concurring:
What happened in this case is perfectly clear. It is revealed in a direct answer to a simple question from the district court:
THE COURT: Right. But why did you stop [the defendants] at that time?
THE WITNESS [AGENT JOHNSON]: Well, we stopped them — there’s only-the only reason that we — especially on that side that we have the people stop and turn around at that particular point, is because they’re in violation of some immigration or some criminal code that make[s] them not want to be inspected by our checkpoint. So they try to turn around at that point and head back up.1
That’s the whole story: The border patrol agents stopped the two cars in which defendants were travelling because they had turned around just short of the Highway 86 checkpoint, which raised the entirely plausible inference that they were up to no good. Everything else the agents said had contributed to the stop-the license plates, the newspaper, the acceleration, the tandem driving, the Hispanic appearance, the furtive glance-is window dressing, designed to get around our opinion in United States v. Ogilvie, 527 F.2d 330 (9th Cir.1975), where we held that avoiding a checkpoint by reversing direction is not sufficient to establish reasonable suspicion. See id. at 332.
Ogilvie is just plain wrong and we should overrule it. Turning in one’s tracks just before reaching a law enforcement checkpoint is precisely the kind of behavior that properly gives rise to reasonable suspicion. It is possible that a motorist will do so for entirely legitimate reasons, but “eommonsense judgments and inferences about human behavior” suggest that the maneuver was designed to avoid the checkpoint. Illinois v. Wardlow, — U.S. -,-, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). Ogilvie seems to require that the motorist have done something more to arouse suspicion, like disobeying the traffic laws or driving erratically, 527 F.2d at 332, but the opinion doesn’t explain why any of those things would make it more likely that the motorist was trying to evade the checkpoint. After all, a motorist wishing to avoid police scrutiny will slink away as unobtrusively as possible, not peel rubber and disappear in a cloud of dust.
The majority retains Ogilvie and tries to distinguish it, but its efforts are sadly unconvincing. The first ground on which the majority tries to distinguish Ogilvie is the so-called U-turn factor: Ogilvie reversed directions by means of an exit ramp and overpass, whereas the defendants here used that reckless and exotic maneuver— the U-turn. See Maj. Op. at 1138. In fact, the majority is so taken with the idea that defendants made a U-turn, it uses the term no fewer than 15 times.
But nowhere in the record does any witness- say that defendants made a U-turn. Agent Johnson testified that “all [the passing motorist] said was there was a *1141couple of vehicles turning around south of the [check]point.” RT at 17 (Dec. 23, 1996).2 A U-turn, in the technical sense the majority uses that term, see Maj. Op. at 1138 & n.30, starts and ends on the highway, with the vehicle winding up in a lane moving in the opposite direction. By contrast, a turnaround can be accomplished by pulling off the road, changing direction in the off-road area, and then driving back onto the highway heading in the opposite direction.3 This would be consistent with the testimony of the agents that when they first came upon the two vehicles, they were off the highway, just making their way back onto it. See RT at 14 (Dec. 23, 1996); id. at 7 (Jan. 6, 1997).4
Why does it matter? Because once we get rid of the “unusual and often illegal” U-turn, Maj. Op. at 4017, the difference between this case and Ogilvie evaporates. Ogilvie found herself on a freeway, facing a police barricade:
Four marked government vehicles were parked on the median strip separating northbound and southbound lanes of I-19; cone shaped red markers were placed to cause northbound traffic to merge to a single lane; two stop signs with flashing red lights were placed beside the single lane. All cars going north were being stopped.
527 F.2d at 331. She used the only path open to her to avoid the checkpoint-she took an exit, traversed the overpass and merged into the southbound lane. ' '
What the defendants did here is directly analogous, given the nature of the road they were on. They were travelling on a highway, not a freeway, so there were no exits or overpasses. When they spotted the sign indicating that the checkpoint was open, they took advantage of “the only place where it’s really feasible to turn around safely” before the checkpoint. RT at 16 (Dec. 23, 1996). This is just what Ogilvie did. For her it meant using the exit; for them it meant pulling off the road, turning around, then getting back onto the highway. The majority’s attempt to salvage Ogilvie by painting the turnaround here as somehow dangerous or illegal falls of its own weight.
Even less convincing is the majority's attempt to invoke “characteristics of the area” as a distinguishing factor. Maj. Op. at 1138. To read the majority opinion, one might get the impression that the area just south of the checkpoint is a combat zone rivaling Prohibition-era Chicago. The majority does not pause to query why a barren stretch of highway in the middle of the desert would become such an active center of criminal activity, nor why criminals would be so stupid as “to drop off or pick up undocumented aliens or contraband,” id., within a mile of a border checkpoint, when they have countless miles of road where they could safely make such exchanges.
