling activities. Ibid.; Tr. of Oral Arg. 23-24.

Sensors are located along the only other northbound road from Douglas besides Highways 191 and 80: Leslie Canyon Road. Leslie Canyon Road runs roughly parallel to 191, about halfway between 191 and the border of the Coronado National Forest, and ends when it intersects Rucker Canyon Road. It is unpaved beyond the 10-mile stretch leading out of Douglas and is very rarely traveled except for use by local ranchers and forest service personnel. App. 26. Smugglers commonly try to avoid the 191 checkpoint by heading west on Rucker Canyon Road from Leslie Canyon Road and thence to Kuykendall Cutoff Road, a primitive dirt road that leads north approximately 12 miles east of 191. Id., at 29-30. From there, they can gain access to Tucson and Phoenix. Id., at 30.

Around 2:15 p.m., Stoddard received a report via Douglas radio that a Leslie Canyon Road sensor had been triggered. Id., at 24. This was significant to Stoddard for two reasons. First, it suggested to him that a vehicle might be trying to circumvent the checkpoint. Id., at 27. Second, the timing coincided with the point when agents begin heading back to the checkpoint for a shift change, which leaves the area unpatrolled. Id., at 26, 47. Stoddard knew that alien smugglers did extensive scouting and seemed to be most active when agents were en route back to the checkpoint. Another border patrol agent told Stoddard that the same sensor had gone off several weeks before and that he had apprehended a minivan using the same route and witnessed the occupants throwing bundles of marijuana out the door. Id., at 27.

Stoddard drove eastbound on Rucker Canyon Road to investigate. As he did so, he received another radio report of sensor activity. Id., at 29. It indicated that the vehicle that had triggered the first sensor was heading westbound on Rucker Canyon Road. He continued east, passing Kuy-kendall Cutoff Road. He saw the dust trail of an approaching vehicle about a half mile away. Id., at 31. Stoddard had not seen any other vehicles and, based on the timing, believed that this was the one that had tripped the sensors. Id., at 31-32. He pulled off to the side of the road at a slight slant so he could get a good look at the oncoming vehicle as it passed by. Id., at 32.

It was a minivan, a type of automobile that Stoddard knew smugglers used. Id., at 33. As it approached, it slowed dramatically, from about 50-55 to 25-30 miles per hour. Id., at 32, 57. He saw five occupants inside. An adult man was driving, an adult woman sat in the front passenger seat, and three children were in the back. Id., at 33-34. The driver appeared stiff and his posture very rigid. He did not look at Stoddard and seemed to be trying to pretend that Stod-dard was not there. Id., at 33. Stoddard thought this suspicious because in his experience on patrol most persons look over and see what is going on, and in that area most drivers give border patrol agents a friendly wave. Id., at 59. Stod-dard noticed that the knees of the two children sitting in the very back seat were unusually high, as if their feet were propped up on some cargo on the floor. Id., at 34.

At that point, Stoddard decided to get a closer look, so he began to follow the vehicle as it continued westbound on Rucker Canyon Road toward Kuykendall Cutoff Road. Id., at 34-35. Shortly thereafter, all of the children, though still facing forward, put their hands up at the same time and began to wave at Stoddard in an abnormal pattern. Id., at 35, 61. It looked to Stoddard as if the children were being instructed. Their odd waving continued on and off for about four to five minutes. Id., at 35, 73.

Several hundred feet before the Kuykendall Cutoff Road intersection, the driver signaled that he would turn. Id., at 36. At one point, the driver turned the signal off, but just as he approached the intersection he put it back on and abruptly turned north onto Kuykendall. The turn was significant to Stoddard because it was made at the last place that would have allowed the minivan to avoid the checkpoint. Id., at 37. Also, Kuykendall, though passable by a sedan or van, is rougher than either Rucker Canyon or Leslie Canyon Roads, and the normal traffic is four-wheel-drive vehicles. Id., at 36, 63-64. Stoddard did not recognize the minivan as part of the local traffic agents encounter on patrol, id., at 37, and he did not think it likely that the minivan was going to or coming from a picnic outing. He was not aware of any picnic grounds on Turkey Creek, which could be reached by following Kuykendall Cutoff all the way up. Id., at 54. He knew of picnic grounds and a Boy Scout camp east of the intersection of Rucker Canyon and Leslie Canyon Roads, id., at 31, 53, 54, but the minivan had turned west at that intersection. And he had never seen anyone picnicking or sightseeing near where the first sensor went off. Id., at 53, 75.

