CRIMINAL PROCEDURE
ARREST AND INVESTIGATION
2001 SUPPLEMENT
ARNOLD H. LOEWY
ARTHUR B. LAFRANCE
Table of Contents
(New M aterial in BOLD)
CHAPTER 4: ARRESTS
D. Arrests in the Home
Payton v. New York
Questions and Notes
Insert at page 77 (after Note 5):
Note 5a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Steagald v. United States
Questions and Notes
Insert at page 82 (after Note 6)
Wilson v. Layne, 526 U.S. 603 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . 2
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
E. Force in Effecting an Arrest
Graham v. Connor
Notes and Questions
Insert at page 96 (after Note 3)
Note 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
i
CHAPTER 6: AUTOMOBILES
A. The Rule and Its Rationale
California v. Carney
Questions and Notes
Insert at page 137 (after Note 9)
Florida v. White, 526 U.S. 559 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . 8
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
B. Cars and Containers
California v. Acevedo
Questions and Notes
Insert at page 158 (after Note 5)
Wyoming v. Houghton, 526 U.S. 295 (1999) . . . . . . . . . . . . . . . . . . 14
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
D. Suspicionless Highway Stops
Delaware v. Prouse
Questions and Notes
Insert at page 176 (after Note 5)
City of Indianapolis v. Edmond, 531 U.S. 32 (2000) . . . . . . . . . . . . 23
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
CHAPTER 7: LIMITED SEARCHES ON LESS THAN PROBABLE CAUSE
B. What Is Reasonable Suspicion? How Is It Different from Probable Cause?
Alabama v. White
Questions and Notes
Insert at page 223 (after Note 5):
Florida v. J.L., 120 S. Ct. 1375 (2000) . . . . . . . . . . . . . . . . . . . . . . .
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Illinois v. Wardlow, 120 S. Ct. 673 (2000) . . . . . . . . . . . . . . . . . . . .
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ornelas v. United States, 517 U.S. 690 (1996) . . . . . . . . . . . . . . . . .
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Limits on Terry-Type Stops
Michigan v. Summers
Questions and Notes
ii
33
37
38
46
47
54
Insert at page 246 (after Note 4)
Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
CHAPTER 9: SEIZURES
California v. Hodari D.
Questions and Notes
Insert at page 317 (after Note 5):
Note 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
CHAPTER 10: SEARCHES
A. The Divining Rod Theory of the Fourth Amendment
Florida v. Riley
Questions and Notes
Insert at page 358 (after Note 4):
Minnesota v. Carter, 525 U.S. 83 (1998) . . . . . . . . . . . . . . . . . . . . . 57
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
California v. Greenwood
Questions and Notes
Insert at page 361 (after Note 4):
Bond v. United States, 120 S. Ct. 1462 (2000) . . . . . . . . . . . . . . . . . 60
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Kyllo v. United States, 533 U.S. ___ (2001) . . . . . . . . . . . . . . . . . . . 64
CHAPTER 12: CONSENT
Insert at page 394:
CHAPTER 12 (A): IS THE COMPOSITE OF SUPREME COURT
DOCTRINE MOVING TOWARDS OPEN SEASON ON AUTOMOBILES AT
THE CLOSE OF THE TWENTIETH CENTURY?
Maryland v. Wilson, 519 U.S. 408 (1997) . . . . . . . . . . . . . . . . . . . . .
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Whren v. United States, 517 U.S. 806 (1996) . . . . . . . . . . . . . . . . . .
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ohio v. Robinette, 519 U.S. 33 (1996) . . . . . . . . . . . . . . . . . . . . . . .
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Knowles v. Iowa, 525 U.S. 113 (1998) . . . . . . . . . . . . . . . . . . . . . . . .
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
iii
76
83
83
88
89
94
94
96
PROBLEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Atwater v. City of Lago Vista, 532 U.S. ___ (2001) . . . . . . . . . . . . . 97
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Arkansas v. Sullivan, 532 U.S. ___ (2001) . . . . . . . . . . . . . . . . . . . 114
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
CHAPTER 13: THE EXCLUSIONARY RULE
A. The Rationale for the Exclusionary Rule
United States v. Calandra
Questions and Notes
Insert at page 404 (before section B):
PROBLEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
C. Standing
Insert at page 443 (after Note 8):
Minnesota v. Carter, 525 U.S. 83 (1998) . . . . . . . . . . . . . . . . . . . . 119
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
CHAPTER 17: THE RIGHT TO COUNSEL AND CONFESSIONS
B. Contrasting Massiah and Miranda
Michigan v. Jackson
Questions and Notes
McNeill v. Wisconsin
Questions and Notes
Insert at page 644 (after Note 6)
Texas v. Cobb, 532 U.S. ___ (2001) . . . . . . . . . . . . . . . . . . . . . . . . 130
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
CHAPTER 18
Insert at page 699:
CHAPTER 18A: MIRANDA REVISITED
Dickerson v. United States, __ U.S. __ (2000) . . . . . . . . . . . . . . . . 142
Questions and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
iv
CHAPTER 4: ARRESTS
D. Arrests in the Home
Payton v. New York
Insert at page 77 (after Note 5):
5a.
In Richards v. Wisconsin, 520 U.S. 385 (1997), the Supreme Court unanimously held
that an arrest for feloniously possession of drugs was not a per se justification for dispensing with an
arrest warrant. The Court also held that the fact that Richards was aware that the police were at his
door and that he deliberately locked them out was sufficient to justify dispensing with the knock. The
Court adopted the standard that police officers can dispense with a knock when they have reasonable
suspicion that knocking would be futile, dangerous, or would lead to destruction of evidence.
In United States v. Ramirez, 523 U.S. 65 (1998), the Court held that if a no-knock entry is
otherwise justified under Wilson and Richards, it is no less justified because property was damaged
in the course of the entry. the Court did suggest, however, that since “reasonableness” is the
touchstone of the Fourth Amendment, excessive or unnecessary destruction of property might violate
the fourth Amendment.
1
CHAPTER 4: ARRESTS
D. Arrests in the Home
Payton v. New York
Questions and Notes
Steagald v. United States
Insert at page 82 (after Note 6)
WILSON v. LAYNE
526 U.S. 603 (1999)
Chief Justice REHNQUIST delivered the opinion of the Court.
While executing an arrest warrant in a private home, police officers invited representatives
of the media to accompany them. We hold that such a “media ride along” does violate the Fourth
Amendment, but that because the state of the law was not clearly established at the time the search
in this case took place, the officers are entitled to the defense of qualified immunity.
I
In early 1992, the Attorney General of the United States approved “Operation Gunsmoke,”
a special national fugitive apprehension program in which United States Marshals worked with state
and local police to apprehend dangerous criminals. The “Operation Gunsmoke” policy statement
explained that the operation was to concentrate on “armed individuals wanted on federal and/or state
and local warrants for serious drug and other violent felonies.” This effective program ultimately
resulted in over 3,000 arrests in 40 metropolitan areas.
One of the dangerous fugitives identified as a target of “Operation Gunsmoke” was Dominic
Wilson, the son of petitioners Charles and Geraldine Wilson. Dominic Wilson had violated his
probation on previous felony charges of robbery, theft, and assault with intent to rob, and the police
computer listed “caution indicators” that he was likely to be armed, to resist arrest, and to “assaul[t]
police.” The computer also listed his address as 909 North StoneStreet Avenue in Rockville,
Maryland. Unknown to the police, this was actually the home of petitioners, Dominic Wilson’s
parents. Thus, in April 1992, the Circuit Court for Montgomery County issued three arrest warrants
for Dominic Wilson, one for each of his probation violations. The warrants were each addressed to
“any duly authorized peace officer,” and commanded such officers to arrest him and bring him
“immediately” before the Circuit Court to answer an indictment as to his probation violation. The
warrants made no mention of media presence or assistance.3
3
The warrants were identical in all relevant respects. By way of example, one of them
read as follows:
The State of Maryland, to any duly authorized peace officer, greeting: you are
hereby commanded to take Dominic Jerome Wilson if he/she shall be found in your
bailiwick, and have him immediately before the Circuit Court for Montgomery
2
In the early morning hours of April 16, 1992, a Gunsmoke team of Deputy United States
Marshals and Montgomery County Police officers assembled to execute the Dominic Wilson
warrants. The team was accompanied by a reporter and a photographer from the Washington Post,
who had been invited by the Marshals to accompany them on their mission as part of a Marshal’s
Service ride-along policy.
At around 6:45 a.m., the officers, with media representatives in tow, entered the dwelling at
909 North StoneStreet Avenue in the Lincoln Park neighborhood of Rockville. Petitioners Charles
and Geraldine Wilson were still in bed when they heard the officers enter the home. Petitioner Charles
Wilson, dressed only in a pair of briefs, ran into the living room to investigate. Discovering at least
five men in street clothes with guns in his living room, he angrily demanded that they state their
business, and repeatedly cursed the officers. Believing him to be an angry Dominic Wilson, the
officers quickly subdued him on the floor. Geraldine Wilson next entered the living room to
investigate, wearing only a nightgown. She observed her husband being restrained by the armed
officers.
When their protective sweep was completed, the officers learned that Dominic Wilson was
not in the house, and they departed. During the time that the officers were in the home, the
Washington Post photographer took numerous pictures. The print reporter was also apparently in the
living room observing the confrontation between the police and Charles Wilson. At no time, however,
were the reporters involved in the execution of the arrest warrant. The Washington Post never
published its photographs of the incident.
Petitioners sued the law enforcement officials in their personal capacities for money damages
under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). They contended that the
officers’ actions in bringing members of the media to observe and record the attempted execution of
the arrest warrant violated their Fourth Amendment rights.
II
The petitioners sued the federal officials under Bivens and the state officials under § 1983.
Both Bivens and § 1983 allow a plaintiff to seek money damages from government officials who have
violated his Fourth Amendment rights. But government officials performing discretionary functions
generally are granted a qualified immunity and are “shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.”
In 1604, an English court made the now-famous observation that “the house of every one is
to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.”
Semayne’s Case, 77 Eng. Rep. 194, 5 Co. Rep. 91a, 91b, 195 (K.B.). In his Commentaries on the
Laws of England, William Blackstone noted that
County, now in session, at the Judicial Center, in Rockville, to answer an indictment,
or information, or criminal appeals unto the State of Maryland, of and concerning a
certain charge of Robbery [Violation of Probation] by him committed, as hath been
presented, and so forth. Hereof fail not at your peril, and have you then and there this
writ. Witness.
3
the law of England has so particular and tender a regard to the immunity of a man’s
house, that it stiles it his castle, and will never suffer it to be violated with impunity:
agreeing herein with the sentiments of ancient Rome. . . . For this reason no doors can
in general be broken open to execute any civil process; though, in criminal causes, the
public safety supersedes the private.
WILLIAM BLACKSTONE, 4 COMMENTARIES ON THE LAWS OF ENGLAND 223 (1765-1769).
The Fourth Amendment embodies this centuries-old principle of respect for the privacy of the
home: “The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. CONST. Amd. IV (Emphasis added). See also
United States v. United States District Court for E.D. Michigan, 407 U.S. 297, 313 (1972)
(“[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment
is directed”).
Our decisions have applied these basic principles of the Fourth Amendment to situations, like
those in this case, in which police enter a home under the authority of an arrest warrant in order to
take into custody the suspect named in the warrant. In Payton, we noted that although clear in its
protection of the home, the common-law tradition at the time of the drafting of the Fourth
Amendment was ambivalent on the question of whether police could enter a home without a warrant.
We were ultimately persuaded that the “overriding respect for the sanctity of the home that has been
embedded in our traditions since the origins of the Republic” meant that absent a warrant or exigent
circumstances, police could not enter a home to make an arrest. We decided that “an arrest warrant
founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which
the suspect lives when there is reason to believe the suspect is within.”
Here, of course, the officers had such a warrant, and they were undoubtedly entitled to enter
the Wilson home in order to execute the arrest warrant for Dominic Wilson. But it does not
necessarily follow that they were entitled to bring a newspaper reporter and a photographer with
them. In Horton v. California, [infra], we held “[i]f the scope of the search exceeds that permitted by
the terms of a validly issued warrant or the character of the relevant exception from the warrant
requirement, the subsequent seizure is unconstitutional without more.” While this does not mean that
every police action while inside a home must be explicitly authorized by the text of the warrant, see
Michigan v. Summers, 452 U.S. 692 (1981) (Fourth Amendment allows temporary detainer of
homeowner while police search the home pursuant to warrant), the Fourth Amendment does require
that police actions in execution of a warrant be related to the objectives of the authorized intrusion.
Certainly the presence of reporters inside the home was not related to the objectives of the
authorized intrusion. Respondents concede that the reporters did not engage in the execution of the
warrant, and did not assist the police in their task. The reporters therefore were not present for any
reason related to the justification for police entry into the home—the apprehension of Dominic
Wilson.
This is not a case in which the presence of the third parties directly aided in the execution of
the warrant. Where the police enter a home under the authority of a warrant to search for stolen
property, the presence of third parties for the purpose of identifying the stolen property has long been
4
approved by this Court and our common-law tradition.
Respondents argue that the presence of the Washington Post reporters in the Wilsons’ home
nonetheless served a number of legitimate law enforcement purposes. They first assert that officers
should be able to exercise reasonable discretion about when it would “further their law enforcement
mission to permit members of the news media to accompany them in executing a warrant.” But this
claim ignores the importance of the right of residential privacy at the core of the Fourth Amendment.
It may well be that media ride-alongs further the law enforcement objectives of the police in a general
sense, but that is not the same as furthering the purposes of the search. Were such generalized “law
enforcement objectives” themselves sufficient to trump the Fourth Amendment, the protections
guaranteed by that Amendment’s text would be significantly watered down.
Respondents next argue that the presence of third parties could serve the law enforcement
purpose of publicizing the government’s efforts to combat crime, and facilitate accurate reporting on
law enforcement activities. There is certainly language in our opinions interpreting the First
Amendment which points to the importance of “the press” in informing the general public about the
administration of criminal justice. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), for
example, we said “in a society in which each individual has but limited time and resources with which
to observe at first hand the operations of his government, he relies necessarily upon the press to bring
to him in convenient form the facts of those operations.” No one could gainsay the truth of these
observations, or the importance of the First Amendment in protecting press freedom from
abridgement by the government. But the Fourth Amendment also protects a very important right, and
in the present case it is in terms of that right that the media ride-alongs must be judged.
Surely the possibility of good public relations for the police is simply not enough, standing
alone, to justify the ride-along intrusion into a private home. And even the need for accurate reporting
on police issues in general bears no direct relation to the constitutional justification for the police
intrusion into a home in order to execute a felony arrest warrant.
Finally, respondents argue that the presence of third parties could serve in some situations to
minimize police abuses and protect suspects, and also to protect the safety of the officers. While it
might be reasonable for police officers to themselves videotape home entries as part of a “quality
control” effort to ensure that the rights of homeowners are being respected, or even to preserve
evidence, such a situation is significantly different from the media presence in this case. The
Washington Post reporters in the Wilsons’ home were working on a story for their own purposes.
They were not present for the purpose of protecting the officers, much less the Wilsons. A private
photographer was acting for private purposes, as evidenced in part by the fact that the newspaper and
not the police retained the photographs. Thus, although the presence of third parties during the
execution of a warrant may in some circumstances be constitutionally permissible, the presence of
these third parties was not.
The reasons advanced by respondents, taken in their entirety, fall short of justifying the
presence of media inside a home. We hold that it is a violation of the Fourth Amendment for police
to bring members of the media or other third parties into a home during the execution of a warrant
when the presence of the third parties in the home was not in aid of the execution of the warrant.4
4
Even though such actions might violate the Fourth Amendment, if the police are
lawfully present, the violation of the Fourth Amendment is the presence of the media and not the
5
[The Court then held that the officers were entitled to qualified immunity because the right
had not clearly been established in 1992. Justice STEVENS dissented on the immunity issue.]
Questions and Notes
1.
Do you think that the Wilsons were better or worse off because of the presence of the
news media? Explain.
2.
In general, will police likely be more or less respectful of citizens’ rights if they
perform their functions in the presence of cameras? Compare the Rodney King incident.
3.
Should the answers to Questions 1 and 2, rather than abstract notions of privacy, have
been the more important in the resolution of this question? Explain.
presence of the police in the home. We have no occasion here to decide whether the exclusionary rule
would apply to any evidence discovered or developed by the media representatives.
6
CHAPTER 4: ARRESTS
E. Force in Effecting an Arrest
Graham v. Connor
Notes and Questions
Insert at page 96 (after Note 3)
4.
In Saucier v. Katz, 533 U.S. ___ (2001), the Court emphasized that the allegation of
a gratuitous shove is not enough to allow the jury to impose liability under the Fourth Amendment.
7
CHAPTER 6: AUTOMOBILES
A. The Rule and Its Rationale
California v. Carney
Insert at page 137 (after Note 9)
FLORIDA v. WHITE
526 U.S. 559 (1999)
Justice THOMAS delivered the opinion of the Court.
The Florida Contraband Forfeiture Act provides that certain forms of contraband, including
motor vehicles used in violation of the Act’s provisions, may be seized and potentially forfeited. In
this case, we must decide whether the Fourth Amendment requires the police to obtain a warrant
before seizing an automobile from a public place when they have probable cause to believe that it is
forfeitable contraband. We hold that it does not.
I
On three occasions in July and August 1993, police officers observed respondent Tyvessel
Tyvorus White using his car to deliver cocaine, and thereby developed probable cause to believe that
his car was subject to forfeiture under the Florida Contraband Forfeiture Act. Several months later,
the police arrested respondent at his place of employment on charges unrelated to the drug
transactions observed in July and August 1993. At the same time, the arresting officers, without
securing a warrant, seized respondent’s automobile in accordance with the provisions of the Act.
They seized the vehicle solely because they believed that it was forfeitable under the Act. During a
subsequent inventory search, the police found two pieces of crack cocaine in the ashtray. Based on
the discovery of the cocaine, respondent was charged with possession of a controlled substance in
violation of Florida law.
At his trial on the possession charge, respondent filed a motion to suppress the evidence
discovered during the inventory search. He argued that the warrantless seizure of his car violated the
Fourth Amendment, thereby making the cocaine the “fruit of the poisonous tree.” The trial court
initially reserved ruling on respondent’s motion, but later denied it after the jury returned a guilty
verdict.
The majority of the court concluded that, absent exigent circumstances, the Fourth
Amendment requires the police to obtain a warrant prior to seizing property that has been used in
violation of the Act. According to the court, the fact that the police develop probable cause to believe
that such a violation occurred does not, standing alone, justify a warrantless seizure. The court
expressly rejected the holding of the Eleventh Circuit and the majority of other Federal Circuits to
have addressed the same issue in the context of the federal civil forfeiture law, 21 U.S.C. § 881,
which is similar to Florida’s. We granted certiorari and now reverse.
II
8
The Fourth Amendment guarantees “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures,” and further provides that
“no Warrants shall issue, but upon probable cause.” In deciding whether a challenged governmental
action violates the Amendment, we have taken care to inquire whether the action was regarded as an
unlawful search and seizure when the Amendment was framed. See Wyoming v. Houghton, infra;
Carroll v. United States.
In Carroll, we held that when federal officers have probable cause to believe that an
automobile contains contraband, the Fourth Amendment does not require them to obtain a warrant
prior to searching the car for and seizing the contraband. Our holding was rooted in federal law
enforcement practice at the time of the adoption of the Fourth Amendment. Specifically, we looked
to laws of the First, Second, and Fourth Congresses that authorized federal officers to conduct
warrantless searches of ships and to seize concealed goods subject to duties. These enactments led
us to conclude that “contemporaneously with the adoption of the Fourth Amendment,” Congress
distinguished “the necessity for a search warrant between goods subject to forfeiture, when concealed
in a dwelling house or similar place, and like goods in course of transportation and concealed in a
movable vessel where they readily could be put out of reach of a search warrant.”
The Florida Supreme Court recognized that under Carroll, the police could search
respondent’s car, without obtaining a warrant, if they had probable cause to believe that it contained
contraband. The court, however, rejected the argument that the warrantless seizure of respondent’s
vehicle itself also was appropriate under Carroll and its progeny. It reasoned that “there is a vast
difference between permitting the immediate search of a movable automobile based on actual
knowledge that it then contains contraband [and] the discretionary seizure of a citizen’s automobile
based upon a belief that it may have been used at some time in the past to assist in illegal activity.”
We disagree.
The principles underlying the rule in Carroll and the founding-era statutes upon which they
are based fully support the conclusion that the warrantless seizure of respondent’s car did not violate
the Fourth Amendment. Although, as the Florida Supreme Court observed, the police lacked probable
cause to believe that respondent’s car contained contraband, they certainly had probable cause to
believe that the vehicle itself was contraband under Florida law.5 Recognition of the need to seize
readily movable contraband before it is spirited away undoubtedly underlies the early federal laws
relied upon in Carroll. [S]ee also California v. Carney. This need is equally weighty when the
automobile, as opposed to its contents, is the contraband that the police seek to secure.6 Furthermore,
the early federal statutes that we looked to in Carroll, like the Florida Contraband Forfeiture Act,
authorized the warrantless seizure of both goods subject to duties and the ships upon which those
goods were concealed.
5
The Act defines “contraband” to include any “vehicle of any kind, . . . which was used . . . as an
instrumentality in the commission of, or in aiding or abetting in the commission of, any felony.”
6
At oral argument, respondent contended that the delay between the time that the police developed
probable cause to seize the vehicle and when the seizure actually occurred undercuts the argument that the warrantless
seizure was necessary to prevent respondent from removing the car out of the jurisdiction. We express no opinion about
whether excessive delay prior to a seizure could render probable cause stale, and the seizure therefore unreasonable
under the Fourth Amendment.
9
In addition to the special considerations recognized in the context of movable items, our
Fourth Amendment jurisprudence has consistently accorded law enforcement officials greater latitude
in exercising their duties in public places. For example, although a warrant presumptively is required
for a felony arrest in a suspect’s home, the Fourth Amendment permits warrantless arrests in public
places where an officer has probable cause to believe that a felony has occurred. See Watson. In
explaining this rule, we have drawn upon the established “distinction between a warrantless seizure
in an open area and such a seizure on private premises.” The principle that underlies Watson extends
to the seizure at issue in this case. Indeed, the facts of this case are nearly indistinguishable from those
in G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977). There, we considered whether federal
agents violated the Fourth Amendment by failing to secure a warrant prior to seizing automobiles in
partial satisfaction of income tax assessments. We concluded that they did not, reasoning that “the
seizures of the automobiles in this case took place on public streets, parking lots, or other open
places, and did not involve any invasion of privacy.” Here, because the police seized respondent’s
vehicle from a public area—respondent’s employer’s parking lot—the warrantless seizure also did
not involve any invasion of respondent’s privacy. Based on the relevant history and our prior
precedent, we therefore conclude that the Fourth Amendment did not require a warrant to seize
respondent’s automobile in these circumstances.
The judgment of the Florida Supreme Court is reversed, and the case is remanded for
proceedings not inconsistent with this opinion.
It is so ordered.
Justice SOUTER , with whom Justice BREYER joins, concurring.
I join the Court’s opinion subject to a qualification against reading our holding as a general
endorsement of warrantless seizures of anything a State chooses to call “contraband,” whether or not
the property happens to be in public when seized. The Fourth Amendment does not concede any
talismanic significance to use of the term “contraband” whenever a legislature may resort to a novel
forfeiture sanction in the interest of law enforcement, as legislatures are evincing increasing ingenuity
in doing. Moreover, G.M. Leasing Corp. (upon which we rely today) endorsed the public character
of a warrantless seizure scheme by reference to traditional enforcement of government revenue laws,
and the legality of seizing abandoned contraband in public view,
Justice STEVENS, with whom Justice GINSBURG joins, dissenting.
During the summer of 1993, Florida police obtained evidence that Tyvessel White was
engaged in the sale and delivery of narcotics, and that he was using his car to facilitate the enterprise.
For reasons unexplained, the police neither arrested White at that point nor seized his automobile as
an instrumentality of his alleged narcotics offenses. Most important to the resolution of this case, the
police did not seek to obtain a warrant before seizing White’s car that fall—over two months after
the last event that justified the seizure. Instead, after arresting White at work on an unrelated matter
and obtaining his car keys, the officers seized White’s automobile without a warrant from his
employer’s parking lot and performed an inventory search. The Florida Supreme Court concluded
that the seizure, which took place absent exigent circumstances or probable cause to believe that
narcotics were present, was invalid. 710 So. 2d 949 (1998).
In 1971, after advising us that “we must not lose sight of the Fourth Amendment’s
10
fundamental guarantee,” Justice Stewart made this comment on what was then settled law:
The most basic constitutional rule in this area is that “searches conducted
outside the judicial process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.” The exceptions are “jealously and
carefully drawn,” and there must be “a showing by those who seek exemption . . . that
the exigencies of the situation made that course imperative.” “The burden is on those
seeking the exemption to show the need for it.”
Coolidge v. New Hampshire. Because the Fourth Amendment plainly “protects property as well as
privacy” and seizures as well as searches, I would apply to the present case our longstanding warrant
presumption. In the context of property seizures by law enforcement authorities, the presumption
might be overcome more easily in the absence of an accompanying privacy or liberty interest.
Nevertheless, I would look to the warrant clause as a measure of reasonableness in such cases, and
the circumstances of this case do not convince me that the role of a neutral magistrate was
dispensable.
The Court does not expressly disavow the warrant presumption urged by White and followed
by the Florida Supreme Court, but its decision suggests that the exceptions have all but swallowed
the general rule. To defend the officers’ warrantless seizure, the State points to cases establishing an
“automobile exception” to our ordinary demand for a warrant before a lawful search may be
conducted. Each of those cases, however, involved searches of automobiles for contraband or
temporary seizures of automobiles to effect such searches. Such intrusions comport with the practice
of federal customs officers during the Nation’s early history on which the majority relies, as well as
the practicalities of modern life. But those traditions and realities are weak support for a warrantless
seizure of the vehicle itself, months after the property was proverbially tainted by its physical
proximity to the drug trade, and while the owner is safely in police custody.
The stated purposes for allowing warrantless vehicle searches are likewise insufficient to
validate the seizure at issue, whether one emphasizes the ready mobility of automobiles or the
pervasive regulation that diminishes the owner’s privacy interests in such property. No one seriously
suggests that the State’s regulatory regime for road safety makes acceptable such unchecked and
potentially permanent seizures of automobiles under the State’s criminal laws. And, as the Florida
Supreme Court cogently explained, an exigent circumstance rationale is not available when the seizure
is based upon a belief that the automobile may have been used at some time in the past to assist in
illegal activity and the owner is already in custody. 7 Moreover, the state court’s conclusion that the
warrant process is a sensible protection from abuse of government power is bolstered by the inherent
risks of hindsight at post-seizure hearings and law enforcement agencies’ pecuniary interest in the
7
(“There simply was no concern presented here that an opportunity to seize evidence would be missed
because of the mobility of the vehicle. Indeed, the entire focus of the seizure here was to seize the vehicle itself as a
prize because of its alleged prior use in illegal activities, rather than to search the vehicle for contraband known to be
therein, and that might be lost if not seized immediately”). The majority notes, but does not confront, the argument
that the mobility of White’s vehicle was not a substantial governmental concern in light of the delay between
establishing probable cause and seizure.
11
seizure of such property.
Were we confronted with property that Florida deemed unlawful for private citizens to
possess regardless of purpose, and had the State relied on the plain-view doctrine, perhaps a
warrantless seizure would have been defensible. See Horton; Hicks. But “‘[t]here is nothing even
remotely criminal in possessing an automobile,’” no serious fear for officer safety or loss of evidence
can be asserted in this case considering the delay and circumstances of the seizure; and only the
automobile exception is at issue.8
In any event, it seems to me that the State’s treatment of certain vehicles as “contraband”
based on past use provides an added reason for insisting on an appraisal of the evidence by a neutral
magistrate, rather than a justification for expanding the discretionary authority of the police. Unlike
a search that is contemporaneous with an officer’s probable-cause determination, Horton, a belated
seizure may involve a serious intrusion on the rights of innocent persons with no connection to the
earlier offense. And a seizure supported only by the officer’s conclusion that at some time in the past
there was probable cause to believe that the car was then being used illegally is especially intrusive
when followed by a routine and predictable inventory search—even though there may be no basis for
believing the car then contains any contraband or other evidence of wrongdoing.9
Of course, requiring police officers to obtain warrants in cases such as the one before us will
not allay every concern private property owners might have regarding government discretion and
potentially permanent seizures of private property under the authority of a State’s criminal laws. Had
the officers in this case obtained a warrant in July or August, perhaps they nevertheless could or
would have executed that warrant months later; and, as the Court suggests, delay between the basis
for a seizure and its effectuation might support a Fourth Amendment objection whether or not a
warrant was obtained. That said, a warrant application interjects the judgment of a neutral
decisionmaker, one with no pecuniary interest in the matter, see Connally v. Georgia, before the
burden of obtaining possession of the property shifts to the individual. Knowing that a neutral party
will be involved before private property is seized can only help ensure that law enforcement officers
will initiate forfeiture proceedings only when they are truly justified. A warrant requirement might not
prevent delay and the attendant opportunity for official mischief through discretionary timing, but it
surely makes delay more tolerable.
Without a legitimate exception, the presumption should prevail. Indeed, the particularly
troubling aspect of this case is not that the State provides a weak excuse for failing to obtain a
8
There is some force to the majority’s reliance on Watson, which held that no warrant is required for
felony arrests made in public. With respect to the seizures at issue in Watson, however, I consider the law enforcement
and public safety interests far more substantial, and the historical and legal traditions more specific and ingrained, than
those present on the facts of this case. (Powell, J., concurring) (“Logic sometimes must defer to history and
experience”).
9
The Court’s reliance on G.M. Leasing Corp. is misplaced. The seizure in that case was supported
by an earlier tax assessment that was “given the force of a judgment.” (internal quotation marks omitted). We
emphasized that the owner of the automobiles in question lacked a privacy interest, but he had also lost any possessory
interest in the property by way of the prior judgment. In this case, despite plenty of time to obtain a warrant that would
provide similar pre-seizure authority for the police, they acted entirely on their own assessment of the probative force
of evidence relating to earlier events. In addition, White’s property interests in his car were apparently not extinguished
until, at the earliest, the seizure took place.
12
warrant either before or after White’s arrest, but that it offers us no reason at all. The justification
cannot be that the authorities feared their narcotics investigation would be exposed and hindered if
a warrant had been obtained. Ex parte warrant applications provide neutral review of police
determinations of probable cause, but such procedures are by no means public. And the officers had
months to take advantage of them. On this record, one must assume that the officers who seized
White’s car simply preferred to avoid the hassle of seeking approval from a judicial officer. I would
not permit bare convenience to overcome our established preference for the warrant process as a
check against arbitrary intrusions by law enforcement agencies “engaged in the often
competitive”—and, here, potentially lucrative—“enterprise of ferreting out crime.”
Because I agree with the Florida Supreme Court’s judgment that this seizure was not
reasonable without a warrant, I respectfully dissent.
QUESTIONS AND NOTES
1.
Was there probable cause to seize White’s vehicle? In what sense?
2.
Is the decision limited to automobiles? Explain.
3.
How, if at all, was GM Leasing different from this case? Was it (should it have been)
controlling? Why? Why not?
4.
Should it have mattered that several months elapsed between the time the police
developed probable cause to seize the car and the time that they actually seized it?
5.
Would law enforcement have lost anything if a warrant were required in this case?
6.
Assuming that your answer to Question 4 was “no,” should that have been
determinative?
13
CHAPTER 6: AUTOMOBILES
B. Cars and Containers
California v. Acevedo
Questions and Notes
Insert at page 158 (after Note 5)
WYOMING v. HOUGHTON
526 U.S. 295 (1999)
Justice SCALIA delivered the opinion of the Court.
This case presents the question whether police officers violate the Fourth Amendment when
they search a passenger’s personal belongings inside an automobile that they have probable cause to
believe contains contraband.
I
In the early morning hours of July 23, 1995, a Wyoming Highway Patrol officer stopped an
automobile for speeding and driving with a faulty brake light. There were three passengers in the front
seat of the car: David Young (the driver), his girlfriend, and respondent. While questioning Young,
the officer noticed a hypodermic syringe in Young’s shirt pocket. He left the occupants under the
supervision of two backup officers as he went to get gloves from his patrol car. Upon his return, he
instructed Young to step out of the car and place the syringe on the hood. The officer then asked
Young why he had a syringe; with refreshing candor, Young replied that he used it to take drugs.
At this point, the backup officers ordered the two female passengers out of the car and asked
them for identification. Respondent falsely identified herself as “Sandra James” and stated that she
did not have any identification. Meanwhile, in light of Young’s admission, the officer searched the
passenger compartment of the car for contraband. On the back seat, he found a purse, which
respondent claimed as hers. He removed from the purse a wallet containing respondent’s driver’s
license, identifying her properly as Sandra K. Houghton. When the officer asked her why she had lied
about her name, she replied: “In case things went bad.”
Continuing his search of the purse, the officer found a brown pouch and a black wallet-type
container. Respondent denied that the former was hers, and claimed ignorance of how it came to be
there; it was found to contain drug paraphernalia and a syringe with 60 ccs of methamphetamine.
Respondent admitted ownership of the black container, which was also found to contain drug
paraphernalia, and a syringe (which respondent acknowledged was hers) with 10 ccs of
methamphetamine—an amount insufficient to support the felony conviction at issue in this case. The
officer also found fresh needle-track marks on respondent’s arms. He placed her under arrest.
The State of Wyoming charged respondent with felony possession of methamphetamine in
a liquid amount greater than three-tenths of a gram. See Wyo. Stat. Ann. § 35-7-1031(c)(iii)
(Supp.1996). After a hearing, the trial court denied her motion to suppress all evidence obtained from
the purse as the fruit of a violation of the Fourth and Fourteenth Amendments. The court held that
the officer had probable cause to search the car for contraband, and, by extension, any containers
14
therein that could hold such contraband. A jury convicted respondent as charged.
The Wyoming Supreme Court, by divided vote, reversed the conviction and announced the
following rule:
Generally, once probable cause is established to search a vehicle, an officer is entitled
to search all containers therein which may contain the object of the search. However,
if the officer knows or should know that a container is the personal effect of a
passenger who is not suspected of criminal activity, then the container is outside the
scope of the search unless someone had the opportunity to conceal the contraband
within the personal effect to avoid detection.
The court held that the search of respondent’s purse violated the Fourth and Fourteenth Amendments
because the officer “knew or should have known that the purse did not belong to the driver, but to
one of the passengers,” and because “there was no probable cause to search the passengers’ personal
effects and no reason to believe that contraband had been placed within the purse.”
II
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” In determining whether a
particular governmental action violates this provision, we inquire first whether the action was
regarded as an unlawful search or seizure under the common law when the Amendment was framed.
Where that inquiry yields no answer, we must evaluate the search or seizure under traditional
standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an
individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate
governmental interests.
It is uncontested in the present case that the police officers had probable cause to believe there
were illegal drugs in the car. Carroll v. United States similarly involved the warrantless search of a
car that law enforcement officials had probable cause to believe contained contraband—in that case,
bootleg liquor. The Court concluded that the Framers would have regarded such a search as
reasonable in light of legislation enacted by Congress from 1789 through 1799— as well as
subsequent legislation from the Founding era and beyond—that empowered customs officials to
search any ship or vessel without a warrant if they had probable cause to believe that it contained
goods subject to a duty. Thus, the Court held that “contraband goods concealed and illegally
transported in an automobile or other vehicle may be searched for without a warrant” where probable
cause exists.
We have furthermore read the historical evidence to show that the Framers would have
regarded as reasonable (if there was probable cause) the warrantless search of containers within an
automobile. In Ross, we upheld as reasonable the warrantless search of a paper bag and leather pouch
found in the trunk of the defendant’s car by officers who had probable cause to believe that the trunk
contained drugs. Justice STEVENS, writing for the Court, observed:
It is noteworthy that the early legislation on which the Court relied in Carroll
15
concerned the enforcement of laws imposing duties on imported merchandise. . . .
Presumably such merchandise was shipped then in containers of various kinds, just as
it is today. Since Congress had authorized warrantless searches of vessels and beasts
for imported merchandise, it is inconceivable that it intended a customs officer to
obtain a warrant for every package discovered during the search; certainly Congress
intended customs officers to open shipping containers when necessary and not merely
to examine the exterior of cartons or boxes in which smuggled goods might be
concealed. During virtually the entire history of our country—whether contraband
was transported in a horse-drawn carriage, a 1921 roadster, or a modern
automobile—it has been assumed that a lawful search of a vehicle would include a
search of any container that might conceal the object of the search.
Ross summarized its holding as follows: “If probable cause justifies the search of a lawfully stopped
vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object
of the search.” (emphasis added). And our later cases describing Ross have characterized it as
applying broadly to all containers within a car, without qualification as to ownership. See, e.g.,
Acevedo, (“[T]his Court in Ross took the critical step of saying that closed containers in cars could
be searched without a warrant because of their presence within the automobile”); United States v.
Johns, 469 U.S. 478 (1985) (Ross “held that if police officers have probable cause to search a
lawfully stopped vehicle, they may conduct a warrantless search of any containers found inside that
may conceal the object of the search”).
To be sure, there was no passenger in Ross, and it was not claimed that the package in the
trunk belonged to anyone other than the driver. Even so, if the rule of law that Ross announced were
limited to contents belonging to the driver, or contents other than those belonging to passengers, one
would have expected that substantial limitation to be expressed. And, more importantly, one would
have expected that limitation to be apparent in the historical evidence that formed the basis for Ross’
s holding. In fact, however, nothing in the statutes Ross relied upon, or in the practice under those
statutes, would except from authorized warrantless search packages belonging to passengers on the
suspect ship, horse-drawn carriage, or automobile.
Finally, we must observe that the analytical principle underlying the rule announced in Ross
is fully consistent—as respondent’s proposal is not—with the balance of our Fourth Amendment
jurisprudence. Ross concluded from the historical evidence that the permissible scope of a warrantless
car search “is defined by the object of the search and the places in which there is probable cause to
believe that it may be found.” The same principle is reflected in an earlier case involving the
constitutionality of a search warrant directed at premises belonging to one who is not suspected of
any crime: “The critical element in a reasonable search is not that the owner of the property is
suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be
searched for and seized are located on the property to which entry is sought.”
In sum, neither Ross itself nor the historical evidence it relied upon admits of a distinction
among packages or containers based on ownership. When there is probable cause to search for
contraband in a car, it is reasonable for police officers—like customs officials in the Founding era—to
examine packages and containers without a showing of individualized probable cause for each one.
A passenger’s personal belongings, just like the driver’s belongings or containers attached to the car
16
like a glove compartment, are “in” the car, and the officer has probable cause to search for
contraband in the car.
Even if the historical evidence, as described by Ross, were thought to be equivocal, we would
find that the balancing of the relative interests weighs decidedly in favor of allowing searches of a
passenger’s belongings. Passengers, no less than drivers, possess a reduced expectation of privacy
with regard to the property that they transport in cars, which “trave[l] public thoroughfares,”
Cardwell, “seldom serv[e] as . . . the repository of personal effects,” are subjected to police stop and
examination to enforce “pervasive” governmental controls “[a]s an everyday occurrence,” and, finally,
are exposed to traffic accidents that may render all their contents open to public scrutiny.
In this regard—the degree of intrusiveness upon personal privacy and indeed even personal
dignity—the two cases the Wyoming Supreme Court found dispositive differ substantially from the
package search at issue here. United States v. Di Re, 332 U.S. 581 (1948), held that probable cause
to search a car did not justify a body search of a passenger. And Ybarra v. Illinois [infra] held that
a search warrant for a tavern and its bartender did not permit body searches of all the bar’s patrons.
These cases turned on the unique, significantly heightened protection afforded against searches of
one’s person. “Even a limited search of the outer clothing . . . constitutes a severe, though brief,
intrusion upon cherished personal security, and it must surely be an annoying, frightening, and
perhaps humiliating experience.” Terry v. Ohio [infra]. Such traumatic consequences are not to be
expected when the police examine an item of personal property found in a car.10
Whereas the passenger’s privacy expectations are, as we have described, considerably
diminished, the governmental interests at stake are substantial. Effective law enforcement would be
appreciably impaired without the ability to search a passenger’s personal belongings when there is
reason to believe contraband or evidence of criminal wrongdoing is hidden in the car. As in all
10
The dissent begins its analysis with an assertion that this case is governed by our decision in United
States v. Di Re, 332 U.S. 581 (1948), which held, as the dissent describes it, that the automobile exception to the
warrant requirement did not justify “searches of the passenger’s pockets and the space between his shirt and
underwear.” It attributes that holding to “the settled distinction between drivers and passengers,” rather than to a
distinction between search of the person and search of property, which the dissent claims is “newly minted” by today’s
opinion—a “new rule that is based on a distinction between property contained in clothing worn by a passenger and
property contained in a passenger’s briefcase or purse.”
In its peroration, however, the dissent quotes extensively from Justice Jackson’s opinion in Di Re, which
makes it very clear that it is precisely this distinction between search of the person and search of property that the case
relied upon:
The Government says it would not contend that, armed with a search warrant for a residence only,
it could search all persons found in it. But an occupant of a house could be used to conceal this
contraband on his person quite as readily as can an occupant of a car.
Does the dissent really believe that Justice Jackson was saying that a house-search could not inspect property belonging
to persons found in the house—say a large standing safe or violin case belonging to the owner’s visiting godfather?
Of course that is not what Justice Jackson meant at all. He was referring precisely to that “distinction between property
contained in clothing worn by a passenger and property contained in a passenger’s briefcase or purse” that the dissent
disparages. This distinction between searches of the person and searches of property is assuredly not “newly minted.”
And if the dissent thinks “pockets” and “clothing” do not count as part of the person, it must believe that the only
searches of the person are strip searches.
17
car-search cases, the “ready mobility” of an automobile creates a risk that the evidence or contraband
will be permanently lost while a warrant is obtained. Carney. In addition, a car passenger—unlike the
unwitting tavern patron in Ybarra—will often be engaged in a common enterprise with the driver, and
have the same interest in concealing the fruits or the evidence of their wrongdoing. A criminal might
be able to hide contraband in a passenger’s belongings as readily as in other containers in the
car—perhaps even surreptitiously, without the passenger’s knowledge or permission. (This last
possibility provided the basis for respondent’s defense at trial; she testified that most of the seized
contraband must have been placed in her purse by her traveling companions at one or another of
various times, including the time she was “half asleep” in the car.)
To be sure, these factors favoring a search will not always be present, but the balancing of
interests must be conducted with an eye to the generality of cases. To require that the investigating
officer have positive reason to believe that the passenger and driver were engaged in a common
enterprise, or positive reason to believe that the driver had time and occasion to conceal the item in
the passenger’s belongings, surreptitiously or with friendly permission, is to impose requirements so
seldom met that a “passenger’s property” rule would dramatically reduce the ability to find and seize
contraband and evidence of crime. Of course these requirements would not attach (under the
Wyoming Supreme Court’s rule) until the police officer knows or has reason to know that the
container belongs to a passenger. But once a “passenger’s property” exception to car searches
became widely known, one would expect passenger-confederates to claim everything as their own.
And one would anticipate a bog of litigation—in the form of both civil lawsuits and motions to
suppress in criminal trials—involving such questions as whether the officer should have believed a
passenger’s claim of ownership, whether he should have inferred ownership from various objective
factors, whether he had probable cause to believe that the passenger was a confederate, or to believe
that the driver might have introduced the contraband into the package with or without the passenger’s
knowledge.11 When balancing the competing interests, our determinations of “reasonableness” under
the Fourth Amendment must take account of these practical realities. We think they militate in favor
of the needs of law enforcement, and against a personal-privacy interest that is ordinarily weak.
Finally, if we were to invent an exception from the historical practice that Ross accurately
described and summarized, it is perplexing why that exception should protect only property belonging
to a passenger, rather than (what seems much more logical) property belonging to anyone other than
the driver. Surely Houghton’s privacy would have been invaded to the same degree whether she was
present or absent when her purse was searched. And surely her presence in the car with the driver
11
The dissent is “confident in a police officer’s ability to apply a rule requiring a warrant or
individualized probable cause to search belongings that are . . . obviously owned by and in the custody of a passenger.”
If this is the dissent’s strange criterion for warrant protection (“obviously owned by and in the custody of”) its
preceding paean to the importance of preserving passengers’ privacy rings a little hollow on rehearing. Should it not
be enough if the passenger says he owns the briefcase, and the officer has no concrete reason to believe otherwise? Or
would the dissent consider that an example of “obvious” ownership? On reflection, it seems not at all obvious precisely
what constitutes obviousness—and so even the dissent’s on-the-cheap protection of passengers’ privacy interest in their
property turns out to be unclear, and hence unadministrable. But maybe the dissent does not mean to propose an
obviously-owned-by-and-in-the-custody-of test after all, since a few sentences later it endorses, simpliciter, “a rule
requiring a warrant or individualized probable cause to search passenger belongings.” For the reasons described in text,
that will not work.
