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534 U.S. ____ (2002)

SUPREME COURT OF THE UNITED STATES

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No. 00—1519

UNITED STATES, PETITIONER v. RALPH ARVIZU

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[January 15, 2002]

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 10. “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.