Stoddard radioed for a registration check and learned that the minivan was registered to an address in Douglas that was four blocks north of the border in an area notorious for alien and narcotics smuggling. Id., at 37-38, 66-67. After receiving the information, Stoddard decided to make a vehicle stop. Id., at 38. He approached the driver and learned that his name was Ralph Arvizu. Stoddard asked if respondent would mind if he looked inside and searched the vehicle. Id., at 43. Respondent agreed, and Stoddard discovered marijuana in a black duffel bag under the feet of the two children in the back seat. Id., at 45-46. Another bag containing marijuana was behind the rear seat. Id., at 46. In all, the van contained 128.85 pounds of marijuana, worth an estimated $99,080. Brief for United States 8.

Respondent was charged with possession with intent to distribute marijuana in violation of 21 U. S. C. § 841(a)(1) (1994 ed.). He moved to suppress the marijuana, arguing among other things that'Stoddard did not have reasonable suspicion to stop the vehicle as required by the Fourth Amendment. After holding a hearing where Stoddard and respondent testified, the District Court for the District of Arizona ruled otherwise. App. to Pet. for Cert. 21a. It pointed to a number of the facts described above and noted particularly that any recreational areas north of Rucker Canyon would have been accessible from Douglas via 191 and another paved road, making it unnecessary to take a 40-to-50-mile trip on dirt roads. Id., at 22a.

The Court of Appeals for the Ninth Circuit reversed. 232 F. 3d 1241 (2000). In its view, fact-specific weighing of circumstances or other multifactor tests introduced “a troubling degree of uncertainty and unpredictability” into the Fourth Amendment analysis. Id., at 1248 (internal quotation marks omitted). It therefore “attempted] ... to describe and clearly delimit the extent to which certain factors may be considered by law enforcement officers in making stops such as the stop involving]” respondent. Ibid. After characterizing the District Court’s analysis as relying on a list of 10 factors, the Court of Appeals proceeded to examine each in turn. It held that seven of the factors, including respondent’s slowing down, his failure to acknowledge Stoddard, the raised position of the children’s knees, and their odd waving carried little or no weight in the reasonable-suspicion calculus. The remaining factors — the road’s use by smugglers, the temporal proximity between respondent’s trip and the agents’ shift change, and the use of minivans by smugglers — were not enough to render the stop permissible. Id., at 1251. We granted certiorari to review the decision of. the Court of Appeals because of its importance to the enforcement of federal drug and immigration laws. 532 U. S. 1065 (2001).

The Fourth Amendment prohibits “unreasonable searches and seizures” by the Government, and its protections extend to brief investigatory .stops of persons or vehicles that fall short of traditional arrest. Terry v. Ohio, 392 U. S. 1, 9 (1968); United States v. Cortez, 449 U. S. 411, 417 (1981). Because the “balance between the public interest and the individual’s right to personal security,” United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975), tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity “ ‘may be afoot,’ ” United States v. Sokolow, 490 U. S. 1, 7 (1989) (quoting Terry, supra, at 30). See also Cortez, 449 U. S., at 417 (“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity”).

When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective basis” for suspecting legal wrongdoing. See, e. g., id., at 417-418. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” Id., at 418. See also Ornelas v. United States, 517 U. S. 690, 699 (1996) (reviewing court must give “due weight” to factual inferences drawn by resident judges and local law enforcement officers). Although an officer’s reliance on a mere “‘hunch’” is insufficient to justify a stop, Terry, supra, at 27, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, Sokolow, supra, at 7.