18
provided more, rather than less, reason to believe that the two were in league. It may ordinarily be
easier to identify the property as belonging to someone other than the driver when the purported
owner is present to identify it—but in the many cases (like Ross itself) where the car is seized, that
identification may occur later, at the station- house; and even at the site of the stop one can readily
imagine a package clearly marked with the owner’s name and phone number, by which the officer can
confirm the driver’s denial of ownership. The sensible rule (and the one supported by history and
caselaw) is that such a package may be searched, whether or not its owner is present as a passenger
or otherwise, because it may contain the contraband that the officer has reason to believe is in the car.
We hold that police officers with probable cause to search a car may inspect passengers’
belongings found in the car that are capable of concealing the object of the search. The judgment of
the Wyoming Supreme Court is reversed.
It is so ordered.
Justice BREYER , concurring.
I join the Court’s opinion with the understanding that history is meant to inform, but not
automatically to determine, the answer to a Fourth Amendment question. I also agree with the Court
that when a police officer has probable cause to search a car, say, for drugs, it is reasonable for that
officer also to search containers within the car. If the police must establish a container’s ownership
prior to the search of that container (whenever, for example, a passenger says “that’s mine”), the
resulting uncertainty will destroy the workability of the bright-line rule set forth in Ross. At the same
time, police officers with probable cause to search a car for drugs would often have probable cause
to search containers regardless. Hence a bright-line rule will authorize only a limited number of
searches that the law would not otherwise justify.
At the same time, I would point out certain limitations upon the scope of the bright-line rule
that the Court describes. Obviously, the rule applies only to automobile searches. Equally obviously,
the rule applies only to containers found within automobiles. And it does not extend to the search of
a person found in that automobile. As the Court notes, and as Di Re, relied on heavily by Justice
STEVENS’ dissent, makes clear, the search of a person, including even “‘a limited search of the outer
clothing,’” is a very different matter in respect to which the law provides “significantly heightened
protection.”
Less obviously, but in my view also important, is the fact that the container here at issue, a
woman’s purse, was found at a considerable distance from its owner, who did not claim ownership
until the officer discovered her identification while looking through it. Purses are special containers.
They are repositories of especially personal items that people generally like to keep with them at all
times. So I am tempted to say that a search of a purse involves an intrusion so similar to a search of
one’s person that the same rule should govern both. However, given this Court’s prior cases, I cannot
argue that the fact that the container was a purse automatically makes a legal difference, for the
Court has warned against trying to make that kind of distinction. Ross. But I can say that it would
matter if a woman’s purse, like a man’s billfold, were attached to her person. It might then amount
to a kind of “outer clothing,” which under the Court’s cases would properly receive increased
protection. In this case, the purse was separate from the person, and no one has claimed that, under
those circumstances, the type of container makes a difference. For that reason, I join the Court’s
opinion.
19
Justice STEVENS, with whom Justice SOUTER and Justice GINSBURG join, dissenting.
After Wyoming’s highest court decided that a state highway patrolman unlawfully searched
Sandra Houghton’s purse, the State of Wyoming petitioned for a writ of certiorari. The State asked
that we consider the propriety of searching an automobile passenger’s belongings when the
government has developed probable cause to search the vehicle for contraband based on the driver’s
conduct. The State conceded that the trooper who searched Houghton’s purse lacked a warrant,
consent, or “probable cause specific to the purse or passenger.” In light of our established preference
for warrants and individualized suspicion, I would respect the result reached by the Wyoming
Supreme Court and affirm its judgment.
In all of our prior cases applying the automobile exception to the Fourth Amendment’s
warrant requirement, either the defendant was the operator of the vehicle and in custody of the object
of the search, or no question was raised as to the defendant’s ownership or custody. In the only
automobile case confronting the search of a passenger defendant—United States v. Di Re—the Court
held that the exception to the warrant requirement did not apply. (addressing searches of the
passenger’s pockets and the space between his shirt and underwear, both of which uncovered
counterfeit fuel rations). In Di Re, as here, the information prompting the search directly implicated
the driver, not the passenger. Today, instead of adhering to the settled distinction between drivers and
passengers, the Court fashions a new rule that is based on a distinction between property contained
in clothing worn by a passenger and property contained in a passenger’s briefcase or purse. In cases
on both sides of the Court’s newly minted test, the property is in a “container” (whether a pocket or
a pouch) located in the vehicle. Moreover, unlike the Court, I think it quite plain that the search of
a passenger’s purse or briefcase involves an intrusion on privacy that may be just as serious as was
the intrusion in Di Re.
Even apart from Di Re, the Court’s rights-restrictive approach is not dictated by precedent.
For example, in Ross, we were concerned with the interest of the driver in the integrity of “his
automobile,” we categorically rejected the notion that the scope of a warrantless search of a vehicle
might be “defined by the nature of the container in which the contraband is secreted.” “Rather, it is
defined by the object of the search and the places in which there is probable cause to believe that it
may be found.” We thus disapproved of a possible container-based distinction between a man’s
pocket and a woman’s pocketbook. Ironically, while we concluded in Ross that “[p]robable cause to
believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify
a search of the entire cab,” the rule the Court fashions would apparently permit a warrantless search
of a passenger’s briefcase if there is probable cause to believe the taxidriver had a syringe somewhere
in his vehicle.
Nor am I persuaded that the mere spatial association between a passenger and a driver
provides an acceptable basis for presuming that they are partners in crime or for ignoring privacy
interests in a purse. Whether or not the Fourth Amendment required a warrant to search Houghton’s
purse, at the very least the trooper in this case had to have probable cause to believe that her purse
contained contraband. The Wyoming Supreme Court concluded that he did not.
Finally, in my view, the State’s legitimate interest in effective law enforcement does not
20
outweigh the privacy concerns at issue.12 I am as confident in a police officer’s ability to apply a rule
requiring a warrant or individualized probable cause to search belongings that are—as in this
case—obviously owned by and in the custody of a passenger as is the Court in a
“passenger-confederate[‘]s” ability to circumvent the rule. Certainly the ostensible clarity of the
Court’s rule is attractive. But that virtue is insufficient justification for its adoption. Moreover, a rule
requiring a warrant or individualized probable cause to search passenger belongings is every bit as
simple as the Court’s rule; it simply protects more privacy.
I would decide this case in accord with what we have said about passengers and privacy,
rather than what we might have said in cases where the issue was not squarely presented. What
Justice Jackson wrote for the Court fifty years ago is just as sound today:
The Government says it would not contend that, armed with a search warrant
for a residence only, it could search all persons found in it. But an occupant of a
house could be used to conceal this contraband on his person quite as readily as can
an occupant of a car. Necessity, an argument advanced in support of this search,
would seem as strong a reason for searching guests of a house for which a search
warrant had issued as for search of guests in a car for which none had been issued. By
a parity of reasoning with that on which the Government disclaims the right to search
occupants of a house, we suppose the Government would not contend that if it had
a valid search warrant for the car only it could search the occupants as an incident to
its execution. How then could we say that the right to search a car without a warrant
confers greater latitude to search occupants than a search by warrant would permit?
“We see no ground for expanding the ruling in the Carroll case to justify this arrest and search as
incident to the search of a car. We are not convinced that a person, by mere presence in a suspected
car, loses immunities from search of his person to which he would otherwise be entitled.” Di Re,
accord Ross, (the proper scope of a warrantless automobile search based on probable cause is “no
broader” than the proper scope of a search authorized by a warrant supported by probable cause).13
12
To my knowledge, we have never restricted ourselves to a two-step Fourth Amendment approach
wherein the privacy and governmental interests at stake must be considered only if 18th-century common law “yields
no answer.” Neither the precedent cited by the Court, nor the majority’s opinion in this case, mandate that approach.
In a later discussion, the Court does attempt to address the contemporary privacy and governmental interests at issue
in cases of this nature. Either the majority is unconvinced by its own recitation of the historical materials, or it has
determined that considering additional factors is appropriate in any event. The Court does not admit the former; and
of course the latter, standing alone, would not establish uncertainty in the common law as the prerequisite to looking
beyond history in Fourth Amendment cases.
13
In response to this dissent the Court has crafted an imaginative footnote suggesting that the Di Re
decision rested, not on Di Re’s status as a mere occupant of the vehicle and the importance of individualized suspicion,
but rather on the intrusive character of the search. That the search of a safe or violin case would be less intrusive than
a strip search does not, however, persuade me that the Di Re case would have been decided differently if Di Re had
been a woman and the gas coupons had been found in her purse. Significantly, in commenting on the Carroll case
immediately preceding the paragraphs that I have quoted in the text, the Di Re Court stated: “But even the National
Prohibition Act did not direct the arrest of all occupants but only of the person in charge of the offending vehicle,
21
Instead of applying ordinary Fourth Amendment principles to this case, the majority extends
the automobile warrant exception to allow searches of passenger belongings based on the driver’s
misconduct. Thankfully, the Court’s automobile-centered analysis limits the scope of its holding. But
it does not justify the outcome in this case.
I respectfully dissent.
QUESTIONS AND NOTES
1.
If Young had been a bus driver, and Houghton one of forty bus passengers, would the
discovery of the syringe, coupled with the driver’s confession, have justified the search of Houghton’s
bags and the bags of the other thirty-nine passengers?
2.
3.
passengers?
If your answer to question 1 was “no,” explain the difference.
If your answer to question 1 was “yes,” what if it were a train with four hundred
4.
In Houghton, the hypothetical bus, or the hypothetical train, suppose that it was one
of the passengers who had the syringe and the confession? Same result? Different result? Why?
5.
Would (should) the result have been different if Houghton had the bag attached to her
person? Explain.
6.
Is Di Re still good law? Should it be?
7.
Precisely what is the distinction between Di Re and Houghton?
though there is better reason to assume that no passenger in a car loaded with liquor would remain innocent of
knowledge of the car’s cargo than to assume that a passenger must know what pieces of paper are carried in the pockets
of the driver.”
22
CHAPTER 6: AUTOMOBILES
D. Suspicionless Highway Stops
Delaware v. Prouse
Questions and Notes
Insert at page 176 (after Note 5)
CITY OF INDIANAPOLIS v. EDMOND
531 U.S. 32 (2000)
Justice O’CONNOR delivered the opinion of the Court.
In Sitz and Martinez-Fuerte, we held that brief, suspicionless seizures at highway checkpoints
for the purposes of combating drunk driving and intercepting illegal immigrants were constitutional.
We now consider the constitutionality of a highway checkpoint program whose primary purpose is
the discovery and interdiction of illegal narcotics.
I
In August 1998, the city of Indianapolis began to operate vehicle checkpoints on Indianapolis
roads in an effort to interdict unlawful drugs. The city conducted six such roadblocks between August
and November that year, stopping 1,161 vehicles and arresting 104 motorists. Fifty-five arrests were
for drug-related crimes, while 49 were for offenses unrelated to drugs. The overall “hit rate” of the
program was thus approximately nine percent.
At each checkpoint location, the police stop a predetermined number of vehicles.
Approximately 30 officers are stationed at the checkpoint. Pursuant to written directives issued by
the chief of police, at least one officer approaches the vehicle, advises the driver that he or she is
being stopped briefly at a drug checkpoint, and asks the driver to produce a license and registration.
The officer also looks for signs of impairment and conducts an open-view examination of the vehicle
from the outside. A narcotics-detection dog walks around the outside of each stopped vehicle.
The directives instruct the officers that they may conduct a search only by consent or based
on the appropriate quantum of particularized suspicion. The officers must conduct each stop in the
same manner until particularized suspicion develops, and the officers have no discretion to stop any
vehicle out of sequence. The city agreed in the stipulation to operate the checkpoints in such a way
as to ensure that the total duration of each stop, absent reasonable suspicion or probable cause, would
be five minutes or less.
The affidavit of Indianapolis Police Sergeant Marshall DePew, although it is technically
outside the parties’ stipulation, provides further insight concerning the operation of the checkpoints.
According to Sergeant DePew, checkpoint locations are selected weeks in advance based on such
considerations as area crime statistics and traffic flow. The checkpoints are generally operated during
daylight hours and are identified with lighted signs reading, “NARCOTICS CHECKPOINT ___
MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP.” Once a group of cars has
been stopped, other traffic proceeds without interruption until all the stopped cars have been
23
processed or diverted for further processing. Sergeant DePew also stated that the average stop for
a vehicle not subject to further processing lasts two to three minutes or less.
Respondents James Edmond and Joell Palmer were each stopped at a narcotics checkpoint
in late September 1998. Respondents then filed a lawsuit on behalf of themselves and the class of all
motorists who had been stopped or were subject to being stopped in the future at the Indianapolis
drug checkpoints. Respondents claimed that the roadblocks violated the Fourth Amendment of the
United States Constitution and the search and seizure provision of the Indiana Constitution.
Respondents requested declaratory and injunctive relief for the class, as well as damages and
attorney’s fees for themselves.
II
The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure
is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. While such
suspicion is not an “irreducible” component of reasonableness, Martinez-Fuerte, we have recognized
only limited circumstances in which the usual rule does not apply. For example, we have upheld
certain regimes of suspicionless searches where the program was designed to serve “special needs,
beyond the normal need for law enforcement.” See, e.g., Vernonia School Dist. 47J v. Acton, 515
U.S. 646 (1995) (random drug testing of student-athletes); Treasury Employees v. Von Raab, 489
U.S. 656 (1989) (drug tests for United States Customs Service employees seeking transfer or
promotion to certain positions); Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989)
(drug and alcohol tests for railway employees involved in train accidents or found to be in violation
of particular safety regulations). We have also allowed searches for certain administrative purposes
without particularized suspicion of misconduct, provided that those searches are appropriately
limited. See, e.g., New York v. Burger, 482 U.S. 691 (1987) (warrantless administrative inspection
of premises of “closely regulated” business); Michigan v. Tyler, 436 U.S. 499, 507-509, 511-512,
56 L. Ed. 2d 486, 98 S. Ct. 1942 (1978) (administrative inspection of fire-damaged premises to
determine cause of blaze); Camara v. Municipal Court of City and County of San Francisco, 387
U.S. 523 (1967) (administrative inspection to ensure compliance with city housing code).
We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol
checkpoint designed to intercept illegal aliens, Martinez-Fuerte, and at a sobriety checkpoint aimed
at removing drunk drivers from the road, Sitz. In addition, in Prouse, we suggested that a similar type
of roadblock with the purpose of verifying drivers’ licenses and vehicle registrations would be
permissible. In none of these cases, however, did we indicate approval of a checkpoint program
whose primary purpose was to detect evidence of ordinary criminal wrongdoing.
In Martinez-Fuerte, we entertained Fourth Amendment challenges to stops at two permanent
immigration checkpoints located on major United States highways less than 100 miles from the
Mexican border. We noted at the outset the particular context in which the constitutional question
arose, describing in some detail the “formidable law enforcement problems” posed by the northbound
tide of illegal entrants into the United States.
We found that the balance tipped in favor of the Government’s interests in policing the
Nation’s borders. 428 U.S. at 561-564. In so finding, we emphasized the difficulty of effectively
containing illegal immigration at the border itself. 428 U.S. at 556. We also stressed the impracticality
24
of the particularized study of a given car to discern whether it was transporting illegal aliens, as well
as the relatively modest degree of intrusion entailed by the stops. 428 U.S. at 556-564.
In Sitz, we evaluated the constitutionality of a Michigan highway sobriety checkpoint
program. The Sitz checkpoint involved brief suspicionless stops of motorists so that police officers
could detect signs of intoxication and remove impaired drivers from the road. Motorists who
exhibited signs of intoxication were diverted for a license and registration check and, if warranted,
further sobriety tests. This checkpoint program was clearly aimed at reducing the immediate hazard
posed by the presence of drunk drivers on the highways, and there was an obvious connection
between the imperative of highway safety and the law enforcement practice at issue. The gravity of
the drunk driving problem and the magnitude of the State’s interest in getting drunk drivers off the
road weighed heavily in our determination that the program was constitutional.
In Prouse, we invalidated a discretionary, suspicionless stop for a spot check of a motorist’s
driver’s license and vehicle registration. The officer’s conduct in that case was unconstitutional
primarily on account of his exercise of “standardless and unconstrained discretion.” We nonetheless
acknowledged the States’”vital interest in ensuring that only those qualified to do so are permitted
to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing,
registration, and vehicle inspection requirements are being observed.” Accordingly, we suggested that
“questioning of all oncoming traffic at roadblock-type stops” would be a lawful means of serving this
interest in highway safety.
We further indicated in Prouse that we considered the purposes of such a hypothetical
roadblock to be distinct from a general purpose of investigating crime. The State proffered the
additional interests of “the apprehension of stolen motor vehicles and of drivers under the influence
of alcohol or narcotics” in its effort to justify the discretionary spot check. We attributed the entirety
of the latter interest to the State’s interest in roadway safety. We also noted that the interest in
apprehending stolen vehicles may be partly subsumed by the interest in roadway safety. We observed,
however, that “the remaining governmental interest in controlling automobile thefts is not
distinguishable from the general interest in crime control.” Not only does the common thread of
highway safety thus run through Sitz and Prouse, but Prouse itself reveals a difference in the Fourth
Amendment significance of highway safety interests and the general interest in crime control.
III
It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within
the meaning of the Fourth Amendment. See, e.g., Sitz. The fact that officers walk a narcoticsdetection dog around the exterior of each car at the Indianapolis checkpoints does not transform the
seizure into a search. See United States v. Place, 462 U.S. 696 (1983), infra ch. 9. Just as in Place,
an exterior sniff of an automobile does not require entry into the car and is not designed to disclose
any information other than the presence or absence of narcotics. Like the dog sniff in Place, a sniff
by a dog that simply walks around a car is “much less intrusive than a typical search.” Rather, what
principally distinguishes these checkpoints from those we have previously approved is their primary
purpose.
As petitioners concede, the Indianapolis checkpoint program unquestionably has the primary
purpose of interdicting illegal narcotics. In their stipulation of facts, the parties repeatedly refer to the
25
checkpoints as “drug checkpoints” and describe them as “being operated by the City of Indianapolis
in an effort to interdict unlawful drugs in Indianapolis.” In addition, the first document attached to
the parties’ stipulation is entitled “DRUG CHECKPOINT CONTACT OFFICER DIRECTIVES BY
ORDER OF THE CHIEF OF POLICE.” These directives instruct officers to “advise the citizen that
they are being stopped briefly at a drug checkpoint.”
The second document attached to the stipulation is entitled “1998 Drug Road Blocks” and
contains a statistical breakdown of information relating to the checkpoints conducted. Further,
according to Sergeant DePew, the checkpoints are identified with lighted signs reading,
“NARCOTICS CHECKPOINT ___ MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED
TO STOP.” Finally, both the District Court and the Court of Appeals recognized that the primary
purpose of the roadblocks is the interdiction of narcotics.
We have never approved a checkpoint program whose primary purpose was to detect
evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited
exceptions to the general rule that a seizure must be accompanied by some measure of individualized
suspicion. We suggested in Prouse that we would not credit the “general interest in crime control”
as justification for a regime of suspicionless stops. Consistent with this suggestion, each of the
checkpoint programs that we have approved was designed primarily to serve purposes closely related
to the problems of policing the border or the necessity of ensuring roadway safety. Because the
primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary
criminal wrongdoing, the program contravenes the Fourth Amendment.
Petitioners propose several ways in which the narcotics-detection purpose of the instant
checkpoint program may instead resemble the primary purposes of the checkpoints in Sitz and
Martinez-Fuerte. Petitioners state that the checkpoints in those cases had the same ultimate purpose
of arresting those suspected of committing crimes. Securing the border and apprehending drunk
drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and
criminal prosecutions in pursuit of these goals. If we were to rest the case at this high level of
generality, there would be little check on the ability of the authorities to construct roadblocks for
almost any conceivable law enforcement purpose. Without drawing the line at roadblocks designed
primarily to serve the general interest in crime control, the Fourth Amendment would do little to
prevent such intrusions from becoming a routine part of American life.
Petitioners also emphasize the severe and intractable nature of the drug problem as
justification for the checkpoint program. There is no doubt that traffic in illegal narcotics creates
social harms of the first magnitude. Cf. Von Raab. The law enforcement problems that the drug trade
creates likewise remain daunting and complex, particularly in light of the myriad forms of spin-off
crime that it spawns. The same can be said of various other illegal activities, if only to a lesser degree.
But the gravity of the threat alone cannot be dispositive of questions concerning what means law
enforcement officers may employ to pursue a given purpose. Rather, in determining whether
individualized suspicion is required, we must consider the nature of the interests threatened and their
connection to the particular law enforcement practices at issue. We are particularly reluctant to
recognize exceptions to the general rule of individualized suspicion where governmental authorities
primarily pursue their general crime control ends.
Nor can the narcotics-interdiction purpose of the checkpoints be rationalized in terms of a
highway safety concern similar to that present in Sitz. The detection and punishment of almost any
26
criminal offense serves broadly the safety of the community, and our streets would no doubt be safer
but for the scourge of illegal drugs. Only with respect to a smaller class of offenses, however, is
society confronted with the type of immediate, vehicle-bound threat to life and limb that the sobriety
checkpoint in Sitz was designed to eliminate.
Petitioners also liken the anticontraband agenda of the Indianapolis checkpoints to the
antismuggling purpose of the checkpoints in Martinez-Fuerte. Petitioners cite this Court’s conclusion
in Martinez-Fuerte that the flow of traffic was too heavy to permit “particularized study of a given
car that would enable it to be identified as a possible carrier of illegal aliens,” and claim that this logic
has even more force here. The problem with this argument is that the same logic prevails any time a
vehicle is employed to conceal contraband or other evidence of a crime. This type of connection to
the roadway is very different from the close connection to roadway safety that was present in Sitz and
Prouse. Further, the Indianapolis checkpoints are far removed from the border context that was
crucial in Martinez-Fuerte. While the difficulty of examining each passing car was an important factor
in validating the law enforcement technique employed in Martinez-Fuerte, this factor alone cannot
justify a regime of suspicionless searches or seizures. Rather, we must look more closely at the nature
of the public interests that such a regime is designed principally to serve.
The primary purpose of the Indianapolis narcotics checkpoints is in the end to advance “the
general interest in crime control.” We decline to suspend the usual requirement of individualized
suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of
investigating crimes. We cannot sanction stops justified only by the generalized and ever-present
possibility that interrogation and inspection may reveal that any given motorist has committed some
crime.
Of course, there are circumstances that may justify a law enforcement checkpoint where the
primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For
example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an
appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous
criminal who is likely to flee by way of a particular route. The exigencies created by these scenarios
are far removed from the circumstances under which authorities might simply stop cars as a matter
of course to see if there just happens to be a felon leaving the jurisdiction. While we do not limit the
purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve
a program whose primary purpose is ultimately indistinguishable from the general interest in crime
control.1
Petitioners argue that our prior cases preclude an inquiry into the purposes of the checkpoint
program. For example, they cite Whren v. United States, 517 U.S. 806 (1996), infra ch. 11, to
support the proposition that “where the government articulates and pursues a legitimate interest for
a suspicionless stop, courts should not look behind that interest to determine whether the
government’s ‘primary purpose’ is valid.” These cases, however, do not control the instant situation.
1
THE CHIEF JUSTICE’s dissent erroneously characterizes our opinion as resting on the
application of a “non-law-enforcement primary purpose test.” Our opinion nowhere describes the
purposes of the Sitz and Martinez-Fuerte checkpoints as being “not primarily related to criminal law
enforcement.” Rather, our judgment turns on the fact that the primary purpose of the Indianapolis
checkpoints is to advance the general interest in crime control.
27
In Whren, we held that an individual officer’s subjective intentions are irrelevant to the Fourth
Amendment validity of a traffic stop that is justified objectively by probable cause to believe that a
traffic violation has occurred. We observed that our prior cases “foreclose any argument that the
constitutional reasonableness of traffic stops depends on the actual motivations of the individual
officers involved.” In so holding, we expressly distinguished cases where we had addressed the
validity of searches conducted in the absence of probable cause. (distinguishing Florida v. Wells)
(stating that “an inventory search must not be a ruse for a general rummaging in order to discover
incriminating evidence”), Colorado v. Bertine, 479 U.S. 367 (1987) (suggesting that the absence of
bad faith and the lack of a purely investigative purpose were relevant to the validity of an inventory
search), and Burger (observing that a valid administrative inspection conducted with neither a warrant
nor probable cause did not appear to be a pretext for gathering evidence of violations of the penal
laws).
Whren therefore reinforces the principle that, while “subjective intentions play no role in
ordinary, probable-cause Fourth Amendment analysis,” programmatic purposes may be relevant to
the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without
individualized suspicion. Accordingly, Whren does not preclude an inquiry into programmatic purpose
in such contexts. It likewise does not preclude an inquiry into programmatic purpose here.
Petitioners argue that the Indianapolis checkpoint program is justified by its lawful secondary
purposes of keeping impaired motorists off the road and verifying licenses and registrations. If this
were the case, however, law enforcement authorities would be able to establish checkpoints for
virtually any purpose so long as they also included a license or sobriety check. For this reason, we
examine the available evidence to determine the primary purpose of the checkpoint program. While
we recognize the challenges inherent in a purpose inquiry, courts routinely engage in this enterprise
in many areas of constitutional jurisprudence as a means of sifting abusive governmental conduct from
that which is lawful. As a result, a program driven by an impermissible purpose may be proscribed
while a program impelled by licit purposes is permitted, even though the challenged conduct may be
outwardly similar. While reasonableness under the Fourth Amendment is predominantly an objective
inquiry, our special needs and administrative search cases demonstrate that purpose is often relevant
when suspicionless intrusions pursuant to a general scheme are at issue.2
It goes without saying that our holding today does nothing to alter the constitutional status
of the sobriety and border checkpoints that we approved in Sitz and Martinez-Fuerte, or of the type
of traffic checkpoint that we suggested would be lawful in Prouse. The constitutionality of such
checkpoint programs still depends on a balancing of the competing interests at stake and the
effectiveness of the program. When law enforcement authorities pursue primarily general crime
control purposes at checkpoints such as here, however, stops can only be justified by some quantum
of individualized suspicion.
Our holding also does not affect the validity of border searches or searches at places like
2
Because petitioners concede that the primary purpose of the Indianapolis checkpoints
is narcotics detection, we need not decide whether the State may establish a checkpoint program with
the primary purpose of checking licenses or driver sobriety and a secondary purpose of interdicting
narcotics. Specifically, we express no view on the question whether police may expand the scope of
a license or sobriety checkpoint seizure in order to detect the presence of drugs in a stopped car.
28
airports and government buildings, where the need for such measures to ensure public safety can be
particularly acute. Nor does our opinion speak to other intrusions aimed primarily at purposes beyond
the general interest in crime control. Our holding also does not impair the ability of police officers to
act appropriately upon information that they properly learn during a checkpoint stop justified by a
lawful primary purpose, even where such action may result in the arrest of a motorist for an offense
unrelated to that purpose. Finally, we caution that the purpose inquiry in this context is to be
conducted only at the programmatic level and is not an invitation to probe the minds of individual
officers acting at the scene.
Because the primary purpose of the Indianapolis checkpoint program is ultimately
indistinguishable from the general interest in crime control, the checkpoints violate the Fourth
Amendment. The judgment of the Court of Appeals is accordingly affirmed.
Chief Justice REHNQUIST, with whom Justice THOMAS joins, and with whom Justice SCALIA
joins as to Part I, dissenting.
The State’s use of a drug-sniffing dog, according to the Court’s holding, annuls what is
otherwise plainly constitutional under our Fourth Amendment jurisprudence: brief, standardized,
discretionless, roadblock seizures of automobiles, seizures which effectively serve a weighty state
interest with only minimal intrusion on the privacy of their occupants. Because these seizures serve
the State’s accepted and significant interests of preventing drunken driving and checking for driver’s
licenses and vehicle registrations, and because there is nothing in the record to indicate that the
addition of the dog sniff lengthens these otherwise legitimate seizures, I dissent.
I
As it is nowhere to be found in the Court’s opinion, I begin with blackletter roadblock seizure
law. “The principal protection of Fourth Amendment rights at checkpoints lies in appropriate
limitations on the scope of the stop.” Roadblock seizures are consistent with the Fourth Amendment
if they are “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of
individual officers.” Brown v. Texas. Specifically, the constitutionality of a seizure turns upon “a
weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure
advances the public interest, and the severity of the interference with individual liberty.”
We first applied these principles in Martinez-Fuerte, which approved highway checkpoints
for detecting illegal aliens. In Martinez-Fuerte, we balanced the United States’ formidable interest
in checking the flow of illegal immigrants against the limited “objective” and “subjective” intrusion
on the motorists. The objective intrusion--the stop itself,1 the brief questioning of the occupants, and
the visual inspection of the car--was considered “limited” because “neither the vehicle nor its
occupants [were] searched.” Likewise, the subjective intrusion, or the fear and surprise engendered
in law-abiding motorists by the nature of the stop, was found to be minimal because the “regularized
manner in which [the] established checkpoints [were] operated [was] visible evidence, reassuring to
law-abiding motorists, that the stops [were] duly authorized and believed to serve the public interest.”
1
The record from one of the consolidated cases indicated that the stops lasted between
three and five minutes. See United States v. Martinez-Fuerte, 428 U.S. 543, 546-547 (1976).
29
Indeed, the standardized operation of the roadblocks was viewed as markedly different from roving
patrols, where the unbridled discretion of officers in the field could result in unlimited interference
with motorists’ use of the highways. And although the decision in Martinez-Fuerte did not turn on
the checkpoints’ effectiveness, the record in one of the consolidated cases demonstrated that illegal
aliens were found in 0.12 percent of the stopped vehicles.
In Sitz, we upheld the State’s use of a highway sobriety checkpoint after applying the
framework set out in Martinez-Fuerte and Brown. There, we recognized the gravity of the State’s
interest in curbing drunken driving and found the objective intrusion of the approximately 25-second
seizure to be “slight.” Turning to the subjective intrusion, we noted that the checkpoint was selected
pursuant to guidelines and was operated by uniformed officers. Finally, we concluded that the
program effectively furthered the State’s interest because the checkpoint resulted in the arrest of two
drunk drivers, or 1.6 percent of the 126 drivers stopped.
This case follows naturally from Martinez-Fuerte and Sitz. Petitioners acknowledge that the
“primary purpose” of these roadblocks is to interdict illegal drugs, but this fact should not be
controlling. Even accepting the Court’s conclusion that the checkpoints at issue in Martinez-Fuerte
and Sitz were not primarily related to criminal law enforcement,2 the question whether a law
enforcement purpose could support a roadblock seizure is not presented in this case. The District
Court found that another “purpose of the checkpoints is to check driver’s licenses and vehicle
registrations,” and the written directives state that the police officers are to “look for signs of
impairment.” The use of roadblocks to look for signs of impairment was validated by Sitz, and the
use of roadblocks to check for driver’s licenses and vehicle registrations was expressly recognized
in Prouse. That the roadblocks serve these legitimate state interests cannot be seriously disputed, as
the 49 people arrested for offenses unrelated to drugs can attest. And it would be speculative to
conclude--given the District Court’s findings, the written directives, and the actual arrests--that
petitioners would not have operated these roadblocks but for the State’s interest in interdicting drugs.
Because of the valid reasons for conducting these roadblock seizures, it is constitutionally
irrelevant that petitioners also hoped to interdict drugs. In Whren v. United States, 517 U.S. 806
(1996), infra ch. 11, we held that an officer’s subjective intent would not invalidate an otherwise
objectively justifiable stop of an automobile. The reasonableness of an officer’s discretionary decision
to stop an automobile, at issue in Whren, turns on whether there is probable cause to believe that a
traffic violation has occurred. The reasonableness of highway checkpoints, at issue here, turns on
whether they effectively serve a significant state interest with minimal intrusion on motorists. The stop
in Whren was objectively reasonable because the police officers had witnessed traffic violations; so
too the roadblocks here are objectively reasonable because they serve the substantial interests of
preventing drunken driving and checking for driver’s licenses and vehicle registrations with minimal
intrusion on motorists.
2
This gloss is not at all obvious. The respondents in Martinez-Fuerte were criminally
prosecuted for illegally transporting aliens, and the Court expressly noted that “interdicting the flow
of illegal entrants from Mexico poses formidable law enforcement problems.” And the Sitz Court
recognized that if an “officer’s observations suggest that the driver was intoxicated, an arrest would
be made.” But however persuasive the distinction, the Court’s opinion does not impugn the
continuing validity of Martinez-Fuerte and Sitz.
30
Once the constitutional requirements for a particular seizure are satisfied, the subjective
expectations of those responsible for it, be it police officers or members of a city council, are
irrelevant. Because the objective intrusion of a valid seizure does not turn upon anyone’s subjective
thoughts, neither should our constitutional analysis.
With these checkpoints serving two important state interests, the remaining prongs of the
Brown v. Texas balancing test are easily met. The seizure is objectively reasonable as it lasts, on
average, two to three minutes and does not involve a search. The subjective intrusion is likewise
limited as the checkpoints are clearly marked and operated by uniformed officers who are directed
to stop every vehicle in the same manner. The only difference between this case and Sitz is the
presence of the dog. We have already held, however, that a “sniff test” by a trained narcotics dog is
not a “search” within the meaning of the Fourth Amendment because it does not require physical
intrusion of the object being sniffed and it does not expose anything other than the contraband items.
United States v. Place, 462 U.S. 696 (1983), infra ch. 9. And there is nothing in the record to
indicate that the dog sniff lengthens the stop. Finally, the checkpoints’ success rate--49 arrests for
offenses unrelated to drugs--only confirms the State’s legitimate interests in preventing drunken
driving and ensuring the proper licensing of drivers and registration of their vehicles.5
These stops effectively serve the State’s legitimate interests; they are executed in a regularized
and neutral manner; and they only minimally intrude upon the privacy of the motorists. They should
therefore be constitutional.
II
The Court, unwilling to adopt the straightforward analysis that these precedents dictate, adds
a new non-law-enforcement primary purpose test lifted from a distinct area of Fourth Amendment
jurisprudence relating to the searches of homes and businesses. As discussed above, the question that
the Court answers is not even posed in this case given the accepted reasons for the seizures. But more
fundamentally, whatever sense a non-law-enforcement primary purpose test may make in the search
setting, it is ill suited to brief roadblock seizures, where we have consistently looked at “the scope
of the stop” in assessing a program’s constitutionality.
“One’s expectation of privacy in an automobile and of freedom in its operation are
significantly different from the traditional expectation of privacy and freedom in one’s residence.” The
lowered expectation of privacy in one’s automobile is coupled with the limited nature of the intrusion:
a brief, standardized, nonintrusive seizure.6 The brief seizure of an automobile can hardly be
compared to the intrusive search of the body or the home. Thus, just as the “special needs” inquiry
serves to both define and limit the permissible scope of those searches, the Brown v. Texas balancing
test serves to define and limit the permissible scope of automobile seizures.
Because of these extrinsic limitations upon roadblock seizures, the Court’s newfound non-
5
Put in statistical terms, 4.2 percent of the 1,161 motorists stopped were arrested for
offenses unrelated to drugs.
6
This fact distinguishes the roadblock seizure of an automobile from an inventory
search of an automobile. Cf. Colorado v. Bertine (automobile inventory search).
31
law-enforcement primary purpose test is both unnecessary to secure Fourth Amendment rights and
bound to produce wide-ranging litigation over the “purpose” of any given seizure. Police designing
highway roadblocks can never be sure of their validity, since a jury might later determine that a
forbidden purpose exists. Roadblock stops identical to the one that we upheld in Sitz 10 years ago,
or to the one that we upheld 24 years ago in Martinez-Fuerte, may now be challenged on the grounds
that they have some concealed forbidden purpose.
Efforts to enforce the law on public highways used by millions of motorists are obviously
necessary to our society. The Court’s opinion today casts a shadow over what had been assumed, on
the basis of stare decisis, to be a perfectly lawful activity. Conversely, if the Indianapolis police had
assigned a different purpose to their activity here, but in no way changed what was done on the
ground to individual motorists, it might well be valid. The Court’s non-law-enforcement primary
purpose test simply does not serve as a proxy for anything that the Fourth Amendment is, or should
be, concerned about in the automobile seizure context.
Petitioners’ program complies with our decisions regarding roadblock seizures of
automobiles, and the addition of a dog sniff does not add to the length or the intrusion of the stop.
Because such stops are consistent with the Fourth Amendment, I would reverse the decision of the
Court of Appeals.
Justice THOMAS, dissenting.
Taken together, our decisions in Sitz and Martinez-Fuerte stand for the proposition that
suspicionless roadblock seizures are constitutionally permissible if conducted according to a plan that
limits the discretion of the officers conducting the stops. I am not convinced that Sitz and MartinezFuerte were correctly decided. Indeed, I rather doubt that the Framers of the Fourth Amendment
would have considered “reasonable” a program of indiscriminate stops of individuals not suspected
of wrongdoing.
Respondents did not, however, advocate the overruling of Sitz and Martinez-Fuerte, and I
am reluctant to consider such a step without the benefit of briefing and argument. For the reasons
given by THE CHIEF JUSTICE, I believe that those cases compel upholding the program at issue here.
I, therefore, join his opinion.
QUESTIONS AND NOTES
1.
Would the result in Edmond be different if instead of a drug checkpoint that also
checked licenses and sobriety, it were a license and sobriety checkpoint that also employed drug
sniffing dogs? What would O’Connor say? What would Rehnquist say?
2.
Is the distinction suggested by question 1, one of form or substance?
3.
If Indianapolis wanted to continue its roadblock, what would you advise it to do?
4.
After Edmond, are Sitz, and Prouse good law? Should they be?
32
CHAPTER 7: LIMITED SEARCHES ON LESS THAN PROBABLE CAUSE
B. What Is Reasonable Suspicion? How Is It Different from Probable Cause?
Alabama v. White
Insert at page 223 (after Note 5):
6.
In Florida v. J.L., the Court explored the limits of White.
FLORIDA v. J.L.
120 S. Ct. 1375 (2000)
Justice GINSBURG delivered the opinion of the Court.
The question presented in this case is whether an anonymous tip that a person is carrying a
gun is, without more, sufficient to justify a police officer’s stop and frisk of that person. We hold that
it is not.
I
On October 13, 1995, an anonymous caller reported to the Miami-Dade Police that a young
black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. So far as
the record reveals, there is no audio recording of the tip, and nothing is known about the informant.
Sometime after the police received the tip—the record does not say how long—two officers were
instructed to respond. They arrived at the bus stop about six minutes later and saw three black males
“just hanging out [there].” One of the three, respondent J.L., was wearing a plaid shirt. Apart from
the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not
see a firearm, and J.L. made no threatening or otherwise unusual movements. One of the officers
approached J.L., told him to put his hands up on the bus stop, frisked him, and seized a gun from
J.L.’s pocket. The second officer frisked the other two individuals, against whom no allegations had
been made, and found nothing.
J.L., who was at the time of the frisk “10 days shy of his 16th birthday,” was charged under
state law with carrying a concealed firearm without a license and possessing a firearm while under
the age of 18. He moved to suppress the gun as the fruit of an unlawful search, and the trial court
granted his motion. The intermediate appellate court reversed, but the Supreme Court of Florida
quashed that decision and held the search invalid under the Fourth Amendment.
Seeking review in this Court, the State of Florida noted that the decision of the State’s
Supreme Court conflicts with decisions of other courts declaring similar searches compatible with the
Fourth Amendment. We granted certiorari and now affirm the judgment of the Florida Supreme
Court.
II
Our “stop and frisk” decisions begin with Terry v. Ohio [where this Court held:]
33
Where a police officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where in the
course of investigating this behavior he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the initial stages of the encounter serves
to dispel his reasonable fear for his own or others’ safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover weapons which might be used
to assault him.
In the instant case, the officers’ suspicion that J.L. was carrying a weapon arose not from any
observations of their own but solely from a call made from an unknown location by an unknown
caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held
responsible if her allegations turn out to be fabricated, see Adams v. Williams, “an anonymous tip
alone seldom demonstrates the informant’s basis of knowledge or veracity,” Alabama v. White. As
we have recognized, however, there are situations in which an anonymous tip, suitably corroborated,
exhibits “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory
stop.” The question we here confront is whether the tip pointing to J.L. had those indicia of reliability.
In White, the police received an anonymous tip asserting that a woman was carrying cocaine
and predicting that she would leave an apartment building at a specified time, get into a car matching
a particular description, and drive to a named motel. Standing alone, the tip would not have justified
a Terry stop. Only after police observation showed that the informant had accurately predicted the
woman’s movements, we explained, did it become reasonable to think the tipster had inside
knowledge about the suspect and therefore to credit his assertion about the cocaine. Although the
Court held that the suspicion in White became reasonable after police surveillance, we regarded the
case as borderline. Knowledge about a person’s future movements indicates some familiarity with that
person’s affairs, but having such knowledge does not necessarily imply that the informant knows, in
particular, whether that person is carrying hidden contraband. We accordingly classified White as a
“close case.”
The tip in the instant case lacked the moderate indicia of reliability present in White and
essential to the Court’s decision in that case. The anonymous call concerning J.L. provided no
predictive information and therefore left the police without means to test the informant’s knowledge
or credibility. That the allegation about the gun turned out to be correct does not suggest that the
officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful
conduct: The reasonableness of official suspicion must be measured by what the officers knew before
they conducted their search. All the police had to go on in this case was the bare report of an
unknown, unaccountable informant who neither explained how he knew about the gun nor supplied
any basis for believing he had inside information about J.L. If White was a close case on the reliability
of anonymous tips, this one surely falls on the other side of the line.
Florida contends that the tip was reliable because its description of the suspect’s visible
attributes proved accurate: There really was a young black male wearing a plaid shirt at the bus stop.
The United States as amicus curiae makes a similar argument, proposing that a stop and frisk should
be permitted “when (1) an anonymous tip provides a description of a particular person at a particular
34
location illegally carrying a concealed firearm, (2) police promptly verify the pertinent details of the
tip except the existence of the firearm, and (3) there are no factors that cast doubt on the reliability
of the tip . . . .” These contentions misapprehend the reliability needed for a tip to justify a Terry stop.
An accurate description of a subject’s readily observable location and appearance is of course
reliable in this limited sense: It will help the police correctly identify the person whom the tipster
means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed
criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion
of illegality, not just in its tendency to identify a determinate person. Cf. 4 W. LA FAVE, SEARCH AND
SEIZURE § 9.4(h), p. 213 (3d ed. 1996) (distinguishing reliability as to identification, which is often
important in other criminal law contexts, from reliability as to the likelihood of criminal activity,
which is central in anonymous-tip cases).
A second major argument advanced by Florida and the United States as amicus is, in essence,
that the standard Terry analysis should be modified to license a “firearm exception.” Under such an
exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail
standard pre-search reliability testing. We decline to adopt this position.
Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our
decisions recognize the serious threat that armed criminals pose to public safety; Terry’s rule, which
permits protective police searches on the basis of reasonable suspicion rather than demanding that
officers meet the higher standard of probable cause, responds to this very concern. But an automatic
firearm exception to our established reliability analysis would rove too far. Such an exception would
enable any person seeking to harass another to set in motion an intrusive, embarrassing police search
of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful
carriage of a gun. Nor could one securely confine such an exception to allegations involving firearms.
Several Courts of Appeals have held it per se foreseeable for people carrying significant amounts of
illegal drugs to be carrying guns as well. If police officers may properly conduct Terry frisks on the
basis of bare-boned tips about guns, it would be reasonable to maintain under the above-cited
decisions that the police should similarly have discretion to frisk based on bare-boned tips about
narcotics. As we clarified when we made indicia of reliability critical in Adams and White, the Fourth
Amendment is not so easily satisfied. Cf. Richards v. Wisconsin, 520 U.S. 385, 393-394 (1997)
(rejecting a per se exception to the “knock and announce” rule for narcotics cases partly because “the
reasons for creating an exception in one category [of Fourth Amendment cases] can, relatively easily,
be applied to others,” thus allowing the exception to swallow the rule).1
The facts of this case do not require us to speculate about the circumstances under which the
danger alleged in an anonymous tip might be so great as to justify a search even without a showing
1
At oral argument, petitioner also advanced the position that J.L.’s youth made the stop and frisk
valid, because it is a crime in Florida for persons under the age of 21 to carry concealed firearms. See Fla. Stat. §
790.01 (1997) (carrying a concealed weapon without a license is a misdemeanor), §790.06 (2)(b) (only persons aged
21 or older may be licensed to carry concealed weapons). This contention misses the mark. Even assuming that the
arresting officers could be sure that J.L. was under 21, they would have had reasonable suspicion that J.L. was engaged
in criminal activity only if they could be confident that he was carrying a gun in the first place. The mere fact that a
tip, if true, would describe illegal activity does not mean that the police may make a Terry stop without meeting the
reliability requirement, and the fact that J.L. was under 21 in no way made the gun tip more reliable than if he had been
an adult.