The answer to this mystery is that the description of the area as “high crime” isn’t supported by the record either. What the two arresting agents said is this: On several prior occasions, they had stopped vehicles that had done precisely what these defendants had done-reversed direction at or near the spot where they *1142first became aware that the checkpoint was operational-and, in almost every ease, the vehicles were carrying contraband or aliens. The agents did not testify that they had ever apprehended anyone actually using this spot as a drop off point.5 They watched the spot routinely because, “That’s where we expect the turnaround to be, if they do turn around, because that’s the only place where it’s really feasible to turn around safely, at that point.” RT at 16 (Dec. 23, 1996).
What this evidence does show-the only thing it shows-is that Ogilvie is bunkum: People who turn around right before a checkpoint generally do have something to hide. Far from distinguishing Ogilvie, the majority’s emphasis on the “high crime area” illustrates just how silly Ogilvie is. The only thing about this “area” that leads to a high incidence of arrests is the presence of the checkpoint, which prompts criminals to reveal themselves by turning around-just as happened in Ogilvie. Had the Ogilvie checkpoint stayed in place long enough to catch a few more people, that mild-mannered stretch of 1-19 might have turned into a “high crime area” as well.
The majority’s contorted efforts to preserve an ancient and ill-conceived precedent would be amusing, were this not such serious business. What factors law enforcement officers may consider in deciding to stop and question citizens minding their own business should, if possible, be carefully circumscribed and clearly articulated. When courts invoke multi-factor tests, balancing of interests or fact-specific weighing .of circumstances, this introduces a troubling degree of uncertainty and unpredictability into the process; no one can be sure whether a particular combination of factors will justify a stop until a court has ruled on it. It also creates an incentive for officers to exaggerate or invent factors, just to make sure that the judges who review the case will approve their balancing act.
I understand that it’s not always possible to eliminate uncertainty, and that weighing and balancing is the stuff of many legal doctrines. But what excuse is there for resorting to a totality-of-the-circumstances approach when a single faetor-the turnaround right before the checkpoint-alone justifies the search? And what excuse is there for language like this, which calls for an advanced degree in philology to comprehend:
We conclude that, under the circumstances present here, both occurrences [tandem driving and Mexicali license plates] may be given some direct weight m the reasonable suspicion analysis. They do not, however, constitute substantial factors, either singly or collectively.
Maj. Op. at 1139. What on earth does this mean? First, consider all the hedges and qualifiers (“under the circumstances present here ... some direct weight ... ”). What purpose do they serve? What guidance do they give? There are so many slippery surfaces, the human mind can find no purchase in wrapping itself around it.
But then ponder the meaning of the entire passage: These factors may be given some weight, but they are not substantial factors. So we not only have a multi-factor test, not only do we ask district courts and police in the field to weigh and balance all the factors, we now have different classes of factors-regular and jumbo. How many regular factors add up to make a substantial factor? And how many substantial factors amount to reasonable suspicion? I have no clue, which makes me think that cops on their beats all over this circuit will have some trouble figuring it out as well.6
*1143But there is a darker side to the majority’s verbal Macarena. The opinion recognizes the danger in allowing the police to characterize an area as “high-crime” to establish a basis for reasonable suspicion, but then proceeds to do just that, based on nothing more than the personal experiences of two arresting agents. As I discuss above, the agents didn’t even claim this was a high crime area, but let’s say they had. What in this record would support their conclusion? Both agents testified only that they had detected criminal violations after stopping people in the area. How often? One agent said he’d been involved in 15-20 stops over eight and a half years, and “[could]n’t recall any ... where we didn’t have a violation of some sort.” RT at 14-15 (Dec. 28, 1996). The other agent testified to “about a dozen” stops in the same period, all but one of which led to an arrest. Id. at 3, 30 (Jan. 6, 1997).
Without hesitation, the majority treats this as a crime wave, but is it really? Does an arrest every four months or so make for a high crime area? Compare United States v. Thornton, 197 F.3d 241, 248 (7th Cir.1999) (“In less than one year there had been some 2,500 drug arrests in the five-block-by-five-block area where the incident occurred.”); United States v. Morales, 191 F.3d 602, 604 (5th Cir.1999) (“In the past year alone, the Agent had detained approximately 600 illegal aliens on this stretch of the highway.”). Can we rely on the vague and undocumented recollections of the officers here? Do the two officers’ figures of “15-20” and “about a dozen” reflect separate pools of incidents, or do they include some where, as here, both officers were involved? Are such estimates sufficiently precise to tell us anj-thing useful about the area? I wouldn’t have thought so, although I could be persuaded otherwise. But my colleagues don’t even pause to ask the questions. To them, it’s a high crime area, because the officers say it’s a high crime area.