Our cases have recognized that the concept of reasonable suspicion is somewhat abstract. Ornelas, supra, at 696 (principle of reasonable suspicion is not a “‘finely-tuned standard]’ ”); Cortez, supra, at 417 (the cause “sufficient to authorize police to stop a person” is an “elusive concept”). But we have deliberately avoided reducing it to “ ‘a neat set of legal rules,”’ Ornelas, supra, at 695-696 (quoting Illinois v. Gates, 462 U. S. 213, 232 (1983)). In Sokolow, for example, we rejected a holding by the Court of Appeals that distinguished between evidence of ongoing criminal behavior and probabilistic evidence because it “create[d] unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment.” 490 U. S., at 7-8.

We think that the approach taken by the Court of Appeals here departs sharply from the teachings of these cases. The court’s evaluation and rejection of seven of the listed factors in isolation from each other does not take into account the “totality of the circumstances,” as our cases have understood that phrase. The court appeared to believe that each observation by Stoddard that was by itself readily susceptible to an innocent explanation was entitled to “no weight.” See 232 F. 3d, at 1249-1251. Terry, however, precludes this sort of divide-and-conquer analysis. The officer in Terry observed the petitioner and his companions repeatedly walk back and forth, look into a store window, and confer with one another. Although each of the series of acts was “perhaps innocent in itself,” we held that, taken together, they “warranted further investigation.” 392 U. S., at 22. See also Sokolow, supra, at 9 (holding that factors which by themselves were “quite consistent with innocent travel” collectively amounted to reasonable suspicion).

The Court of Appeals’ view that it was necessary to “clearly delimit” an officer’s consideration of certain factors to reduce “troubling . . . uncertainty,” 232 F. 3d, at 1248, also runs counter to our cases and underestimates the usefulness of the reasonable-suspicion standard in guiding officers in the field. In Ornelas v. United States, we held that the standard for appellate review of reasonable-suspicion determinations should be de novo, rather than for “abuse of discretion.” 517 U. S., at 691. There, we reasoned that de novo review would prevent the affirmance of opposite decisions on identical facts from different judicial districts in the same circuit, which would have been possible under the latter standard, and would allow appellate courts to clarify the legal principles. Id., at 697. Other benefits of the approach, we said, were its tendency to unify precedent and greater capacity to provide law enforcement officers with the tools to reach correct determinations beforehand: Even if in many instances the factual “mosaic” analyzed for a reasonable-suspicion determination would preclude one case from squarely controlling another, “two decisions when viewed together may usefully add to the body of law on the subject.” Id., at 697-698.

But the Court of Appeals’ approach would go considerably beyond the reasoning of Ornelas and seriously undercut the “totality of the circumstances” principle which governs the existence vel non of “reasonable suspicion.” Take, for example, the court’s positions that respondent’s deceleration could not be considered because “slowing down after spotting a law enforcement vehicle is an entirely normal response that is in no way indicative of criminal activity” and that his failure to acknowledge Stoddard’s presence provided no support because there were “no ‘special circumstances’ rendering ‘innocent avoidance . . . improbable.’” 232 F. 3d, at 1248-1249. We think it quite reasonable that a driver’s slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona). Stoddard was entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants. See Ornelas, supra, at 699. To the extent that a totality of the circumstances approach may render appellate review less circumscribed by precedent than otherwise, it is the nature of the totality rule..