35
of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the
indicia of reliability we demand for a report of a person carrying a firearm before the police can
constitutionally conduct a frisk. Nor do we hold that public safety officials in quarters where the
reasonable expectation of Fourth Amendment privacy is diminished, such as airports, see Florida v.
Rodriguez, 469 U.S. 1 (1984) (per curiam), and schools, see New Jersey v. T.L.O., 469 U.S. 325
(1985), cannot conduct protective searches on the basis of information insufficient to justify searches
elsewhere.
Finally, the requirement that an anonymous tip bear standard indicia of reliability in order to
justify a stop in no way diminishes a police officer’s prerogative, in accord with Terry, to conduct a
protective search of a person who has already been legitimately stopped. We speak in today’s
decision only of cases in which the officer’s authority to make the initial stop is at issue. In that
context, we hold that an anonymous tip lacking indicia of reliability of the kind contemplated in
Adams and White does not justify a stop and frisk whenever and however it alleges the illegal
possession of a firearm.
The judgment of the Florida Supreme Court is affirmed.
It is so ordered.
Justice KENNEDY, with whom THE CHIEF JUSTICE joins, concurring.
On the record created at the suppression hearing, the Court’s decision is correct. The Court
says all that is necessary to resolve this case, and I join the opinion in all respects. It might be noted,
however, that there are many indicia of reliability respecting anonymous tips that we have yet to
explore in our cases.
When a police officer testifies that a suspect aroused the officer’s suspicion, and so justifies
a stop and frisk, the courts can weigh the officer’s credibility and admit evidence seized pursuant to
the frisk even if no one, aside from the officer and defendant themselves, was present or observed the
seizure. An anonymous telephone tip without more is different, however; for even if the officer’s
testimony about receipt of the tip is found credible, there is a second layer of inquiry respecting the
reliability of the informant that cannot be pursued. If the telephone call is truly anonymous, the
informant has not placed his credibility at risk and can lie with impunity. The reviewing court cannot
judge the credibility of the informant and the risk of fabrication becomes unacceptable.
On this record, then, the Court is correct in holding that the telephone tip did not justify the
arresting officer’s immediate stop and frisk of respondent. There was testimony that an anonymous
tip came in by a telephone call and nothing more. The record does not show whether some notation
or other documentation of the call was made either by a voice recording or tracing the call to a
telephone number. The prosecution recounted just the tip itself and the later verification of the
presence of the three young men in the circumstances the Court describes.
It seems appropriate to observe that a tip might be anonymous in some sense yet have certain
other features, either supporting reliability or narrowing the likely class of informants, so that the tip
does provide the lawful basis for some police action. One such feature, as the Court recognizes, is
that the tip predicts future conduct of the alleged criminal. There may be others. For example, if an
unnamed caller with a voice which sounds the same each time tells police on two successive nights
about criminal activity which in fact occurs each night, a similar call on the third night ought not be
treated automatically like the tip in the case now before us. In the instance supposed, there would be
36
a plausible argument that experience cures some of the uncertainty surrounding the anonymity,
justifying a proportionate police response. In today’s case, however, the State provides us with no
data about the reliability of anonymous tips. Nor do we know whether the dispatcher or arresting
officer had any objective reason to believe that this tip had some particular indicia of reliability.
If an informant places his anonymity at risk, a court can consider this factor in weighing the
reliability of the tip. An instance where a tip might be considered anonymous but nevertheless
sufficiently reliable to justify a proportionate police response may be when an unnamed person driving
a car the police officer later describes stops for a moment and, face to face, informs the police that
criminal activity is occurring. This too seems to be different from the tip in the present case.
Instant caller identification is widely available to police, and, if anonymous tips are proving
unreliable and distracting to police, squad cars can be sent within seconds to the location of the
telephone used by the informant. Voice recording of telephone tips might, in appropriate cases, be
used by police to locate the caller. It is unlawful to make false reports to the police, and the ability
of the police to trace the identity of anonymous telephone informants may be a factor which lends
reliability to what, years earlier, might have been considered unreliable anonymous tips.
These matters, of course, must await discussion in other cases, where the issues are presented
by the record.
QUESTIONS AND NOTES
1.
Was J.L. an easy case? Should it have been? Explain.
2.
What should the police do when they get a call such as that in J.L.?
3.
What danger did the Court see in allowing the frisk of J.L.?
4.
In any event, were the police justified in frisking J.L.’s companions? Did (should) that
frisk influence the J.L. result? Why? Why not?
5.
Did the Court hold that anonymous tips are never sufficient for reasonable suspicion?
If not, what did it hold?
6.
In Illinois v. Wardlow, the Court’s again refused to adopt a per se rule. This time,
however, it upheld the stop.
ILLINOIS v. WARDLOW
120 S. Ct. 673 (2000)
37
Chief Justice REHNQUIST delivered the opinion of the Court.
Respondent Wardlow fled upon seeing police officers patrolling an area known for heavy
narcotics trafficking. Two of the officers caught up with him, stopped him and conducted a protective
pat-down search for weapons. Discovering a .38-caliber handgun, the officers arrested Wardlow. We
hold that the officers’ stop did not violate the Fourth Amendment to the United States Constitution.
On September 9, 1995, Officers Nolan and Harvey were working as uniformed officers in the
special operations section of the Chicago Police Department. The officers were driving the last car
of a four car caravan converging on an area known for heavy narcotics trafficking in order to
investigate drug transactions. The officers were traveling together because they expected to find a
crowd of people in the area, including lookouts and customers.
As the caravan passed 4035 West Van Buren, Officer Nolan observed respondent Wardlow
standing next to the building holding an opaque bag. Respondent looked in the direction of the
officers and fled. Nolan and Harvey turned their car southbound, watched him as he ran through the
gangway and an alley, and eventually cornered him on the street. Nolan then exited his car and
stopped respondent. He immediately conducted a protective pat-down search for weapons because
in his experience it was common for there to be weapons in the near vicinity of narcotics transactions.
During the frisk, Officer Nolan squeezed the bag respondent was carrying and felt a heavy, hard
object similar to the shape of a gun. The officer then opened the bag and discovered a .38-caliber
handgun with five live rounds of ammunition. The officers arrested Wardlow.
This case, involving a brief encounter between a citizen and a police officer on a public street,
is governed by the analysis we first applied in Terry v. Ohio. In Terry, we held that an officer may,
consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot. While “reasonable suspicion” is a less
demanding standard than probable cause and requires a showing considerably less than preponderance
of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for
making the stop. United States v. Sokolow. The officer must be able to articulate more than an
“inchoate and unparticularized suspicion or ‘hunch’” of criminal activity.2
Nolan and Harvey were among eight officers in a four car caravan that was converging on an
area known for heavy narcotics trafficking, and the officers anticipated encountering a large number
of people in the area, including drug customers and individuals serving as lookouts. It was in this
context that Officer Nolan decided to investigate Wardlow after observing him flee. An individual’s
presence in an area of expected criminal activity, standing alone, is not enough to support a
reasonable, particularized suspicion that the person is committing a crime. Brown v. Texas, 443 U.S.
47 (1979). But officers are not required to ignore the relevant characteristics of a location in
determining whether the circumstances are sufficiently suspicious to warrant further investigation.
Accordingly, we have previously noted the fact that the stop occurred in a “high crime area” among
the relevant contextual considerations in a Terry analysis. Adams v. Williams.
In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics
trafficking that aroused the officers’ suspicion but his unprovoked flight upon noticing the police. Our
cases have also recognized that nervous, evasive behavior is a pertinent factor in determining
2
We granted certiorari solely on the question of whether the initial stop was supported by reasonable
suspicion. Therefore, we express no opinion as to the lawfulness of the frisk independently of the stop.
38
reasonable suspicion. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975); Florida v.
Rodriguez, 469 U.S. 1, 6 (1984) (per curiam); United States v. Sokolow. Headlong flight—wherever
it occurs—is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is
certainly suggestive of such. In reviewing the propriety of an officer’s conduct, courts do not have
available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot
reasonably demand scientific certainty from judges or law enforcement officers where none exists.
Thus, the determination of reasonable suspicion must be based on commonsense judgments and
inferences about human behavior. See United States v. Cortez. We conclude Officer Nolan was
justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating
further.
Such a holding is entirely consistent with our decision in Florida v. Royer, where we held that
when an officer, without reasonable suspicion or probable cause, approaches an individual, the
individual has a right to ignore the police and go about his business. And any “refusal to cooperate,
without more, does not furnish the minimal level of objective justification needed for a detention or
seizure.” Florida v. Bostick, 501 U.S. 429, 437 (1991). But unprovoked flight is simply not a mere
refusal to cooperate. Flight, by its very nature, is not “going about one’s business”; in fact, it is just
the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further
is quite consistent with the individual’s right to go about his business or to stay put and remain silent
in the face of police questioning.
Respondent and amici also argue that there are innocent reasons for flight from police and
that, therefore, flight is not necessarily indicative of ongoing criminal activity. This fact is undoubtedly
true, but does not establish a violation of the Fourth Amendment. Even in Terry, the conduct
justifying the stop was ambiguous and susceptible of an innocent explanation. The officer observed
two individuals pacing back and forth in front of a store, peering into the window and periodically
conferring. All of this conduct was by itself lawful, but it also suggested that the individuals were
casing the store for a planned robbery. Terry recognized that the officers could detain the individuals
to resolve the ambiguity.
In allowing such detentions, Terry accepts the risk that officers may stop innocent people.
Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action;
persons arrested and detained on probable cause to believe they have committed a crime may turn out
to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly
investigate further. If the officer does not learn facts rising to the level of probable cause, the
individual must be allowed to go on his way. But in this case the officers found respondent in
possession of a handgun, and arrested him for violation of an Illinois firearms statute. No question
of the propriety of the arrest itself is before us.
The judgment of the Supreme Court of Illinois is reversed, and the cause is remanded for
further proceedings not inconsistent with this opinion.
It is so ordered.
Justice STEVENS, with whom Justice SOUTER , Justice GINSBURG, and Justice BREYER join,
concurring in part and dissenting in part.
The State of Illinois asks this Court to announce a “bright-line rule” authorizing the temporary
39
detention of anyone who flees at the mere sight of a police officer. Respondent counters by asking
us to adopt the opposite per se rule—that the fact that a person flees upon seeing the police can
never, by itself, be sufficient to justify a temporary investigative stop of the kind authorized by Terry.
The Court today wisely endorses neither per se rule. Instead, it rejects the proposition that
“flight is . . . necessarily indicative of ongoing criminal activity,” adhering to the view that “the
concept of reasonable suspicion . . . is not readily, or even usefully, reduced to a neat set of legal
rules,” but must be determined by looking to “the totality of the circumstances—the whole picture.”
Abiding by this framework, the Court concludes that “Officer Nolan was justified in suspecting that
Wardlow was involved in criminal activity.”
Although I agree with the Court’s rejection of the per se rules proffered by the parties, unlike
the Court, I am persuaded that in this case the brief testimony of the officer who seized respondent
does not justify the conclusion that he had reasonable suspicion to make the stop. Before discussing
the specific facts of this case, I shall comment on the parties’ requests for a per se rule.
I
In Terry v. Ohio, we first recognized “that a police officer may in appropriate circumstances
and in an appropriate manner approach a person for purposes of investigating possibly criminal
behavior even though there is no probable cause to make an arrest,” an authority permitting the
officer to “stop and briefly detain a person for investigative purposes.” We approved as well “a
reasonable search for weapons for the protection of the police officer, where he has reason to believe
that he is dealing with an armed and dangerous individual, regardless of whether he has probable
cause to arrest the individual for a crime.” Cognizant that such police intrusion had never before
received constitutional imprimatur on less than probable cause, we reflected upon the magnitude of
the departure we were endorsing. “Even a limited search,” we said, “constitutes a severe, though
brief, intrusion upon cherished personal security, and it must be an annoying, frightening, and perhaps
humiliating experience.”
Accordingly, we recognized only a “narrowly drawn authority” that is “limited to that which
is necessary for the discovery of weapons.” An officer conducting an investigatory stop, we further
explained, must articulate “a particularized and objective basis for suspecting the particular person
stopped of criminal activity.” Cortez. That determination, we admonished, “becomes meaningful only
when it is assured that at some point the conduct of those charged with enforcing the laws can be
subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of
a particular search or seizure in light of the particular circumstances.” In undertaking that neutral
scrutiny “based on all of the circumstances,” a court relies on “certain commonsense conclusions
about human behavior.” “The relevant inquiry” concerning the inferences and conclusions a court
draws “is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that
attaches to particular types of noncriminal acts.” Sokolow.
The question in this case concerns “the degree of suspicion that attaches to” a person’s
flight—or, more precisely, what “commonsense conclusions” can be drawn respecting the motives
behind that flight. A pedestrian may break into a run for a variety of reasons—to catch up with a
friend a block or two away, to seek shelter from an impending storm, to arrive at a bus stop before
the bus leaves, to get home in time for dinner, to resume jogging after a pause for rest, to avoid
40
contact with a bore or a bully, or simply to answer the call of nature—any of which might coincide
with the arrival of an officer in the vicinity. A pedestrian might also run because he or she has just
sighted one or more police officers. In the latter instance, the State properly points out “that the
fleeing person may be, inter alia, (1) an escapee from jail; (2) wanted on a warrant, (3) in possession
of contraband, (i.e. drugs, weapons, stolen goods, etc.); or (4) someone who has just committed
another type of crime.”2 In short, there are unquestionably circumstances in which a person’s flight
is suspicious, and undeniably instances in which a person runs for entirely innocent reasons.3
Given the diversity and frequency of possible motivations for flight, it would be profoundly
unwise to endorse either per se rule. The inference we can reasonably draw about the motivation for
a person’s flight, rather, will depend on a number of different circumstances. Factors such as the time
of day, the number of people in the area, the character of the neighborhood, whether the officer was
in uniform, the way the runner was dressed, the direction and speed of the flight, and whether the
person’s behavior was otherwise unusual might be relevant in specific cases. This number of variables
is surely sufficient to preclude either a bright-line rule that always justifies, or that never justifies, an
investigative stop based on the sole fact that flight began after a police officer appeared nearby. 4
Still, Illinois presses for a per se rule regarding “unprovoked flight upon seeing a clearly
identifiable police officer.” The phrase “upon seeing,” as used by Illinois, apparently assumes that the
flight is motivated by the presence of the police officer.5 Illinois contends that unprovoked flight is
2
If the fleeing person exercises his or her right to remain silent after being stopped, only in the third
of the State’s four hypothetical categories is the stop likely to lead to probable cause to make an arrest. And even in
the third category, flight does not necessarily indicate that the officer is “dealing with an armed and dangerous
individual.” Terry.
3
Compare, e.g., Proverbs 28:1 (“The wicked flee when no man pursueth: but the righteous are as bold
as a lion”) with Proverbs 22:3 (“A shrewd man sees trouble coming and lies low; the simple walk into it and pay the
penalty”).
I have rejected reliance on the former proverb in the past, because its “ivory-towered analysis of the real
world” fails to account for the experiences of many citizens of this country, particularly those who are minorities. See
California v. Hodari D., 499 U.S. 621, 630, n. 4 (1991) (STEVENS, J., dissenting). That this pithy expression fails to
capture the total reality of our world, however, does not mean it is inaccurate in all instances.
4
Of course, Terry itself recognized that sometimes behavior giving rise to reasonable suspicion is
entirely innocent, but it accepted the risk that officers may stop innocent people. And as the Court correctly observes,
it is “undoubtedly true” that innocent explanations for flight exist, but they do not “establish a violation of the Fourth
Amendment.” It is equally true, however, that the innocent explanations make the single act of flight sufficiently
ambiguous to preclude the adoption of a per se rule.
In Terry, furthermore, reasonable suspicion was supported by a concatenation of acts, each innocent when
viewed in isolation, that when considered collectively amounted to extremely suspicious behavior. Flight alone,
however, is not at all like a “series of acts, each of them perhaps innocent in itself, but which taken together warrant
further investigation.” Nor is flight similar to evidence which in the aggregate provides “fact on fact and clue on clue
affording a basis for the deductions and inferences,” supporting reasonable suspicion. Cortez.
5
Nowhere in Illinois’ briefs does it specify what it means by “unprovoked.” At oral argument, Illinois
explained that if officers precipitate a flight by threats of violence, that flight is “provoked.” But if police officers in
a patrol car—with lights flashing and siren sounding—descend upon an individual for the sole purpose of seeing if
he or she will run, the ensuing flight is “unprovoked.”
41
“an extreme reaction” because innocent people simply do not “flee at the mere sight of the police.”
To be sure, Illinois concedes, an innocent person—even one distrustful of the police—might “avoid
eye contact or even sneer at the sight of an officer,” and that would not justify a Terry stop or any
sort of per se inference. But, Illinois insists, unprovoked flight is altogether different. Such behavior
is so “aberrant” and “abnormal” that a per se inference is justified.
Even assuming we know that a person runs because he sees the police, the inference to be
drawn may still vary from case to case. Flight to escape police detection, we have said, may have an
entirely innocent motivation:
[I]t is a matter of common knowledge that men who are entirely innocent do
sometimes fly from the scene of a crime through fear of being apprehended as the
guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an
accepted axiom of criminal law that “the wicked flee when no man pursueth, but the
righteous are as bold as a lion.” Innocent men sometimes hesitate to confront a
jury—not necessarily because they fear that the jury will not protect them, but
because they do not wish their names to appear in connection with criminal acts, are
humiliated at being obliged to incur the popular odium of an arrest and trial, or
because they do not wish to be put to the annoyance or expense of defending
themselves.
Alberty v. United States, 162 U.S. 499, 511 (1896).
In addition to these concerns, a reasonable person may conclude that an officer’s sudden
appearance indicates nearby criminal activity. And where there is criminal activity there is also a
substantial element of danger—either from the criminal or from a confrontation between the criminal
and the police. These considerations can lead to an innocent and understandable desire to quit the
vicinity with all speed.6
Among some citizens, particularly minorities and those residing in high crime areas, there is
also the possibility that the fleeing person is entirely innocent, but, with or without justification,
believes that contact with the police can itself be dangerous, apart from any criminal activity
associated with the officer’s sudden presence.7 For such a person, unprovoked flight is neither
6
Statistical studies of bystander victimization are rare. One study attributes this to incomplete
recordkeeping and a lack of officially compiled data. See Sherman, Steele, Laufersweiler, Hooper & Julian, Stray
Bullets and “Mushrooms”: Random Shootings of Bystanders in Four Cities, 1977-1988, 5 JOURNAL OF QUANTITATIVE
CRIMINOLOGY 297, 303 (1989). Nonetheless, that study, culling data from newspaper reports in four large cities over
an 11-year period, found “substantial increases in reported bystander killings and woundings in all four cities.” From
1986 to 1988, for example, the study identified 250 people who were killed or wounded in bystander shootings in the
four survey cities. Most significantly for the purposes of the present case, the study found that such incidents “rank at
the top of public outrage.” The saliency of this phenomenon, in turn, “violate[s] the routine assumptions” of day-to-day
affairs, and, “[w]ith enough frequency . . . it shapes the conduct of daily life.”
7
See Casimir, Minority Men: We Are Frisk Targets, N.Y. DAILY NEWS, Mar. 26, 1999, p. 34 (informal
survey of 100 young black and Hispanic men living in New York City; 81 reported having been stopped and frisked
by police at least once; none of the 81 stops resulted in arrests); Brief for NAACP Legal Defense & Educational Fund
as Amicus Curiae 17-19 (reporting figures on disproportionate street stops of minority residents in Pittsburgh and
42
“aberrant” nor “abnormal.”8 Moreover, these concerns and fears are known to the police officers
themselves,9 and are validated by law enforcement investigations into their own practices.10
Accordingly, the evidence supporting the reasonableness of these beliefs is too pervasive to be
dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficient.11 In
Philadelphia, Pennsylvania, and St. Petersburg, Florida); U.S. Dept. of Justice, Bureau of Justice Statistics, S. Smith,
Criminal Victimization and Perceptions of Community Safety in 12 Cities 25 (June 1998) (African-American residents
in 12 cities are more than twice as likely to be dissatisfied with police practices than white residents in same
community).
8
See, e.g., Kotlowitz, Hidden Casualties: Drug War’s Emphasis on Law Enforcement Takes a Toll
on Police, WALL STREET JOURNAL, Jan. 11, 1991, p. A2, col. 1 (“Black leaders complained that innocent people were
picked up in the drug sweeps . . . . Some teenagers were so scared of the task force they ran even if they weren’t selling
drugs”).
Many stops never lead to an arrest, which further exacerbates the perceptions of discrimination felt by racial
minorities and people living in high crime areas. See Goldberg, The Color of Suspicion, N.Y. TIMES MAGAZINE, June
20, 1999, p. 85 (reporting that in 2-year period, New York City Police Department Street Crimes Unit made 45,000
stops, only 9,500, or 20%, of which resulted in arrest); Casimir, supra, n. 7 (reporting that in 1997, New York City’s
Street Crimes Unit conducted 27,061 stop-and-frisks, only 4,647 of which, 17%, resulted in arrest). Even if these data
were race neutral, they would still indicate that society as a whole is paying a significant cost in infringement on liberty
by these virtually random stops.
9
The Chief of the Washington, D.C., Metropolitan Police Department, for example, confirmed that
“sizeable percentages of Americans today—especially Americans of color—still view policing in the United States to
be discriminatory, if not by policy and definition, certainly in its day-to-day application.”
10
New Jersey’s Attorney General, in a recent investigation into allegations of racial profiling on the
New Jersey Turnpike, concluded that “minority motorists have been treated differently [by New Jersey State Troopers]
than non-minority motorists during the course of traffic stops on the New Jersey Turnpike.” “The problem of disparate
treatment is real—not imagined,” declared the Attorney General. Not surprisingly, the report concluded that this
disparate treatment “engenders feelings of fear, resentment, hostility, and mistrust by minority citizens.”
Likewise, the Massachusetts Attorney General investigated similar allegations of egregious police conduct
toward minorities. The report stated:
We conclude that Boston police officers engaged in improper, and unconstitutional, conduct
in the 1989-90 period with respect to stops and searches of minority individuals . . . . Although we
cannot say with precision how widespread this illegal conduct was, we believe that it was sufficiently
common to justify changes in certain Department practices.
Perhaps the most disturbing evidence was that the scope of a number of Terry searches went
far beyond anything authorized by that case and indeed, beyond anything that we believe would be
acceptable under the federal and state constitutions even where probable cause existed to conduct a
full search incident to an arrest. Forcing young men to lower their trousers, or otherwise searching
inside their underwear, on public streets or in public hallways, is so demeaning and invasive of
fundamental precepts of privacy that it can only be condemned in the strongest terms. The fact that
not only the young men themselves, but independent witnesses complained of strip searches, should
be deeply alarming to all members of this community.
11
Taking into account these and other innocent motivations for unprovoked flight leads me to reject
Illinois’ requested per se rule in favor of adhering to a totality-of-the-circumstances test. This conclusion does not, as
Illinois suggests, “establish a separate Terry analysis based on the individual characteristics of the person seized.” My
43
any event, just as we do not require “scientific certainty” for our commonsense conclusion that
unprovoked flight can sometimes indicate suspicious motives, neither do we require scientific
certainty to conclude that unprovoked flight can occur for other, innocent reasons.12
The probative force of the inferences to be drawn from flight is a function of the varied
circumstances in which it occurs. Sometimes those inferences are entirely consistent with the
presumption of innocence, sometimes they justify further investigation, and sometimes they justify
an immediate stop and search for weapons. These considerations have led us to avoid categorical
rules concerning a person’s flight and the presumptions to be drawn therefrom:
Few things . . . distinguish an enlightened system of judicature from a rude and
barbarous one more than the manner in which they deal with evidence. The former
weighs testimony, whilst the latter, conscious perhaps of its inability to do so or
careless of the consequences of error, at times rejects whole portions en masse, and
at others converts pieces of evidence into rules of law by investing with conclusive
effect some whose probative force has been found to be in general considerable. . .
. Our ancestors, observing that guilty persons usually fled from justice, adopted the
hasty conclusion that it was only the guilty who did so . . . so that under the old law,
a man who fled to avoid being tried for felony forfeited all his goods even though he
were acquitted . . . . In modern times more correct views have prevailed, and the
evasion of or flight from justice seems now nearly reduced to its true place in the
administration of the criminal law, namely, that of a circumstance—a fact which it is
always of importance to take into consideration, and combined with others may afford
strong evidence of guilt, but which, like any other piece of presumptive evidence, it
is equally absurd and dangerous to invest with infallibility.
Hickory v. United States, 160 U.S. 408, 419-420 (1896) (internal quotation marks omitted).
“Unprovoked flight,” in short, describes a category of activity too broad and varied to permit
a per se reasonable inference regarding the motivation for the activity. While the innocent
explanations surely do not establish that the Fourth Amendment is always violated whenever someone
is stopped solely on the basis of an unprovoked flight, neither do the suspicious motivations establish
that the Fourth Amendment is never violated when a Terry stop is predicated on that fact alone. For
these reasons, the Court is surely correct in refusing to embrace either per se rule advocated by the
rejection of a per se rule, of course, applies to members of all races.
It is true, as Illinois points out, that Terry approved of the stop and frisk procedure notwithstanding “the
wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes,
frequently complain.” But in this passage, Terry simply held that such concerns would not preclude the use of the stop
and frisk procedure altogether. Nowhere did Terry suggest that such concerns cannot inform a court’s assessment of
whether reasonable suspicion sufficient to justify a particular stop existed.
12
As a general matter, local courts often have a keener and more informed sense of local police
practices and events that may heighten these concerns at particular times or locations. Thus, a reviewing court may
accord substantial deference to a local court’s determination that fear of the police is especially acute in a specific
location or at a particular time.
44
parties. The totality of the circumstances, as always, must dictate the result.
II
Guided by that totality-of-the-circumstances test, the Court concludes that Officer Nolan had
reasonable suspicion to stop respondent. In this respect, my view differs from the Court’s. The entire
justification for the stop is articulated in the brief testimony of Officer Nolan. Some facts are perfectly
clear; others are not. This factual insufficiency leads me to conclude that the Court’s judgment is
mistaken.
Respondent Wardlow was arrested a few minutes after noon on September 9, 1995. Nolan
was part of an eight-officer, four-car caravan patrol team. The officers were headed for “one of the
areas in the 11th District [of Chicago] that’s high [in] narcotics traffic.”15 The reason why four cars
were in the caravan was that “normally in these different areas there’s an enormous amount of people,
sometimes lookouts, customers.” Officer Nolan testified that he was in uniform on that day, but he
did not recall whether he was driving a marked or an unmarked car.
Officer Nolan and his partner were in the last of the four patrol cars that “were all caravaning
eastbound down Van Buren.” Nolan first observed respondent “in front of 4035 West Van Buren.”
Wardlow “looked in our direction and began fleeing.” Nolan then “began driving southbound down
the street observing [respondent] running through the gangway and the alley southbound,” and
observed that Wardlow was carrying a white, opaque bag under his arm. After the car turned south
and intercepted respondent as he “ran right towards us,” Officer Nolan stopped him and conducted
a “protective search,” which revealed that the bag under respondent’s arm contained a loaded
handgun.
This terse testimony is most noticeable for what it fails to reveal. Though asked whether he
was in a marked or unmarked car, Officer Nolan could not recall the answer. He was not asked
whether any of the other three cars in the caravan were marked, or whether any of the other seven
officers were in uniform. Though he explained that the size of the caravan was because “normally in
these different areas there’s an enormous amount of people, sometimes lookouts, customers,” Officer
Nolan did not testify as to whether anyone besides Wardlow was nearby 4035 West Van Buren. Nor
is it clear that that address was the intended destination of the caravan. As the Appellate Court of
Illinois interpreted the record, “it appears that the officers were simply driving by, on their way to
some unidentified location, when they noticed defendant standing at 4035 West Van Buren.”16 Officer
Nolan’s testimony also does not reveal how fast the officers were driving. It does not indicate
whether he saw respondent notice the other patrol cars. And it does not say whether the caravan, or
any part of it, had already passed Wardlow by before he began to run.
Indeed, the Appellate Court thought the record was even “too vague to support the inference
that . . . defendant’s flight was related to his expectation of police focus on him.” Presumably,
respondent did not react to the first three cars, and we cannot even be sure that he recognized the
15
The population of the 11th district is over 98,000 people.
16
Of course, it would be a different case if the officers had credible information respecting that specific
street address which reasonably led them to believe that criminal activity was afoot in that narrowly defined area.
45
occupants of the fourth as police officers. The adverse inference is based entirely on the officer’s
statement: “He looked in our direction and began fleeing.”17
No other factors sufficiently support a finding of reasonable suspicion. Though respondent
was carrying a white, opaque bag under his arm, there is nothing at all suspicious about that. Certainly
the time of day—shortly after noon—does not support Illinois’ argument. Nor were the officers
“responding to any call or report of suspicious activity in the area.” Officer Nolan did testify that he
expected to find “an enormous amount of people,” including drug customers or lookouts, and the
Court points out that “it was in this context that Officer Nolan decided to investigate Wardlow after
observing him flee.” This observation, in my view, lends insufficient weight to the reasonable
suspicion analysis; indeed, in light of the absence of testimony that anyone else was nearby when
respondent began to run, this observation points in the opposite direction.
The State, along with the majority of the Court, relies as well on the assumption that this flight
occurred in a high crime area. Even if that assumption is accurate, it is insufficient because even in
a high crime neighborhood unprovoked flight does not invariably lead to reasonable suspicion. On
the contrary, because many factors providing innocent motivations for unprovoked flight are
concentrated in high crime areas, the character of the neighborhood arguably makes an inference of
guilt less appropriate, rather than more so. Like unprovoked flight itself, presence in a high crime
neighborhood is a fact too generic and susceptible to innocent explanation to satisfy the reasonable
suspicion inquiry. See Brown v. Texas.
It is the State’s burden to articulate facts sufficient to support reasonable suspicion. In my
judgment, Illinois has failed to discharge that burden. I am not persuaded that the mere fact that
someone standing on a sidewalk looked in the direction of a passing car before starting to run is
sufficient to justify a forcible stop and frisk.
I therefore respectfully dissent from the Court’s judgment to reverse the court below.
QUESTIONS AND NOTES
1.
Although the Court stopped short of announcing a per se rule that flight at the
sight of an officer equals reasonable suspicion, did the Court adopt a rule that flight in a high
crime area per se creates reasonable suspicion? If not, why was this stop permissible? If so, why
should people in high crime areas be any less free to flee the police than folks in tree-lined
suburbs?
2.
How suspicious is flight? Is it more or less suspicious in a high crime area?
3.
Do we know Wardlow’s race? Should that have been relevant? Why? Why not?
4.
Justice Stevens presents a much more detailed description of the facts than the
Chief Justice. Is it possible (likely) that this difference in focus contributed to their different
17
Officer Nolan also testified that respondent “was looking at us,” (emphasis added), though this minor
clarification hardly seems sufficient to support the adverse inference.
46
results?
5.
Where should the burden of proof lie in a case like this? How significant is it that
Officer Nolan didn’t even know whether his car was marked? That nobody asked about whether
the other cars were marked or if the other officers were in uniform?
6.
How would you have decided this case? Why?
7.
We conclude this subsection with Ornellas v. United States, a case that focuses on
whether questions of reasonable suspicion and probable cause are questions of fact or law.
ORNELAS v. UNITED STATES
517 U.S. 690 (1996)
Chief Justice REHNQUIST delivered the opinion of the Court.
Petitioners each pleaded guilty to possession of cocaine with intent to distribute. They
reserved their right to appeal the District Court’s denial of their motion to suppress the cocaine found
in their car. The District Court had found reasonable suspicion to stop and question petitioners as
they entered their car, and probable cause to remove one of the interior panels where a package
containing two kilos of cocaine was found. The Court of Appeals opined that the findings of
reasonable suspicion to stop, and probable cause to search, should be reviewed “deferentially,” and
“for clear error.” We hold that the ultimate questions of reasonable suspicion and probable cause to
make a warrantless search should be reviewed de novo.
The facts are not disputed. In the early morning of a December day in 1992, Detective
Michael Pautz, a 20-year veteran of the Milwaukee County Sheriff’s Department with 2 years
specializing in drug enforcement, was conducting drug-interdiction surveillance in downtown
Milwaukee. Pautz noticed a 1981 two-door Oldsmobile with California license plates in a motel
parking lot. The car attracted Pautz’s attention for two reasons: because older model, two-door
General Motors cars are a favorite with drug couriers because it is easy to hide things in them; and
because California is a “source State” for drugs. Detective Pautz radioed his dispatcher to inquire
about the car’s registration. The dispatcher informed Pautz that the owner was either Miguel
Ledesma Ornelas or Miguel Ornelas Ledesma from San Jose, California; Pautz was unsure which
name the dispatcher gave. Detective Pautz checked the motel registry and learned that an Ismael
Ornelas accompanied by a second man had registered at 4:00 a.m., without reservations.
Pautz called for his partner, Donald Hurrle, a detective with approximately 25 years of law
enforcement experience, assigned for the past 6 years to the drug enforcement unit. When Hurrle
arrived at the scene, the officers contacted the local office of the Drug Enforcement Administration
(DEA) and asked DEA personnel to run the names Miguel Ledesma Ornelas and Ismael Ornelas
through the Narcotics and Dangerous Drugs Information System (NADDIS), a federal database of
known and suspected drug traffickers. Both names appeared in NADDIS. The NADDIS report
identified Miguel Ledesma Ornelas as a heroin dealer from El Centro, California, and Ismael Ornelas,
Jr. as a cocaine dealer from Tucson, Arizona. The officers then summoned Deputy Luedke and the
47
department’s drug-sniffing dog, Merlin. Upon their arrival, Detective Pautz left for another
assignment. Detective Hurrle informed Luedke of what they knew and together they waited.
Sometime later, petitioners emerged from the motel and got into the Oldsmobile. Detective
Hurrle approached the car, identified himself as a police officer, and inquired whether they had any
illegal drugs or contraband. Petitioners answered “No.” Hurrle then asked for identification and was
given two California driver’s licenses bearing the names Saul Ornelas and Ismael Ornelas. Hurrle
asked them if he could search the car and petitioners consented. The men appeared calm, but Ismael
was shaking somewhat. Deputy Luedke, who over the past nine years had searched approximately
2,000 cars for narcotics, searched the Oldsmobile’s interior. He noticed that a panel above the right
rear passenger armrest felt somewhat loose and suspected that the panel might have been removed
and contraband hidden inside. Luedke would testify later that a screw in the door jam adjacent to the
loose panel was rusty, which to him meant that the screw had been removed at some time. Luedke
dismantled the panel and discovered two kilograms of cocaine. Petitioners were arrested.
Petitioners filed pretrial motions to suppress, alleging that the police officers violated their
Fourth Amendment rights when the officers detained them in the parking lot and when Deputy
Luedke searched inside the panel without a warrant.1 The Government conceded in the court below
that when the officers approached petitioners in the parking lot, a reasonable person would not have
felt free to leave, so the encounter was an investigatory stop. An investigatory stop is permissible
under the Fourth Amendment if supported by reasonable suspicion, Terry, and a warrantless search
of a car is valid if based on probable cause, California v. Acevedo.
After conducting an evidentiary hearing, the Magistrate Judge concluded that the
circumstances gave the officers reasonable suspicion, but not probable cause. The Magistrate found,
as a finding of fact, that there was no rust on the screw and hence concluded that Deputy Luedke had
an insufficient basis to conclude that drugs would be found within the panel. The Magistrate
nonetheless recommended that the District Court deny the suppression motions because he thought,
given the presence of the drug-sniffing dog, that the officers would have found the cocaine by lawful
means eventually and therefore the drugs were admissible under the inevitable discovery doctrine. See
Nix v. Williams.
The District Court adopted the Magistrate’s recommendation with respect to reasonable
suspicion, but not its reasoning as to probable cause. The District Court thought that the model, age,
and source-State origin of the car, and the fact that two men traveling together checked into a motel
at 4 o’clock in the morning without reservations, formed a drug-courier profile and that this profile
together with the NADDIS reports gave rise to reasonable suspicion of drug-trafficking activity; in
the court’s view, reasonable suspicion became probable cause when Deputy Luedke found the loose
1
Petitioners also alleged that they had not given their consent to search the interior of the car. The
Magistrate Judge rejected this claim, finding that the record “clearly establishe[d] consent to search the Oldsmobile”
and that “neither [petitioner] placed any restrictions on the areas the officers could search.” The Magistrate ruled that
this consent did not give the officers authority to search inside the panel, however, because under Seventh Circuit
precedent the police may not dismantle the car body during an otherwise valid search unless the police have probable
cause to believe the car’s panels contain narcotics. See United States v. Garcia, 897 F. 2d 1413, 1419-1420 (1990).
We assume correct the Circuit’s limitation on the scope of consent only for purposes of this decision.
48
panel. Accordingly, the court ruled that the cocaine need not be excluded.2
The Court of Appeals reviewed deferentially the District Court’s determinations of reasonable
suspicion and probable cause; it would reverse only upon a finding of “clear error.”3 The court found
no clear error in the reasonable-suspicion analysis and affirmed that determination. With respect to
the probable-cause finding, however, the court remanded the case for a determination on whether
Luedke was credible when testifying about the loose panel.
On remand, the Magistrate Judge expressly found the testimony credible. The District Court
accepted the finding, and once again ruled that probable cause supported the search. The Seventh
Circuit held that determination not clearly erroneous.
We granted certiorari to resolve the conflict among the Circuits over the applicable standard
of appellate review.4
Articulating precisely what “reasonable suspicion” and “probable cause” mean is not possible.
They are commonsense, nontechnical conceptions that deal with “‘the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’”
Gates, (quoting Brinegar); see Sokolow. As such, the standards are “not readily, or even usefully,
reduced to a neat set of legal rules.” We have described reasonable suspicion simply as “a
particularized and objective basis” for suspecting the person stopped of criminal activity, Cortez, and
probable cause to search as existing where the known facts and circumstances are sufficient to
warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be
found, see Brinegar; Gates. We have cautioned that these two legal principles are not “finely-tuned
standards,” comparable to the standards of proof beyond a reasonable doubt or of proof by a
preponderance of the evidence. Gates. They are instead fluid concepts that take their substantive
content from the particular contexts in which the standards are being assessed. (“This Cour[t] [has
a] long-established recognition that standards of reasonableness under the Fourth Amendment are not
susceptible of Procrustean application”; “[e]ach case is to be decided on its own facts and
circumstances” Terry (the limitations imposed by the Fourth Amendment “will have to be developed
in the concrete factual circumstances of individual cases”).
2
The District Court emphasized twice that it did not reject the Magistrate’s recommendation with
respect to the inevitable discovery doctrine. But on appeal the Government did not defend the seizure on this alternative
ground and the Seventh Circuit considered the argument waived.
3
While the Seventh Circuit uses the term “clear error” to denote the deferential standard applied when
reviewing determinations of reasonable suspicion or probable cause, we think the preferable term is “abuse of
discretion.” “Clear error” is a term of art derived from Rule 52(a) of the Federal Rules of Civil Procedure, and applies
when reviewing questions of fact.
4
Compare, e.g., United States v. Puerta, 982 F. 2d 1297, 1300 (9th Cir. 1992) (de novo review);
United States v. Ramos, 933 F. 2d 968, 972 (11th 1991) (de novo review), cert. denied, 503 U.S. 908 (1992); United
States v. Patrick, 899 F. 2d 169, 171 (2nd Cir. 1990) (de novo review), with United States v. Spears, 965 F. 2d 262,
268-271 (7th Cir.1992) (clear error).
The United States, in accord with petitioners, contends that a de novo standard of review should apply to
determinations of probable cause and reasonable suspicion. We therefore invited Peter D. Isakoff to brief and argue
this case as amicus curiae in support of the judgment below. Mr. Isakoff accepted the appointment and has well
fulfilled his assigned responsibility.
49
The principal components of a determination of reasonable suspicion or probable cause will
be the events which occurred leading up to the stop or search, and then the decision whether these
historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to
reasonable suspicion or to probable cause. The first part of the analysis involves only a determination
of historical facts, but the second is a mixed question of law and fact: “[T]he historical facts are
admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the
[relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as
applied to the established facts is or is not violated.”
We think independent appellate review of these ultimate determinations of reasonable
suspicion and probable cause is consistent with the position we have taken in past cases. We have
never, when reviewing a probable-cause or reasonable-suspicion determination ourselves, expressly
deferred to the trial court’s determination. See, e.g., Brinegar, (rejecting district court’s conclusion
that the police lacked probable cause); Alabama v. White, (conducting independent review and
finding reasonable suspicion). A policy of sweeping deference would permit, “[i]n the absence of any
significant difference in the facts,” “the Fourth Amendment’s incidence [to] tur[n] on whether
different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute
probable cause.” Such varied results would be inconsistent with the idea of a unitary system of law.
This, if a matter-of-course, would be unacceptable.
In addition, the legal rules for probable cause and reasonable suspicion acquire content only
through application. Independent review is therefore necessary if appellate courts are to maintain
control of, and to clarify the legal principles. See Miller v. Fenton, 474 U.S. 104, 114 (1985) (where
the “relevant legal principle can be given meaning only through its application to the particular
circumstances of a case, the Court has been reluctant to give the trier of fact’s conclusions
presumptive force and, in so doing, strip a federal appellate court of its primary function as an
expositor of law”).
Finally, de novo review tends to unify precedent and will come closer to providing law
enforcement officers with a defined “‘set of rules which, in most instances, makes it possible to reach
a correct determination beforehand as to whether an invasion of privacy is justified in the interest of
law enforcement.’” (“[T]he law declaration aspect of independent review potentially may guide
police, unify precedent, and stabilize the law,” and those effects “serve legitimate law enforcement
interests”).
It is true that because the mosaic which is analyzed for a reasonable-suspicion or probablecause inquiry is multi-faceted, “one determination will seldom be a useful ‘precedent’ for another.”
But there are exceptions. For instance, the circumstances in Brinegar and Carroll v. United States
were so alike that we concluded that reversing the Circuit Court’s decision in Brinegar was necessary
to be faithful to Carroll. We likewise recognized the similarity of facts in Sokolow and Royer (in both
cases, the defendant traveled under an assumed name; paid for an airline ticket in cash with a number
of small bills; traveled from Miami, a source city for illicit drugs; and appeared nervous in the airport).
The same was true both in Ross and Acevedo (“The facts in this case closely resemble the facts in
Ross”); and in United States v. Mendenhall, 446 U.S. 544 (1980), and Reid v. Georgia, 448 U.S. 438
(1980) (“facts [in Mendenhall] [are] remarkably similar to those in the present case”). And even
where one case may not squarely control another one, the two decisions when viewed together may
usefully add to the body of law on the subject.
50
The Court of Appeals, in adopting its deferential standard of review here, reasoned that de
novo review for warrantless searches would be inconsistent with the “‘great deference’” paid when
reviewing a decision to issue a warrant. We cannot agree. The Fourth Amendment demonstrates a
“strong preference for searches conducted pursuant to a warrant,” Gates, and the police are more
likely to use the warrant process if the scrutiny applied to a magistrate’s probable-cause determination
to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we
would eliminate the incentive.
We therefore hold that as a general matter determinations of reasonable suspicion and
probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that
a reviewing court should take care both to review findings of historical fact only for clear error and
to give due weight to inferences drawn from those facts by resident judges and local law enforcement
officers.
A trial judge views the facts of a particular case in light of the distinctive features and events
of the community; likewise a police officer views the facts through the lens of his police experience
and expertise. The background facts provide a context for the historical facts, and when seen together
yield inferences that deserve deference. For example, what may not amount to reasonable suspicion
at a motel located alongside a transcontinental highway at the height of the summer tourist season
may rise to that level in December in Milwaukee. That city is unlikely to have been an overnight stop
selected at the last minute by a traveler coming from California to points east. The 85-mile width of
Lake Michigan blocks any further eastward progress. And while the city’s salubrious summer climate
and seasonal attractions bring many tourists at that time of year, the same is not true in December.
Milwaukee’s average daily high temperature in that month is 31 degrees and its average daily low is
17 degrees; the percentage of possible sunshine is only 38 percent. It is a reasonable inference that
a Californian stopping in Milwaukee in December is either there to transact business or to visit family
or friends. The background facts, though rarely the subject of explicit findings, inform the judge’s
assessment of the historical facts.
In a similar vein, our cases have recognized that a police officer may draw inferences based
on his own experience in deciding whether probable cause exists. To a layman the sort of loose panel
below the back seat arm rest in the automobile involved in this case may suggest only wear and tear,
but to Officer Luedke, who had searched roughly 2,000 cars for narcotics, it suggested that drugs
may be secreted inside the panel. An appeals court should give due weight to a trial court’s finding
that the officer was credible and the inference was reasonable.
We vacate the judgments and remand the case to the Court of Appeals to review de novo the
District Court’s determinations that the officer had reasonable suspicion and probable cause in this
case.
It is so ordered.
Justice SCALIA, dissenting.