Just as a man with a hammer sees every problem as a nail, so a man with a badge may see every corner of his beat as a high crime area. See, e.g., Price v. Kramer, 200 F.3d 1237, 1247 (9th Cir.2000) (police officers sought to justify stop on the ground that Crenshaw Boulevard in Torrance was a “high crime area known for ‘gang activity’ ”). Police are trained to detect criminal activity and they look at the world with suspicious eyes. This is a good thing, because we rely on this suspicion to keep us safe from those who would harm us. But to rely on every cop’s repertoire of war stories to determine what is a “high crime area”-and on that basis to treat otherwise innocuous behavior as grounds for reasonable suspicion-strikes me as an invitation to trouble.. If the testimony of two officers that they made, at most, 32 arrests during the course of a decade is sufficient to turn the road here into a high crime area, then what area under police surveillance wouldn’t qualify as one? There are street corners in our inner cities that see as much crime within a month-even a week. I would be most reluctant to give police the power to turn any area into a high crime area based on their unadorned personal experiences. I certainly would not reach out to decide the issue.
The majority purports to draw support for ■ its methodology from the Supreme Court’s Wardlow opinion, where the Court held that “relevant characteristics of a location” may be considered in the reasonable suspicion calculus. Maj. Op. at 1139 (quoting Wardlow, — U.S. at -, 120 S.Ct. at 676). This misses the point entirely. The question is not whether the characteristics of the area may be taken into account, but how these characteristics are established. In our first opinion to interpret this language from Wardlow, the majority adopts a methodology for establishing the characteristics of the area that is about as rigorous as the recipe for Leftovers Casserole.
*1144Not to worry, the opinion says, because we take the police at their word only when it’s an “isolated” area where people don't “typically carry on legitimate activities.” Maj. Op. at 1139 n.32. But we’re talking here about a highway-one that sees enough traffic to make a checkpoint worth the government’s trouble. How can an area traversed by hundreds, perhaps thousands, of people every day be considered “isolated,” and why is it that people who travel on rural highways do not “carry on legitimate activities”? If we’re willing to ignore all the cars and people, I suppose the Santa Monica Freeway is an isolated area too. Then again, perhaps the majority considers the shoulder of the highway as “isolated” where the highway itself is not. A more contrived distinction is difficult to imagine.
Perhaps the majority imagines that by retaining Ogilvie, it avoids eroding Fourth Amendment liberties. Instead it accelerates the process. The patently suspicious behavior in Ogilvie is the kind of thing we want police to act on: It’s a specific event, easy to observe and verify. It consists of a deliberate act by a given individual, and does not require any speculation, impressions, hunches or broad characterizations about an area or a class of people. It gives rise to a reasonable inference that the individual taking the evasive action has cause to fear scrutiny. It’s not a perfect inference; they never are. But it’s vastly more objective and less open to manipulation than the amalgamation of ambiguous factors from which the majority constructs founded suspicion today. Such foundations are not of concrete, but quicksand.
. Reporter’s Transcript, United States v. Montero-Camargo, No. 96-223 3-IEG-CRIM [hereinafter RT] at 39 (Dec. 23, 1996).
. See also RT at 10 (Dec. 23, 1996) ("[H]e just had two vehicles turn around south of the point.”), id. at 4 (Jan. 6, 1997) (“[T]wo vehicles had turned around just south of the checkpoint.”).
. Such a maneuver is not a U-turn under California law. See Cal. Vehicle Code § 665.5 (defining a U-turn as "the turning of a vehicle upon a highway”) (emphasis added); People v. McGuire, 145 Cal.Rptr. 514, 515 (Cal.Super.1978) (holding that a turnaround effected by pulling off the highway into a driveway did not fall under statute prohibiting U-tums). What defendants did was neither unusual nor illegal, and the agents said as much. See RT at 15 (Dec. 23, 1996) (Q: Do you know, based on your experience, whether this is a spot that ... is often used to turn around? "A: Yes, it is.”), 20 (Jan. 6, 1997) ("Q: Did he violate any traffic laws that you know of? A: That I know of, no.”).
.At oral argument, the government displayed trial exhibits which disclosed that there was a sizable off-road area where vehicles could turn around.
. It was one of the lawyers who persisted in characterizing the area as a drop off point. Agent Fisher assented to the description once, but when pressed by the court to say at what point there was a "notorious pick up and delivery,” he was willing to say only, “That is an area that we have turn arounds at.” RT at 14-17 (Jan. 6, 1997).
. The advice we give police today is reminiscent of that once given by a Russian nobleman to his horse. Having been told by his wife, "Please dear, hurry home-but don’t gal*1143lop,” he turns to his horse and says: "Don’t gallop. Do you hear that Petya? Don't gallop, but hurry home. That’s your job, you’ll have to puzzle it out. It’s too much for me.” The Twelve Chairs (Twentieth Century Fox 1970).