In another instance, the Court of Appeals chose to dismiss entirely the children’s waving on grounds that odd conduct by children was all too common to be probative in a particular case. See 232 F. 3d, at 1249 (“If every odd act engaged in by one’s children . . . could contribute to a finding of reasonable suspicion, the vast majority of American parents might be stopped regularly within a block of their homes”). Yet this case did not involve simply any odd act by children. At the suppression hearing, Stoddard testified about the children’s waving several times, and the record suggests that he physically demonstrated it as well. The District Court Judge, who saw and heard Stoddard, then characterized the waving as “methodical,” “mechanical,” “abnormal,” and “certainly ... a fact that is odd and would lead a reasonable officer to wonder why they are doing this.” App. to Pet. for Cert. 25a. Though the issue of this case does not turn on the children’s idiosyncratic actions, the Court of Appeals should not have casually rejected this factor in light of the District Court’s superior access to the evidence and the well-recognized inability of reviewing courts to reconstruct what happened in the courtroom.

Having considered the totality of the circumstances and given due weight to the factual inferences drawn by the law enforcement officer and District Court Judge, we hold that Stoddard had reasonable suspicion to believe that respondent was engaged in illegal activity. It was reasonable for Stoddard to infer from his observations, his registration check, and his experience as a border patrol agent that respondent had set out from Douglas along a little-traveled route used by smugglers to avoid the 191 checkpoint. Stod-dard’s knowledge further supported a commonsense inference that respondent intended to pass through the area at a time when officers would be leaving their backroads patrols to change shifts. The likelihood that respondent and his family were on a picnic outing was diminished by the fact that the minivan had turned away from the known recreational areas accessible to the east on Rucker Canyon Road. Corroborating this inference was the fact that recreational areas farther to the north would have been easier to reach by taking 191, as opposed to the 40-to-50-mile trip on unpaved and primitive roads. The children’s elevated knees suggested the existence of concealed cargo in the passenger compartment. Finally, for the reasons we have given, Stod-dard’s assessment of respondent’s reactions upon seeing him and the children’s mechanical-like waving, which continued for a full four to five minutes, were entitled to some weight.

Respondent argues that we must rule in his favor because the facts suggested a family in a minivan on a holiday outing. A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct. See Illinois v. Wardlow, 528 U. S. 119, 125 (2000) (that flight from police is not necessarily indicative of ongoing criminal activity does not establish Fourth Amendment violation). Undoubtedly, each of these factors alone is susceptible of innocent explanation, and some factors are more probative than others. Taken together, we believe they sufficed to form a particularized and objective basis for Stoddard’s stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment.

The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

[Appendix to opinion of the Court follows this page.]

Justice Scalia,

concurring.

I join the opinion of the Court, because I believe it accords with our opinion in Ornelas v. United States, 517 U. S. 690, 699 (1996), requiring de novo review which nonetheless gives “due weight to inferences drawn from [the] facts by resident judges . . . .” As I said in my dissent in Ornelas, however, I do not see how deferring to the District Court’s factual inferences (as opposed to its findings of fact) is compatible with de novo review. Id., at 705.

The Court today says that “due weight” should have been given to the District Court’s determinations that the children’s waving was “‘methodical,’ ‘mechanical,’ ‘abnormal,’ and ‘certainly ... a fact that is odd and would lead a reasonable officer to wonder why they are doing this.’” Ante, at 276. “Methodical,” “mechanical,” and perhaps even “abnormal” and “odd,” are findings of fact that deserve respect. But the inference that this “would lead a reasonable officer to wonder why they are doing this,” amounts to the conclusion that their action was suspicious, which I would have thought (if de novo review is the standard) is the prerogative of the Court of Appeals. So we have here a peculiar sort of de novo review.

I may add that, even holding the Ninth Circuit to no more than the traditional methodology of de novo review, its judgment here would have to be reversed.

APPENDIX TO OPINION OF THE COURT

       Coronado National Forest consists of 12 widely scattered sections of land covering 1,780,000 acres in southeastern Arizona and southwestern New Mexico. The section of the forest near Douglas includes the Chiriea-hua, Dragoon, and Peloncillo Mountain Ranges.

       At one point during the hearing, Stoddard testified that “[the children's waving] wasn’t in a normal pattern. It looked like they were instructed to do so. They kind of stuck their hands up and began waving to me like this.” App. 35.