The Court today decides that a district court’s determinations whether there was probable
cause to justify a warrantless search and reasonable suspicion to make an investigatory stop should
be reviewed de novo. We have in the past reviewed some mixed questions of law and fact on a de
novo basis, and others on a deferential basis, depending upon essentially practical considerations.
Because, with respect to the questions at issue here, the purpose of the determination and its
51
extremely fact-bound nature will cause de novo review to have relatively little benefit, it is in my view
unwise to require courts of appeals to undertake the searching inquiry that standard requires. I would
affirm the judgment of the Court of Appeals.
As the Court recognizes, determinations of probable cause and reasonable suspicion involve
a two-step process. First, a court must identify all of the relevant historical facts known to the officer
at the time of the stop or search; and second, it must decide whether, under a standard of objective
reasonableness, those facts would give rise to a reasonable suspicion justifying a stop or probable
cause to search. Because this second step requires application of an objective legal standard to the
facts, it is properly characterized as a mixed question of law and fact.
Merely labeling the issues “mixed questions,” however, does not establish that they receive
de novo review. While it is well settled that appellate courts “accep[t] findings of fact that are not
`clearly erroneous’ but decid[e] questions of law de novo,” there is no rigid rule with respect to mixed
questions. We have said that “deferential review of mixed questions of law and fact is warranted when
it appears that the district court is ‘better positioned’ than the appellate court to decide the issue in
question or that probing appellate scrutiny will not contribute to the clarity of legal doctrine.”
These primary factors that counsel in favor of deferential review of some mixed questions of
law and fact-expertise of the district court and lack of law-clarifying value in the appellate decisionare ordinarily present with respect to determinations of reasonable suspicion and probable cause. The
factual details bearing upon those determinations are often numerous and (even when supported by
uncontroverted police testimony) subject to credibility determinations. An appellate court never has
the benefit of the district court’s intimate familiarity with the details of the case-nor the full benefit
of its hearing of the live testimony, unless the district court makes specific findings on the “totality
of the circumstances” bearing upon the stop or search.
Moreover, as the Court acknowledges, “reasonable suspicion” and “probable cause” are
“commonsense, nontechnical conceptions that deal with “‘the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act.”’” Where a trial court
makes such commonsense determinations based on the totality of circumstances, it is ordinarily
accorded deference. What we said in a case concerning the question whether certain payments were
a “gift” excludable from income under the Internal Revenue Code, is equally pertinent here.
“Decision of the issue presented in these cases must be based ultimately on the application of
the fact-finding tribunal’s experience with the mainsprings of human conduct to the totality of the
facts of each case. The nontechnical nature of the . . . standard, the close relationship of it to the data
of practical human experience, and the multiplicity of relevant factual elements, with their various
combinations, creating the necessity of ascribing the proper force to each, confirm us in our
conclusion that primary weight in this area must be given to the conclusions of the trier of fact.”
Commissioner v. Duberstein, 363 U.S. 278, 289 (1960).
With respect to the second factor counseling in favor of deferential review, level of lawclarifying value in the appellate decision: Law clarification requires generalization, and some issues
lend themselves to generalization much more than others. Thus, in Pierce v. Underwood, 487 U.S.
552, 562 (1988), a principal basis for our applying an abuse-of-discretion standard to a district court’s
determination that the United States’ litigating position was “substantially justified” within the
meaning of the Equal Access to Justice Act, 28 U. S. C. § 2412(d), was that the question was “a
multifarious and novel question, little susceptible, for the time being at least, of useful generalization.”
52
Probable cause and reasonable suspicion determinations are similarly resistant to generalization. As
the Court recognizes, these are “fluid concepts,” “‘not readily, or even usefully, reduced to a neat set
of legal rules’”; and “because the mosaic which is analyzed for a reasonable-suspicion or probablecause inquiry is multifaceted, ‘one determination will seldom be a useful “precedent” for another.’”
The Court maintains that there will be exceptions to this-that fact-patterns will occasionally repeat
themselves, so that a prior de novo appellate decision will provide useful guidance in a similar case.
I do not dispute that, but I do not understand why we should allow the exception to frame the rule.
The facts of this very case illustrate the futility of attempting to craft useful precedent from
the fact-intensive review demanded by determinations of probable cause and reasonable suspicion.
On remand, in conducting de novo review, the Seventh Circuit might consider, inter alia, the
following factors relevant to its determination whether there was probable cause to conduct a
warrantless search and reasonable suspicion justifying the investigatory stop: (i) the two NADDIS
tips; (ii) that the car was a 1981 two-door General Motors product; (iii) that the car was from
California, a source state; (iv) that the car was in Milwaukee; (v) that it was December; (vi) that one
suspect checked into the hotel at 4 a.m.; (vii) that he did not have reservations; (viii) that he had one
traveling companion; (ix) that one suspect appeared calm but shaking; and (x) that there was a loose
panel in the car door. If the Seventh Circuit were to find that this unique confluence of factors
supported probable cause and reasonable suspicion, the absence of any one of these factors in the next
case would render the precedent inapplicable.
Of course, even when all of the factors are replicated, use of a de novo standard as opposed
to a deferential standard will provide greater clarity only where the latter would not suffice to set the
trial court’s conclusion aside. For where the appellate court holds, on the basis of deferential review,
that it was reversible error for a district court to find probable cause or reasonable suspicion in light
of certain facts, it advances the clarity of the law just as much as if it had reversed the district court
after conducting plenary review.
In the present case, an additional factor counseling against de novo review must be mentioned:
The prime benefit of de novo appellate review in criminal cases is, of course, to prevent a miscarriage
of justice that might result from permitting the verdict of guilty to rest upon the legal determinations
of a single judge. But the issue in these probable-cause and reasonable-suspicion cases is not
innocence but deterrence of unlawful police conduct. That deterrence will not be at all lessened if the
trial judge’s determination, right or wrong, is subjected to only deferential review.
The Court is wrong in its assertion, that unless there is a dual standard of review-deferential
review of a magistrate’s decision to issue a warrant, and de novo review of a district court’s ex post
facto approval of a warrantless search-the incentive to obtain a warrant would be eliminated. In
United States v. Leon, we held that “reliable physical evidence seized by officers reasonably relying
on a warrant issued by a detached and neutral magistrate . . . should be admissible in the prosecutor’s
case in chief.” Only a warrant can provide this assurance that the fruits of even a technically improper
search will be admissible. Law enforcement officers would still have ample incentive to proceed by
warrant.
Finally, I must observe that the Court does not appear to have the courage of its conclusions.
In an apparent effort to reduce the unproductive burden today’s decision imposes upon appellate
courts, or perhaps to salvage some of the trial court’s superior familiarity with the facts that it has
cast aside, the Court suggests that an appellate court should give “due weight” to a trial court’s
53
finding that an officer’s inference of wrongdoing (i.e., his assessment of probable cause to search),
was reasonable. The Court cannot have it both ways. This finding of “reasonableness” is precisely
what it has told us the appellate court must review de novo; and in de novo review, the “weight due”
to a trial court’s finding is zero. In the last analysis, there-fore, the Court’s opinion seems to me not
only wrong but contradictory.
I would affirm the judgment of the Seventh Circuit on the ground that it correctly applied a
deferential standard of review to the District Court’s findings of probable cause and reasonable
suspicion.
QUESTIONS AND NOTES
1.
The Court says that reasonable suspicion and probable cause are incapable of precise
definition. Do you agree? Didn’t Gates define probable cause as “fair probability?”
2.
Why do you suppose that the Government joined Ornelas in asking for reversal of the
Circuit Court’s decision? (see fn 4). Isn’t the Government risking reversal of its conviction?
3.
If the Court can’t define reasonable suspicion or probable cause anyway, does it make
sense to treat it as a question of law? Explain.
4.
Do you agree with Justice Scalia that the Court is trying to have it both ways in calling
for de novo review, while urging the appellate court to give “due weight” to a trial court’s finding of
special police officer expertise?
5.
If the facts of Ornelas had been an exam question, would you have (1) found
reasonable suspicion, (2) found probable cause? How would you have resolved the case? Why?
54
CHAPTER 7: LIMITED SEARCHES ON LESS THAN PROBABLE CAUSE
C. Limits on Terry-Type Stops
Michigan v. Summers
Questions and Notes
Insert at page 246 (after Note 4)
PROBLEM
On April 2, 1997, Tera McArthur asked two police officers to accompany her to the trailer
where she lived with her husband, Charles, so that they could keep the peace while she removed her
belongings. The two officers, Assistant Chief John Love and Officer Richard Skidis, arrived with Tera
at the trailer at about 3:15 p.m. Tera went inside, where Charles was present. The officers remained
outside.
When Tera emerged after collecting her possessions, she spoke to Chief Love, who was then
on the porch. She suggested he check the trailer because “Chuck had dope in there.” She added (in
Love’s words) that she had seen Chuck “slide some dope underneath the couch.”
Love knocked on the trailer door, told Charles what Tera had said, and asked for permission
to search the trailer, which Charles denied. Love then sent Officer Skidis with Tera to get a search
warrant.
Love told Charles, who by this time was also on the porch, that he could not reenter the trailer
unless a police officer accompanied him. Charles subsequently reentered the trailer two or three times
(to get cigarettes and to make phone calls), and each time Love stood just inside the door to observe
what Charles did.
Officer Skidis obtained the warrant by about 5 p.m. He returned to the trailer and, along with
other officers, searched it. The officers found under the sofa a marijuana pipe, a box for marijuana
(called a “one-hitter” box), and a small amount of marijuana. They then arrested Charles.
Illinois subsequently charged Charles McArthur with unlawfully possessing drug paraphernalia
and marijuana (less than 2.5 grams), both misdemeanors. McArthur moved to suppress the pipe, box,
and marijuana on the ground that they were the “fruit” of an unlawful police seizure, namely, the
refusal to let him reenter the trailer unaccompanied, which would have permitted him, he said, to
“have destroyed the marijuana.”
How should the case be resolved? For the Supreme Court’s solution, see Illinois v. McArthur,
531 U.S. 326 (2001).
55
CHAPTER 9: SEIZURES
California v. Hodari D.
Questions and Notes
Insert at page 317 (after Note 5):
6.
A high speed chase in which an intended arrestee is ultimately stopped by accidental
collision resulting in his death does not constitute an unreasonable seizure because the police never
intended to seize the arrestee in that manner. Rather, they intended to seize him by having him stop.
Consequently, the family of the deceased does not have a cause of action for an unreasonable seizure,
and only has an action for a due process violation if he can prove that the officer purposely caused
harm without a legitimate law enforcement justification. County of Sacramento v. Lewis, 523 U.S.
833 (1998).
56
CHAPTER 10: SEARCHES
A. The Divining Rod Theory of the Fourth Amendment
Florida v. Riley
Insert at page 358 (after Note 4):
In Minnesota v. Carter (ch. 12C, infra), the Court held that the defendants lacked a sufficient
personal interest in the premises allegedly searched to be allowed a Fourth Amendment challenge.
Justice Breyer disagreed with the Court on that issue, but concurred in result because, in his view,
the officer’s conduct did not constitute a search.
MINNESOTA v. CARTER
525 U.S. 83 (1998)
***
Justice BREYER , concurring in the judgment.
I agree with Justice GINSBURG that respondents can claim the Fourth Amendment’s
protection. Petitioner, however, raises a second question, whether under the circumstances Officer
Thielen’s observation made “from a public area outside the curtilage of the residence” violated
respondents’ Fourth Amendment rights. In my view, it did not.
I would answer the question on the basis of the following factual assumptions, derived from
the evidentiary record presented here: (1) On the evening of May 15, 1994, an anonymous individual
approached Officer Thielen, telling him that he had just walked by a nearby apartment window
through which he had seen some people bagging drugs; (2) the apartment in question was a garden
apartment that was partly below ground level; (3) families frequently used the grassy area just outside
the apartment’s window for walking or for playing; (4) members of the public also used the area just
outside the apartment’s window to store bicycles; (5) in an effort to verify the tipster’s information,
Officer Thielen walked to a position about 1 to 1 ½ and one-half feet in front of the window; (6)
Officer Thielen stood there for about 15 minutes looking down through a set of Venetian blinds; (7)
what he saw, namely, people putting white powder in bags, verified the account he had heard; and
(8) he then used that information to help obtain a search warrant.
The trial court concluded that persons then within Ms. Thompson’s kitchen “did not have an
expectation of privacy from the location where Officer Thielen made his observations because Officer
Thielen stood outside the apartment’s “curtilage” when he made his observations.” And the
Minnesota Supreme Court, while finding that Officer Thielen had violated the Fourth Amendment,
did not challenge the trial court’s curtilage determination; indeed, it assumed that Officer Thielen
stood outside the apartment’s curtilage. (stating “it is plausible that Thielen’s presence just outside
the apartment window was legitimate”).
Officer Thielen, then, stood at a place used by the public and from which one could see
through the window into the kitchen. The precautions that the apartment’s dwellers took to maintain
their privacy would have failed in respect to an ordinary passerby standing in that place. Given this
57
Court’s well-established case law, I cannot say that the officer engaged in what the Constitution
forbids, namely, an “unreasonable search.” See, e.g., Florida v. Riley (finding observation of
greenhouse from helicopters in public airspace permissible, even though owners had enclosed
greenhouse on two sides, relied on bushes blocking ground-level observations through remaining two
sides, and covered 90% of roof); California v. Ciraolo, 476 U.S. 207 (1986) (finding observation
of backyard from plane in public airspace permissible despite 6-foot outer fence and 10-foot inner
fence around backyard); cf. Katz.
The Minnesota Supreme Court reached a different conclusion in part because it believed that
Officer Thielen had engaged in unusual activity, that he “climbed over some bushes, crouched down
and placed his face 12 to 18 inches from the window,” and in part because he saw into the apartment
through “a small gap” in blinds that were drawn. But I would not here determine whether the
crouching and climbing or “plac[ing] his face” makes a constitutional difference because the record
before us does not contain support for those factual conclusions. That record indicates that Officer
Thielen would not have needed to, and did not, climb over bushes or crouch. (Officer Thielen’s
testimony); (photograph of apartment building). And even though the primary evidence consists of
Officer Thielen’s own testimony, who else could have known? Given the importance of factual
nuance in this area of constitutional law, I would not determine the constitutional significance of
factual assertions that the record denies.
Neither can the matter turn upon “gaps” in drawn blinds. Whether there were holes in the
blinds or they were simply pulled the “wrong way” makes no difference. One who lives in a basement
apartment that fronts a publicly traveled street, or similar space, ordinarily understands the need for
care lest a member of the public simply direct his gaze downward.
Putting the specific facts of this case aside, there is a benefit to an officer’s decision to confirm
an informant’s tip by observing the allegedly illegal activity from a public vantage point. Indeed, there
are reasons why Officer Thielen stood in a public place and looked through the apartment window.
He had already received information that a crime was taking place in the apartment. He intended to
apply for a warrant. He needed to verify the tipster’s credibility. He might have done so in other
ways, say, by seeking general information about the tipster’s reputation and then obtaining a warrant
and searching the apartment. But his chosen method—observing the apartment from a public vantage
point—would more likely have saved an innocent apartment dweller from a physically intrusive,
though warrant-based, search if the constitutionally permissible observation revealed no illegal
activity.
QUESTIONS AND NOTES
1.
Is Justice Breyer’s opinion consistent with Reilly?
2.
Do you think that a majority of the Court would have agreed if they had come to grips
with the question? Why? Why not? Reconsider that question after Bond.
3.
Do you agree with his opinion? Explain.
58
59
CHAPTER 10: SEARCHES
A. The Divining Rod Theory of the Fourth Amendment
California v. Greenwood
Questions and Notes
Insert at page 361 (after Note 4):
BOND v. UNITED STATES
120 S. Ct. 1462 (2000)
Chief Justice REHNQUIST delivered the opinion of the Court.
This case presents the question whether a law enforcement officer’s physical manipulation of
a bus passenger’s carry-on luggage violated the Fourth Amendment’s proscription against
unreasonable searches. We hold that it did.
Petitioner Steven Dewayne Bond was a passenger on a Greyhound bus that left California
bound for Little Rock, Arkansas. The bus stopped, as it was required to do, at the permanent Border
Patrol checkpoint in Sierra Blanca, Texas. Border Patrol Agent Cesar Cantu boarded the bus to check
the immigration status of its passengers. After reaching the back of the bus, having satisfied himself
that the passengers were lawfully in the United States, Agent Cantu began walking toward the front.
Along the way, he squeezed the soft luggage which passengers had placed in the overhead storage
space above the seats.
Petitioner was seated four or five rows from the back of the bus. As Agent Cantu inspected
the luggage in the compartment above petitioner’s seat, he squeezed a green canvas bag and noticed
that it contained a “brick-like” object. Petitioner admitted that the bag was his and agreed to allow
Agent Cantu to open it.1 Upon opening the bag, Agent Cantu discovered a “brick” of
methamphetamine. The brick had been wrapped in duct tape until it was oval-shaped and then rolled
in a pair of pants.
The Fourth Amendment provides that “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”
A traveler’s personal luggage is clearly an “effect” protected by the Amendment. See United States
v. Place. Indeed, it is undisputed here that petitioner possessed a privacy interest in his bag.
But the Government asserts that by exposing his bag to the public, petitioner lost a reasonable
expectation that his bag would not be physically manipulated. The Government relies on our decisions
in California v. Ciraolo and Florida v. Riley for the proposition that matters open to public
observation are not protected by the Fourth Amendment. In Ciraolo, we held that police observation
of a backyard from a plane flying at an altitude of 1,000 feet did not violate a reasonable expectation
of privacy. Similarly, in Riley, we relied on Ciraolo to hold that police observation of a greenhouse
in a home’s curtilage from a helicopter passing at an altitude of 400 feet did not violate the Fourth
Amendment. We reasoned that the property was “not necessarily protected from inspection that
involves no physical invasion,” and determined that because any member of the public could have
1
The Government has not argued here that petitioner’s consent to Agent Cantu’s opening the bag is
a basis for admitting the evidence.
60
lawfully observed the defendants’ property by flying overhead, the defendants’ expectation of privacy
was “not reasonable and not one ‘that society is prepared to honor.’”
But Ciraolo and Riley are different from this case because they involved only visual, as
opposed to tactile, observation. Physically invasive inspection is simply more intrusive than purely
visual inspection. For example, in Terry v. Ohio, we stated that a “careful [tactile] exploration of the
outer surfaces of a person’s clothing all over his or her body” is a “serious intrusion upon the sanctity
of the person, which may inflict great indignity and arouse strong resentment, and is not to be
undertaken lightly.” Although Agent Cantu did not “frisk” petitioner’s person, he did conduct a
probing tactile examination of petitioner’s carry-on luggage. Obviously, petitioner’s bag was not part
of his person. But travelers are particularly concerned about their carry-on luggage; they generally
use it to transport personal items that, for whatever reason, they prefer to keep close at hand.
Here, petitioner concedes that, by placing his bag in the overhead compartment, he could
expect that it would be exposed to certain kinds of touching and handling. But petitioner argues that
Agent Cantu’s physical manipulation of his luggage “far exceeded the casual contact [petitioner]
could have expected from other passengers.” The Government counters that it did not.
Our Fourth Amendment analysis embraces two questions. First, we ask whether the
individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has
shown that “he [sought] to preserve [something] as private.” Smith v. Maryland. Here, petitioner
sought to preserve privacy by using an opaque bag and placing that bag directly above his seat.
Second, we inquire whether the individual’s expectation of privacy is “one that society is prepared
to recognize as reasonable.”2 When a bus passenger places a bag in an overhead bin, he expects that
other passengers or bus employees may move it for one reason or another. Thus, a bus passenger
clearly expects that his bag may be handled. He does not expect that other passengers or bus
employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what
the agent did here. We therefore hold that the agent’s physical manipulation of petitioner’s bag
violated the Fourth Amendment.
The judgment of the Court of Appeals is
Reversed.
Justice BREYER , with whom Justice SCALIA joins, dissenting.
Does a traveler who places a soft-sided bag in the shared overhead storage compartment of
a bus have a “reasonable expectation” that strangers will not push, pull, prod, squeeze, or otherwise
manipulate his luggage? Unlike the majority, I believe that he does not.
Petitioner argues—and the majority points out—that, even if bags in overhead bins are subject
to general “touching” and “handling,” this case is special because “Agent Cantu’s physical
manipulation of [petitioner’s] luggage ‘far exceeded the casual contact [he] could have expected from
other passengers.’” But the record shows the contrary. Agent Cantu testified that border patrol
officers (who routinely enter buses at designated checkpoints to run immigration checks) “conduct
an inspection of the overhead luggage by squeezing the bags as we’re going out.” On the occasion
2
The parties properly agree that the subjective intent of the law enforcement officer is irrelevant in
determining whether that officer’s actions violate the Fourth Amendment. This principle applies to the agent’s acts
in this case as well; the issue is not his state of mind, but the objective effect of his actions.
61
at issue here, Agent Cantu “felt a green bag” which had “a brick-like object in it.” He explained that
he felt “the edges of the brick in the bag,” and that it was a “brick-like object . . . that, when
squeezed, you could feel an outline of something of a different mass inside of it.” Although the agent
acknowledged that his practice was to “squeeze [bags] very hard,” he testified that his touch
ordinarily was not “hard enough to break something inside that might be fragile.” Petitioner also
testified that Agent Cantu “reached for my bag, and he shook it a little, and squeezed it.”
How does the “squeezing” just described differ from the treatment that overhead luggage is
likely to receive from strangers in a world of travel that is somewhat less gentle than it used to be?
I think not at all. (“‘Any person who has travelled on a common carrier knows that luggage placed
in an overhead compartment is always at the mercy of all people who want to rearrange or move
previously placed luggage’”); Eagan, Familiar Anger Takes Flight with Airline Tussles, Boston
Herald, Aug. 15, 1999, p. 8 (“It’s dog-eat-dog trying to cram half your home into overhead
compartments”); Massingill, Airlines Ride on the Wings of High-Flying Economy and Travelers Pay
Price in Long Lines, Cramped Airplanes, Kansas City Star, May 9, 1999, p. F4 (“Hundreds of
passengers fill overhead compartments with bulky carry-on bags that they have to cram, recram, and
then remove”); Flynn, Confessions of a Once-Only Carry-On Guy, San Francisco Examiner, Sept.
6, 1998, p. T2 (flight attendant “rearranged the contents of three different overhead compartments
to free up some room” and then “shoved and pounded until [the] bag squeezed in”). The trial court,
which heard the evidence, saw nothing unusual, unforeseeable, or special about this agent’s squeeze.
It found that Agent Cantu simply “felt the outside of Bond’s softside green cloth bag,” and it viewed
the agent’s activity as “minimally intrusive touching.” The Court of Appeals also noted that, because
“passengers often handle and manipulate other passengers’ luggage,” the substantially similar tactile
inspection here was entirely “foreseeable.”
The record and these factual findings are sufficient to resolve this case. The law is clear that
the Fourth Amendment protects against government intrusion that upsets an “actual (subjective)
expectation of privacy” that is objectively “‘reasonable.’” Privacy itself implies the exclusion of
uninvited strangers, not just strangers who work for the Government. Hence, an individual cannot
reasonably expect privacy in respect to objects or activities that he “knowingly exposes to the public.”
Indeed, the Court has said that it is not objectively reasonable to expect privacy if “any
member of the public . . . could have” used his senses to detect “everything that the officers
observed.” California v. Ciraolo. Thus, it has held that the fact that strangers may look down at
fenced-in property from an aircraft or sift through garbage bags on a public street can justify a similar
police intrusion. See Florida v. Riley; California v. Greenwood; cf. Texas v. Brown, 460 U.S. 730,
740 (1983) (police not precluded from “‘bending down’” to see since “the general public could peer
into the interior of [the car] from any number of angles”). The comparative likelihood that strangers
will give bags in an overhead compartment a hard squeeze would seem far greater. See Riley
(O’CONNOR , J., concurring in judgment) (reasonableness of privacy expectation depends on whether
intrusion is a “sufficiently routine part of modern life”). Consider, too, the accepted police practice
of using dogs to sniff for drugs hidden inside luggage. See Place. Surely it is less likely that nongovernmental strangers will sniff at other’s bags (or, more to the point, permit their dogs to do so)
than it is that such actors will touch or squeeze another person’s belongings in the process of making
room for their own.
Of course, the agent’s purpose here—searching for drugs—differs dramatically from the
62
intention of a driver or fellow passenger who squeezes a bag in the process of making more room for
another parcel. But in determining whether an expectation of privacy is reasonable, it is the effect,
not the purpose, that matters. Few individuals with something to hide wish to expose that something
to the police, however careless or indifferent they may be in respect to discovery by other members
of the public. Hence, a Fourth Amendment rule that turns on purpose could prevent police alone from
intruding where other strangers freely tread. And the added privacy protection achieved by such an
approach would not justify the harm worked to law enforcement—at least that is what this Court’s
previous cases suggest. See Greenwood, 41 (“The police cannot reasonably be expected to avert their
eyes from evidence of criminal activity that could have been observed by any member of the public”);
Ciraolo (rejecting petitioner’s argument that the police should be restricted solely because their
actions are “motivated by a law enforcement purpose, and not the result of a causal, accidental
observation”).
Nor can I accept the majority’s effort to distinguish “tactile” from “visual” interventions, even
assuming that distinction matters here. Whether tactile manipulation (say, of the exterior of luggage)
is more intrusive or less intrusive than visual observation (say, through a lighted window) necessarily
depends on the particular circumstances.
If we are to depart from established legal principles, we should not begin here. At best, this
decision will lead to a constitutional jurisprudence of “squeezes,” thereby complicating further already
complex Fourth Amendment law, increasing the difficulty of deciding ordinary criminal matters, and
hindering the administrative guidance (with its potential for control of unreasonable police practices)
that a less complicated jurisprudence might provide. At worst, this case will deter law enforcement
officers searching for drugs near borders from using even the most non-intrusive touch to help
investigate publicly exposed bags. At the same time, the ubiquity of non-governmental pushes, prods,
and squeezes (delivered by driver, attendant, passenger, or some other stranger) means that this
decision cannot do much to protect true privacy. Rather, the traveler who wants to place a bag in a
shared overhead bin and yet safeguard its contents from public touch should plan to pack those
contents in a suitcase with hard sides, irrespective of the Court’s decision today.
For these reasons, I dissent.
QUESTIONS AND NOTES
1.
Does Bond appear to be retrenching from Riley or Greenwood? If so, how do you
account for Rehnquist’s writing the opinion? If not, what are the differences?
2.
When you travel on a crowded bus or plane, do you assume that your soft luggage
will never be squeezed by a fellow passenger?
3.
Should the answer to Question 2 resolve this case? Why? Why not?
4.
Does Bond effect your thinking as to how the Court would have resolved the issue
addressed by Justice Breyer in Minnesota v. Carter?
63
5.
We conclude this section with Kyllo, where the Court continued its willingness to find
unusual prying to be a search.
KYLLO V. UNITED STATES
533 U.S. ___ (2001)
Justice SCALIA delivered the opinion of the Court.
This case presents the question whether the use of a thermal-imaging device aimed at a private
home from a public street to detect relative amounts of heat within the home constitutes a “search”
within the meaning of the Fourth Amendment.
I
In 1991 Agent William Elliott of the United States Department of the Interior came to suspect
that marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex
on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires highintensity lamps. In order to determine whether an amount of heat was emanating from petitioner’s
home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan
Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect
infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The
imager converts radiation into images based on relative warmth--black is cool, white is hot, shades
of gray connote relative differences; in that respect, it operates somewhat like a video camera
showing heat images. The scan of Kyllo’s home took only a few minutes and was performed from
the passenger seat of Agent Elliott’s vehicle across the street from the front of the house and also
from the street in back of the house. The scan showed that the roof over the garage and a side wall
of petitioner’s home were relatively hot compared to the rest of the home and substantially warmer
than neighboring homes in the triplex. Agent Elliott concluded that petitioner was using halide lights
to grow marijuana in his house, which indeed he was. Based on tips from informants, utility bills, and
the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner’s
home, and the agents found an indoor growing operation involving more than 100 plants. Petitioner
was indicted on one count of manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). He
unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional
guilty plea.
The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing
regarding the intrusiveness of thermal imaging. On remand the District Court found that the Agema
210 “is a non-intrusive device which emits no rays or beams and shows a crude visual image of the
heat being radiated from the outside of the house”; it “did not show any people or activity within the
walls of the structure”; “the device used cannot penetrate walls or windows to reveal conversations
or human activities”; and “no intimate details of the home were observed.” Based on these findings,
the District Court upheld the validity of the warrant that relied in part upon the thermal imaging, and
reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially reversed, but that
opinion was withdrawn and the panel (after a change in composition) affirmed, with Judge Noonan
dissenting. The court held that petitioner had shown no subjective expectation of privacy because he
64
had made no attempt to conceal the heat escaping from his home, and even if he had, there was no
objectively reasonable expectation of privacy because the imager “did not expose any intimate details
of Kyllo’s life,” only “amorphous ‘hot spots’ on the roof and exterior wall.” We granted certiorari.
II
The Fourth Amendment provides that “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” “At
the very core” of the Fourth Amendment “stands the right of a man to retreat into his own home and
there be free from unreasonable governmental intrusion.” With few exceptions, the question whether
a warrantless search of a home is reasonable and hence constitutional must be answered no.
On the other hand, the antecedent question of whether or not a Fourth Amendment “search”
has occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance
of a home used to be clear because, well into the 20th century, our Fourth Amendment jurisprudence
was tied to common-law trespass. Visual surveillance was unquestionably lawful because “‘the eye
cannot by the laws of England be guilty of a trespass.’” We have since decoupled violation of a
person’s Fourth Amendment rights from trespassory violation of his property, see Rakas v. Illinois,0
infra ch. 13, but the lawfulness of warrantless visual surveillance of a home has still been preserved.
As we observed in California v. Ciraolo, 476 U.S. 207 (1986), “the Fourth Amendment protection
of the home has never been extended to require law enforcement officers to shield their eyes when
passing by a home on public thoroughfares.”
One might think that the new validating rationale would be that examining the portion of a
house that is in plain public view, while it is a “search”1 despite the absence of trespass, is not an
“unreasonable” one under the Fourth Amendment. See Minnesota v. Carter, 525 U.S. 83 (1998)
(BREYER , J., concurring in judgment). But in fact we have held that visual observation is no “search”
at all--perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are
presumptively unconstitutional. In assessing when a search is not a search, we have applied somewhat
in reverse the principle first enunciated in Katz v. United States. Katz involved eavesdropping by
means of an electronic listening device placed on the outside of a telephone booth--a location not
within the catalog (“persons, houses, papers, and effects”) that the Fourth Amendment protects
against unreasonable searches. We held that the Fourth Amendment nonetheless protected Katz from
the warrantless eavesdropping because he “justifiably relied” upon the privacy of the telephone booth.
As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when
the government violates a subjective expectation of privacy that society recognizes as reasonable. We
have subsequently applied this principle to hold that a Fourth Amendment search does not occur-even when the explicitly protected location of a house is concerned--unless “the individual manifested
a subjective expectation of privacy in the object of the challenged search,” and “society [is] willing
to recognize that expectation as reasonable.” We have applied this test in holding that it is not a
1
When the Fourth Amendment was adopted, as now, to “search” meant “to look over
or through for the purpose of finding something; to explore; to examine by inspection; as, to search
the house for a book; to search the wood for a thief.” N. WEBSTER, AN AMERICAN DICTIONARY OF
THE ENGLISH LANGUAGE 66 (1828) (reprint 6th ed. 1989).
65
search for the police to use a pen register at the phone company to determine what numbers were
dialed in a private home, Smith v. Maryland, and we have applied the test on two different occasions
in holding that aerial surveillance of private homes and surrounding areas does not constitute a search,
Ciraolo; Riley.
The present case involves officers on a public street engaged in more than naked-eye
surveillance of a home. We have previously reserved judgment as to how much technological
enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld
enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found “it
important that this is not an area immediately adjacent to a private home, where privacy expectations
are most heightened,” 476 U.S. at 237, n.4 (emphasis in original).
III
It would be foolish to contend that the degree of privacy secured to citizens by the Fourth
Amendment has been entirely unaffected by the advance of technology. For example, as the cases
discussed above make clear, the technology enabling human flight has exposed to public view (and
hence, we have said, to official observation) uncovered portions of the house and its curtilage that
once were private. The question we confront today is what limits there are upon this power of
technology to shrink the realm of guaranteed privacy.
The Katz test--whether the individual has an expectation of privacy that society is prepared
to recognize as reasonable--has often been criticized as circular, and hence subjective and
unpredictable. See 1 W. LA FAVE, SEARCH AND SEIZURE § 2.1(d), pp. 393-394 (3d ed. 1996); Posner,
The Uncertain Protection of Privacy by the Supreme Court, 1979 S. CT. REV . 173, 188; Carter
(SCALIA, J., concurring). While it may be difficult to refine Katz when the search of areas such as
telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at
issue, in the case of the search of the interior of homes--the prototypical and hence most commonly
litigated area of protected privacy--there is a ready criterion, with roots deep in the common law, of
the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To
withdraw protection of this minimum expectation would be to permit police technology to erode the
privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing
technology any information regarding the interior of the home that could not otherwise have been
obtained without physical “intrusion into a constitutionally protected area” constitutes a search--at
least where (as here) the technology in question is not in general public use. This assures preservation
of that degree of privacy against government that existed when the Fourth Amendment was adopted.
On the basis of this criterion, the information obtained by the thermal imager in this case was the
product of a search.2
2
The dissent’s repeated assertion that the thermal imaging did not obtain information
regarding the interior of the home is simply inaccurate. A thermal imager reveals the relative heat of
various rooms in the home. The dissent may not find that information particularly private or
important, but there is no basis for saying it is not information regarding the interior of the home. The
dissent’s comparison of the thermal imaging to various circumstances in which outside observers
might be able to perceive, without technology, the heat of the home--for example, by observing
66
The Government maintains, however, that the thermal imaging must be upheld because it
detected “only heat radiating from the external surface of the house.” The dissent makes this its
leading point, contending that there is a fundamental difference between what it calls “off-the-wall”
observations and “through-the-wall surveillance.” But just as a thermal imager captures only heat
emanating from a house, so also a powerful directional microphone picks up only sound emanating
from a house, and a satellite capable of scanning from many miles away would pick up only visible
light emanating from a house. We rejected such a mechanical interpretation of the Fourth Amendment
in Katz, where the eavesdropping device picked up only sound waves that reached the exterior of the
phone booth. Reversing that approach would leave the homeowner at the mercy of advancing
technology--including imaging technology that could discern all human activity in the home. While
the technology used in the present case was relatively crude, the rule we adopt must take account of
more sophisticated systems that are already in use or in development.3 The dissent’s reliance on the
distinction between “off-the-wall” and “through-the-wall” observation is entirely incompatible with
the dissent’s belief, which we discuss below, that thermal-imaging observations of the intimate details
of a home are impermissible. The most sophisticated thermal imaging devices continue to measure
heat “off-the-wall” rather than “through-the-wall”; the dissent’s disapproval of those more
sophisticated thermal-imaging devices is an acknowledgement that there is no substance to this
distinction. As for the dissent’s extraordinary assertion that anything learned through “an inference”
cannot be a search, that would validate even the “through-the-wall” technologies that the dissent
purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or
ultrasound technology produces an 8-by-10 Kodak glossy that needs no analysis (i.e., the making of
inferences). And, of course, the novel proposition that inference insulates a search is blatantly
contrary to United States v. Karo, 468 U.S. 705 (1984), where the police “inferred” from the
activation of a beeper that a certain can of ether was in the home. The police activity was held to be
snowmelt on the roof--is quite irrelevant. The fact that equivalent information could sometimes be
obtained by other means does not make lawful the use of means that violate the Fourth Amendment.
The police might, for example, learn how many people are in a particular house by setting up yearround surveillance; but that does not make breaking and entering to find out the same information
lawful. In any event, on the night of January 16, 1992, no outside observer could have discerned the
relative heat of Kyllo’s home without thermal imaging.
3
The ability to “see” through walls and other opaque barriers is a clear, and
scientifically feasible, goal of law enforcement research and development. The National Law
Enforcement and Corrections Technology Center, a program within the United States Department
of Justice, features on its Internet Website projects that include a “Radar-Based Through-the-Wall
Surveillance System,” “Handheld Ultrasound Through the Wall Surveillance,” and a “Radar
Flashlight” that “will enable law officers to detect individuals through interior building walls.”
www.nlectc.org/techproj/ (visited May 3, 2001). Some devices may emit low levels of radiation that
travel “through-the-wall,” but others, such as more sophisticated thermal imaging devices, are entirely
passive, or “off-the-wall” as the dissent puts it.
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a search, and the search was held unlawful.4
The Government also contends that the thermal imaging was constitutional because it did not
“detect private activities occurring in private areas.” It points out that in Dow Chemical we observed
that the enhanced aerial photography did not reveal any “intimate details.” Dow Chemical, however,
involved enhanced aerial photography of an industrial complex, which does not share the Fourth
Amendment sanctity of the home. The Fourth Amendment’s protection of the home has never been
tied to measurement of the quality or quantity of information obtained. In Silverman, for example,
we made clear that any physical invasion of the structure of the home, “by even a fraction of an inch,”
was too much, and there is certainly no exception to the warrant requirement for the officer who
barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In
the home, our cases show, all details are intimate details, because the entire area is held safe from
prying government eyes. Thus, in Karo, the only thing detected was a can of ether in the home; and
in Arizona v. Hicks, the only thing detected by a physical search that went beyond what officers
lawfully present could observe in “plain view” was the registration number of a phonograph turntable.
These were intimate details because they were details of the home, just as was the detail of how
warm--or even how relatively warm--Kyllo was heating his residence.5
Limiting the prohibition of thermal imaging to “intimate details” would not only be wrong in
principle; it would be impractical in application, failing to provide “a workable accommodation
between the needs of law enforcement and the interests protected by the Fourth Amendment,” Oliver
v. United States. To begin with, there is no necessary connection between the sophistication of the
surveillance equipment and the “intimacy” of the details that it observes--which means that one cannot
say (and the police cannot be assured) that use of the relatively crude equipment at issue here will
always be lawful. The Agema Thermovision 210 might disclose, for example, at what hour each night
the lady of the house takes her daily sauna and bath--a detail that many would consider “intimate”;
and a much more sophisticated system might detect nothing more intimate than the fact that someone
4
The dissent asserts at n. 3 that we have misunderstood its point, which is not that
inference insulates a search, but that inference alone is not a search. If we misunderstood the point,
it was only in a good-faith effort to render the point germane to the case at hand. The issue in this
case is not the police’s allegedly unlawful inferencing, but their allegedly unlawful thermal-imaging
measurement of the emanations from a house. We say such measurement is a search; the dissent says
it is not, because an inference is not a search. We took that to mean that, since the technologically
enhanced emanations had to be the basis of inferences before anything inside the house could be
known, the use of the emanations could not be a search. But the dissent certainly knows better than
we what it intends. And if it means only that an inference is not a search, we certainly agree. That has
no bearing, however, upon whether hi-tech measurement of emanations from a house is a search.
5
The Government cites our statement in California v. Ciraolo, 476 U.S. 207 (1986),
noting apparent agreement with the State of California that aerial surveillance of a house’s curtilage
could become “‘invasive’” if “‘modern technology’” revealed “‘those intimate associations, objects
or activities otherwise imperceptible to police or fellow citizens.’” (quoting brief of the State of
California). We think the Court’s focus in this second-hand dictum was not upon intimacy but upon
otherwise-imperceptibility, which is precisely the principle we vindicate today.
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left a closet light on. We could not, in other words, develop a rule approving only that through-thewall surveillance which identifies objects no smaller than 36 by 36 inches, but would have to develop
a jurisprudence specifying which home activities are “intimate” and which are not. And even when
(if ever) that jurisprudence were fully developed, no police officer would be able to know in advance
whether his through-the-wall surveillance picks up “intimate” details--and thus would be unable to
know in advance whether it is constitutional.
The dissent’s proposed standard--whether the technology offers the “functional equivalent
of actual presence in the area being searched”--would seem quite similar to our own at first blush.
The dissent concludes that Katz was such a case, but then inexplicably asserts that if the same
listening device only revealed the volume of the conversation, the surveillance would be permissible.
Yet if, without technology, the police could not discern volume without being actually present in the
phone booth, Justice STEVENS should conclude a search has occurred. Cf. Karo (STEVENS, J.,
concurring in part and dissenting in part) (“I find little comfort in the Court’s notion that no invasion
of privacy occurs until a listener obtains some significant information by use of the device . . . . A
bathtub is a less private area when the plumber is present even if his back is turned”). The same
should hold for the interior heat of the home if only a person present in the home could discern the
heat. Thus the driving force of the dissent, despite its recitation of the above standard, appears to be
a distinction among different types of information--whether the “homeowner would even care if
anybody noticed.” The dissent offers no practical guidance for the application of this standard, and
for reasons already discussed, we believe there can be none. The people in their houses, as well as
the police, deserve more precision.6
We have said that the Fourth Amendment draws “a firm line at the entrance to the house.”
That line, we think, must be not only firm but also bright--which requires clear specification of those
methods of surveillance that require a warrant. While it is certainly possible to conclude from the
videotape of the thermal imaging that occurred in this case that no “significant” compromise of the
homeowner’s privacy has occurred, we must take the long view, from the original meaning of the
Fourth Amendment forward.
“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable
search and seizure when it was adopted, and in a manner which will conserve public interests as well
as the interests and rights of individual citizens.”
Where, as here, the Government uses a device that is not in general public use, to explore
details of the home that would previously have been unknowable without physical intrusion, the
surveillance is a “search” and is presumptively unreasonable without a warrant.
Since we hold the Thermovision imaging to have been an unlawful search, it will remain for
the District Court to determine whether, without the evidence it provided, the search warrant issued
6
The dissent argues that we have injected potential uncertainty into the constitutional
analysis by noting that whether or not the technology is in general public use may be a factor. That
quarrel, however, is not with us but with this Court’s precedent. See Ciraolo (“In an age where
private and commercial flight in the public airways is routine, it is unreasonable for respondent to
expect that his marijuana plants were constitutionally protected from being observed with the naked
eye from an altitude of 1,000 feet”). Given that we can quite confidently say that thermal imaging is
not “routine,” we decline in this case to reexamine that factor.
69
in this case was supported by probable cause--and if not, whether there is any other basis for
supporting admission of the evidence that the search pursuant to the warrant produced.
The judgment of the Court of Appeals is reversed; the case is remanded for further
proceedings consistent with this opinion.
Justice STEVENS, with whom THE CHIEF JUSTICE, Justice O’CONNOR , and Justice KENNEDY
join, dissenting.
There is, in my judgment, a distinction of constitutional magnitude between “through-the-wall
surveillance” that gives the observer or listener direct access to information in a private area, on the
one hand, and the thought processes used to draw inferences from information in the public domain,
on the other hand. The Court has crafted a rule that purports to deal with direct observations of the
inside of the home, but the case before us merely involves indirect deductions from “off-the-wall”
surveillance, that is, observations of the exterior of the home. Those observations were made with
a fairly primitive thermal imager that gathered data exposed on the outside of petitioner’s home but
did not invade any constitutionally protected interest in privacy. 1 Moreover, I believe that the
supposedly “bright-line” rule the Court has created in response to its concerns about future
technological developments is unnecessary, unwise, and inconsistent with the Fourth Amendment.
I
There is no need for the Court to craft a new rule to decide this case, as it is controlled by
established principles from our Fourth Amendment jurisprudence. One of those core principles, of
course, is that “searches and seizures inside a home without a warrant are presumptively
unreasonable.” But it is equally well settled that searches and seizures of property in plain view are
presumptively reasonable.2 Whether that property is residential or commercial, the basic principle is
the same: “‘What a person knowingly exposes to the public, even in his own home or office, is not
1
After an evidentiary hearing, the District Court found:
The use of the thermal imaging device here was not an intrusion into Kyllo’s home.
No intimate details of the home were observed, and there was no intrusion upon the
privacy of the individuals within the home. The device used cannot penetrate walls or
windows to reveal conversations or human activities. The device recorded only the
heat being emitted from the home.
2
Thus, for example, we have found consistent with the Fourth Amendment, even absent
a warrant, the search and seizure of garbage left for collection outside the curtilage of a home,
California v. Greenwood, the aerial surveillance of a fenced-in backyard from an altitude of 1,000
feet, California v. Ciraolo, the aerial observation of a partially exposed interior of a residential
greenhouse from 400 feet above, Florida v. Riley, the aerial photography of an industrial complex
from several thousand feet above, Dow Chemical Co. v. United States, 476 U.S. 227 (1986), and the
observation of smoke emanating from chimney stacks, Air Pollution Variance Bd. of Colo. v.
Western Alfalfa Corp, 416 U.S. 861 (1974).
70
a subject of Fourth Amendment protection.’” That is the principle implicated here.
While the Court “takes the long view” and decides this case based largely on the potential of
yet-to-be-developed technology that might allow “through-the-wall surveillance,” this case involves
nothing more than off-the-wall surveillance by law enforcement officers to gather information
exposed to the general public from the outside of petitioner’s home. All that the infrared camera did
in this case was passively measure heat emitted from the exterior surfaces of petitioner’s home; all
that those measurements showed were relative differences in emission levels, vaguely indicating that
some areas of the roof and outside walls were warmer than others. As still images from the infrared
scans show, no details regarding the interior of petitioner’s home were revealed. Unlike an x-ray scan,
or other possible “through-the-wall” techniques, the detection of infrared radiation emanating from
the home did not accomplish “an unauthorized physical penetration into the premises,” nor did it
“obtain information that it could not have obtained by observation from outside the curtilage of the
house.” United States v. Karo.
Indeed, the ordinary use of the senses might enable a neighbor or passerby to notice the heat
emanating from a building, particularly if it is vented, as was the case here. Additionally, any member
of the public might notice that one part of a house is warmer than another part or a nearby building
if, for example, rainwater evaporates or snow melts at different rates across its surfaces. Such use of
the senses would not convert into an unreasonable search if, instead, an adjoining neighbor allowed
an officer onto her property to verify her perceptions with a sensitive thermometer. Nor, in my view,
does such observation become an unreasonable search if made from a distance with the aid of a device
that merely discloses that the exterior of one house, or one area of the house, is much warmer than
another. Nothing more occurred in this case.
Thus, the notion that heat emissions from the outside of a dwelling is a private matter
implicating the protections of the Fourth Amendment (the text of which guarantees the right of
people “to be secure in their . . . houses” against unreasonable searches and seizures (emphasis
added)) is not only unprecedented but also quite difficult to take seriously. Heat waves, like aromas
that are generated in a kitchen, or in a laboratory or opium den, enter the public domain if and when
they leave a building. A subjective expectation that they would remain private is not only implausible
but also surely not “one that society is prepared to recognize as ‘reasonable.’” Katz (Harlan, J.,
concurring).
To be sure, the homeowner has a reasonable expectation of privacy concerning what takes
place within the home, and the Fourth Amendment’s protection against physical invasions of the
home should apply to their functional equivalent. But the equipment in this case did not penetrate the
walls of petitioner’s home, and while it did pick up “details of the home” that were exposed to the
public, it did not obtain “any information regarding the interior of the home” (emphasis added). In
the Court’s own words, based on what the thermal imager “showed” regarding the outside of
petitioner’s home, the officers “concluded” that petitioner was engaging in illegal activity inside the
home. It would be quite absurd to characterize their thought processes as “searches,” regardless of
whether they inferred (rightly) that petitioner was growing marijuana in his house, or (wrongly) that
“the lady of the house [was taking] her daily sauna and bath.” In either case, the only conclusions the
officers reached concerning the interior of the home were at least as indirect as those that might have
been inferred from the contents of discarded garbage, see Greenwood, or pen register, see Smith v.
Maryland, or, as in this case, subpoenaed utility records. For the first time in its history, the Court
71
assumes that an inference can amount to a Fourth Amendment violation. 3
Notwithstanding the implications of today’s decision, there is a strong public interest in
avoiding constitutional litigation over the monitoring of emissions from homes, and over the
inferences drawn from such monitoring. Just as “the police cannot reasonably be expected to avert
their eyes from evidence of criminal activity that could have been observed by any member of the
public,” so too public officials should not have to avert their senses or their equipment from detecting
emissions in the public domain such as excessive heat, traces of smoke, suspicious odors, odorless
gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the
community. In my judgment, monitoring such emissions with “sense-enhancing technology,” and
drawing useful conclusions from such monitoring, is an entirely reasonable public service.
On the other hand, the countervailing privacy interest is at best trivial. After all, homes
generally are insulated to keep heat in, rather than to prevent the detection of heat going out, and it
does not seem to me that society will suffer from a rule requiring the rare homeowner who both
intends to engage in uncommon activities that produce extraordinary amounts of heat, and wishes to
conceal that production from outsiders, to make sure that the surrounding area is well insulated. Cf.
United States v. Jacobsen (“The concept of an interest in privacy that society is prepared to recognize
as reasonable is, by its very nature, critically different from the mere expectation, however well
justified, that certain facts will not come to the attention of the authorities”). The interest in
concealing the heat escaping from one’s house pales in significance to the “the chief evil against which
the wording of the Fourth Amendment is directed,” the “physical entry of the home,” and it is hard
to believe that it is an interest the Framers sought to protect in our Constitution.
Since what was involved in this case was nothing more than drawing inferences from off-thewall surveillance, rather than any “through-the-wall” surveillance, the officers’ conduct did not
amount to a search and was perfectly reasonable.
II
Instead of trying to answer the question whether the use of the thermal imager in this case was
even arguably unreasonable, the Court has fashioned a rule that is intended to provide essential
guidance for the day when “more sophisticated systems” gain the “ability to ‘see’ through walls and
other opaque barriers.” The newly minted rule encompasses “obtaining [1] by sense-enhancing
technology [2] any information regarding the interior of the home [3] that could not otherwise have
been obtained without physical intrusion into a constitutionally protected area . . . [4] at least where
(as here) the technology in question is not in general public use.” In my judgment, the Court’s new
3
Although the Court credits us with the “novel proposition that inference insulates a
search,” our point simply is that an inference cannot be a search, contrary to the Court’s reasoning.
Thus, the Court’s use of United States v. Karo to refute a point we do not make underscores the fact
that the Court has no real answer (either in logic or in law) to the point we do make. Of course, Karo
itself does not provide any support for the Court’s view that inferences can amount to
unconstitutional searches. The illegality in that case was “the monitoring of a beeper in a private
residence” to obtain information that “could not have been obtained by observation from outside,”
rather than any thought processes that flowed from such monitoring.
72
rule is at once too broad and too narrow, and is not justified by the Court’s explanation for its
adoption. As I have suggested, I would not erect a constitutional impediment to the use of senseenhancing technology unless it provides its user with the functional equivalent of actual presence in
the area being searched.
Despite the Court’s attempt to draw a line that is “not only firm but also bright,” the contours
of its new rule are uncertain because its protection apparently dissipates as soon as the relevant
technology is “in general public use.” Yet how much use is general public use is not even hinted at
by the Court’s opinion, which makes the somewhat doubtful assumption that the thermal imager used
in this case does not satisfy that criterion. 5 In any event, putting aside its lack of clarity, this criterion
is somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede,
as the use of intrusive equipment becomes more readily available.
It is clear, however, that the category of “sense-enhancing technology” covered by the new
rule is far too broad. It would, for example, embrace potential mechanical substitutes for dogs trained
to react when they sniff narcotics. But in Place, we held that a dog sniff that “discloses only the
presence or absence of narcotics” does “not constitute a ‘search’ within the meaning of the Fourth
Amendment,” and it must follow that sense-enhancing equipment that identifies nothing but illegal
activity is not a search either. Nevertheless, the use of such a device would be unconstitutional under
the Court’s rule, as would the use of other new devices that might detect the odor of deadly bacteria
or chemicals for making a new type of high explosive, even if the devices (like the dog sniffs) are “so
limited in both the manner in which” they obtain information and “in the content of the information”
they reveal. If nothing more than that sort of information could be obtained by using the devices in
a public place to monitor emissions from a house, then their use would be no more objectionable than
the use of the thermal imager in this case.
The application of the Court’s new rule to “any information regarding the interior of the
home” is also unnecessarily broad. If it takes sensitive equipment to detect an odor that identifies
criminal conduct and nothing else, the fact that the odor emanates from the interior of a home should
not provide it with constitutional protection. The criterion, moreover, is too sweeping in that
information “regarding” the interior of a home apparently is not just information obtained through
its walls, but also information concerning the outside of the building that could lead to (however
many) inferences “regarding” what might be inside. Under that expansive view, I suppose, an officer
using an infrared camera to observe a man silently entering the side door of a house at night carrying
a pizza might conclude that its interior is now occupied by someone who likes pizza, and by doing
so the officer would be guilty of conducting an unconstitutional “search” of the home.
Because the new rule applies to information regarding the “interior” of the home, it is too
narrow as well as too broad. Clearly, a rule that is designed to protect individuals from the overly
5
The record describes a device that numbers close to a thousand manufactured units;
that has a predecessor numbering in the neighborhood of 4,000 to 5,000 units; that competes with
a similar product numbering from 5,000 to 6,000 units; and that is “readily available to the public”
for commercial, personal, or law enforcement purposes, and is just an 800-number away from being
rented from “half a dozen national companies” by anyone who wants one. Since, by virtue of the
Court’s new rule, the issue is one of first impression, perhaps it should order an evidentiary hearing
to determine whether these facts suffice to establish “general public use.”
73
intrusive use of sense-enhancing equipment should not be limited to a home. If such equipment did
provide its user with the functional equivalent of access to a private place--such as, for example, the
telephone booth involved in Katz, or an office building--then the rule should apply to such an area
as well as to a home. See Katz (“The Fourth Amendment protects people, not places”).
The final requirement of the Court’s new rule, that the information “could not otherwise have
been obtained without physical intrusion into a constitutionally protected area,” also extends too far
as the Court applies it. As noted, the Court effectively treats the mental process of analyzing data
obtained from external sources as the equivalent of a physical intrusion into the home. As I have
explained, however, the process of drawing inferences from data in the public domain should not be
characterized as a search.
The two reasons advanced by the Court as justifications for the adoption of its new rule are
both unpersuasive. First, the Court suggests that its rule is compelled by our holding in Katz, because
in that case, as in this, the surveillance consisted of nothing more than the monitoring of waves
emanating from a private area into the public domain. Yet there are critical differences between the
cases. In Katz, the electronic listening device attached to the outside of the phone booth allowed the
officers to pick up the content of the conversation inside the booth, making them the functional
equivalent of intruders because they gathered information that was otherwise available only to
someone inside the private area; it would be as if, in this case, the thermal imager presented a view
of the heat-generating activity inside petitioner’s home. By contrast, the thermal imager here disclosed
only the relative amounts of heat radiating from the house; it would be as if, in Katz, the listening
device disclosed only the relative volume of sound leaving the booth, which presumably was
discernible in the public domain.6 Surely, there is a significant difference between the general and
well-settled expectation that strangers will not have direct access to the contents of private
communications, on the one hand, and the rather theoretical expectation that an occasional
homeowner would even care if anybody noticed the relative amounts of heat emanating from the
walls of his house, on the other. It is pure hyperbole for the Court to suggest that refusing to extend
the holding of Katz to this case would leave the homeowner at the mercy of “technology that could
discern all human activity in the home.”
Second, the Court argues that the permissibility of “through-the-wall surveillance” cannot
depend on a distinction between observing “intimate details” such as “the lady of the house [taking]
her daily sauna and bath,” and noticing only “the nonintimate rug on the vestibule floor” or “objects
no smaller than 36 by 36 inches.” This entire argument assumes, of course, that the thermal imager
in this case could or did perform “through-the-wall surveillance” that could identify any detail “that
would previously have been unknowable without physical intrusion.” In fact, the device could not,
and did not enable its user to identify either the lady of the house, the rug on the vestibule floor, or
anything else inside the house, whether smaller or larger than 36 by 36 inches. Indeed, the vague
thermal images of petitioner’s home that are reproduced in the Appendix were submitted by him to
the District Court as part of an expert report raising the question whether the device could even take
“accurate, consistent infrared images” of the outside of his house. Defendant’s Exhibit 107, p. 4. But
6
The use of the latter device would be constitutional given Smith v. Maryland, which
upheld the use of pen registers to record numbers dialed on a phone because, unlike “the listening
device employed in Katz . . . pen registers do not acquire the contents of communications.”
74
even if the device could reliably show extraordinary differences in the amounts of heat leaving his
home, drawing the inference that there was something suspicious occurring inside the residence--a
conclusion that officers far less gifted than Sherlock Holmes would readily draw--does not qualify
as “through-the-wall surveillance,” much less a Fourth Amendment violation.
III
Although the Court is properly and commendably concerned about the threats to privacy that
may flow from advances in the technology available to the law enforcement profession, it has
unfortunately failed to heed the tried and true counsel of judicial restraint. Instead of concentrating
on the rather mundane issue that is actually presented by the case before it, the Court has endeavored
to craft an all-encompassing rule for the future. It would be far wiser to give legislators an unimpeded
opportunity to grapple with these emerging issues rather than to shackle them with prematurely
devised constitutional constraints.
I respectfully dissent.
75
CHAPTER 12: CONSENT
Insert at page 394:
Chapter 12 (A):
Is The Composite of Supreme Court Doctrine Moving Towards Open
Season on Automobiles at The Close of The Twentieth Century?
MARYLAND v. WILSON
519 U.S. 408 (1997)
Chief Justice REHNQUIST delivered the opinion of the Court.
In this case we consider whether the rule of Pennsylvania v. Mimms, 434 U.S. 106 (1977),
that a police officer may as a matter of course order the driver of a lawfully stopped car to exit his
vehicle, extends to passengers as well. We hold that it does.
At about 7:30 p.m. on a June evening, Maryland state trooper David Hughes observed a
passenger car driving southbound on I-95 in Baltimore County at a speed of 64 miles per hour. The
posted speed limit was 55 miles per hour, and the car had no regular license tag; there was a torn
piece of paper reading “Enterprise Rent A Car” dangling from its rear. Hughes activated his lights
and sirens, signaling the car to pull over, but it continued driving for another mile and a half until it
finally did so.
During the pursuit, Hughes noticed that there were three occupants in the car and that the two
passengers turned to look at him several times, repeatedly ducking below sight level and then
reappearing. As Hughes approached the car on foot, the driver alighted and met him halfway. The
driver was trembling and appeared extremely nervous, but nonetheless produced a valid Connecticut
driver’s license. Hughes instructed him to return to the car and retrieve the rental documents, and he
complied. During this encounter, Hughes noticed that the front seat passenger, respondent Jerry Lee
Wilson, was sweating and also appeared extremely nervous. While the driver was sitting in the
driver’s seat looking for the rental papers, Hughes ordered Wilson out of the car.
When Wilson exited the car, a quantity of crack cocaine fell to the ground. Wilson was then
arrested and charged with possession of cocaine with intent to distribute. Before trial, Wilson moved
to suppress the evidence, arguing that Hughes’ ordering him out of the car constituted an
unreasonable seizure under the Fourth Amendment. The Circuit Court for Baltimore County agreed,
and granted respondent’s motion to suppress. On appeal, the Court of Special Appeals of Maryland
affirmed, ruling that Pennsylvania v. Mimms does not apply to passengers. The Court of Appeals of
Maryland denied certiorari. We granted certiorari and now reverse.
In Mimms, we considered a traffic stop much like the one before us today. There, Mimms had
been stopped for driving with an expired license plate, and the officer asked him to step out of his car.
When Mimms did so, the officer noticed a bulge in his jacket that proved to be a .38-caliber revolver,
whereupon Mimms was arrested for carrying a concealed deadly weapon. Mimms, like Wilson, urged
the suppression of the evidence on the ground that the officer’s ordering him out of the car was an
unreasonable seizure, and the Pennsylvania Supreme Court, like the Court of Special Appeals of
Maryland, agreed.
We reversed, explaining that “[t]he touchstone of our analysis under the Fourth Amendment
76
is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a
citizen’s personal security,’” and that reasonableness “depends ‘on a balance between the public
interest and the individual’s right to personal security free from arbitrary interference by law
officers.’” On the public interest side of the balance, we noted that the State “freely concede[d]” that
there had been nothing unusual or suspicious to justify ordering Mimms out of the car, but that it was
the officer’s “practice to order all drivers [stopped in traffic stops] out of their vehicles as a matter
of course” as a “precautionary measure” to protect the officer’s safety. We thought it “too plain for
argument” that this justification—officer safety—was “both legitimate and weighty.” In addition, we
observed that the danger to the officer of standing by the driver’s door and in the path of oncoming
traffic might also be “appreciable.”
On the other side of the balance, we considered the intrusion into the driver’s liberty
occasioned by the officer’s ordering him out of the car. Noting that the driver’s car was already
validly stopped for a traffic infraction, we deemed the additional intrusion of asking him to step
outside his car “de minimis.” Accordingly, we concluded that “once a motor vehicle has been lawfully
detained for a traffic violation, the police officers may order the driver to get out of the vehicle
without violating the Fourth Amendment’s proscription of unreasonable seizures.”
Respondent urges, and the lower courts agreed, that this per se rule does not apply to Wilson
because he was a passenger, not the driver.
We must now decide whether the rule of Mimms applies to passengers as well as to drivers.1
On the public interest side of the balance, the same weighty interest in officer safety is present
regardless of whether the occupant of the stopped car is a driver or passenger. Regrettably, traffic
stops may be dangerous encounters. In 1994 alone, there were 5,762 officer assaults and 11 officers
killed during traffic pursuits and stops. Federal Bureau of Investigation, Uniform Crime Reports: Law
Enforcement Officers Killed and Assaulted 71, 33 (1994). In the case of passengers, the danger of
the officer’s standing in the path of oncoming traffic would not be present except in the case of a
passenger in the left rear seat, but the fact that there is more than one occupant of the vehicle
increases the possible sources of harm to the officer.2
On the personal liberty side of the balance, the case for the passengers is in one sense stronger
than that for the driver. There is probable cause to believe that the driver has committed a minor
vehicular offense, but there is no such reason to stop or detain the passengers. But as a practical
matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in
their circumstances which will result from ordering them out of the car is that they will be outside of,
1
Respondent argues that, because we have generally eschewed bright line rules in the Fourth
Amendment context, see, e.g., Ohio v. Robinette, we should not here conclude that passengers may constitutionally
be ordered out of lawfully stopped vehicles. But, that we typically avoid per se rules concerning searches and seizures
does not mean that we have always done so; Mimms itself drew a bright line, and we believe the principles that
underlay that decision apply to passengers as well.
2
Justice STEVENS’ dissenting opinion points out that these statistics are not further broken down as
to assaults by passengers and assaults by drivers. It is, indeed, regrettable that the empirical data on a subject such as
this are sparse, but we need not ignore the data which do exist simply because further refinement would be even more
helpful. Justice Stevens agrees that there is “a strong public interest in minimizing” the number of assaults on law
officers, and we believe that our holding today is more likely to accomplish that result than would be the case if his
views were to prevail.
77
rather than inside of, the stopped car. Outside the car, the passengers will be denied access to any
possible weapon that might be concealed in the interior of the passenger compartment. It would seem
that the possibility of a violent encounter stems not from the ordinary reaction of a motorist stopped
for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered
during the stop. And the motivation of a passenger to employ violence to prevent apprehension of
such a crime is every bit as great as that of the driver.
We think that our opinion in Michigan v. Summers offers guidance by analogy here. There
the police had obtained a search warrant for contraband thought to be located in a residence, but
when they arrived to execute the warrant they found Summers coming down the front steps. The
question in the case depended “upon a determination whether the officers had the authority to require
him to re enter the house and to remain there while they conducted their search.” In holding as it did,
the Court said:
Although no special danger to the police is suggested by the evidence in this record,
the execution of a warrant to search for narcotics is the kind of transaction that may
give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk
of harm to both the police and the occupants is minimized if the officers routinely
exercise unquestioned command of the situation.
In summary, danger to an officer from a traffic stop is likely to be greater when there are
passengers in addition to the driver in the stopped car. While there is not the same basis for ordering
the passengers out of the car as there is for ordering the driver out, the additional intrusion on the
passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers
to get out of the car pending completion of the stop.3
The judgment of the Court of Special Appeals of Maryland is reversed, and the case is
remanded for proceedings not inconsistent with this opinion.
It is so ordered.
Justice STEVENS, with whom Justice KENNEDY joins, dissenting.
In Pennsylvania v. Mimms, the Court answered the “narrow question” whether an
“incremental intrusion” on the liberty of a person who had been lawfully seized was reasonable. This
case, in contrast, raises a separate and significant question concerning the power of the State to make
an initial seizure of persons who are not even suspected of having violated the law.
My concern is not with the ultimate disposition of this particular case, but rather with the
literally millions of other cases that will be affected by the rule the Court announces. Though the
question is not before us, I am satisfied that—under the rationale of Terry v. Ohio—if a police officer
conducting a traffic stop has an articulable suspicion of possible danger, the officer may order
3
Maryland urges us to go further and hold that an officer may forcibly detain a passenger for the entire
duration of the stop. But respondent was subjected to no detention based on the stopping of the car once he had left it;
his arrest was based on probable cause to believe that he was guilty of possession of cocaine with intent to distribute.
The question which Maryland wishes answered, therefore, is not presented by this case, and we express no opinion
upon it.
78
passengers to exit the vehicle as a defensive tactic without running afoul of the Fourth Amendment.
Accordingly, I assume that the facts recited in the majority’s opinion provided a valid justification for
this officer’s order commanding the passengers to get out of this vehicle.1 But the Court’s ruling goes
much farther. It applies equally to traffic stops in which there is not even a scintilla of evidence of any
potential risk to the police officer. In those cases, I firmly believe that the Fourth Amendment
prohibits routine and arbitrary seizures of obviously innocent citizens.
I
The majority suggests that the personal liberty interest at stake here, which is admittedly
“stronger” than that at issue in Mimms, is outweighed by the need to ensure officer safety. The Court
correctly observes that “traffic stops may be dangerous encounters.” The magnitude of the danger
to police officers is reflected in the statistic that, in 1994 alone, “there were 5,762 officer assaults and
11 officers killed during traffic pursuits and stops.” There is, unquestionably, a strong public interest
in minimizing the number of such assaults and fatalities. The Court’s statistics, however, provide no
support for the conclusion that its ruling will have any such effect.
Those statistics do not tell us how many of the incidents involved passengers. Assuming that
many of the assaults were committed by passengers, we do not know how many occurred after the
passenger got out of the vehicle, how many took place while the passenger remained in the vehicle,
or indeed, whether any of them could have been prevented by an order commanding the passengers
to exit.2 There is no indication that the number of assaults was smaller in jurisdictions where officers
may order passengers to exit the vehicle without any suspicion than in jurisdictions where they were
then prohibited from doing so. Indeed, there is no indication that any of the assaults occurred when
there was a complete absence of any articulable basis for concern about the officer’s safety—the only
condition under which I would hold that the Fourth Amendment prohibits an order commanding
passengers to exit a vehicle. In short, the statistics are as consistent with the hypothesis that ordering
passengers to get out of a vehicle increases the danger of assault as with the hypothesis that it reduces
that risk.
Furthermore, any limited additional risk to police officers must be weighed against the
unnecessary invasion that will be imposed on innocent citizens under the majority’s rule in the
tremendous number of routine stops that occur each day. We have long recognized that “[b]ecause
of the extensive regulation of motor vehicles and traffic . . . the extent of police citizen contact
1
The Maryland Court of Special Appeals held, inter alia, that the State had not properly preserved
this claim during the suppression hearing. The State similarly fails to press the point here. The issue is therefore not
before us, and I am not free to concur in the Court’s judgment on this alternate ground.
2
I am assuming that in the typical case the officer would not order passengers out of a vehicle until
after he had stopped his own car, exited, and arrived at a position where he could converse with the driver. The only
way to avoid all risk to the officer, I suppose, would be to adopt a routine practice of always issuing an order through
an amplified speaker commanding everyone to get out of the stopped car before the officer exposed himself to the
possibility of a shot from a hidden weapon. Given the predicate for the Court’s ruling—that an articulable basis for
suspecting danger to the officer provides insufficient protection against the possibility of a surprise assault—we must
assume that every passenger, no matter how feeble or infirm, must be prepared to accept the “petty indignity” of
obeying an arbitrary and sometimes demeaning command issued over a loud speaker.
79
involving automobiles will be substantially greater than police citizen contact in a home or office.”
Most traffic stops involve otherwise law abiding citizens who have committed minor traffic offenses.
A strong interest in arriving at a destination—to deliver a patient to a hospital, to witness a kick off,
or to get to work on time—will often explain a traffic violation without justifying it. In the aggregate,
these stops amount to significant law enforcement activity.
Indeed, the number of stops in which an officer is actually at risk is dwarfed by the far greater
number of routine stops. If Maryland’s share of the national total is about average, the State probably
experiences about 100 officer assaults each year during traffic stops and pursuits. Making the unlikely
assumption that passengers are responsible for one fourth of the total assaults, it appears that the
Court’s new rule would provide a potential benefit to Maryland officers in only roughly 25 stops a
year.4 These stops represent a minuscule portion of the total. In Maryland alone, there are something
on the order of one million traffic stops each year. Assuming that there are passengers in about half
of the cars stopped, the majority’s rule is of some possible advantage to police in only about one out
of every twenty thousand traffic stops in which there is a passenger in the car. And, any benefit is
extremely marginal. In the overwhelming majority of cases posing a real threat, the officer would
almost certainly have some ground to suspect danger that would justify ordering passengers out of
the car.
In contrast, the potential daily burden on thousands of innocent citizens is obvious. That
burden may well be “minimal” in individual cases. But countless citizens who cherish individual liberty
and are offended, embarrassed, and sometimes provoked by arbitrary official commands may well
consider the burden to be significant.6 In all events, the aggregation of thousands upon thousands of
petty indignities has an impact on freedom that I would characterize as substantial, and which in my
view clearly outweighs the evanescent safety concerns pressed by the majority.
II
The Court concludes today that the balance of convenience and danger that supported its
holding in Mimms applies to passengers of lawfully stopped cars as well as drivers. In Mimms itself,
however, the Court emphasized the fact that the intrusion into the driver’s liberty at stake was
“occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to
get out of the car.” The conclusion that “this additional intrusion can only be described as de
minimis” rested on the premise that the “police have already lawfully decided that the driver shall be
4
This figure may in fact be smaller. The majority’s data aggregates assaults committed during
“[t]raffic [p]ursuits and [s]tops.” Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers
Killed and Assaulted 71 (1994). In those assaults that occur during the pursuit of a moving vehicle, it would obviously
be impossible for an officer to order a passenger out of the car.
6
The number of cases in which the command actually protects the officer from harm may well be a
good deal smaller than the number in which a passenger is harmed by exposure to inclement weather, as well as the
number in which an ill advised command is improperly enforced. Consider, for example, the harm caused to a
passenger by an inadequately trained officer after a command was issued to exit the vehicle in Board of Comm’rs of
Bryan Cty. v. Brown [520 U.S. 397 (1996)].
80
briefly detained.”7
In this case as well, the intrusion on the passengers’ liberty occasioned by the initial stop of
the vehicle is not challenged. That intrusion was a necessary by product of the lawful detention of the
driver. But the passengers had not yet been seized at the time the car was pulled over, any more than
a traffic jam caused by construction or other state imposed delay not directed at a particular individual
constitutes a seizure of that person. The question is whether a passenger in a lawfully stopped car
may be seized, by an order to get out of the vehicle, without any evidence whatsoever that he or she
poses a threat to the officer or has committed an offense.8
To order passengers about during the course of a traffic stop, insisting that they exit and
remain outside the car, can hardly be classified as a de minimis intrusion. The traffic violation
sufficiently justifies subjecting the driver to detention and some police control for the time necessary
to conclude the business of the stop. The restraint on the liberty of blameless passengers that the
majority permits is, in contrast, entirely arbitrary.9
In my view, wholly innocent passengers in a taxi, bus, or private car have a constitutionally
protected right to decide whether to remain comfortably seated within the vehicle rather than
exposing themselves to the elements and the observation of curious bystanders. The Constitution
should not be read to permit law enforcement officers to order innocent passengers about simply
because they have the misfortune to be seated in a car whose driver has committed a minor traffic
offense.
Unfortunately, the effect of the Court’s new rule on the law may turn out to be far more
significant than its immediate impact on individual liberty. Throughout most of our history the Fourth
Amendment embodied a general rule requiring that official searches and seizures be authorized by a
warrant, issued “upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.” During the prohibition era, the
exceptions for warrantless searches supported by probable cause started to replace the general rule.
In 1968, in the landmark “stop and frisk” case Terry v. Ohio, the Court placed its stamp of approval
on seizures supported by specific and articulable facts that did not establish probable cause. The
Court crafted Terry as a narrow exception to the general rule that “the police must, whenever
practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.”
The intended scope of the Court’s major departure from prior practice was reflected in its statement
that the “demand for specificity in the information upon which police action is predicated is the
central teaching of this Court’s Fourth Amendment jurisprudence.” In the 1970's, the Court twice
rejected attempts to justify suspicionless seizures that caused only “modest” intrusions on the liberty
of passengers in automobiles. United States v. Brignoni-Ponce, 422 U.S. 873, 879-880 (1975);
7
Dissenting in Mimms, I criticized the Court’s reasoning and, indeed, predicted the result that the
majority reaches today.
8
The order to the passenger is unquestionably a “seizure” within the meaning of the Fourth
Amendment. . . .”The Fourth Amendment applies to all seizures of the person, including seizures that involve only
a brief detention short of traditional arrest.”
9
Cf. Ybarra v. Illinois, (“‘[A] person’s mere propinquity to others independently suspected of criminal
activity does not, without more, give rise to probable cause to search that person’”).
81
Delaware v. Prouse. 12 Today, however, the Court takes the unprecedented step of authorizing
seizures that are unsupported by any individualized suspicion whatsoever.
The Court’s conclusion seems to rest on the assumption that the constitutional protection
against “unreasonable” seizures requires nothing more than a hypothetically rational basis for
intrusions on individual liberty. How far this ground breaking decision will take us, I do not venture
to predict. I fear, however, that it may pose a more serious threat to individual liberty than the Court
realizes.
I respectfully dissent.
Justice KENNEDY, dissenting.
I join in the dissent by Justice STEVENS and add these few observations.
The distinguishing feature of our criminal justice system is its insistence on principled,
accountable decisionmaking in individual cases. If a person is to be seized, a satisfactory explanation
for the invasive action ought to be established by an officer who exercises reasoned judgment under
all the circumstances of the case. This principle can be accommodated even where officers must make
immediate decisions to ensure their own safety.
Traffic stops, even for minor violations, can take upwards of 30 minutes. When an officer
commands passengers innocent of any violation to leave the vehicle and stand by the side of the road
in full view of the public, the seizure is serious, not trivial. As Justice STEVENS concludes, the
command to exit ought not to be given unless there are objective circumstances making it reasonable
for the officer to issue the order. (We do not have before us the separate question whether
passengers, who, after all are in the car by choice, can be ordered to remain there for a reasonable
time while the police conduct their business.)
The requisite showing for commanding passengers to exit need be no more than the existence
of any circumstance justifying the order in the interests of the officer’s safety or to facilitate a lawful
search or investigation. As we have acknowledged for decades, special latitude is given to the police
in effecting searches and seizures involving vehicles and their occupants. Just last Term we adhered
to a rule permitting vehicle stops if there is some objective indication that a violation has been
committed, regardless of the officers real motives. See Whren v. United States. We could discern no
other, workable rule. Even so, we insisted on a reasoned explanation for the stop.
The practical effect of our holding in Whren, of course, is to allow the police to stop vehicles
in almost countless circumstances. When Whren is coupled with today’s holding, the Court puts tens
of millions of passengers at risk of arbitrary control by the police. If the command to exit were to
become commonplace, the Constitution would be diminished in a most public way. As the standards
suggested in dissent are adequate to protect the safety of the police, we ought not to suffer so great
a loss.
Since a myriad of circumstances will give a cautious officer reasonable grounds for
commanding passengers to leave the vehicle, it might be thought the rule the Court adopts today will
be a little different in its operation than the rule offered in dissent. It does no disservice to police
officers, however, to insist upon exercise of reasoned judgment. Adherence to neutral principles is
12
Dissenting in Delaware v. Prouse, 440 U.S. 648 (1979), then Justice REHNQUIST characterized the
motorist’s interest in freedom from random stops as “only the most diaphanous of citizen interests.”
82
the very premise of the rule of law the police themselves defend with such courage and dedication.
Most officers, it might be said, will exercise their new power with discretion and restraint; and
no doubt this often will be the case. I might also be said that if some jurisdictions use today’s ruling
to require passengers to exit as a matter of routine in every stop, citizen complaints and political
intervention will call for an end to the practice. These arguments, however, would miss the point.
Liberty comes not from officials by grace but from the Constitution by right.
For these reasons, and with all respect for the opinion of the Court, I dissent.
QUESTIONS AND NOTES
1.
Why do you suppose that the Court opted for a per se rule in view of the ease of
finding special circumstances? What are the advantages of a per se rule vis-a-vis a rule relying on
special circumstances?
2.
In Richards v. Wisconsin (supp, p.1), the Court eschewed a per se rule in favor of one
depending on special circumstances. It then found those circumstances present, thereby holding in
favor of the State.
3.
Do you think that it was wise of the state to predicate its entire case on the per se
rule?
4.
Are there significant differences between Mimms and Wilson? What are they? Was
Mimms correctly decided? Was Wilson? Explain.
5.
In Whren, the Court openly endorsed pretextual stops.
WHREN v. UNITED STATES
517 U.S. 806 (1996)
Justice SCALIA delivered the opinion of the Court.
In this case we decide whether the temporary detention of a motorist who the police have
probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth
Amendment’s prohibition against unreasonable seizures unless a reasonable officer would have been
motivated to stop the car by a desire to enforce the traffic laws.
I
On the evening of June 10, 1993, plainclothes vice-squad officers of the District of Columbia
Metropolitan Police Department were patrolling a “high drug area” of the city in an unmarked car.
Their suspicions were aroused when they passed a dark Pathfinder truck with temporary license plates
and youthful occupants waiting at a stop sign, the driver looking down into the lap of the passenger
83
at his right. The truck remained stopped at the intersection for what seemed an unusually long
time—more than 20 seconds. When the police car executed a U-turn in order to head back toward
the truck, the Pathfinder turned suddenly to its right, without signaling, and sped off at an
“unreasonable” speed. The policemen followed, and in a short while overtook the Pathfinder when
it stopped behind other traffic at a red light. They pulled up alongside, and Officer Ephraim Soto
stepped out and approached the driver’s door, identifying himself as a police officer and directing the
driver, petitioner Brown, to put the vehicle in park. When Soto drew up to the driver’s window, he
immediately observed two large plastic bags of what appeared to be crack cocaine in petitioner
Whren’s hands. Petitioners were arrested, and quantities of several types of illegal drugs were
retrieved from the vehicle.
II
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” Temporary detention of
individuals during the stop of an automobile by the police, even if only for a brief period and for a
limited purpose, constitutes a “seizure” of “persons” within the meaning of this provision. See
Delaware v. Prouse. An automobile stop is thus subject to the constitutional imperative that it not
be “unreasonable” under the circumstances. As a general matter, the decision to stop an automobile
is reasonable where the police have probable cause to believe that a traffic violation has occurred. See
Prouse; Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (per curiam).
Petitioners accept that Officer Soto had probable cause to believe that various provisions of
the District of Columbia traffic code had been violated. They argue, however, that “in the unique
context of civil traffic regulations” probable cause is not enough. Since, they contend, the use of
automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules
is nearly impossible, a police officer will almost invariably be able to catch any given motorist in a
technical violation. This creates the temptation to use traffic stops as a means of investigating other
law violations, as to which no probable cause or even articulable suspicion exists. Petitioners, who
are both black, further contend that police officers might decide which motorists to stop based on
decidedly impermissible factors, such as the race of the car’s occupants. To avoid this danger, they
say, the Fourth Amendment test for traffic stops should be, not the normal one (applied by the Court
of Appeals) of whether probable cause existed to justify the stop; but rather, whether a police officer,
acting reasonably, would have made the stop for the reason given.
A
Petitioners contend that the standard they propose is consistent with our past cases’
disapproval of police attempts to use valid bases of action against citizens as pretexts for pursuing
other investigatory agendas. We are reminded that in Florida v. Wells, we stated that “an inventory
search must not be used as a ruse for a general rummaging in order to discover incriminating
evidence”; that in Colorado v. Bertine, in approving an inventory search, we apparently thought it
significant that there had been “no showing that the police, who were following standard procedures,
acted in bad faith or for the sole purpose of investigation”; and that in New York v. Burger, 482 U.S.
84
691, 716-717, n. 27 (1987), we observed, in upholding the constitutionality of a warrantless
administrative inspection, that the search did not appear to be “a ‘pretext’ for obtaining evidence of
. . . violation of . . . penal laws.” But only an undiscerning reader would regard these cases as
endorsing the principle that ulterior motives can invalidate police conduct that is justifiable on the
basis of probable cause to believe that a violation of law has occurred. In each case we were
addressing the validity of a search conducted in the absence of probable cause. Our quoted statements
simply explain that the exemption from the need for probable cause (and warrant), which is accorded
to searches made for the purpose of inventory or administrative regulation, is not accorded to
searches that are not made for those purposes.
Petitioners also rely upon Colorado v. Bannister, 449 U.S. 1 (1980) (per curiam), a case
which, like this one, involved a traffic stop as the prelude to a plain-view sighting and arrest on
charges wholly unrelated to the basis for the stop. Petitioners point to our statement that “there was
no evidence whatsoever that the officer’s presence to issue a traffic citation was a pretext to confirm
any other previous suspicion about the occupants” of the car. That dictum at most demonstrates that
the Court in Bannister found no need to inquire into the question now under discussion; not that it
was certain of the answer. And it may demonstrate even less than that: if by “pretext” the Court
meant that the officer really had not seen the car speeding, the statement would mean only that there
was no reason to doubt probable cause for the traffic stop.
It would, moreover, be anomalous, to say the least, to treat a statement in a footnote in the
per curiam Bannister opinion as indicating a reversal of our prior law. Petitioners’ difficulty is not
simply a lack of affirmative support for their position. Not only have we never held, outside the
context of inventory search or administrative inspection (discussed above), that an officer’s motive
invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held
and asserted the contrary. In United States v. Villamonte-Marquez, 462 U.S. 579, 584, n. 3 (1983),
we held that an otherwise valid warrantless boarding of a vessel by customs officials was not rendered
invalid “because the customs officers were accompanied by a Louisiana state policeman, and were
following an informant’s tip that a vessel in the ship channel was thought to be carrying marihuana.”
We flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal
justification. In United States v. Robinson, 414 U.S. 218 (1973), we held that a traffic-violation arrest
(of the sort here) would not be rendered invalid by the fact that it was “a mere pretext for a narcotics
search,” and that a lawful postarrest search of the person would not be rendered invalid by the fact
that it was not motivated by the officer-safety concern that justifies such searches. See also Gustafson
v. Florida, 414 U.S. 260, 266 (1973). And in Scott v. United States, 436 U.S. 128, 138 (1978), in
rejecting the contention that wiretap evidence was subject to exclusion because the agents conducting
the tap had failed to make any effort to comply with the statutory requirement that unauthorized
acquisitions be minimized, we said that “[s]ubjective intent alone . . . does not make otherwise lawful
conduct illegal or unconstitutional.” We described Robinson as having established that “the fact that
the officer does not have the state of mind which is hypothecated by the reasons which provide the
legal justification for the officer’s action does not invalidate the action taken as long as the
circumstances, viewed objectively, justify that action.”
We think these cases foreclose any argument that the constitutional reasonableness of traffic
stops depends on the actual motivations of the individual officers involved. We of course agree with
petitioners that the Constitution prohibits selective enforcement of the law based on considerations
85
such as race. But the constitutional basis for objecting to intentionally discriminatory application of
laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role
in ordinary, probable-cause Fourth Amendment analysis.
B
Recognizing that we have been unwilling to entertain Fourth Amendment challenges based
on the actual motivations of individual officers, petitioners disavow any intention to make the
individual officer’s subjective good faith the touchstone of “reasonableness.” They insist that the
standard they have put forward—whether the officer’s conduct deviated materially from usual police
practices, so that a reasonable officer in the same circumstances would not have made the stop for
the reasons given—is an “objective” one.
But although framed in empirical terms, this approach is plainly and indisputably driven by
subjective considerations. Its whole purpose is to prevent the police from doing under the guise of
enforcing the traffic code what they would like to do for different reasons. Petitioners’ proposed
standard may not use the word “pretext,” but it is designed to combat nothing other than the
perceived “danger” of the pretextual stop, albeit only indirectly and over the run of cases. Instead of
asking whether the individual officer had the proper state of mind, the petitioners would have us ask,
in effect, whether (based on general police practices) it is plausible to believe that the officer had the
proper state of mind.
Why one would frame a test designed to combat pretext in such fashion that the court cannot
take into account actual and admitted pretext is a curiosity that can only be explained by the fact that
our cases have foreclosed the more sensible option. If those cases were based only upon the
evidentiary difficulty of establishing subjective intent, petitioners’ attempt to root out subjective vices
through objective means might make sense. But they were not based only upon that, or indeed even
principally upon that. Their principal basis—which applies equally to attempts to reach subjective
intent through ostensibly objective means—is simply that the Fourth Amendment’s concern with
“reasonableness” allows certain actions to be taken in certain circumstances, whatever the subjective
intent. See, e.g., Robinson, (“Since it is the fact of custodial arrest which gives rise to the authority
to search, it is of no moment that [the officer] did not indicate any subjective fear of the [arrestee]
or that he did not himself suspect that [the arrestee] was armed”); Gustafson (same). But even if our
concern had been only an evidentiary one, petitioners’ proposal would by no means assuage it.
Indeed, it seems to us somewhat easier to figure out the intent of an individual officer than to plumb
the collective consciousness of law enforcement in order to determine whether a “reasonable officer”
would have been moved to act upon the traffic violation. While police manuals and standard
procedures may sometimes provide objective assistance, ordinarily one would be reduced to
speculating about the hypothetical reaction of a hypothetical constable—an exercise that might be
called virtual subjectivity.
Moreover, police enforcement practices, even if they could be practicably assessed by a judge,
vary from place to place and from time to time. We cannot accept that the search and seizure
protections of the Fourth Amendment are so variable, and can be made to turn upon such trivialities.
The difficulty is illustrated by petitioners’ arguments in this case. Their claim that a reasonable officer
would not have made this stop is based largely on District of Columbia police regulations which
86
permit plainclothes officers in unmarked vehicles to enforce traffic laws “only in the case of a
violation that is so grave as to pose an immediate threat to the safety of others.” Metropolitan Police
Department-Washington, D. C., General Order 303.1, pt. 1, Objectives and Policies (A)(2)(4) (Apr.
30, 1992). This basis of invalidation would not apply in jurisdictions that had a different practice. And
it would not have applied even in the District of Columbia, if Officer Soto had been wearing a
uniform or patrolling in a marked police cruiser.
Petitioners argue that our cases support insistence upon police adherence to standard practices
as an objective means of rooting out pretext. They cite no holding to that effect, and dicta in only two
cases. In Abel v. United States, 362 U.S. 217 (1960), the petitioner had been arrested by the
Immigration and Naturalization Service (INS), on the basis of an administrative warrant that, he
claimed, had been issued on pretextual grounds in order to enable the Federal Bureau of Investigation
(FBI) to search his room after his arrest. We regarded this as an allegation of “serious misconduct,”
but rejected Abel’s claims on the ground that “[a] finding of bad faith is . . . not open to us on th[e]
record” in light of the findings below, including the finding that “‘the proceedings taken by the [INS]
differed in no respect from what would have been done in the case of an individual concerning whom
[there was no pending FBI investigation].’” But it is a long leap from the proposition that following
regular procedures is some evidence of lack of pretext to the proposition that failure to follow regular
procedures proves (or is an operational substitute for) pretext. Abel, moreover, did not involve the
assertion that pretext could invalidate a search or seizure for which there was probable cause—and
even what it said about pretext in other contexts is plainly inconsistent with the views we later stated
in Robinson, Gustafson, Scott, and Villamonte-Marquez. In the other case claimed to contain
supportive dicta, United States v. Robinson, in approving a search incident to an arrest for driving
without a license, we noted that the arrest was “not a departure from established police department
practice.” That was followed, however, by the statement that “[w]e leave for another day questions
which would arise on facts different from these.” This is not even a dictum that purports to provide
an answer, but merely one that leaves the question open.
III
In what would appear to be an elaboration on the “reasonable officer” test, petitioners argue
that the balancing inherent in any Fourth Amendment inquiry requires us to weigh the governmental
and individual interests implicated in a traffic stop such as we have here. That balancing, petitioners
claim, does not support investigation of minor traffic infractions by plainclothes police in unmarked
vehicles; such investigation only minimally advances the government’s interest in traffic safety, and
may indeed retard it by producing motorist confusion and alarm—a view said to be supported by the
Metropolitan Police Department’s own regulations generally prohibiting this practice. And as for the
Fourth Amendment interests of the individuals concerned, petitioners point out that our cases
acknowledge that even ordinary traffic stops entail “a possibly unsettling show of authority”; that they
at best “interfere with freedom of movement, are inconvenient, and consume time” and at worst “may
create substantial anxiety,” Prouse. That anxiety is likely to be even more pronounced when the stop
is conducted by plainclothes officers in unmarked cars.
It is of course true that in principle every Fourth Amendment case, since it turns upon a
“reasonableness” determination, involves a balancing of all relevant factors. With rare exceptions not
87
applicable here, however, the result of that balancing is not in doubt where the search or seizure is
based upon probable cause. That is why petitioners must rely upon cases like Prouse to provide
examples of actual “balancing” analysis. There, the police action in question was a random traffic stop
for the purpose of checking a motorist’s license and vehicle registration, a practice that—like the
practices at issue in the inventory search and administrative inspection cases upon which petitioners
rely in making their “pretext” claim—involves police intrusion without the probable cause that is its
traditional justification. Our opinion in Prouse expressly distinguished the case from a stop based on
precisely what is at issue here: “probable cause to believe that a driver is violating any one of the
multitude of applicable traffic and equipment regulations.” It noted approvingly that “[t]he foremost
method of enforcing traffic and vehicle safety regulations . . . is acting upon observed violations,”
which afford the “‘quantum of individualized suspicion’” necessary to ensure that police discretion
is sufficiently constrained.
Where probable cause has existed, the only cases in which we have found it necessary actually
to perform the “balancing” analysis involved searches or seizures conducted in an extraordinary
manner, unusually harmful to an individual’s privacy or even physical interests—such as, for example,
seizure by means of deadly force, see Tennessee v. Garner, unannounced entry into a home, see
Wilson v. Arkansas, 514 U.S. 927 (1995), entry into a home without a warrant, see Welsh v.
Wisconsin, or physical penetration of the body, see Winston v. Lee. The making of a traffic stop outof-uniform does not remotely qualify as such an extreme practice, and so is governed by the usual rule
that probable cause to believe the law has been broken “outbalances” private interest in avoiding
police contact.
Petitioners urge as an extraordinary factor in this case that the “multitude of applicable traffic
and equipment regulations” is so large and so difficult to obey perfectly that virtually everyone is
guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we
are aware of no principle that would allow us to decide at what point a code of law becomes so
expansive and so commonly violated that infraction itself can no longer be the ordinary measure of
the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know
by what standard (or what right) we would decide, as petitioners would have us do, which particular
provisions are sufficiently important to merit enforcement.
For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to
the traditional common-law rule that probable cause justifies a search and seizure.
Here the District Court found that the officers had probable cause to believe that petitioners
had violated the traffic code. That rendered the stop reasonable under the Fourth Amendment, the
evidence thereby discovered admissible, and the upholding of the convictions by the Court of Appeals
for the District of Columbia Circuit correct.
Judgment affirmed.
QUESTIONS AND NOTES
1.
violation?
Would (should) Whren apply to a pretextual arrest as opposed to a stop for a traffic
2.
What are the relevant policy differences between a pretextual stop and a pretextual
88
arrest?
3.
To the extent that police engage in the (at least) constitutionally-suspect practice of
racial profiling, does Whren practically give carte blanche approval to the practice? Should that
problem have been a greater concern to the Court? Why? Why not?
4.
Robinette.
In regard to the power of the police pursuant to a pretextual stop, we turn to
OHIO v. ROBINETTE
519 U.S. 33 (1996)
Chief Justice REHNQUIST delivered the opinion of the Court.
We are here presented with the question whether the Fourth Amendment requires that a
lawfully seized defendant must be advised that he is “free to go” before his consent to search will be
recognized as voluntary. We hold that it does not.
This case arose on a stretch of Interstate 70 north of Dayton, Ohio, where the posted speed
limit was 45 miles per hour because of construction. Respondent Robert D. Robinette was clocked
at 69 miles per hour as he drove his car along this stretch of road, and was stopped by Deputy Roger
Newsome of the Montgomery County Sheriff’s office. Newsome asked for and was handed
Robinette’s driver’s license, and he ran a computer check which indicated that Robinette had no
previous violations. Newsome then asked Robinette to step out of his car, turned on his mounted
video camera, issued a verbal warning to Robinette, and returned his license.
At this point, Newsome asked, “One question before you get gone: [A]re you carrying any
illegal contraband in your car? Any weapons of any kind, drugs, anything like that?” Robinette
answered “no” to these questions, after which Deputy Newsome asked if he could search the car.
Robinette consented. In the car, Deputy Newsome discovered a small amount of marijuana and, in
a film container, a pill which was later determined to be methylenedioxymethamphetamine (MDMA).
Robinette was then arrested and charged with knowing possession of a controlled substance, MDMA,
in violation of Ohio [law].
Before trial, Robinette unsuccessfully sought to suppress this evidence. He then pleaded “no
contest,” and was found guilty. On appeal, the Ohio Court of Appeals reversed, ruling that the search
resulted from an unlawful detention. The Supreme Court of Ohio, by a divided vote, affirmed. In its
opinion, that court established a bright-line prerequisite for consensual interrogation under these
circumstances:
The right, guaranteed by the federal and Ohio Constitutions, to be secure in one’s
person and property requires that citizens stopped for traffic offenses be clearly
informed by the detaining officer when they are free to go after a valid detention,
before an officer attempts to engage in a consensual interrogation. Any attempt at
consensual interrogation must be preceded by the phrase “At this time you legally are
free to go” or by words of similar import.
89
We granted certiorari to review this per se rule, and we now reverse.
We think that under our recent decision in Whren (decided after the Supreme Court of Ohio
decided the present case), the subjective intentions of the officer did not make the continued detention
of respondent illegal under the Fourth Amendment. As we made clear in Whren, “‘the fact that [an]
officer does not have the state of mind which is hypothecated by the reasons which provide the legal
justification for the officer’s action does not invalidate the action taken as long as the circumstances,
viewed objectively, justify that action.’ . . . Subjective intentions play no role in ordinary, probablecause Fourth Amendment analysis.” And there is no question that, in light of the admitted probable
cause to stop Robinette for speeding, Deputy Newsome was objectively justified in asking Robinette
to get out of the car, subjective thoughts notwithstanding. See Pennsylvania v. Mimms, 434 U.S.
106, 111, n. 6 (1977) (“We hold . . . that once a motor vehicle has been lawfully detained for a traffic
violation, the police officers may order the driver to get out of the vehicle without violating the
Fourth Amendment’s proscription of unreasonable searches and seizures”).
We now turn to the merits of the question presented. We have long held that the “touchstone
of the Fourth Amendment is reasonableness.” Reasonableness, in turn, is measured in objective terms
by examining the totality of the circumstances.
In applying this test we have consistently eschewed bright-line rules, instead emphasizing the
fact-specific nature of the reasonableness inquiry. Thus, in Florida v. Royer, we expressly disavowed
any “litmus-paper test” or single “sentence or . . . paragraph . . . rule,” in recognition of the “endless
variations in the facts and circumstances” implicating the Fourth Amendment. Then, in Michigan v.
Chesternut, 486 U.S. 567 (1988), when both parties urged “bright-line rule[s] applicable to all
investigatory pursuits,” we rejected both proposed rules as contrary to our “traditional contextual
approach.” And again, in Florida v. Bostick, when the Florida Supreme Court adopted a per se rule
that questioning aboard a bus always constitutes a seizure, we reversed, reiterating that the proper
inquiry necessitates a consideration of “all the circumstances surrounding the encounter.”
We have previously rejected a per se rule very similar to that adopted by the Supreme Court
of Ohio in determining the validity of a consent to search. In Schneckloth v. Bustamonte, it was
argued that such a consent could not be valid unless the defendant knew that he had a right to refuse
the request. We rejected this argument: “While knowledge of the right to refuse consent is one factor
to be taken into account, the government need not establish such knowledge as the sine qua non of
an effective consent.” And just as it “would be thoroughly impractical to impose on the normal
consent search the detailed requirements of an effective warning,” so too would it be unrealistic to
require police officers to always inform detainees that they are free to go before a consent to search
may be deemed voluntary.
The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and
“[v]oluntariness is a question of fact to be determined from all the circumstances.” The Supreme
Court of Ohio having held otherwise, its judgment is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
[Justice GINSBURG’s concurring opinion is omitted.]
Justice STEVENS, dissenting.
90
The Court’s holding today is narrow: The Federal Constitution does not require that a
lawfully seized person be advised that he is “free to go” before his consent to search will be
recognized as voluntary. I agree with that holding. Given the Court’s reading of the opinion of the
Supreme Court of Ohio, I also agree that it is appropriate for the Court to limit its review to
answering the sole question presented in the State’s certiorari petition.1 As I read the state court
opinion, however, the prophylactic rule announced in the second syllabus was intended as a guide to
the decision of future cases rather than an explanation of the decision in this case. I would therefore
affirm the judgment of the Supreme Court of Ohio because it correctly held that respondent’s consent
to the search of his vehicle was the product of an unlawful detention. Moreover, it is important to
emphasize that nothing in the Federal Constitution-or in this Court’s opinion-prevents a State from
requiring its law enforcement officers to give detained motorists the advice mandated by the Ohio
Court.
I
The relevant facts are undisputed.2 Officer Newsome stopped respondent because he was
speeding. Neither at the time of the stop nor at any later time prior to the search of respondent’s
vehicle did the officer have any basis for believing that there were drugs in the car. After ordering
respondent to get out of his car, issuing a warning, and returning his driver’s license, Newsome took
no further action related to the speeding violation. He did, however, state: “One question before you
get gone: are you carrying any illegal contraband in your car? Any weapons of any kind, drugs,
anything like that?” Thereafter, he obtained respondent’s consent to search the car.
These facts give rise to two questions of law: whether respondent was still being detained
when the “one question” was asked, and, if so, whether that detention was unlawful. In my opinion
the Ohio Appellate Court and the Ohio Supreme Court correctly answered both of those questions.
The Ohio Supreme Court correctly relied upon United States v. Mendenhall which stated that
“a person has been ‘seized’ within the meaning of the Fourth Amendment . . . if, in view of all of the
circumstances surrounding the incident, a reasonable person would have believed that he was not free
to leave.” (opinion of Stewart, J.); see Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (noting that
“[t]he Court has since embraced this test”). See also Bostick, (applying variant of this approach). The
Ohio Court of Appeals applied a similar analysis.
Several circumstances support the Ohio courts’ conclusion that a reasonable motorist in
respondent’s shoes would have believed that he had an obligation to answer the “one question” and
that he could not simply walk away from the officer, get back in his car, and drive away. The question
itself sought an answer “before you get gone.” In addition, the facts that respondent had been
detained, had received no advice that he was free to leave, and was then standing in front of a
television camera in response to an official command, are all inconsistent with an assumption that he
1
“Whether the Fourth Amendment to the United States Constitution requires police officers to inform
motorists, lawfully stopped for traffic violations, that the legal detention has concluded before any subsequent
interrogation or search will be found to be consensual?”
2
This is in part because crucial portions of the exchange were videotaped; this recording is a part of
the record.
91
could reasonably believe that he had no duty to respond. The Ohio Supreme Court was surely correct
in stating: “Most people believe that they are validly in a police officer’s custody as long as the officer
continues to interrogate them. The police officer retains the upper hand and the accouterments of
authority. That the officer lacks legal license to continue to detain them is unknown to most citizens,
and a reasonable person would not feel free to walk away as the officer continues to address him.”4
Moreover, as an objective matter it is fair to presume that most drivers who have been
stopped for speeding are in a hurry to get to their destinations; such drivers have no interest in
prolonging the delay occasioned by the stop just to engage in idle conversation with an officer, much
less to allow a potentially lengthy search.5 I also assume that motorists-even those who are not
carrying contraband-have an interest in preserving the privacy of their vehicles and possessions from
the prying eyes of a curious stranger. The fact that this particular officer successfully used a similar
method of obtaining consent to search roughly 786 times in one year, State v. Retherford, 93 Ohio
App. 3d 586, 591-592, 639 N. E. 2d 498, 502, dism’d, 69 Ohio St. 3d 1488, 635 N. E. 2d 43 (1994),
indicates that motorists generally respond in a manner that is contrary to their self-interest. Repeated
decisions by ordinary citizens to surrender that interest cannot satisfactorily be explained on any
hypothesis other than an assumption that they believed they had a legal duty to do so.
The Ohio Supreme Court was therefore entirely correct to presume in the first syllabus
preceding its opinion that a “continued detention” was at issue here.6 The Ohio Court of Appeals
reached a similar conclusion. In response to the State’s contention that Robinette “was free to go”
at the time consent was sought, that court held-after reviewing the record-that “a reasonable person
in Robinette’s position would not believe that the investigative stop had been concluded, and that he
or she was free to go, so long as the police officer was continuing to ask investigative questions.” As
I read the Ohio opinions, these determinations were independent of the bright-line rule criticized by
the majority.7 I see no reason to disturb them.
4
A learned commentator has expressed agreement on this point. See 4 W. LAFAVE, SEARCH AND
SEIZURE § 9.3(a), p. 112 (3d ed. 1996 and Supp. 1997) (“Given the fact that [defendant] quite clearly had been seized
when his car was pulled over, the return of the credentials hardly manifests a change in status when it was immediately
followed by interrogation concerning other criminal activity”) (approving of Ohio Supreme Court’s analysis in this
case). We have indicated as much ourselves in the past. See Berkemer v. McCarty (“Certainly few motorists would feel
free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so”).
5
Though this search does not appear to have been particularly intrusive, that may not always be so.
Indeed, our holding in Florida v. Jimeno, 500 U.S. 248 (1991), allowing police to open closed containers in the context
of an automobile consent search where the “consent would reasonably be understood to extend to a particular
container,” ensures that many motorists will wind up “consenting” to a far broader search than they might have
imagined. (“only objection that the police could have to” a rule requiring police to seek consent to search containers
as well as the automobile itself “is that it would prevent them from exploiting the ignorance of a citizen who simply
did not anticipate that his consent to search the car would be understood to authorize the police to rummage through
his packages”) (Marshall, J., dissenting).
6
It is ordinarily the syllabus that precedes an Ohio Supreme Court opinion, rather than the opinion
itself, that states the law of the case.
7
Indeed, the first paragraph of the Ohio Supreme Court’s opinion clearly indicates that the bright-line
rule was meant to apply only in future cases. The Ohio Supreme Court first explained: “We find that the search was
92
In the first syllabus the Ohio Supreme Court also answered the question whether the officer’s
continued detention of respondent was lawful or unlawful. Although there is a possible ambiguity in
the use of the word “motivation” in the Ohio Supreme Court’s explanation of why the traffic officer’s
continued detention of respondent was an illegal seizure, the first syllabus otherwise was a correct
statement of the relevant federal rule as well as the relevant Ohio rule. As this Court points out in its
opinion, as a matter of federal law the subjective motivation of the officer does not determine the
legality of a detention. Because I assume that the learned judges sitting on the Ohio Supreme Court
were well aware of this proposition, we should construe the syllabus generously by replacing the
ambiguous term “motivation behind” with the term “justification for” in order to make the syllabus
unambiguously state the correct rule of federal law. So amended, the controlling proposition of
federal law reads:
When the [justification for] a police officer’s continued detention of a person
stopped for a traffic violation is not related to the purpose of the original,
constitutional stop, and when that continued detention is not based on any articulable
facts giving rise to a suspicion of some separate illegal activity justifying an extension
of the detention, the continued detention constitutes an illegal seizure.”
Notwithstanding that the subjective motivation for the officer’s decision to stop respondent
related to drug interdiction, the legality of the stop depended entirely on the fact that respondent was
speeding. Of course, “[a]s a general matter, the decision to stop an automobile is reasonable where
the police have probable cause to believe that a traffic violation has occurred.” Whren. As noted
above, however, by the time Robinette was asked for consent to search his automobile, the lawful
traffic stop had come to an end; Robinette had been given his warning, and the speeding violation
provided no further justification for detention. The continued detention was therefore only justifiable,
if at all, on some other grounds.8
At no time prior to the search of respondent’s vehicle did any articulable facts give rise to a
reasonable suspicion of some separate illegal activity that would justify further detention. See United
States v. Sharpe; Terry v. Ohio. As an objective matter, it inexorably follows that when the officer
had completed his task of either arresting or reprimanding the driver of the speeding car, his
continued detention of that person constituted an illegal seizure. This holding by the Ohio Supreme
Court is entirely consistent with federal law.9
The proper disposition follows as an application of well-settled law. We held in Royer, that
a consent obtained during an illegal detention is ordinarily ineffective to justify an otherwise invalid
search. See also Bostick (noting that if consent was given during the course of an unlawful seizure,
invalid since it was the product of an unlawful seizure.” Only then did the court proceed to point out that it would “also
use this case to establish a bright-line test . . . .”
8
Cf. Florida v. Royer, (plurality opinion) (“[A]n investigative detention must be temporary and last
no longer than is necessary to effectuate the purpose of the stop”).
9
Since “this Court reviews judgments, not opinions,” the Ohio Supreme Court’s holding that
Robinette’s continued seizure was illegal on these grounds provides a sufficient basis for affirming its judgment.
93
the results of the search “must be suppressed as tainted fruit”). Because Robinette’s consent to the
search was the product of an unlawful detention, “the consent was tainted by the illegality and was
ineffective to justify the search.” I would therefore affirm the judgment below.
QUESTIONS AND NOTES
1.
What did the Court perceive to be the issue in Robinette?
2.
What did Justice Stevens perceive the issue to be in Robinette?
3.
Who do you think more accurately perceived the issue? Why?
4.
In the Court’s view, at the time that Robinette consented, was he being lawfully held
or not being held at all?
5.
If the Court thought that Robinette was being unlawfully held, would it have reached
the same result?
6.
In a future case, is it open to one in Robinette’s position to prove that he was being
unlawfully held? If so, would (should) Justice Stevens’ opinion prevail?
7.
in this case?
If your answers to question 6 were both “yes,” why didn’t the Court see it that way
8.
We conclude this section with a case that may suggest that it is not open season on
automobiles after all. As you read Knowles, think about the extent to which it limits police discretion.
KNOWLES v. IOWA
525 U.S. 113 (1998)
Chief Justice REHNQUIST delivered the opinion of the Court.
An Iowa police officer stopped petitioner Knowles for speeding, but issued him a citation
rather than arresting him. The question presented is whether such a procedure authorizes the officer,
consistently with the Fourth Amendment, to conduct a full search of the car. We answer this question
“no.”
Knowles was stopped in Newton, Iowa, after having been clocked driving 43 miles per hour
on a road where the speed limit was 25 miles per hour. The police officer issued a citation to
Knowles, although under Iowa law he might have arrested him. The officer then conducted a full
search of the car, and under the driver’s seat he found a bag of marijuana and a “pot pipe.” Knowles
was then arrested and charged with violation of state laws dealing with controlled substances.
Before trial, Knowles moved to suppress the evidence so obtained. He argued that the search
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could not be sustained under the “search incident to arrest” exception recognized in United States
v. Robinson, 414 U.S. 218 (1973), because he had not been placed under arrest. At the hearing on
the motion to suppress, the police officer conceded that he had neither Knowles’ consent nor
probable cause to conduct the search. He relied on Iowa law dealing with such searches.
Iowa Code Ann. § 321.485(1)(a) (1997) provides that Iowa peace officers having cause to
believe that a person has violated any traffic or motor vehicle equipment law may arrest the person
and immediately take the person before a magistrate. Iowa law also authorizes the far more usual
practice of issuing a citation in lieu of arrest or in lieu of continued custody after an initial arrest.1
Section 805.1(4) provides that the issuance of a citation in lieu of an arrest “does not affect the
officer’s authority to conduct an otherwise lawful search.” The Iowa Supreme Court has interpreted
this provision as providing authority to officers to conduct a full-blown search of an automobile and
driver in those cases where police elect not to make a custodial arrest and instead issue a
citation—that is, a search incident to citation.
Based on this authority, the trial court denied the motion to suppress and found Knowles
guilty. The Supreme Court of Iowa, sitting en banc, affirmed by a divided vote. Relying on its earlier
opinion in State v. Doran, 563 N.W.2d 620 (Iowa 1997), the Iowa Supreme Court upheld the
constitutionality of the search under a bright-line “search incident to citation” exception to the Fourth
Amendment’s warrant requirement, reasoning that so long as the arresting officer had probable cause
to make a custodial arrest, there need not in fact have been a custodial arrest. We granted certiorari,
and we now reverse.
Knowles argued that “[b]ecause the officer had no probable cause and no search warrant, and
the search cannot otherwise be justified under the Fourth Amendment, the search of the car was
unconstitutional.” Knowles did not argue below, and does not argue here, that the statute could never
be lawfully applied. The question we therefore address is whether the search at issue, authorized as
it was by state law, nonetheless violates the Fourth Amendment.
In Robinson, supra, we noted the two historical rationales for the “search incident to arrest”
exception: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to
preserve evidence for later use at trial. But neither of these underlying rationales for the search
incident to arrest exception is sufficient to justify the search in the present case.
We have recognized that the first rationale—officer safety—is “‘both legitimate and
weighty.’” The threat to officer safety from issuing a traffic citation, however, is a good deal less than
in the case of a custodial arrest. In Robinson, we stated that a custodial arrest involves “danger to an
officer” because of “the extended exposure which follows the taking of a suspect into custody and
transporting him to the police station.” We recognized that “[t]he danger to the police officer flows
from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the
grounds for arrest.” A routine traffic stop, on the other hand, is a relatively brief encounter and “is
more analogous to a so-called ‘Terry stop’ . . . than to a formal arrest.” “Where there is no formal
1
Iowa law permits the issuance of a citation in lieu of arrest for most offenses for which an accused
person would be “eligible for bail.” See Iowa Code Ann. §§ 805.1(1) (West Supp. 1997). In addition to traffic and
motor vehicle equipment violations, this would permit the issuance of a citation in lieu of arrest for such serious
felonies as second-degree burglary, and first-degree theft, both bailable offenses under Iowa law. The practice in Iowa
of permitting citation in lieu of arrest is consistent with law reform efforts.
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arrest . . . a person might well be less hostile to the police and less likely to take conspicuous,
immediate steps to destroy incriminating evidence.”
This is not to say that the concern for officer safety is absent in the case of a routine traffic
stop. It plainly is not. But while the concern for officer safety in this context may justify the “minimal”
additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the
often considerably greater intrusion attending a full field-type search. Even without the search
authority Iowa urges, officers have other, independent bases to search for weapons and protect
themselves from danger. For example, they may order out of a vehicle both the driver and any
passengers; perform a “patdown” of a driver and any passengers upon reasonable suspicion that they
may be armed and dangerous, Terry v. Ohio; conduct a “Terry patdown” of the passenger
compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain
immediate control of a weapon, Michigan v. Long; and even conduct a full search of the passenger
compartment, including any containers therein, pursuant to a custodial arrest, New York v. Belton.
Nor has Iowa shown the second justification for the authority to search incident to arrest—the
need to discover and preserve evidence. Once Knowles was stopped for speeding and issued a
citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence
of excessive speed was going to be found either on the person of the offender or in the passenger
compartment of the car.
Iowa nevertheless argues that a “search incident to citation” is justified because a suspect who
is subject to a routine traffic stop may attempt to hide or destroy evidence related to his identity (e.g.,
a driver’s license or vehicle registration), or destroy evidence of another, as yet undetected crime. As
for the destruction of evidence relating to identity, if a police officer is not satisfied with the
identification furnished by the driver, this may be a basis for arresting him rather than merely issuing
a citation. As for destroying evidence of other crimes, the possibility that an officer would stumble
onto evidence wholly unrelated to the speeding offense seems remote.
In Robinson, we held that the authority to conduct a full field search as incident to an arrest
was a “bright-line rule,” which was based on the concern for officer safety and destruction or loss of
evidence, but which did not depend in every case upon the existence of either concern. Here we are
asked to extend that “bright-line rule” to a situation where the concern for officer safety is not present
to the same extent and the concern for destruction or loss of evidence is not present at all. We decline
to do so. The judgment of the Supreme Court of Iowa is reversed, and the cause remanded for further
proceedings not inconsistent with this opinion.
QUESTIONS AND NOTES
1.
Is there any good reason to allow the search in Knowles?
2.
Might any Supreme Court opinions have mislead the Iowa Court into thinking that
the Fourth Amendment would allow the search at issue in Knowles?
3.
Does Knowles signal the end to any thought that it is “open season on automobiles”?
In assessing that question is it relevant that Wyoming v. Houghton (Ch.6B), and Florida v. White (Ch.
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6A) were both decided after Knowles?
PROBLEM
Suppose that following Knowles’ traffic citation, the following dialogue occurred:
Officer: Before you get gone, may I search you car?
Knowles: No.
Officer: Well then, I’m going to arrest you for speeding.
Knowles: So arrest me. You still can’t search my car.
Officer: Yes I can. Once I arrest you, I can search your car incident to a valid arrest.
Knowles: But your only arresting me so that you can search my car.
Officer: True, but the Supreme Court says that I can do that.
Is the officer correct? Should he be correct? Rethink your answer after reading Atwater and Sullivan.
ATWATER v. CITY OF LAGO VISTA
532 U.S. ___ (2001)
Justice SOUTER delivered the opinion of the Court.
The question is whether the Fourth Amendment forbids a warrantless arrest for a minor
criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. We hold that it
does not.
I
In Texas, if a car is equipped with safety belts, a front-seat passenger must wear one, TEX .
TRAN . CODE ANN . § 545.413(a) (1999), and the driver must secure any small child riding in front,
§ 545.413(b). Violation of either provision is “a misdemeanor punishable by a fine not less than $25
or more than $50.” § 545.413(d). Texas law expressly authorizes “any peace officer [to] arrest
without warrant a person found committing a violation” of these seatbelt laws, § 543.001, although
it permits police to issue citations in lieu of arrest, §§ 543.003-543.005.
In March 1997, Petitioner Gail Atwater was driving her pickup truck in Lago Vista, Texas,
with her 3-year-old son and 5-year-old daughter in the front seat. None of them was wearing a
seatbelt. Respondent Bart Turek, a Lago Vista police officer at the time, observed the seatbelt
violations and pulled Atwater over. According to Atwater’s complaint (the allegations of which we
assume to be true for present purposes), Turek approached the truck and “yelled” something to the
effect of “we’ve met before” and “you’re going to jail.”1 He then called for backup and asked to see
1
Turek had previously stopped Atwater for what he had thought was a seatbelt
violation, but had realized that Atwater’s son, although seated on the vehicle’s armrest, was in fact
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Atwater’s driver’s license and insurance documentation, which state law required her to carry. TEX .
TRAN . CODE ANN . §§ 521.025, 601.053 (1999). When Atwater told Turek that she did not have the
papers because her purse had been stolen the day before, Turek said that he had “heard that story
two-hundred times.”
Atwater asked to take her “frightened, upset, and crying” children to a friend’s house nearby,
but Turek told her, “you’re not going anywhere.” As it turned out, Atwater’s friend learned what was
going on and soon arrived to take charge of the children. Turek then handcuffed Atwater, placed her
in his squad car, and drove her to the local police station, where booking officers had her remove her
shoes, jewelry, and eyeglasses, and empty her pockets. Officers took Atwater’s “mug shot” and
placed her, alone, in a jail cell for about one hour, after which she was taken before a magistrate and
released on $310 bond.
Atwater was charged with driving without her seatbelt fastened, failing to secure her children
in seatbelts, driving without a license, and failing to provide proof of insurance. She ultimately
pleaded no contest to the misdemeanor seatbelt offenses and paid a $50 fine; the other charges were
dismissed.
II
The Fourth Amendment safeguards “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” In reading the Amendment,
we are guided by “the traditional protections against unreasonable searches and seizures afforded by
the common law at the time of the framing,” Wilson v. Arkansas, 514 U.S. 927 (1995), since “an
examination of the common-law understanding of an officer’s authority to arrest sheds light on the
obviously relevant, if not entirely dispositive, consideration of what the Framers of the Amendment
might have thought to be reasonable,” Payton v. New York. Thus, the first step here is to assess
Atwater’s claim that peace officers’ authority to make warrantless arrests for misdemeanors was
restricted at common law (whether “common law” is understood strictly as law judicially derived or,
instead, as the whole body of law extant at the time of the framing). Atwater’s specific contention is
that “founding-era common-law rules” forbade peace officers to make warrantless misdemeanor
arrests except in cases of “breach of the peace,” a category she claims was then understood narrowly
as covering only those nonfelony offenses “involving or tending toward violence.” Although her
historical argument is by no means insubstantial, it ultimately fails.
[After canvassing in some detail the views of the early British commentators].
We thus find disagreement, not unanimity, among both the common-law jurists and the textwriters who sought to pull the cases together and summarize accepted practice. Having reviewed the
relevant English decisions, as well as English and colonial American legal treatises, legal dictionaries,
and procedure manuals, we simply are not convinced that Atwater’s is the correct, or even necessarily
the better, reading of the common-law history.
2
belted in. Atwater acknowledged that her son’s seating position was unsafe, and Turek issued a verbal
warning.
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A second, and equally serious, problem for Atwater’s historical argument is posed by the
“divers Statutes,” M. DALTON , COUNTRY JUSTICE ch. 170, § 4, p. 582 (1727), enacted by Parliament
well before this Republic’s founding that authorized warrantless misdemeanor arrests without
reference to violence or turmoil. Quite apart from Hale and Blackstone, the legal background of any
conception of reasonableness the Fourth Amendment’s Framers might have entertained would have
included English statutes, some centuries old, authorizing peace officers (and even private persons)
to make warrantless arrests for all sorts of relatively minor offenses unaccompanied by violence. The
so-called “nightwalker” statutes are perhaps the most notable examples. From the enactment of the
Statute of Winchester in 1285, through its various readoptions and until its repeal in 1827, night
watchmen were authorized and charged “as . . . in Times past” to “watch the Town continually all
Night, from the Sun-setting unto the Sun-rising” and were directed that “if any Stranger do pass by
them, he shall be arrested until Morning . . . .” 13 Edw. I, ch. 4, §§ 5-6, 1 Statutes at Large 232-233;
see also 5 Edw. III, ch. 14, 1 Statutes at Large 448 (1331) (confirming and extending the powers of
watchmen). Hawkins emphasized that the Statute of Winchester “was made” not in derogation but
rather “in affirmance of the common law,” for “every private person may by the common law arrest
any suspicious night-walker, and detain him till he give good account of himself . . . .” 2 HAWKINS,
ch. 13, § 6, p. 130. And according to Blackstone, these watchmen had virtually limitless warrantless
nighttime arrest power: “Watchmen, either those appointed by the statute of Winchester . . . or such
as are merely assistants to the constable, may virtute officii arrest all offenders, and particularly
nightwalkers, and commit them to custody till the morning.” 4 BLACKSTONE 289; see also 2 HALE ,
HISTORY OF THE PLEAS OF THE CROWN, at 97 (describing broad arrest powers of watchmen even over
and above those conferred by the Statute of Winchester).8 The Statute of Winchester, moreover,
empowered peace officers not only to deal with nightwalkers and other nighttime “offenders,” but
periodically to “make Inquiry of all Persons being lodged in the Suburbs, or in foreign Places of the
Towns.” On that score, the Statute provided that “if they do find any that have lodged or received
any Strangers or suspicious Person, against the Peace, the Bailiffs shall do Right therein,” 13 Edw.
I, ch. 4, §§ 3-4, 1 Statutes at Large 232-233, which Hawkins understood “surely” to mean that
officers could “lawfully arrest and detain any such strangers,” 2 HAWKINS, ch. 13, § 12, at 134.
Nor were the nightwalker statutes the only legislative sources of warrantless arrest authority
absent real or threatened violence, as the parties and their amici here seem to have assumed. On the
contrary, following the Edwardian legislation and throughout the period leading up to the framing,
Parliament repeatedly extended warrantless arrest power to cover misdemeanor-level offenses not
involving any breach of the peace. One 16th-century statute, for instance, authorized peace officers
to arrest persons playing “unlawful games” like bowling, tennis, dice, and cards, and for good
measure extended the authority beyond players to include persons “haunting” the “houses, places and
8
Atwater seeks to distinguish the nightwalker statutes by arguing that they “just
reflected the reasonable notion that, in an age before lighting, finding a person walking about in the
dead of night equaled probable suspicion that the person was a felon.” Reply Brief for Petitioners 7,
n. 6. Hale indicates, however, that nightwalkers and felons were not considered to be one and the
same. 2 HALE , HISTORY OF THE PLEAS OF THE CROWN, at 97 (“And such a watchman may apprehend
night-walkers and commit them to custody till the morning, and also felons and persons suspected
of felony”).
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alleys where such games shall be suspected to be holden, exercised, used or occupied.” 33 Hen. VIII,
ch. 9, §§ 11-16, 5 Statutes at Large 84-85 (1541). A 17th-century act empowered “any person . . .
whatsoever to seize and detain any . . . hawker, pedlar, petty chapman, or other trading person” found
selling without a license. 8 & 9 Wm. III, ch. 25, §§ 3, 8, 10 Statutes at Large 81-83 (1697). And
18th-century statutes authorized the warrantless arrest of “rogues, vagabonds, beggars, and other idle
and disorderly persons” (defined broadly to include jugglers, palm-readers, and unlicensed playactors), 17 Geo. II, ch. 5, §§ 1-2, 5, 18 Statutes at Large 144, 145-147 (1744); “horrid” persons who
“profanely swear or curse,” 19 Geo. II, ch. 21, § 3, 18 Statutes at Large 445 (1746); individuals
obstructing “publick streets, lanes or open passages” with “pipes, butts, barrels, casks or other
vessels” or an “empty cart, car, dray or other carriage,” 30 Geo. II, ch. 22, §§ 5, 13, 22 Statutes at
Large 107-108, 111 (1757); and, most significantly of all given the circumstances of the case before
us, negligent carriage drivers, 27 Geo. II, ch. 16, § 7, 21 Statutes at Large 188 (1754). See generally
S. BLACKERBY , THE JUSTICE OF PEACE: HIS COMPANION , OR A SUMMARY OF ALL THE ACTS OF
PARLIAMENT (1723) (cataloguing statutes); S. WELCH, AN ESSAY ON THE OFFICE OF CONSTABLE 1922 (1758) (describing same).
The significance of these early English statutes lies not in proving that any common-law rule
barring warrantless misdemeanor arrests that might have existed would have been subject to statutory
override; the sovereign Parliament could of course have wiped away any judge-made rule. The point
is that the statutes riddle Atwater’s supposed common-law rule with enough exceptions to unsettle
any contention that the law of the mother country would have left the Fourth Amendment’s Framers
of a view that it would necessarily have been unreasonable to arrest without warrant for a
misdemeanor unaccompanied by real or threatened violence.
B
An examination of specifically American evidence is to the same effect. Neither the history
of the framing era nor subsequent legal development indicates that the Fourth Amendment was
originally understood, or has traditionally been read, to embrace Atwater’s position.
1
To begin with, Atwater has cited no particular evidence that those who framed and ratified
the Fourth Amendment sought to limit peace officers’ warrantless misdemeanor arrest authority to
instances of actual breach of the peace, and our own review of the recent and respected compilations
of framing-era documentary history has likewise failed to reveal any such design. See THE COM PLETE
BILL OF RIGHTS 223-263 (N. Cogan ed. 1997) (collecting original sources); 5 THE FOUNDERS’
CONSTITUTION 219-244 (P. Kurland & R. Lerner eds. 1987) (same). Nor have we found in any of the
modern historical accounts of the Fourth Amendment’s adoption any substantial indication that the
Framers intended such a restriction. See, e.g., L. LEVY, ORIGINS OF THE BILL OF RIGHTS 150-179
(1999); T. TAYLOR , TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 19-93 (1969); J.
LAND YNSKI , SEARCH AND SEIZURE AND THE SUPREM E COURT 19-48 (1966); N. LASSON, HISTORY
AND DEVELOPMENT OF THE FOUR TH AMEND MENT TO THE UNITED STATES CONSTITUTION 79-105
(1937); Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV . 547 (1999); Amar,
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Fourth Amendment First Principles, 107 HARV . L. REV . 757 (1994); Bradley, Constitutional Theory
of the Fourth Amendment, 38 DEPAUL L. REV . 817 (1989). Indeed, to the extent these modern
histories address the issue, their conclusions are to the contrary. See LAND YNSKI , supra, at 45
(Fourth Amendment arrest rules are “based on common-law practice,” which “dispensed with” a
warrant requirement for misdemeanors “committed in the presence of the arresting officer”); Davies,
supra, at 551 (“The Framers did not address warrantless intrusions at all in the Fourth Amendment
or in the earlier state provisions; thus, they never anticipated that ‘unreasonable’ might be read as a
standard for warrantless intrusions”).
The evidence of actual practice also counsels against Atwater’s position. During the period
leading up to and surrounding the framing of the Bill of Rights, colonial and state legislatures, like
Parliament before them regularly authorized local peace officers to make warrantless misdemeanor
arrests without conditioning statutory authority on breach of the peace. See, e.g., First Laws of the
State of Connecticut 214-215 (Cushing ed. 1982) (1784 compilation; exact date of Act unknown)
(authorizing warrantless arrests of “all Persons unnecessarily travelling on the Sabbath or Lord’s
Day”); id. at 23 (“such as are guilty of Drunkenness, profane Swearing, Sabbath-breaking, also
vagrant Persons [and] unseasonable Night-walkers”); Digest of the Laws of the State of Georgia
1755-1800, p. 411 (H. Marbury & W. Crawford eds. 1802) (1762 Act) (breakers of the Sabbath
laws); id. at 252 (1764 Act) (persons “gaming . . . in any licensed public house, or other house selling
liquors”); Colonial Laws of Massachusetts 139 (1889) (1646 Act) (“such as are overtaken with drink,
swearing, Sabbath breaking, Lying, vagrant persons, [and] night-walkers”); Laws of the State of New
Hampshire 549 (1800) (1799 Act) (persons “travelling unnecessarily” on Sunday); Digest of the Laws
of New Jersey 1709-1838, pp. 585-586 (L. Elmer ed. 1838) (1799 Act) (“vagrants or vagabonds,
common drunkards, common night-walkers, and common prostitutes,” as well as fortune-tellers and
other practitioners of “crafty science”); Laws of the State of New York, 1777-1784, pp. 358-359
(1886) (1781 Act) (“hawkers” and “pedlars”); Earliest Printed Laws of New York, 1665-1693, p.
133 (J. Cushing, ed., 1978) (Duke of York’s Laws, 1665-1675) (“such as are overtaken with Drink,
Swearing, Sabbath breaking, Vagrant persons or night walkers”); 3 Laws of the Commonwealth of
Pennsylvania 177-183 (1810) (1794 Act) (persons “profanely cursing,” drinking excessively, “cockfighting,” or “playing at cards, dice, billiards, bowls, shuffle-boards, or any game of hazard or
address, for money”).
What we have here, then, is just the opposite of what we had in Wilson v. Arkansas. There,
we emphasized that during the founding era a number of States had “enacted statutes specifically
embracing” the common-law knock-and-announce rule, 514 U.S. at 933; here, by contrast, those very
same States passed laws extending warrantless arrest authority to a host of nonviolent misdemeanors,
and in so doing acted very much inconsistently with Atwater’s claims about the Fourth Amendment’s
object. Of course, the Fourth Amendment did not originally apply to the States, see Barron v. Mayor
of Baltimore, 7 Pet. 243 (1833), but that does not make state practice irrelevant in unearthing the
Amendment’s original meaning. A number of state constitutional search-and-seizure provisions served
as models for the Fourth Amendment, and the fact that many of the original States with such
constitutional limitations continued to grant their own peace officers broad warrantless misdemeanor
arrest authority undermines Atwater’s contention that the founding generation meant to bar federal
law enforcement officers from exercising the same authority. Given the early state practice, it is
likewise troublesome for Atwater’s view that just one year after the ratification of the Fourth
101
Amendment, Congress vested federal marshals with “the same powers in executing the laws of the
United States, as sheriffs and their deputies in the several states have by law, in executing the laws
of their respective states.” Act of May 2, 1792, ch. 28, § 9, 1 Stat. 265. Thus, as we have said before
in only slightly different circumstances, the Second Congress apparently “saw no inconsistency
between the Fourth Amendment and legislation giving United States marshals the same power as local
peace officers” to make warrantless arrests. United States v. Watson.
The record thus supports Justice Powell’s observation that “there is no historical evidence that
the Framers or proponents of the Fourth Amendment, outspokenly opposed to the infamous general
warrants and writs of assistance, were at all concerned about warrantless arrests by local constables
and other peace officers.” We simply cannot conclude that the Fourth Amendment, as originally
understood, forbade peace officers to arrest without a warrant for misdemeanors not amounting to
or involving breach of the peace.
2
Nor does Atwater’s argument from tradition pick up any steam from the historical record as
it has unfolded since the framing, there being no indication that her claimed rule has ever become
“woven . . . into the fabric” of American law. The story, on the contrary, is of two centuries of
uninterrupted (and largely unchallenged) state and federal practice permitting warrantless arrests for
misdemeanors not amounting to or involving breach of the peace.
The reports may well contain early American cases more favorable to Atwater’s position than
the ones she has herself invoked. But more to the point, we think, are the numerous early- and mid19th-century decisions expressly sustaining (often against constitutional challenge) state and local
laws authorizing peace officers to make warrantless arrests for misdemeanors not involving any
breach of the peace.
Small wonder, then, that today statutes in all 50 States and the District of Columbia permit
warrantless misdemeanor arrests by at least some (if not all) peace officers without requiring any
breach of the peace, as do a host of congressional enactments. The American Law Institute has long
endorsed the validity of such legislation, see American Law Institute, Code of Criminal Procedure
§ 21(a), p. 28 (1930); American Law Institute, Model Code of Pre-Arraignment Procedure §
120.1(1)(c), p. 13 (1975), and the consensus, as stated in the current literature, is that statutes
“removing the breach of the peace limitation and thereby permitting arrest without warrant for any
misdemeanor committed in the arresting officer’s presence” have “‘never been successfully challenged
and stand as the law of the land.’” This, therefore, simply is not a case in which the claimant can point
to “a clear answer [that] existed in 1791 and has been generally adhered to by the traditions of our
society ever since.” County of Riverside v. McLaughlin, 500 U.S. 44, 60 (1991) (SCALIA, J.,
dissenting), supra ch. 4.
III
While it is true here that history, if not unequivocal, has expressed a decided, majority view
that the police need not obtain an arrest warrant merely because a misdemeanor stopped short of
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violence or a threat of it, Atwater does not wager all on history.14 Instead, she asks us to mint a new
rule of constitutional law on the understanding that when historical practice fails to speak conclusively
to a claim grounded on the Fourth Amendment, courts are left to strike a current balance between
individual and societal interests by subjecting particular contemporary circumstances to traditional
standards of reasonableness. See Wyoming v. Houghton. Atwater accordingly argues for a modern
arrest rule, one not necessarily requiring violent breach of the peace, but nonetheless forbidding
custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time
and when the government shows no compelling need for immediate detention. 15
If we were to derive a rule exclusively to address the uncontested facts of this case, Atwater
might well prevail. She was a known and established resident of Lago Vista with no place to hide and
no incentive to flee, and common sense says she would almost certainly have buckled up as a
condition of driving off with a citation. In her case, the physical incidents of arrest were merely
gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor
judgment. Atwater’s claim to live free of pointless indignity and confinement clearly outweighs
anything the City can raise against it specific to her case.
But we have traditionally recognized that a responsible Fourth Amendment balance is not well
served by standards requiring sensitive, case-by-case determinations of government need, lest every
discretionary judgment in the field be converted into an occasion for constitutional review. See, e.g.,
United States v. Robinson, 414 U.S. 218 (1973). Often enough, the Fourth Amendment has to be
applied on the spur (and in the heat) of the moment, and the object in implementing its command of
reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of
surviving judicial second-guessing months and years after an arrest or search is made. Courts
attempting to strike a reasonable Fourth Amendment balance thus credit the government’s side with
an essential interest in readily administrable rules. See Belton (Fourth Amendment rules “‘ought to
be expressed in terms that are readily applicable by the police in the context of the law enforcement
activities in which they are necessarily engaged’” and not “‘qualified by all sorts of ifs, ands, and
14
And, indeed, the dissent chooses not to deal with history at all. See post (O’CONNOR ,
J., dissenting). As is no doubt clear from the text, the historical record is not nearly as murky as the
dissent suggests. History, moreover, is not just “one of the tools” relevant to a Fourth Amendment
inquiry. Justice O’CONNOR herself has observed that courts must be “reluctant . . . to conclude that
the Fourth Amendment proscribes a practice that was accepted at the time of adoption of the Bill of
Rights and has continued to receive the support of many state legislatures,” Tennessee v. Garner, 471
U.S. 1 (1985) (dissenting opinion), as the practice of making warrantless misdemeanor arrests surely
was and has. Because here the dissent “claims that [a] practice[] accepted when the Fourth
Amendment was adopted [is] now constitutionally impermissible,” the dissent bears the “heavy
burden” of justifying a departure from the historical understanding.
15
Although it is unclear from Atwater’s briefs whether the rule she proposes would bar
custodial arrests for fine-only offenses even when made pursuant to a warrant, at oral argument
Atwater’s counsel “conceded that if a warrant were obtained, this arrest . . . would . . . be
reasonable.”
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buts’”).16
At first glance, Atwater’s argument may seem to respect the values of clarity and simplicity,
so far as she claims that the Fourth Amendment generally forbids warrantless arrests for minor crimes
not accompanied by violence or some demonstrable threat of it (whether “minor crime” be defined
as a fine-only traffic offense, a fine-only offense more generally, or a misdemeanor17). But the claim
is not ultimately so simple, nor could it be, for complications arise the moment we begin to think
about the possible applications of the several criteria Atwater proposes for drawing a line between
minor crimes with limited arrest authority and others not so restricted.
One line, she suggests, might be between “jailable” and “fine-only” offenses, between those
for which conviction could result in commitment and those for which it could not. The trouble with
this distinction, of course, is that an officer on the street might not be able to tell. It is not merely that
we cannot expect every police officer to know the details of frequently complex penalty schemes, see
Berkemer v. McCarty, 468 U.S. 420 (1984), infra ch. 16 (“Officers in the field frequently ‘have
neither the time nor the competence to determine’ the severity of the offense for which they are
considering arresting a person”), but that penalties for ostensibly identical conduct can vary on
account of facts difficult (if not impossible) to know at the scene of an arrest. Is this the first offense
or is the suspect a repeat offender?18 Is the weight of the marijuana a gram above or a gram below
the fine-only line? Where conduct could implicate more than one criminal prohibition, which one will
the district attorney ultimately decide to charge?19 And so on.
But Atwater’s refinements would not end there. She represents that if the line were drawn at
nonjailable traffic offenses, her proposed limitation should be qualified by a proviso authorizing
warrantless arrests where “necessary for enforcement of the traffic laws or when [an] offense would
16
Terry, upon which the dissent relies, is not to the contrary. Terry certainly supports
a more finely tuned approach to the Fourth Amendment when police act without the traditional
justification that either a warrant (in the case of a search) or probable cause (in the case of arrest)
provides; but at least in the absence of “extraordinary” circumstances, Whren, there is no comparable
cause for finicking when police act with such justification.
17
Compare, e.g., Brief for Petitioners 46 (“fine-only”) with, e.g., Tr. of Oral Arg. 11
(misdemeanors). Because the difficulties attendant to any major crime-minor crime distinction are
largely the same, we treat them together.
18
See, e.g., Welsh (first DUI offense subject to maximum fine of $ 200; subsequent
offense punishable by one year’s imprisonment); Carroll v. United States, 267 U.S. 132 (1925) (first
offense of smuggling liquor subject to maximum fine of $500; subsequent offense punishable by 90
days’ imprisonment); T EX . PENAL CODE ANN . §§ 42.01, 49.02, 12.23, 12.43 (1994 and Supp. 2001)
(first public drunkenness or disorderly conduct offense subject to maximum $500 fine; third offense
punishable by 180 days’ imprisonment).
19
For instance, the act of allowing a small child to stand unrestrained in the front seat
of a moving vehicle at least arguably constitutes child endangerment, which under Texas law is a state
jail felony.
104
otherwise continue and pose a danger to others on the road.” (Were the line drawn at misdemeanors
generally, a comparable qualification would presumably apply.) The proviso only compounds the
difficulties. Would, for instance, either exception apply to speeding? At oral argument, Atwater’s
counsel said that “it would not be reasonable to arrest a driver for speeding unless the speeding rose
to the level of reckless driving.” But is it not fair to expect that the chronic speeder will speed again
despite a citation in his pocket, and should that not qualify as showing that the “offense would . . .
continue” under Atwater’s rule? And why, as a constitutional matter, should we assume that only
reckless driving will “pose a danger to others on the road” while speeding will not?
There is no need for more examples to show that Atwater’s general rule and limiting proviso
promise very little in the way of administrability. It is no answer that the police routinely make
judgments on grounds like risk of immediate repetition; they surely do and should. But there is a
world of difference between making that judgment in choosing between the discretionary leniency of
a summons in place of a clearly lawful arrest, and making the same judgment when the question is the
lawfulness of the warrantless arrest itself. It is the difference between no basis for legal action
challenging the discretionary judgment, on the one hand, and the prospect of evidentiary exclusion
or (as here) personal § 1983 liability for the misapplication of a constitutional standard, on the other.
Atwater’s rule therefore would not only place police in an almost impossible spot but would
guarantee increased litigation over many of the arrests that would occur.20 For all these reasons,
Atwater’s various distinctions between permissible and impermissible arrests for minor crimes strike
us as “very unsatisfactory lines” to require police officers to draw on a moment’s notice.
One may ask, of course, why these difficulties may not be answered by a simple tie breaker
for the police to follow in the field: if in doubt, do not arrest. The first answer is that in practice the
tie breaker would boil down to something akin to a least-restrictive-alternative limitation, which is
itself one of those “ifs, ands, and buts” rules, generally thought inappropriate in working out Fourth
Amendment protection. See, e.g., Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989)
(collecting cases). Beyond that, whatever help the tie breaker might give would come at the price of
a systematic disincentive to arrest in situations where even Atwater concedes that arresting would
serve an important societal interest. An officer not quite sure that the drugs weighed enough to
warrant jail time or not quite certain about a suspect’s risk of flight would not arrest, even though it
could perfectly well turn out that, in fact, the offense called for incarceration and the defendant was
long gone on the day of trial. Multiplied many times over, the costs to society of such
underenforcement could easily outweigh the costs to defendants of being needlessly arrested and
booked, as Atwater herself acknowledges.21
20
See United States v. Watson (“The judgment of the Nation and Congress has . . . long
been to authorize warrantless public arrests on probable cause rather than to encumber criminal
prosecutions with endless litigation with respect to the existence of exigent circumstances, whether
it was practicable to get a warrant, whether the suspect was about to flee, and the like”).
21
The doctrine of qualified immunity is not the panacea the dissent believes it to be. As
the dissent itself rightly acknowledges, even where personal liability does not ultimately materialize,
the mere “specter of liability” may inhibit public officials in the discharge of their duties, for even
those officers with airtight qualified immunity defenses are forced to incur “the expenses of litigation”
105
Just how easily the costs could outweigh the benefits may be shown by asking, as one Member
of this Court did at oral argument, “how bad the problem is out there.” The very fact that the law has
never jelled the way Atwater would have it leads one to wonder whether warrantless misdemeanor
arrests need constitutional attention, and there is cause to think the answer is no. So far as such
arrests might be thought to pose a threat to the probable-cause requirement, anyone arrested for a
crime without formal process, whether for felony or misdemeanor, is entitled to a magistrate’s review
of probable cause within 48 hours, County of Riverside v. McLaughlin, 500 U.S. at 55-58, supra ch.
4, and there is no reason to think the procedure in this case atypical in giving the suspect a prompt
opportunity to request release, see TEX . TRAN . CODE ANN . § 543.002 (1999) (persons arrested for
traffic offenses to be taken “immediately” before a magistrate). Many jurisdictions, moreover, have
chosen to impose more restrictive safeguards through statutes limiting warrantless arrests for minor
offenses. It is of course easier to devise a minor-offense limitation by statute than to derive one
through the Constitution, simply because the statute can let the arrest power turn on any sort of
practical consideration without having to subsume it under a broader principle. It is, in fact, only
natural that States should resort to this sort of legislative regulation, for, as Atwater’s own amici
emphasize, it is in the interest of the police to limit petty-offense arrests, which carry costs that are
simply too great to incur without good reason. See Brief for Institute on Criminal Justice at the
University of Minnesota Law School and Eleven Leading Experts on Law Enforcement and
Corrections Administration and Policy as Amici Curiae 11 (the use of custodial arrests for minor
offenses “actually contradicts law enforcement interests”). Finally, and significantly, under current
doctrine the preference for categorical treatment of Fourth Amendment claims gives way to
individualized review when a defendant makes a colorable argument that an arrest, with or without
a warrant, was “conducted in an extraordinary manner, unusually harmful to [his] privacy or even
physical interests.” Whren v. United States; see also Graham v. Connor.
The upshot of all these influences, combined with the good sense (and, failing that, the
political accountability) of most local lawmakers and law-enforcement officials, is a dearth of
horribles demanding redress. Indeed, when Atwater’s counsel was asked at oral argument for any
indications of comparably foolish, warrantless misdemeanor arrests, he could offer only one.23 We
and to endure the “diversion of [their] official energy from pressing public issues,” Harlow v.
Fitzgerald, 457 U.S. 800 (1982). Further, and somewhat perversely, the disincentive to arrest
produced by Atwater’s opaque standard would be most pronounced in the very situations in which
police officers can least afford to hesitate: when acting “on the spur (and in the heat) of the moment.”
We could not seriously expect that when events were unfolding fast, an officer would be able to tell
with much confidence whether a suspect’s conduct qualified, or even “reasonably” qualified, under
one of the exceptions to Atwater’s general no-arrests rule.
23
He referred to a newspaper account of a girl taken into custody for eating french fries
in a Washington, D. C., subway station. Tr. of Oral Arg. 20-21; see also WASHINGTON POST, Nov.
16, 2000, p. A1 (describing incident). Not surprisingly, given the practical and political considerations
discussed in text, the Washington Metro Transit Police recently revised their “zero-tolerance” policy
to provide for citation in lieu of custodial arrest of subway snackers. WASHINGTON POST, Feb. 27,
2001, at B1.
106
are sure that there are others, 24 but just as surely the country is not confronting anything like an
epidemic of unnecessary minor-offense arrests. 25 That fact caps the reasons for rejecting Atwater’s
request for the development of a new and distinct body of constitutional law.
Accordingly, we confirm today what our prior cases have intimated: the standard of probable
cause “applies to all arrests, without the need to ‘balance’ the interests and circumstances involved
in particular situations.” Dunaway v. New York, 442 U.S. 200 (1979). If an officer has probable cause
to believe that an individual has committed even a very minor criminal offense in his presence, he may,
without violating the Fourth Amendment, arrest the offender.
IV
Atwater’s arrest satisfied constitutional requirements. There is no dispute that Officer Turek
had probable cause to believe that Atwater had committed a crime in his presence. She admits that
neither she nor her children were wearing seat belts, as required. Turek was accordingly authorized
(not required, but authorized) to make a custodial arrest without balancing costs and benefits or
determining whether or not Atwater’s arrest was in some sense necessary.
Nor was the arrest made in an “extraordinary manner, unusually harmful to [her] privacy or
. . . physical interests.” As our citations in Whren make clear, the question whether a search or seizure
is “extraordinary” turns, above all else, on the manner in which the search or seizure is executed. See
id. at 818 (citing Tennessee v. Garner (“seizure by means of deadly force”), Wilson v. Arkansas, 514
U.S. 927 (1995) (“unannounced entry into a home”), Welsh v. Wisconsin (“entry into a home without
a warrant”), and Winston v. Lee, 470 U.S. 753 (1985), supra ch. 8 (“physical penetration of the
body”)). Atwater’s arrest was surely “humiliating,” as she says in her brief, but it was no more
“harmful to . . . privacy or . . . physical interests” than the normal custodial arrest. She was
handcuffed, placed in a squad car, and taken to the local police station, where officers asked her to
remove her shoes, jewelry, and glasses, and to empty her pockets. They then took her photograph
and placed her in a cell, alone, for about an hour, after which she was taken before a magistrate, and
released on $310 bond. The arrest and booking were inconvenient and embarrassing to Atwater, but
not so extraordinary as to violate the Fourth Amendment.
The Court of Appeals’s en banc judgment is affirmed.
24
One of Atwater’s amici described a handful in its brief. Brief for American Civil
Liberties Union et al. as Amici Curiae 7-8 (reporting arrests for littering, riding a bicycle without a
bell or gong, operating a business without a license, and “walking as to create a hazard”).
25
The dissent insists that a minor traffic infraction “may serve as an excuse” for
harassment, and that fine-only misdemeanor prohibitions “may be enforced” in an arbitrary manner.
Thus, the dissent warns, the rule that we recognize today “has potentially serious consequences for
the everyday lives of Americans” and “carries with it grave potential for abuse.” But the dissent’s own
language (e.g., “may,” “potentially”) betrays the speculative nature of its claims. Noticeably absent
from the parade of horribles is any indication that the “potential for abuse” has ever ripened into a
reality. In fact, as we have pointed out in text, there simply is no evidence of widespread abuse of
minor-offense arrest authority.
107
Justice O’CONNOR , with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER join,
dissenting.
The Fourth Amendment guarantees the right to be free from “unreasonable searches and
seizures.” The Court recognizes that the arrest of Gail Atwater was a “pointless indignity” that served
no discernible state interest, and yet holds that her arrest was constitutionally permissible. Because
the Court’s position is inconsistent with the explicit guarantee of the Fourth Amendment, I dissent.
I
A full custodial arrest, such as the one to which Ms. Atwater was subjected, is the
quintessential seizure. See Payton. When a full custodial arrest is effected without a warrant, the plain
language of the Fourth Amendment requires that the arrest be reasonable. It is beyond cavil that “the
touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the
circumstances of the particular governmental invasion of a citizen’s personal security.’”
We have “often looked to the common law in evaluating the reasonableness, for Fourth
Amendment purposes, of police activity.” But history is just one of the tools we use in conducting
the reasonableness inquiry. And when history is inconclusive, as the majority amply demonstrates it
is in this case, we will “evaluate the search or seizure under traditional standards of reasonableness
by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on
the other, the degree to which it is needed for the promotion of legitimate governmental interests.”
In other words, in determining reasonableness, “each case is to be decided on its own facts and
circumstances.” Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931).
The majority gives a brief nod to this bedrock principle of our Fourth Amendment
jurisprudence, and even acknowledges that “Atwater’s claim to live free of pointless indignity and
confinement clearly outweighs anything the City can raise against it specific to her case.” But instead
of remedying this imbalance, the majority allows itself to be swayed by the worry that “every
discretionary judgment in the field [will] be converted into an occasion for constitutional review.” It
therefore mints a new rule that “if an officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence, he may, without violating the Fourth
Amendment, arrest the offender.” This rule is not only unsupported by our precedent, but runs
contrary to the principles that lie at the core of the Fourth Amendment.
As the majority tacitly acknowledges, we have never considered the precise question
presented here, namely, the constitutionality of a warrantless arrest for an offense punishable only by
fine. Indeed, on the rare occasions that members of this Court have contemplated such an arrest, they
have indicated disapproval. See, e.g., Gustafson v. Florida, 414 U.S. 260, 266-267 (1973) (Stewart,
J., concurring) (“[A] persuasive claim might have been made . . . that the custodial arrest of the
petitioner for a minor traffic offense violated his rights under the Fourth and Fourteenth Amendments.
But no such claim has been made”); United States v. Robinson, 414 U.S. 218 (1973) (Powell, J.,
concurring) (the validity of a custodial arrest for a minor traffic offense is not “self-evident”).
To be sure, we have held that the existence of probable cause is a necessary condition for an
arrest. See Dunaway v. New York, 442 U.S. 200 (1979). And in the case of felonies punishable by a
term of imprisonment, we have held that the existence of probable cause is also a sufficient condition
for an arrest. See Watson. In Watson, however, there was a clear and consistently applied common
108
law rule permitting warrantless felony arrests. Accordingly, our inquiry ended there and we had no
need to assess the reasonableness of such arrests by weighing individual liberty interests against state
interests. Cf. Wyoming v. Houghton; Tennessee v. Garner (O’CONNOR , J., dissenting) (criticizing
majority for disregarding undisputed common law rule).
Here, however, we have no such luxury. The Court’s thorough exegesis makes it abundantly
clear that warrantless misdemeanor arrests were not the subject of a clear and consistently applied
rule at common law. We therefore must engage in the balancing test required by the Fourth
Amendment. See Wyoming v. Houghton. While probable cause is surely a necessary condition for
warrantless arrests for fine-only offenses, see Dunaway v. New York, any realistic assessment of the
interests implicated by such arrests demonstrates that probable cause alone is not a sufficient
condition.
Our decision in Whren is not to the contrary. The specific question presented there was
whether, in evaluating the Fourth Amendment reasonableness of a traffic stop, the subjective intent
of the police officer is a relevant consideration. We held that it is not, and stated that “the making of
a traffic stop . . . is governed by the usual rule that probable cause to believe the law has been broken
‘outbalances’ private interest in avoiding police contact.”
We of course did not have occasion in Whren to consider the constitutional preconditions for
warrantless arrests for fine-only offenses. Nor should our words be taken beyond their context. There
are significant qualitative differences between a traffic stop and a full custodial arrest. While both are
seizures that fall within the ambit of the Fourth Amendment, the latter entails a much greater intrusion
on an individual’s liberty and privacy interests. As we have said, “[a] motorist’s expectations, when
he sees a policeman’s light flashing behind him, are that he will be obliged to spend a short period of
time answering questions and waiting while the officer checks his license and registration, that he may
be given a citation, but that in the end he most likely will be allowed to continue on his way.”
Berkemer v. McCarty, 468 U.S. 420 (1984), infra ch. 16. Thus, when there is probable cause to
believe that a person has violated a minor traffic law, there can be little question that the state interest
in law enforcement will justify the relatively limited intrusion of a traffic stop. It is by no means
certain, however, that where the offense is punishable only by fine, “probable cause to believe the law
has been broken [will] ‘outbalance’ private interest in avoiding” a full custodial arrest. Justifying a
full arrest by the same quantum of evidence that justifies a traffic stop--even though the offender
cannot ultimately be imprisoned for her conduct--defies any sense of proportionality and is in serious
tension with the Fourth Amendment’s proscription of unreasonable seizures.
A custodial arrest exacts an obvious toll on an individual’s liberty and privacy, even when the
period of custody is relatively brief. The arrestee is subject to a full search of her person and
confiscation of her possessions. United States v. Robinson. If the arrestee is the occupant of a car,
the entire passenger compartment of the car, including packages therein, is subject to search as well.
See Belton. The arrestee may be detained for up to 48 hours without having a magistrate determine
whether there in fact was probable cause for the arrest. See County of Riverside v. McLaughlin, 500
U.S. 44 (1991), supra ch. 4. Because people arrested for all types of violent and nonviolent offenses
may be housed together awaiting such review, this detention period is potentially dangerous. And
once the period of custody is over, the fact of the arrest is a permanent part of the public record. Cf.
Paul v. Davis, 424 U.S. 693 (1976).
We have said that “the penalty that may attach to any particular offense seems to provide the
109
clearest and most consistent indication of the State’s interest in arresting individuals suspected of
committing that offense.” Welsh v. Wisconsin. If the State has decided that a fine, and not
imprisonment, is the appropriate punishment for an offense, the State’s interest in taking a person
suspected of committing that offense into custody is surely limited, at best. This is not to say that the
State will never have such an interest. A full custodial arrest may on occasion vindicate legitimate
state interests, even if the crime is punishable only by fine. Arrest is the surest way to abate criminal
conduct. It may also allow the police to verify the offender’s identity and, if the offender poses a flight
risk, to ensure her appearance at trial. But when such considerations are not present, a citation or
summons may serve the State’s remaining law enforcement interests every bit as effectively as an
arrest.
Because a full custodial arrest is such a severe intrusion on an individual’s liberty, its
reasonableness hinges on “the degree to which it is needed for the promotion of legitimate
governmental interests.” Houghton. In light of the availability of citations to promote a State’s
interests when a fine-only offense has been committed, I cannot concur in a rule which deems a full
custodial arrest to be reasonable in every circumstance. Giving police officers constitutional carte
blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor has
been committed is irreconcilable with the Fourth Amendment’s command that seizures be reasonable.
Instead, I would require that when there is probable cause to believe that a fine-only offense has been
committed, the police officer should issue a citation unless the officer is “able to point to specific and
articulable facts which, taken together with rational inferences from those facts, reasonably warrant
[the additional] intrusion” of a full custodial arrest. Terry v. Ohio.
The majority insists that a bright-line rule focused on probable cause is necessary to vindicate
the State’s interest in easily administrable law enforcement rules. Probable cause itself, however, is
not a model of precision. “The quantum of information which constitutes probable cause--evidence
which would ‘warrant a man of reasonable caution in the belief’ that a [crime] has been committed-must be measured by the facts of the particular case.” The rule I propose--which merely requires a
legitimate reason for the decision to escalate the seizure into a full custodial arrest--thus does not
undermine an otherwise “clear and simple” rule.
While clarity is certainly a value worthy of consideration in our Fourth Amendment
jurisprudence, it by no means trumps the values of liberty and privacy at the heart of the
Amendment’s protections. What the Terry rule lacks in precision it makes up for in fidelity to the
Fourth Amendment’s command of reasonableness and sensitivity to the competing values protected
by that Amendment. Over the past 30 years, it appears that the Terry rule has been workable and
easily applied by officers on the street.
At bottom, the majority offers two related reasons why a bright-line rule is necessary: the fear
that officers who arrest for fine-only offenses will be subject to “personal § 1983 liability for the
misapplication of a constitutional standard,” and the resulting “systematic disincentive to arrest . . .
where . . . arresting would serve an important societal interest.” These concerns are certainly valid,
but they are more than adequately resolved by the doctrine of qualified immunity.
Qualified immunity was created to shield government officials from civil liability for the
performance of discretionary functions so long as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known. See Harlow v.
Fitzgerald. This doctrine is “the best attainable accommodation of competing values,” namely, the
110
obligation to enforce constitutional guarantees and the need to protect officials who are required to
exercise their discretion.
In Anderson v. Creighton, 483 U.S. 635 (1987), we made clear that the standard of
reasonableness for a search or seizure under the Fourth Amendment is distinct from the standard of
reasonableness for qualified immunity purposes. If a law enforcement officer “reasonably but
mistakenly concludes” that the constitutional predicate for a search or seizure is present, he “should
not be held personally liable.”
This doctrine thus allays any concerns about liability or disincentives to arrest. If, for example,
an officer reasonably thinks that a suspect poses a flight risk or might be a danger to the community
if released, he may arrest without fear of the legal consequences. Similarly, if an officer reasonably
concludes that a suspect may possess more than four ounces of marijuana and thus might be guilty
of a felony, the officer will be insulated from liability for arresting the suspect even if the initial
assessment turns out to be factually incorrect. As we have said, “officials will not be liable for mere
mistakes in judgment.” Of course, even the specter of liability can entail substantial social costs, such
as inhibiting public officials in the discharge of their duties. We may not ignore the central command
of the Fourth Amendment, however, to avoid these costs.
II
The record in this case makes it abundantly clear that Ms. Atwater’s arrest was
constitutionally unreasonable. Atwater readily admits--as she did when Officer Turek pulled her over-that she violated Texas’ seatbelt law. While Turek was justified in stopping Atwater, neither law nor
reason supports his decision to arrest her instead of simply giving her a citation. The officer’s actions
cannot sensibly be viewed as a permissible means of balancing Atwater’s Fourth Amendment interests
with the State’s own legitimate interests.
There is no question that Officer Turek’s actions severely infringed Atwater’s liberty and
privacy. Turek was loud and accusatory from the moment he approached Atwater’s car. Atwater’s
young children were terrified and hysterical. Yet when Atwater asked Turek to lower his voice
because he was scaring the children, he responded by jabbing his finger in Atwater’s face and saying,
“You’re going to jail.” Having made the decision to arrest, Turek did not inform Atwater of her right
to remain silent. He instead asked for her license and insurance information. But cf. Miranda v.
Arizona, 384 U.S. 436 (1966).
Atwater asked if she could at least take her children to a friend’s house down the street before
going to the police station. But Turek--who had just castigated Atwater for not caring for her
children--refused and said he would take the children into custody as well. Only the intervention of
neighborhood children who had witnessed the scene and summoned one of Atwater’s friends saved
the children from being hauled to jail with their mother.
With the children gone, Officer Turek handcuffed Ms. Atwater with her hands behind her
back, placed her in the police car, and drove her to the police station. Ironically, Turek did not secure
Atwater in a seat belt for the drive. At the station, Atwater was forced to remove her shoes,
relinquish her possessions, and wait in a holding cell for about an hour. A judge finally informed
Atwater of her rights and the charges against her, and released her when she posted bond. Atwater
returned to the scene of the arrest, only to find that her car had been towed.
111
Ms. Atwater ultimately pleaded no contest to violating the seatbelt law and was fined $50.
Even though that fine was the maximum penalty for her crime, and even though Officer Turek has
never articulated any justification for his actions, the city contends that arresting Atwater was
constitutionally reasonable because it advanced two legitimate interests: “the enforcement of child
safety laws and encouraging [Atwater] to appear for trial.”
It is difficult to see how arresting Atwater served either of these goals any more effectively
than the issuance of a citation. With respect to the goal of law enforcement generally, Atwater did
not pose a great danger to the community. She had been driving very slowly--approximately 15 miles
per hour--in broad daylight on a residential street that had no other traffic. Nor was she a repeat
offender; until that day, she had received one traffic citation in her life--a ticket, more than 10 years
earlier, for failure to signal a lane change. Although Officer Turek had stopped Atwater
approximately three months earlier because he thought that Atwater’s son was not wearing a seatbelt,
Turek had been mistaken. Moreover, Atwater immediately accepted responsibility and apologized
for her conduct. Thus, there was every indication that Atwater would have buckled herself and her
children in had she been cited and allowed to leave.
With respect to the related goal of child welfare, the decision to arrest Atwater was nothing
short of counterproductive. Atwater’s children witnessed Officer Turek yell at their mother and
threaten to take them all into custody. Ultimately, they were forced to leave her behind with Turek,
knowing that she was being taken to jail. Understandably, the 3-year-old boy was “very, very, very
traumatized.” After the incident, he had to see a child psychologist regularly, who reported that the
boy “felt very guilty that he couldn’t stop this horrible thing . . . he was powerless to help his mother
or sister.” Both of Atwater’s children are now terrified at the sight of any police car. According to
Atwater, the arrest “just never leaves us. It’s a conversation we have every other day, once a week,
and it’s--it raises its head constantly in our lives.”
Citing Atwater surely would have served the children’s interests well. It would have taught
Atwater to ensure that her children were buckled up in the future. It also would have taught the
children an important lesson in accepting responsibility and obeying the law. Arresting Atwater,
though, taught the children an entirely different lesson: that “the bad person could just as easily be
the policeman as it could be the most horrible person they could imagine.”
Respondents also contend that the arrest was necessary to ensure Atwater’s appearance in
court. Atwater, however, was far from a flight risk. A 16-year resident of Lago Vista, population
2,486, Atwater was not likely to abscond. Although she was unable to produce her driver’s license
because it had been stolen, she gave Officer Turek her license number and address. In addition,
Officer Turek knew from their previous encounter that Atwater was a local resident.
The city’s justifications fall far short of rationalizing the extraordinary intrusion on Gail
Atwater and her children. Measuring “the degree to which [Atwater’s custodial arrest was] needed
for the promotion of legitimate governmental interests,” against “the degree to which it intruded upon
[her] privacy,” it can hardly be doubted that Turek’s actions were disproportionate to Atwater’s
crime. The majority’s assessment that “Atwater’s claim to live free of pointless indignity and
confinement clearly outweighs anything the City can raise against it specific to her case,” is quite
correct. In my view, the Fourth Amendment inquiry ends there.
III
112
The Court’s error, however, does not merely affect the disposition of this case. The per se
rule that the Court creates has potentially serious consequences for the everyday lives of Americans.
A broad range of conduct falls into the category of fine-only misdemeanors. In Texas alone, for
example, disobeying any sort of traffic warning sign is a misdemeanor punishable only by fine, as is
failing to pay a highway toll, and driving with expired license plates. Nor are fine-only crimes limited
to the traffic context. In several States, for example, littering is a criminal offense punishable only by
fine.
To be sure, such laws are valid and wise exercises of the States’ power to protect the public
health and welfare. My concern lies not with the decision to enact or enforce these laws, but rather
with the manner in which they may be enforced. Under today’s holding, when a police officer has
probable cause to believe that a fine-only misdemeanor offense has occurred, that officer may stop
the suspect, issue a citation, and let the person continue on her way. Or, if a traffic violation, the
officer may stop the car, arrest the driver, search the driver, search the entire passenger compartment
of the car including any purse or package inside, and impound the car and inventory all of its contents,
see Bertine; Wells. Although the Fourth Amendment expressly requires that the latter course be a
reasonable and proportional response to the circumstances of the offense, the majority gives officers
unfettered discretion to choose that course without articulating a single reason why such action is
appropriate.
Such unbounded discretion carries with it grave potential for abuse. The majority takes
comfort in the lack of evidence of “an epidemic of unnecessary minor-offense arrests.” But the
relatively small number of published cases dealing with such arrests proves little and should provide
little solace. Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively
minor traffic infraction may often serve as an excuse for stopping and harassing an individual. After
today, the arsenal available to any officer extends to a full arrest and the searches permissible
concomitant to that arrest. An officer’s subjective motivations for making a traffic stop are not
relevant considerations in determining the reasonableness of the stop. See Whren. But it is precisely
because these motivations are beyond our purview that we must vigilantly ensure that officers’
poststop actions--which are properly within our reach--comport with the Fourth Amendment’s
guarantee of reasonableness.
The Court neglects the Fourth Amendment’s express command in the name of administrative
ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of
reasonableness. I respectfully dissent.
Questions and Notes
1. How relevant was history to the reolution of this case? How relevant should it have been?
2. Suppose that the Texas statutes did not permit a policeman to arrest for a minor a traffic
offense. Would (should) that change the result? Did it matter in Whren?
3. Is it fair to say that this arrest was not conducted in an unusual manner? Wouldn’t it be
113
accurate to say that prior to Tennessee v. Garner, it was more usual to seize a burglar by shooting
him than to seize a seat belt violator by arresting her and holding her in jail for an hour with all of the
indignities appurtenant thereto?
4. Had prior cases held that probable cause was sufficient to justify an arrest, or merely that
it was necessary to justify an arrest? Cf. Hodari D.
5. Does the Court concede that Officer Turek’s behavior was unreasonable, but that it is
better to tolerate a few unreasonable searches than create a line that is too difficult for the police to
administer in the heat of battle?
6. Does the fact that there have been so few similar type seizures (see fn. 23-25 and
accompanying text) support the Court’s position or does it support the argument that this particular
seizure is unreasonable? Explain.
7. Is it possible (reasonable, likely) that the reason there have been so few arrests similar to
Atwater, is that prior thereto, the legality of such an arrest was, at best, questionable? Consequently,
might prudent police officers have feared to engage in such behavior?
8. Conversely, is it likely, now that custodial arrests for minor traffic offenses have been
legitimated, that the police will engage in that tactic more frequently, and not exclusively (or even
primarily) against soccer moms?
9. Indeed, as Sullivan so vividly demonstrates, we may have already started down that road.
ARKANSAS v. SULLIVAN
532 U. S. ____ (2001)
PER CURIAM.
In November 1998, Officer Joe Taylor of the Conway, Arkansas, Police Department stopped
respondent Sullivan for speeding and for having an improperly tinted wind-shield. Taylor approached
Sullivan’ s vehicle, explained the reason for the stop, and requested Sullivan’s license, registration,
and insurance documentation. Upon seeing Sullivan’s license, Taylor realized that he was aware of
“‘intelligence on [Sullivan] regarding narcotics.’” When Sullivan opened his car door in an
(unsuccessful) attempt to locate his registration and insurance papers, Taylor noticed a rusted roofing
hatchet on the car’s floorboard. Taylor then arrested Sullivan for speeding, driving without his
registration and insurance documentation, carrying a weapon (the roofing hatchet), and improper
window tinting.
After another officer arrived and placed Sullivan in his squad car, Officer Taylor conducted
an inventory search of Sullivan’s vehicle pursuant to the Conway Police Department’s Vehicle
Inventory Policy. Under the vehicle’s armrest, Taylor discovered a bag containing a substance that
appeared to him to be methamphetamine as well as numerous items of suspected drug paraphernalia.
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As a result of the detention and search, Sullivan was charged with various state-law drug offenses,
unlawful possession of a weapon, and speeding.
Sullivan moved to suppress the evidence seized from his vehicle on the basis that his arrest
was merely a “pretext and sham to search” him and, therefore, violated the Fourth and Fourteenth
Amendments to the United States Constitution. The trial court granted the suppression motion and,
on the State’s interlocutory appeal, the Arkansas Supreme Court affirmed. 340 Ark. 315, 11 S.W.3d
526 (2000). The State petitioned for rehearing, contending that the court had erred by taking into
account Officer Taylor’s subjective motivation, in disregard of this Court’s opinion in Whren v.
United States. Over the dissent of three justices, the court rejected the State’s argument that Whren
makes “the ulterior motives of police officers . . . irrelevant so long as there is probable cause for the
traffic stop” and denied the State’s rehearing petition.
The Arkansas Supreme Court declined to follow Whren on the ground that “much of it is
dicta.” The court reiterated the trial judge’s conclusion that “the arrest was pretextual and made for
the purpose of searching Sullivan’s vehicle for evidence of a crime,” and observed that “we do not
believe that Whren disallows” suppression on such a basis. Finally, the court asserted that, even if it
were to conclude that Whren precludes inquiry into an arresting officer’s subjective motivation, “there
is nothing that prevents this court from interpreting the U.S. Constitution more broadly than the
United States Supreme Court, which has the effect of providing more rights.”
Because the Arkansas Supreme Court’s decision on rehearing is flatly contrary to this Court’s
controlling precedent, we grant the State’s petition for a writ of certiorari and reverse. As an initial
matter, we note that the Arkansas Supreme Court never questioned Officer Taylor’s authority to
arrest Sullivan for a fine-only traffic violation (speeding), and rightly so. See Atwater. Rather, the
court affirmed the trial judge’s suppression of the drug-related evidence on the theory that Officer
Taylor’s arrest of Sullivan, although supported by probable cause, nonetheless violated the Fourth
Amendment because Taylor had an improper subjective motivation for making the stop. The
Arkansas Supreme Court’s holding to that effect cannot be squared with our decision in Whren, in
which we noted our “unwilling[ness] to entertain Fourth Amendment challenges based on the actual
motivations of individual officers,” and held unanimously that “[s]ubjective intentions play no role
in ordinary, probable-cause Fourth Amendment analysis.” That Whren involved a traffic stop, rather
than a custodial arrest, is of no particular moment; indeed, Whren itself relied on United States v.
Robinson, 414 U. S. 218 (1973), for the proposition that “a traffic-violation arrest . . . [will] not be
rendered invalid by the fact that it was ‘a mere pretext for a narcotics search.’”
The Arkansas Supreme Court’s alternative holding, that it may interpret the United States
Constitution to provide greater protection than this Court’s own federal constitutional precedents
provide, is foreclosed by Oregon v. Hass, 420 U.S. 714 (1975). There, we observed that the Oregon
Supreme Court’s statement that it could “‘interpret the Fourth Amendment more restrictively than
interpreted by the United States Supreme Court’” was “not the law and surely must be inadvertent
error.” We reiterated in Hass that while “a State is free as a matter of its own law to impose greater
restrictions on police activity than those this Court holds to be necessary upon federal constitutional
standards,” it “may not impose such greater restrictions as a matter of federal constitutional law
when this Court specifically refrains from imposing them.”
The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.
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Justice GINSBURG, with whom Justice STEVENS, Justice O’CONNOR , and Justice BREYER join,
concurring.
The Arkansas Supreme Court was moved by a concern rooted in the Fourth Amendment.
Validating Kenneth Sullivan’s arrest, the Arkansas court feared, would accord police officers
disturbing discretion to intrude on individuals’ liberty and privacy. (expressing unwillingness “to
sanction conduct where a police officer can trail a targeted vehicle with a driver merely suspected of
criminal activity, wait for the driver to exceed the speed limit by one mile per hour, arrest the driver
for speeding, and conduct a full-blown inventory search of the vehicle with impunity”). But this Court
has held that such exercises of official discretion are unlimited by the Fourth Amendment. See
Atwater; Whren. Given the Court’s current case law, I join the Court’s opinion.
In Atwater, which recognized no constitutional limitation on arrest for a fine-only
misdemeanor offense, this Court relied in part on a perceived “dearth of horribles demanding
redress.” Although I joined a dissenting opinion questioning the relevance of the Court’s conclusion
on that score, I hope the Court’s perception proves correct. But if it does not, if experience
demonstrates “anything like an epidemic of unnecessary minor-offense arrests,” I hope the Court will
reconsider its recent precedent. See Vasquez v. Hillery, 474 U.S. 254, 266 (1986) (observing that
Court has departed from stare decisis when necessary “to bring its opinions into agreement with
experience and with facts newly ascertained”) (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S.
393, 412 (1932) (Brandeis, J., dissenting)).
Questions and Notes
1. Given that Sullivan was a professional roofer (which he was), should the arrest on the
weapons charge be invalid? Assuming that it were, would it affect the validity of the traffic arrest?
2. Would (should) a search incident to arrest (Belton) have been permitted here? Why do you
suppose that the state decided to rely on an inventory search?
3. Does this use of an inventory search undercut the rationale for allowing such searches?
Compare Bertine and Wells.
4. Do Atwater and Sullivan fundamentally shift the theretofore police/citizen balance? Are we
a less secure people than we were before these decisons?
5. Do think that more cases like Sullivan will (should) cause the Court to rethink Atwater?
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CHAPTER 13: THE EXCLUSIONARY RULE
A. The Rationale for the Exclusionary Rule
United States v. Calandra
Insert at page 404 (before section B)
PROBLEM
Without probable cause, reasonable suspicion, a warrant, or consent (or so the Court
assumed), three parole officers searched the home of Keith Scott, a parolee. The officers found
weapons, the possession of which were in violation of his parole. The weapons were introduced at
Scott’s parole violation hearing and, because of the weapons, he was recommitted to serve three
years in prison.
Assuming that the search constituted a violation of the Fourth amendment under Griffin v.
Wisconsin, should the Supreme Court uphold the parole revocation? For the Supreme Court’s actual
resolution, see Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357 (1998).
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CHAPTER 13: THE EXCLUSIONARY RULE
C. Standing
Insert at page 443 (after Note 8)
MINNESOTA v. CARTER
525 U.S. 83 (1998)
Chief Justice REHNQUIST delivered the opinion of the Court.
Respondents and the lessee of an apartment were sitting in one of its rooms, bagging cocaine.
While so engaged they were observed by a police officer, who looked through a drawn window blind.
The Supreme Court of Minnesota held that the officer’s viewing was a search which violated
respondents’ Fourth Amendment rights. We hold that no such violation occurred.
James Thielen, a police officer in the Twin Cities’ suburb of Eagan, Minnesota, went to an
apartment building to investigate a tip from a confidential informant. The informant said that he had
walked by the window of a ground-floor apartment and had seen people putting a white powder into
bags. The officer looked in the same window through a gap in the closed blind and observed the
bagging operation for several minutes. He then notified headquarters, which began preparing
affidavits for a search warrant while he returned to the apartment building. When two men left the
building in a previously identified Cadillac, the police stopped the car. Inside were respondents Carter
and Johns. As the police opened the door of the car to let Johns out, they observed a black zippered
pouch and a handgun, later determined to be loaded, on the vehicle’s floor. Carter and Johns were
arrested, and a later police search of the vehicle the next day discovered pagers, a scale, and 47 grams
of cocaine in plastic sandwich bags.
After seizing the car, the police returned to Apartment 103 and arrested the occupant,
Kimberly Thompson, who is not a party to this appeal. A search of the apartment pursuant to a
warrant revealed cocaine residue on the kitchen table and plastic baggies similar to those found in the
Cadillac. Thielen identified Carter, Johns, and Thompson as the three people he had observed placing
the powder into baggies. The police later learned that while Thompson was the lessee of the
apartment, Carter and Johns lived in Chicago and had come to the apartment for the sole purpose of
packaging the cocaine. Carter and Johns had never been to the apartment before and were only in the
apartment for approximately 2 1/2 hours. In return for the use of the apartment, Carter and Johns had
given Thompson one-eighth of an ounce of the cocaine.
Carter and Johns were charged with conspiracy to commit controlled substance crime in the
first degree and aiding and abetting in a controlled substance crime in the first degree, in violation of
Minnesota [law]. They moved to suppress all evidence obtained from the apartment and the Cadillac,
as well as to suppress several post-arrest incriminating statements they had made. They argued that
Thielen’s initial observation of their drug packaging activities was an unreasonable search in violation
of the Fourth Amendment and that all evidence obtained as a result of this unreasonable search was
inadmissible as fruit of the poisonous tree. The Minnesota trial court held that since, unlike the
defendant in Minnesota v. Olson, 495 U.S. 91 (1990), Carter and Johns were not overnight social
guests but temporary out-of-state visitors, they were not entitled to claim the protection of the Fourth
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Amendment against the government intrusion into the apartment. The trial court also concluded that
Thielen’s observation was not a search within the meaning of the Fourth Amendment. After a trial,
Carter and Johns were each convicted of both offenses. The Minnesota Court of Appeals held that
the respondent Carter did not have “standing” to object to Thielen’s actions because his claim that
he was predominantly a social guest was “inconsistent with the only evidence concerning his stay in
the apartment, which indicates that he used it for a business purpose—to package drugs.”
A divided Minnesota Supreme Court reversed, holding that respondents had “standing” to
claim the protection of the Fourth Amendment because they had “‘a legitimate expectation of privacy
in the invaded place.’” The court noted that even though “society does not recognize as valuable the
task of bagging cocaine, we conclude that society does recognize as valuable the right of property
owners or leaseholders to invite persons into the privacy of their homes to conduct a common task,
be it legal or illegal activity. We, therefore, hold that [respondents] had standing to bring [their]
motion to suppress the evidence gathered as a result of Thielen’s observations.” Based upon its
conclusion that the respondents had “standing” to raise their Fourth Amendment claims, the court
went on to hold that Thielen’s observation constituted a search of the apartment under the Fourth
Amendment, and that the search was unreasonable. We granted certiorari and now reverse.
The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy
under the rubric of “standing” doctrine, an analysis which this Court expressly rejected 20 years ago
in Rakas. In that case, we held that automobile passengers could not assert the protection of the
Fourth Amendment against the seizure of incriminating evidence from a vehicle where they owned
neither the vehicle nor the evidence. Central to our analysis was the idea that in determining whether
a defendant is able to show the violation of his (and not someone else’s) Fourth Amendment rights,
the “definition of those rights is more properly placed within the purview of substantive Fourth
Amendment law than within that of standing.” Thus, we held that in order to claim the protection of
the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of
privacy in the place searched, and that his expectation is reasonable; i.e., one which has “a source
outside of the Fourth Amendment, either by reference to concepts of real or personal property law
or to understandings that are recognized and permitted by society.”
The Fourth Amendment guarantees: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” The Amendment protects
persons against unreasonable searches of “their persons [and] houses” and thus indicates that the
Fourth Amendment is a personal right that must be invoked by an individual. See Katz. [T]he Fourth
Amendment protects people, not places”). But the extent to which the Fourth Amendment protects
people may depend upon where those people are. We have held that “capacity to claim the protection
of the Fourth Amendment depends . . . upon whether the person who claims the protection of the
Amendment has a legitimate expectation of privacy in the invaded place.” Rakas. See also Rawlings
v. Kentucky, infra.
The text of the Amendment suggests that its protections extend only to people in “their”
houses. But we have held that in some circumstances a person may have a legitimate expectation of
privacy in the house of someone else. In Minnesota v. Olson, 495 U.S. 91, (1990), for example, we
decided that an overnight guest in a house had the sort of expectation of privacy that the Fourth
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Amendment protects. We said:
To hold that an overnight guest has a legitimate expectation of privacy in his
host’s home merely recognizes the every day expectations of privacy that we all share.
Staying overnight in another’s home is a long-standing social custom that serves
functions recognized as valuable by society. We stay in others’ homes when we travel
to a strange city for business or pleasure, we visit our parents, children, or more
distant relatives out of town, when we are in between jobs, or homes, or when we
house-sit for a friend . . . . From the overnight guest’s perspective, he seeks shelter
in another’s home precisely because it provides him with privacy, a place where he
and his possessions will not be disturbed by anyone but his host and those his host
allows inside. We are at our most vulnerable when we are asleep because we cannot
monitor our own safety or the security of our belongings. It is for this reason that,
although we may spend all day in public places, when we cannot sleep in our own
home we seek out another private place to sleep, whether it be a hotel room, or the
home of a friend.
In Jones v. United States, the defendant seeking to exclude evidence resulting from a search
of an apartment had been given the use of the apartment by a friend. He had clothing in the apartment,
had slept there “‘maybe a night,’” and at the time was the sole occupant of the apartment. But while
the holding of Jones— that a search of the apartment violated the defendant’s Fourth Amendment
rights—is still valid, its statement that “anyone legitimately on the premises where a search occurs
may challenge its legality,” was expressly repudiated in Rakas. Thus an overnight guest in a home
may claim the protection of the Fourth Amendment, but one who is merely present with the consent
of the householder may not.
Respondents here were obviously not overnight guests, but were essentially present for a
business transaction and were only in the home a matter of hours. There is no suggestion that they
had a previous relationship with Thompson, or that there was any other purpose to their visit. Nor
was there anything similar to the overnight guest relationship in Olson to suggest a degree of
acceptance into the household.1 While the apartment was a dwelling place for Thompson, it was for
these respondents simply a place to do business.
Property used for commercial purposes is treated differently for Fourth Amendment purposes
than residential property. “An expectation of privacy in commercial premises, however, is different
from, and indeed less than, a similar expectation in an individual’s home.” And while it was a “home”
in which respondents were present, it was not their home. Similarly, the Court has held that in some
circumstances a worker can claim Fourth Amendment protection over his own workplace. See, e.g.,
1
Justice GINSBURG’s dissent would render the operative language in Minnesota v. Olson, almost
entirely superfluous. There, we explained the justification for extending Fourth Amendment protection to the overnight
visitor: “Staying overnight in another’s home is a long-standing social custom that serves functions recognized as
valuable by society. . . . We are at our most vulnerable when we are asleep because we cannot monitor our own safety
or the security of our belongings.” If any short-term business visit by a stranger entitles the visitor to share the Fourth
Amendment protection of the lease holder’s home, the Court’s explanation of its holding in Olson was quite
unnecessary.
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O’Connor v. Ortega, 480 U.S. 709 (1987). But there is no indication that respondents in this case
had nearly as significant a connection to Thompson’s apartment as the worker in O’Connor had to
his own private office.
If we regard the overnight guest in Minnesota v. Olson as typifying those who may claim the
protection of the Fourth Amendment in the home of another, and one merely “legitimately on the
premises” as typifying those who may not do so, the present case is obviously somewhere in between.
But the purely commercial nature of the transaction engaged in here, the relatively short period of
time on the premises, and the lack of any previous connection between respondents and the
householder, all lead us to conclude that respondents’ situation is closer to that of one simply
permitted on the premises. We therefore hold that any search which may have occurred did not
violate their Fourth Amendment rights.
Because we conclude that respondents had no legitimate expectation of privacy in the
apartment, we need not decide whether the police officer’s observation constituted a “search.” The
judgment of the Supreme Court of Minnesota is accordingly reversed, and the cause is remanded for
proceedings not inconsistent with this opinion.
It is so ordered.
Justice SCALIA, with whom Justice THOMAS joins, concurring.
I join the opinion of the Court because I believe it accurately applies our recent case law,
including Minnesota v. Olson. I write separately to express my view that that case law—like the
submissions of the parties in this case—gives short shrift to the text of the Fourth Amendment, and
to the well and long understood meaning of that text. Specifically, it leaps to apply the fuzzy standard
of “legitimate expectation of privacy”—a consideration that is often relevant to whether a search or
seizure covered by the Fourth Amendment is “unreasonable”— to the threshold question whether a
search or seizure covered by the Fourth Amendment has occurred. If that latter question is addressed
first and analyzed under the text of the Constitution as traditionally understood, the present case is
not remotely difficult.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures . . . .” (emphasis added). It
must be acknowledged that the phrase “their . . . houses” in this provision is, in isolation, ambiguous.
It could mean “their respective houses,” so that the protection extends to each person only in his own
house. But it could also mean “their respective and each other’s houses,” so that each person would
be protected even when visiting the house of someone else. As today’s opinion for the Court
suggests, however, it is not linguistically possible to give the provision the latter, expansive
interpretation with respect to “houses” without giving it the same interpretation with respect to the
nouns that are parallel to “houses”—“persons, . . . papers, and effects”—which would give me a
constitutional right not to have your person unreasonably searched. This is so absurd that it has to
my knowledge never been contemplated. The obvious meaning of the provision is that each person
has the right to be secure against unreasonable searches and seizures in his own person, house,
papers, and effects.
The Founding-era materials that I have examined confirm that this was the understood
meaning. (Strangely, these materials went unmentioned by the State and its amici—unmentioned even
in the State’s reply brief, even though respondents had thrown down the gauntlet: “In briefs totaling
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over 100 pages, the State of Minnesota, the amici 26 attorneys general, and the Solicitor General of
the United States of America have not mentioned one word about the history and purposes of the
Fourth Amendment or the intent of the framers of that amendment.”
That “their . . . houses” was understood to mean “their respective houses” would have been
clear to anyone who knew the English and early American law of arrest and trespass that underlay
the Fourth Amendment. The people’s protection against unreasonable search and seizure in their
“houses” was drawn from the English common-law maxim, “A man’s home is his castle.” As far back
as Semayne’s Case of 1604, the leading English case for that proposition (and a case cited by Coke
in his discussion of the proposition that Magna Carta outlawed general warrants based on mere
surmise, the King’s Bench proclaimed that “the house of any one is not a castle or privilege but for
himself, and shall not extend to protect any person who flies to his house.”
Of course this is not to say that the Fourth Amendment protects only the Lord of the Manor
who holds his estate in fee simple. People call a house “their” home when legal title is in the bank,
when they rent it, and even when they merely occupy it rent-free—so long as they actually live there.
That this is the criterion of the people’s protection against government intrusion into “their” houses
is established by the leading American case of Oystead v. Shed, 13 Mass. 520 (1816), which held it
a trespass for the sheriff to break into a dwelling to capture a boarder who lived there. The court
reasoned that the “inviolability of dwelling-houses” described by Foster, Hale, and Coke extends to
“the occupier or any of his family . . . who have their domicile or ordinary residence there,” including
“a boarder or a servant” “who have made the house their home.” But, it added, “the house shall not
be made a sanctuary” for one such as “a stranger, or perhaps a visitor,” who “upon a pursuit, take[s]
refuge in the house of another,” for “the house is not his castle; and the officer may break open the
doors or windows in order to execute his process.”
Thus, in deciding the question presented today we write upon a slate that is far from clean.
The text of the Fourth Amendment, the common-law background against which it was adopted, and
the understandings consistently displayed after its adoption make the answer clear. We were right to
hold in Chapman v. United States, 365 U.S. 610 (1961), that the Fourth Amendment protects an
apartment tenant against an unreasonable search of his dwelling, even though he is only a leaseholder.
And we were right to hold in Bumper v. North Carolina, 391 U.S. 543 (1968), that an unreasonable
search of a grandmother’s house violated her resident grandson’s Fourth Amendment rights because
the area searched “was his home.” (emphasis added). We went to the absolute limit of what text and
tradition permit in Minnesota v. Olson, when we protected a mere overnight guest against an
unreasonable search of his hosts’ apartment. But whereas it is plausible to regard a person’s overnight
lodging as at least his “temporary” residence, it is entirely impossible to give that characterization to
an apartment that he uses to package cocaine. Respondents here were not searched in “their . . .
hous[e]” under any interpretation of the phrase that bears the remotest relationship to the well
understood meaning of the Fourth Amendment.
The dissent believes that “[o]ur obligation to produce coherent results” requires that we
ignore this clear text and four-century-old tradition, and apply instead the notoriously unhelpful test
adopted in a “benchmar[k]” decision that is 31 years old. [C]iting Katz. In my view, the only thing
the past three decades have established about the Katz test (which has come to mean the test
enunciated by Justice Harlan’s separate concurrence in Katz is that, unsurprisingly, those “actual
(subjective) expectation[s] of privacy” “that society is prepared to recognize as ‘reasonable’” bear
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an uncanny resemblance to those expectations of privacy that this Court considers reasonable. When
that self-indulgent test is employed (as the dissent would employ it here) to determine whether a
“search or seizure” within the meaning of the Constitution has occurred (as opposed to whether that
“search or seizure” is an “unreasonable” one), it has no plausible foundation in the text of the Fourth
Amendment. That provision did not guarantee some generalized “right of privacy” and leave it to this
Court to determine which particular manifestations of the value of privacy “society is prepared to
recognize as ‘reasonable.’” Rather, it enumerated (“persons, houses, papers, and effects”) the objects
of privacy protection to which the Constitution would extend, leaving further expansion to the good
judgment, not of this Court, but of the people through their representatives in the legislature. 3
The dissent may be correct that a person invited into someone else’s house to engage in a
common business (even common monkey-business, so to speak) ought to be protected against
government searches of the room in which that business is conducted; and that persons invited in to
deliver milk or pizza (whom the dissent dismisses as “classroom hypotheticals,” as opposed,
presumably, to flesh-and-blood hypotheticals) ought not to be protected against government searches
of the rooms that they occupy. I am not sure of the answer to those policy questions. But I am sure
that the answer is not remotely contained in the Constitution, which means that it is left—as many,
indeed most, important questions are left—to the judgment of state and federal legislators. We go
beyond our proper role as judges in a democratic society when we restrict the people’s power to
govern themselves over the full range of policy choices that the Constitution has left available to
them.
Justice KENNEDY, concurring.
I join the Court’s opinion, for its reasoning is consistent with my view that almost all social
guests have a legitimate expectation of privacy, and hence protection against unreasonable searches,
in their host’s home.
The Fourth Amendment protects “[t]he right of the people to be secure in their . . . houses,”
and it is beyond dispute that the home is entitled to special protection as the center of the private lives
of our people. Security of the home must be guarded by the law in a world where privacy is
diminished by enhanced surveillance and sophisticated communication systems. As is well established,
however, Fourth Amendment protection, though dependent upon spatial definition, is in essence a
personal right. Thus, as the Court held in Rakas there are limits on who may assert it.
3
The dissent asserts that I [“undervalue’] the Katz Court’s observation that “the Fourth Amendment
protects people, not places.” That catchy slogan would be a devastating response to someone who maintained that a
location could claim protection of the Fourth Amendment—someone who asserted, perhaps, that “primeval forests
have rights, too.” Cf. Stone, Should Trees Have Standing?—Toward Legal Rights For Natural Objects, 45 S. CAL. L.
REV. 450 (1972). The issue here, however, is the less druidical one of whether respondents (who are people) have
suffered a violation of their right “to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” That the Fourth Amendment does not protect places is simply unresponsive to the question
whether the Fourth Amendment protects people in other people’s homes. In saying this, I do not, as the dissent claims,
clash with “the leitmotif of Justice Harlan’s concurring opinion” in Katz, au contraire (or, to be more Wagnerian, im
Gegenteil), in this regard I am entirely in harmony with that opinion, and it is the dissent that sings from another
opera. “As the Court’s opinion states, ‘the Fourth Amendment protects people, not places.’ The question, however,
is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a
‘place.’”
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The dissent, as I interpret it, does not question Rakas or the principle that not all persons in
the company of the property owner have the owner’s right to assert the spatial protection. Rakas, it
is true, involved automobiles, where the necessities of law enforcement permit more latitude to the
police than ought to be extended to houses. The analysis in Rakas was not conceived, however, as
a utilitarian exception to accommodate the needs of law enforcement. The Court’s premise was a
more fundamental one. Fourth Amendment rights are personal, and when a person objects to the
search of a place and invokes the exclusionary rule, he or she must have the requisite connection to
that place. The analysis in Rakas must be respected with reference to dwellings unless that precedent
is to be overruled or so limited to its facts that its underlying principle is, in the end, repudiated.
As to the English authorities that were the historical basis for the Fourth Amendment, the
Court has observed that scholars dispute their proper interpretation. See, e.g., Payton. Semayne’s
Case, says that “the house of every one is to him as his castle and fortress” and the home is privileged
for the homeowner, “his family,” and “his own proper goods.” Read narrowly, the protections
recognized in Semayne’s Case might have been confined to the context of civil process, and so be of
limited application to enforcement of the criminal law. Even if, at the time of Semayne’s Case, a
man’s home was not his castle with respect to incursion by the King in a criminal matter, that would
not be dispositive of the question before us. The axiom that a man’s home is his castle, or the
statement attributed to Pitt that the King cannot enter and all his force dares not cross the threshold
has acquired over time a power and an independent significance justifying a more general assurance
of personal security in one’s home, an assurance which has become part of our constitutional
tradition.
It is now settled, for example, that for a routine felony arrest and absent exigent
circumstances, the police must obtain a warrant before entering a home to arrest the homeowner.
Payton. So, too, the Court held in Steagald v. United States, that absent exigent circumstances or
consent, the police cannot search for the subject of an arrest warrant in the home of a third party,
without first obtaining a search warrant directing entry.
These cases strengthen and protect the right of the homeowner to privacy in his own home.
They do not speak, however, to the right to claim such a privacy interest in the home of another.
([N]ot[e] that the issue in Steagald was the homeowner’s right to privacy in his own home, and not
the right to “claim sanctuary from arrest in the home of a third party”). Steagald itself affirmed that,
in accordance with the common law, our Fourth Amendment precedents “recogniz[e] . . . that rights
such as those conferred by the Fourth Amendment are personal in nature, and cannot bestow
vicarious protection on those who do not have a reasonable expectation of privacy in the place to be
searched.”
The homeowner’s right to privacy is not at issue in this case. The Court does not reach the
question whether the officer’s unaided observations of Thompson’s apartment constituted a search.
If there was in fact a search, however, then Thompson had the right to object to the unlawful police
surveillance of her apartment and the right to suppress any evidence disclosed by the search.
Similarly, if the police had entered her home without a search warrant to arrest respondents,
Thompson’s own privacy interests would be violated and she could presumably bring an action under
42 U.S.C. § 1983 or an action for trespass. Our cases establish, however, that respondents have no
independent privacy right, the violation of which results in exclusion of evidence against them, unless
they can establish a meaningful connection to Thompson’s apartment.
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The settled rule is that the requisite connection is an expectation of privacy that society
recognizes as reasonable. Katz (Harlan, J., concurring). The application of that rule involves
consideration of the kind of place in which the individual claims the privacy interest and what
expectations of privacy are traditional and well recognized. I would expect that most, if not all, social
guests legitimately expect that, in accordance with social custom, the homeowner will exercise her
discretion to include or exclude others for the guests’ benefit. As we recognized in Olson where these
social expectations exist—as in the case of an overnight guest—they are sufficient to create a
legitimate expectation of privacy, even in the absence of any property right to exclude others. In this
respect, the dissent must be correct that reasonable expectations of the owner are shared, to some
extent, by the guest. This analysis suggests that, as a general rule, social guests will have an
expectation of privacy in their host’s home. That is not the case before us, however.
In this case respondents have established nothing more than a fleeting and insubstantial
connection with Thompson’s home. For all that appears in the record, respondents used Thompson’s
house simply as a convenient processing station, their purpose involving nothing more than the
mechanical act of chopping and packing a substance for distribution. There is no suggestion that
respondents engaged in confidential communications with Thompson about their transaction.
Respondents had not been to Thompson’s apartment before, and they left it even before their arrest.
The Minnesota Supreme Court, which overturned respondents’ convictions, acknowledged that
respondents could not be fairly characterized as Thompson’s “guests.” (noting that Carter’s only
evidence—that he was there to package cocaine—was inconsistent with his claim that “he was
predominantly a social guest” in Thompson’s apartment).
If respondents here had been visiting twenty homes, each for a minute or two, to drop off a
bag of cocaine and were apprehended by a policeman wrongfully present in the nineteenth home; or
if they had left the goods at a home where they were not staying and the police had seized the goods
in their absence, we would have said that Rakas compels rejection of any privacy interest respondents
might assert. So it does here, given that respondents have established no meaningful tie or connection
to the owner, the owner’s home, or the owner’s expectation of privacy.
We cannot remain faithful to the underlying principle in Rakas without reversing in this case,
and I am not persuaded that we need depart from it to protect the homeowner’s own privacy
interests. Respondents have made no persuasive argument that we need to fashion a per se rule of
home protection, with an automatic right for all in the home to invoke the exclusionary rule, in order
to protect homeowners and their guests from unlawful police intrusion. With these observations, I
join the Court’s opinion.
Justice BREYER , concurring in the judgment.
I agree with Justice GINSBURG that respondents can claim the Fourth Amendment’s
protection. (Justice Breyer then concurred in result on the basis of his opinion reproduced in ch. 10.)
For these reasons, while agreeing with Justice GINSBURG, I also concur in the Court’s
judgment reversing the Minnesota Supreme Court.
Justice GINSBURG, with whom Justice STEVENS and Justice SOUTER join, dissenting.
The Court’s decision undermines not only the security of short-term guests, but also the
security of the home resident herself. In my view, when a homeowner or lessor personally invites a
125
guest into her home to share in a common endeavor, whether it be for conversation, to engage in
leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter
against unreasonable searches and seizures.
I do not here propose restoration of the “legitimately on the premises” criterion stated in
Jones, for the Court rejected that formulation in Rakas as it did the “automatic standing rule” in
Salvucci. First, the disposition I would reach in this case responds to the unique importance of the
home—the most essential bastion of privacy recognized by the law. Second, even within the home
itself, the position to which I would adhere would not permit “a casual visitor who has never seen,
or been permitted to visit, the basement of another’s house to object to a search of the basement if
the visitor happened to be in the kitchen of the house at the time of the search.” Rakas. Further, I
would here decide only the case of the homeowner who chooses to share the privacy of her home and
her company with a guest, and would not reach classroom hypotheticals like the milkman or pizza
deliverer.
My concern centers on an individual’s choice to share her home and her associations there
with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy
in their homes in part because they have the prerogative to exclude others. (legitimate expectation
of privacy turns in large part on ability to exclude others from place searched). The power to exclude
implies the power to include. See, e.g., Coombs, Shared Privacy and the Fourth Amendment, or the
Rights of Relationships, 75 CALIF. L.REV . 1593, 1618 (1987) (“One reason we protect the legal right
to exclude others is to empower the owner to choose to share his home or other property with his
intimates.”); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. ILL. U.L.REV . 1, 13
(1983) (“[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and
its privacy with others.”). Our Fourth Amendment decisions should reflect these complementary
prerogatives.
A homedweller places her own privacy at risk, the Court’s approach indicates, when she
opens her home to others, uncertain whether the duration of their stay, their purpose, and their
“acceptance into the household” will earn protection. 1 It remains textbook law that “[s]earches and
seizures inside a home without a warrant are presumptively unreasonable absent exigent
circumstances.” The law in practice is less secure. Human frailty suggests that today’s decision will
tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who
do not rest there through the night. See Simien, The Interrelationship of the Scope of the Fourth
Amendment and Standing to Object to Unreasonable Searches, 41 ARK. L.REV . 487, 539 (1988) “[I]f
the police have no probable cause, they have everything to gain and nothing to lose if they search
under circumstances where they know that at least one of the potential defendants will not have
standing.”). Rakas tolerates that temptation with respect to automobile searches. I see no impelling
reason to extend this risk into the home. As I see it, people are not genuinely “secure in their . . .
houses . . . against unreasonable searches and seizures,” their invitations to others increase the risk
of unwarranted governmental peering and prying into their dwelling places.
Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home.
Minnesota v. Olson, so held with respect to an overnight guest. The logic of that decision extends
1
The oral argument, counsel for petitioner informed the Court that the lessee of the apartment was
charged, tried, and convicted of the same crimes as respondents.
126
to shorter term guests as well. One need not remain overnight to anticipate privacy in another’s home,
“a place where [the guest] and his possessions will not be disturbed by anyone but his host and those
his host allows inside.” In sum, when a homeowner chooses to share the privacy of her home and her
company with a short-term guest, the twofold requirement “emerg[ing] from prior decisions” has
been satisfied: Both host and guest “have exhibited an actual (subjective) expectation of privacy”; that
“expectation [is] one [our] society is prepared to recognize as ‘reasonable.’”2
As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that
they were partners in crime, would not alter the analysis. In Olson, for example, the guest whose
security this Court’s decision shielded stayed overnight while the police searched for him. The Court
held that the guest had Fourth Amendment protection against a warrantless arrest in his host’s home
despite the guest’s involvement in grave crimes (first-degree murder, armed robbery, and assault).
Other decisions have similarly sustained Fourth Amendment pleas despite the criminality of the
defendants’ activities. Indeed, it must be this way. If the illegality of the activity made constitutional
an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent
only, would have little force in regulating police behavior toward either the innocent or the guilty.
Our leading decision in Katz is key to my view of this case. There, we ruled that the
Government violated the petitioner’s Fourth Amendment rights when it electronically recorded him
transmitting wagering information while he was inside a public telephone booth. We were mindful
that “the Fourth Amendment protects people, not places,” and held that this electronic monitoring
of a business call “violated the privacy upon which [the caller] justifiably relied while using the
telephone booth.” Our obligation to produce coherent results in this often visited area of the law
requires us to inform our current expositions by benchmarks already established.
The Court’s decision in this case veers sharply from the path marked in Katz. I do not agree
that we have a more reasonable expectation of privacy when we place a business call to a person’s
home from a public telephone booth on the side of the street, than when we actually enter that
person’s premises to engage in a common endeavor.3
2
In his concurring opinion, Justice KENNEDY maintains that respondents here lacked “an expectation
of privacy that society recognizes as reasonable,” because they “established nothing more than a fleeting and
insubstantial connection” with the host’s home. As the Minnesota Supreme Court reported, however, the stipulated
facts showed that respondents were inside the apartment with the host’s permission, remained inside for at least 2 ½
hours, and, during that time, engaged in concert with the host in a collaborative venture. These stipulated facts—which
scarcely resemble a stop of a minute or two at the 19th of 20 homes to drop off a packet, securely demonstrate that the
host intended to share her privacy with respondents, and that respondents, therefore, had entered into the homeland
of Fourth Amendment protection. While I agree with the Minnesota Supreme Court that, under the rule settled since
Katz, the reasonableness of the expectation of privacy controls, not the visitor’s status as social guest, invitee, licensee,
or business partner, I think it noteworthy that five Members of the Court would place under the Fourth Amendment’s
shield, at least, “almost all social guests,” (KENNEDY, J., concurring).
3
Justice SCALIA ’s lively concurring opinion deplores our adherence to Katz. In suggesting that we have
elevated Justice Harlan’s concurring opinion in Katz to first place, Justice S CALIA undervalues the clear opinion of the
Court that “the Fourth Amendment protects people, not places.” That core understanding is the leitmotif of Justice
Harlan’s concurring opinion. One cannot avoid a strong sense of deja vu on reading Justice S CALIA ’s elaboration. It
so vividly recalls the opinion of Justice Black in dissent in Katz. Again, as Justice Stewart emphasized in the majority
opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not
places.”
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For the reasons stated, I dissent from the Court’s judgment, and would retain judicial
surveillance over the warrantless searches today’s decision allows.
QUESTIONS AND NOTES
1.
Is Carter a logical extension of Rakas or a grotesque perversion of it (or something
in between)? Explain.
2.
Does denying a Fourth Amendment claim to Carter and Johns compromise
Thompson’s interest in her home? How?
3.
In view of Justice Kennedy’s opinion, how would you describe the holding of the
case?
4.
How important should Scalia’s linguistic argument be to the case? Compare his
Hodari D opinion (ch. 9, supra.)
128
CHAPTER 17: THE RIGHT TO COUNSEL AND CONFESSIONS
B. Contrasting Massiah and Miranda
Michigan v. Jackson
Questions and Notes
McNeill v. Wisconsin
Questions and Notes
Insert at page 644 (after Note 6)
TEXAS v. COBB
532 U.S. ___ (2001)
Chief Justice REHNQUIST delivered the opinion of the Court.
The Texas Court of Criminal Appeals held that a criminal defendant’s Sixth Amendment right
to counsel attaches not only to the offense with which he is charged, but to other offenses “closely
related factually” to the charged offense. We hold that our decision in McNeil meant what it said, and
that the Sixth Amendment right is “offense specific.”
In December 1993, Lindsey Owings reported to the Walker County, Texas, Sheriff’s Office
that the home he shared with his wife, Margaret, and their 16-month-old daughter, Kori Rae, had
been burglarized. He also informed police that his wife and daughter were missing. Respondent
Raymond Levi Cobb lived across the street from the Owings. Acting on an anonymous tip that
respondent was involved in the burglary, Walker County investigators questioned him about the
events. He denied involvement. In July 1994, while under arrest for an unrelated offense, respondent
was again questioned about the incident. Respondent then gave a written statement confessing to the
burglary, but he denied knowledge relating to the disappearances. Respondent was subsequently
indicted for the burglary, and Hal Ridley was appointed in August 1994 to represent respondent on
that charge.
Shortly after Ridley’s appointment, investigators asked and received his permission to
question respondent about the disappearances. Respondent continued to deny involvement.
Investigators repeated this process in September 1995, again with Ridley’s permission and again with
the same result.
In November 1995, respondent, free on bond in the burglary case, was living with his father
in Odessa, Texas. At that time, respondent’s father contacted the Walker County Sheriff’s Office to
report that respondent had confessed to him that he killed Margaret Owings in the course of the
burglary. Walker County investigators directed respondent’s father to the Odessa police station,
where he gave a statement. Odessa police then faxed the statement to Walker County, where
investigators secured a warrant for respondent’s arrest and faxed it back to Odessa. Shortly
thereafter, Odessa police took respondent into custody and administered warnings pursuant to
Miranda v. Arizona. Respondent waived these rights.
After a short time, respondent confessed to murdering both Margaret and Kori Rae.
Respondent explained that when Margaret confronted him as he was attempting to remove the
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Owings’ stereo, he stabbed her in the stomach with a knife he was carrying. Respondent told police
that he dragged her body to a wooded area a few hundred yards from the house. Respondent then
stated:
I went back to her house and I saw the baby laying on its bed. I took the baby out
there and it was sleeping the whole time. I laid the baby down on the ground four or
five feet away from its mother. I went back to my house and got a flat edge shovel.
That’s all I could find. Then I went back over to where they were and I started
digging a hole between them. After I got the hole dug, the baby was awake. It started
going toward its mom and it fell in the hole. I put the lady in the hole and I covered
them up. I remember stabbing a different knife I had in the ground where they were.
I was crying right then.
Respondent later led police to the location where he had buried the victims’ bodies.
Respondent was convicted of capital murder for murdering more than one person in the
course of a single criminal transaction. See TEXAS PENAL CODE ANN . § 19.03(a)(7)(A) (1994). He
was sentenced to death. On appeal to the Court of Criminal Appeals of Texas, respondent argued,
inter alia, that his confession should have been suppressed because it was obtained in violation of his
Sixth Amendment right to counsel. Relying on Michigan v. Jackson, respondent contended that his
right to counsel had attached when Ridley was appointed in the burglary case and that Odessa police
were therefore required to secure Ridley’s permission before proceeding with the interrogation.
The Court of Criminal Appeals reversed respondent’s conviction by a divided vote and
remanded for a new trial. The court held that “once the right to counsel attaches to the offense
charged, it also attaches to any other offense that is very closely related factually to the offense
charged.” Finding the capital murder charge to be “factually interwoven with the burglary,” the court
concluded that respondent’s Sixth Amendment right to counsel had attached on the capital murder
charge even though respondent had not yet been charged with that offense. The court further found
that respondent had asserted that right by accepting Ridley’s appointment in the burglary case.
Accordingly, it deemed the confession inadmissible and found that its introduction had not been
harmless error. Three justices dissented, finding Michigan v. Jackson to be distinguishable and
concluding that respondent had made a valid unilateral waiver of his right to counsel before
confessing.
The State sought review in this Court, and we granted certiorari to consider first whether the
Sixth Amendment right to counsel extends to crimes that are “factually related” to those that have
actually been charged, and second whether respondent made a valid unilateral waiver of that right in
this case. Because we answer the first question in the negative, we do not reach the second.
The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence.” In McNeil, we explained when this right
arises:
The Sixth Amendment right [to counsel] . . . is offense specific. It cannot be
invoked once for all future prosecutions, for it does not attach until a prosecution is
commenced, that is, at or after the initiation of adversary judicial criminal
130
proceedings--whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.”
Accordingly, we held that a defendant’s statements regarding offenses for which he had not been
charged were admissible notwithstanding the attachment of his Sixth Amendment right to counsel on
other charged offenses.
Some state courts and Federal Courts of Appeals, however, have read into McNeil’s offensespecific definition an exception for crimes that are “factually related” to a charged offense. Several
of these courts have interpreted Brewer v. Williams and Maine v. Moulton--both of which were
decided well before McNeil--to support this view, which respondent now invites us to approve. We
decline to do so.
In Brewer, a suspect in the abduction and murder of a 10-year-old girl had fled from the scene
of the crime in Des Moines, Iowa, some 160 miles east to Davenport, Iowa, where he surrendered
to police. An arrest warrant was issued in Des Moines on a charge of abduction, and the suspect was
arraigned on that warrant before a Davenport judge. Des Moines police traveled to Davenport, took
the man into custody, and began the drive back to Des Moines. Along the way, one of the officers
persuaded the suspect to lead police to the victim’s body. The suspect ultimately was convicted of
the girl’s murder. This Court upheld the federal habeas court’s conclusion that police had violated
the suspect’s Sixth Amendment right to counsel. We held that the officer’s comments to the suspect
constituted interrogation and that the suspect had not validly waived his right to counsel by
responding to the officer.
Respondent suggests that Brewer implicitly held that the right to counsel attached to the
factually related murder when the suspect was arraigned on the abduction charge. See Brief for
Respondent 4. The Court’s opinion, however, simply did not address the significance of the fact that
the suspect had been arraigned only on the abduction charge, nor did the parties in any way argue this
question. Constitutional rights are not defined by inferences from opinions which did not address the
question at issue.
Moulton is similarly unhelpful to respondent. That case involved two individuals indicted for
a series of thefts, one of whom had secretly agreed to cooperate with the police investigation of his
codefendant, Moulton. At the suggestion of police, the informant recorded several telephone calls
and one face-to-face conversation he had with Moulton during which the two discussed their criminal
exploits and possible alibis. In the course of those conversations, Moulton made various incriminating
statements regarding both the thefts for which he had been charged and additional crimes. In a
superseding indictment, Moulton was charged with the original crimes as well as burglary, arson, and
three additional thefts. At trial, the State introduced portions of the recorded face-to-face
conversation, and Moulton ultimately was convicted of three of the originally charged thefts plus one
count of burglary. Moulton appealed his convictions to the Supreme Judicial Court of Maine, arguing
that introduction of the recorded conversation violated his Sixth Amendment right to counsel. That
court agreed, holding:
Those statements may be admissible in the investigation or prosecution of charges for
which, at the time the recordings were made, adversary proceedings had not yet
commenced. But as to the charges for which Moulton’s right to counsel had already
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attached, his incriminating statements should have been ruled inadmissible at trial,
given the circumstances in which they were acquired.
We affirmed.
Respondent contends that, in affirming reversal of both the theft and burglary charges, the
Moulton Court must have concluded that Moulton’s Sixth Amendment right to counsel attached to
the burglary charge. But the Moulton Court did not address the question now before us, and to the
extent Moulton spoke to the matter at all, it expressly referred to the offense-specific nature of the
Sixth Amendment right to counsel:
The police have an interest in the thorough investigation of crimes for which
formal charges have already been filed. They also have an interest in investigating
new or additional crimes. Investigations of either type of crime may require
surveillance of individuals already under indictment. Moreover, law enforcement
officials investigating an individual suspected of committing one crime and formally
charged with having committed another crime obviously seek to discover evidence
useful at trial of either crime. In seeking evidence pertaining to pending charges,
however, the Government’s investigative powers are limited by the Sixth Amendment
rights of the accused. . . . On the other hand, to exclude evidence pertaining to
charges as to which the Sixth Amendment right to counsel had not attached at the
time the evidence was obtained, simply because other charges were pending at that
time, would unnecessarily frustrate the public’s interest in the investigation of criminal
activities.
[Moulton]. See also id. (“The purpose of their meeting was to discuss the pending charges”); (“The
police knew . . . that Moulton and [the informant] were meeting for the express purpose of discussing
the pending charges . . .” (emphasis added)). Thus, respondent’s reliance on Moulton is misplaced
and, in light of the language employed there and subsequently in McNeil, puzzling.
Respondent predicts that the offense-specific rule will prove “disastrous” to suspects’
constitutional rights and will “permit law enforcement officers almost complete and total license to
conduct unwanted and uncounseled interrogations.” Besides offering no evidence that such a parade
of horribles has occurred in those jurisdictions that have not enlarged upon McNeil, he fails to
appreciate the significance of two critical considerations. First, there can be no doubt that a suspect
must be apprised of his rights against compulsory self-incrimination and to consult with an attorney
before authorities may conduct custodial interrogation. See Miranda; Dickerson v. United States,
infra Supplement ch. 18A (quoting Miranda). In the present case, police scrupulously followed
Miranda’s dictates when questioning respondent.2 Second, it is critical to recognize that the
2
Curiously, while predicting disastrous consequences for the core values underlying the
Sixth Amendment (opinion of BREYER , J.), the dissenters give short shrift to the Fifth Amendment’s
role (as expressed in Miranda and Dickerson) in protecting a defendant’s right to consult with
counsel before talking to police. Even though the Sixth Amendment right to counsel has not attached
to uncharged offenses, defendants retain the ability under Miranda to refuse any police questioning,
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Constitution does not negate society’s interest in the ability of police to talk to witnesses and
suspects, even those who have been charged with other offenses.
Since the ready ability to obtain uncoerced confessions is not an evil but an
unmitigated good, society would be the loser. Admissions of guilt resulting from valid
Miranda waivers “are more than merely ‘desirable’; they are essential to society’s
compelling interest in finding, convicting, and punishing those who violate the law.”
McNeil. See also Moulton (“To exclude evidence pertaining to charges as to which the Sixth
Amendment right to counsel had not attached at the time the evidence was obtained, simply because
other charges were pending at the time, would unnecessarily frustrate the public’s interest in the
investigation of criminal activities”).
Although it is clear that the Sixth Amendment right to counsel attaches only to charged
offenses, we have recognized in other contexts that the definition of an “offense” is not necessarily
limited to the four corners of a charging instrument. In Blockburger v. United States, 284 U.S. 299
(1932), we explained that “where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which the other does not.” We have since applied
the Blockburger test to delineate the scope of the Fifth Amendment’s Double Jeopardy Clause, which
prevents multiple or successive prosecutions for the “same offence.” We see no constitutional
difference between the meaning of the term “offense” in the contexts of double jeopardy and of the
right to counsel. Accordingly, we hold that when the Sixth Amendment right to counsel attaches, it
does encompass offenses that, even if not formally charged, would be considered the same offense
under the Blockburger test.3
and, indeed, charged defendants presumably have met with counsel and have had the opportunity to
discuss whether it is advisable to invoke those Fifth Amendment rights. Thus, in all but the rarest of
cases, the Court’s decision today will have no impact whatsoever upon a defendant’s ability to protect
his Sixth Amendment right.
It is also worth noting that, contrary to the dissent’s suggestion, there is no “background
principle” of our Sixth Amendment jurisprudence establishing that there may be no contact between
a defendant and police without counsel present. The dissent would expand the Sixth Amendment right
to the assistance of counsel in a criminal prosecution into a rule which “‘exists to prevent lawyers
from taking advantage of uncounseled laypersons and to preserve the integrity of the lawyer-client
relationship.’” (quoting ABA Ann. Model Rule of Profesional Conduct 4.2 (4th ed. 1999)). Every
profession is competent to define the standards of conduct for its members, but such standards are
obviously not controlling in interpretation of constitutional provisions. The Sixth Amendment right
to counsel is personal to the defendant and specific to the offense.
3
In this sense, we could just as easily describe the Sixth Amendment as “prosecution
specific,” insofar as it prevents discussion of charged offenses as well as offenses that, under
Blockburger, could not be the subject of a later prosecution. And, indeed, the text of the Sixth
Amendment confines its scope to “all criminal prosecutions.”
133
While simultaneously conceding that its own test “lacks the precision for which police officers
may hope,” the dissent suggests that adopting Blockburger’s definition of “offense” will prove
difficult to administer. But it is the dissent’s vague iterations of the “‘closely related to’” or
“‘inextricably intertwined with’” test that would defy simple application. The dissent seems to
presuppose that officers will possess complete knowledge of the circumstances surrounding an
incident, such that the officers will be able to tailor their investigation to avoid addressing factually
related offenses. Such an assumption, however, ignores the reality that police often are not yet aware
of the exact sequence and scope of events they are investigating--indeed, that is why police must
investigate in the first place. Deterred by the possibility of violating the Sixth Amendment, police
likely would refrain from questioning certain defendants altogether.
It remains only to apply these principles to the facts at hand. At the time he confessed to
Odessa police, respondent had been indicted for burglary of the Owings residence, but he had not
been charged in the murders of Margaret and Kori Rae. As defined by Texas law, burglary and capital
murder are not the same offense under Blockburger. Compare TEXAS PENAL CODE ANN . § 30.02(a)
(1994) (requiring entry into or continued concealment in a habitation or building) with §
19.03(a)(7)(A) (requiring murder of more than one person during a single criminal transaction).
Accordingly, the Sixth Amendment right to counsel did not bar police from interrogating respondent
regarding the murders, and respondent’s confession was therefore admissible.
The judgment of the Court of Criminal Appeals of Texas is reversed.
Justice KENNEDY, with whom Justice SCALIA and Justice THOMAS join, concurring.
The Court’s opinion is altogether sufficient to explain why the decision of the Texas Court
of Criminal Appeals should be reversed for failure to recognize the offense-specific nature of the Sixth
Amendment right to counsel. It seems advisable, however, to observe that the Court has reached its
conclusion without the necessity to reaffirm or give approval to the decision in Michigan v. Jackson.
This course is wise, in my view, for the underlying theory of Jackson seems questionable.
As the facts of the instant case well illustrate, it is difficult to understand the utility of a Sixth
Amendment rule that operates to invalidate a confession given by the free choice of suspects who
have received proper advice of their Miranda rights but waived them nonetheless. The Miranda rule,
and the related preventative rule of Edwards v. Arizona, serve to protect a suspect’s voluntary choice
not to speak outside his lawyer’s presence. The parallel rule announced in Jackson, however,
supersedes the suspect’s voluntary choice to speak with investigators. After Jackson had been
decided, the Court made the following observation with respect to Edwards:
Preserving the integrity of an accused’s choice to communicate with police only
through counsel is the essence of Edwards and its progeny--not barring an accused
from making an initial election as to whether he will face the State’s officers during
questioning with the aid of counsel, or go it alone. If an accused “knowingly and
intelligently” pursues the latter course, we see no reason why the uncounseled
statements he then makes must be excluded at his trial.
Patterson v. Illinois, infra ch. 17.
There is little justification for not applying the same course of reasoning with equal force to
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the court-made preventative rule announced in Jackson; for Jackson, after all, was a wholesale
importation of the Edwards rule into the Sixth Amendment.
In the instant case, Cobb at no time indicated to law enforcement authorities that he elected
to remain silent about the double murder. By all indications, he made the voluntary choice to give his
own account. Indeed, even now Cobb does not assert that he had no wish to speak at the time he
confessed. While the Edwards rule operates to preserve the free choice of a suspect to remain silent,
if Jackson were to apply it would override that choice.
There is further reason to doubt the wisdom of the Jackson holding. Neither Miranda nor
Edwards enforces the Fifth Amendment right unless the suspect makes a clear and unambiguous
assertion of the right to the presence of counsel during custodial interrogation. Davis v. United
States. Where a required Miranda warning has been given, a suspect’s later confession, made outside
counsel’s presence, is suppressed to protect the Fifth Amendment right of silence only if a reasonable
officer should have been certain that the suspect expressed the unequivocal election of the right.
The Sixth Amendment right to counsel attaches quite without reference to the suspect’s
choice to speak with investigators after a Miranda warning. It is the commencement of a formal
prosecution, indicated by the initiation of adversary judicial proceedings, that marks the beginning
of the Sixth Amendment right. These events may be quite independent of the suspect’s election to
remain silent, the interest which the Edwards rule serves to protect with respect to Miranda and the
Fifth Amendment, and it thus makes little sense for a protective rule to attach absent such an election
by the suspect. We ought to question the wisdom of a judge-made preventative rule to protect a
suspect’s desire not to speak when it cannot be shown that he had that intent.
Even if Jackson is to remain good law, its protections should apply only where a suspect has
made a clear and unambiguous assertion of the right not to speak outside the presence of counsel,
the same clear election required under Edwards. Cobb made no such assertion here, yet Justice
BREYER ’s dissent rests upon the assumption that the Jackson rule should operate to exclude the
confession no matter. There would be little justification for this extension of a rule that, even in a
more limited application, rests on a doubtful rationale.
Justice BREYER defends Jackson by arguing that, once a suspect has accepted counsel at the
commencement of adversarial proceedings, he should not be forced to confront the police during
interrogation without the assistance of counsel. But the acceptance of counsel at an arraignment or
similar proceeding only begs the question: acceptance of counsel for what? It is quite unremarkable
that a suspect might want the assistance of an expert in the law to guide him through hearings and
trial, and the attendant complex legal matters that might arise, but nonetheless might choose to give
on his own a forthright account of the events that occurred. A court-made rule that prevents a suspect
from even making this choice serves little purpose, especially given the regime of Miranda and
Edwards.
With these further remarks, I join in full the opinion of the Court.
Justice BREYER , with whom Justice STEVENS, Justice SOUTER , and Justice GINSBURG join,
dissenting.
This case focuses upon the meaning of a single word, “offense,” when it arises in the context
of the Sixth Amendment. Several basic background principles define that context.
First, the Sixth Amendment right to counsel plays a central role in ensuring the fairness of
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criminal proceedings in our system of justice. See Gideon v. Wainwright, 372 U.S. 335 (1963);
Powell v. Alabama, 287 U.S. 45 (1932). See ch. 15, supra.
Second, the right attaches when adversary proceedings, triggered by the government’s formal
accusation of a crime, begin. See Brewer v. Williams; Kirby v. Illinois, 406 U.S. 682 (1972); Massiah
v. United States.
Third, once this right attaches, law enforcement officials are required, in most circumstances,
to deal with the defendant through counsel rather than directly, even if the defendant has waived his
Fifth Amendment rights. See Michigan v. Jackson (waiver of right to presence of counsel is assumed
invalid unless accused initiates communication); Maine v. Moulton (Sixth Amendment gives
defendant right “to rely on counsel as a ‘medium’ between him and the State”). Cf. ABA Model Rule
of Professional Conduct 4.2 (2001) (lawyer is generally prohibited from communicating with a person
known to be represented by counsel “about the subject of the representation” without counsel’s
“consent”); Green, A Prosecutor’s Communications with Defendants: What Are the Limits?, 24
CRIM . L. BULL . 283, 284, and n. 5 (1988) (version of Model Rule 4.2 or its predecessor has been
adopted by all 50 States).
Fourth, the particular aspect of the right here at issue--the rule that the police ordinarily must
communicate with the defendant through counsel--has important limits. In particular, recognizing the
need for law enforcement officials to investigate “new or additional crimes” not the subject of current
proceedings, Maine v. Moulton, this Court has made clear that the right to counsel does not attach
to any and every crime that an accused may commit or have committed, see McNeil v. Wisconsin.
The right “cannot be invoked once for all future prosecutions,” and it does not forbid “interrogation
unrelated to the charge.” In a word, as this Court previously noted, the right is “offense specific.”
This case focuses upon the last-mentioned principle, in particular upon the meaning of the
words “offense specific.” These words appear in this Court’s Sixth Amendment case law, not in the
Sixth Amendment’s text. See U.S. CONST., Amdt. 6 (guaranteeing right to counsel “in all criminal
prosecutions”). The definition of these words is not self-evident. Sometimes the term “offense” may
refer to words that are written in a criminal statute; sometimes it may refer generally to a course of
conduct in the world, aspects of which constitute the elements of one or more crimes; and sometimes
it may refer, narrowly and technically, just to the conceptually severable aspects of the latter. This
case requires us to determine whether an “offense”--for Sixth Amendment purposes--includes
factually related aspects of a single course of conduct other than those few acts that make up the
essential elements of the crime charged.
We should answer this question in light of the Sixth Amendment’s basic objectives as set forth
in this Court’s case law. At the very least, we should answer it in a way that does not undermine
those objectives. But the Court today decides that “offense” means the crime set forth within “the
four corners of a charging instrument,” along with other crimes that “would be considered the same
offense” under the test established by Blockburger v. United States, 284 U.S. 299 (1932). In my
view, this unnecessarily technical definition undermines Sixth Amendment protections while doing
nothing to further effective law enforcement.
For one thing, the majority’s rule, while leaving the Fifth Amendment’s protections in place,
threatens to diminish severely the additional protection that, under this Court’s rulings, the Sixth
Amendment provides when it grants the right to counsel to defendants who have been charged with
a crime and insists that law enforcement officers thereafter communicate with them through that
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counsel. See, e.g., Michigan v. Jackson (Sixth Amendment prevents police from questioning
represented defendant through informants even when Fifth Amendment would not); Rhode Island
v. Innis (Fifth Amendment right, unlike Sixth, applies only in custodial interrogation).
Justice KENNEDY, Justice SCALIA, and Justice THOMAS, if not the majority, apparently believe
these protections constitutionally unimportant, for, in their view, “the underlying theory of Jackson
seems questionable.” Both the majority and concurring opinions suggest that a suspect’s ability to
invoke his Fifth Amendment right and “refuse any police questioning” offers that suspect adequate
constitutional protection.
Jackson focuses upon a suspect--perhaps a frightened or uneducated suspect--who, hesitant
to rely upon his own unaided judgment in his dealings with the police, has invoked his constitutional
right to legal assistance in such matters. See Michigan v. Jackson n. 7 (“‘The simple fact that [a]
defendant has requested an attorney indicates that he does not believe that he is sufficiently capable
of dealing with his adversaries singlehandedly’”). Jackson says that, once such a request has been
made, the police may not simply throw that suspect--who does not trust his own unaided judgment-back upon his own devices by requiring him to rely for protection upon that same unaided judgment
that he previously rejected as inadequate. In a word, the police may not force a suspect who has
asked for legal counsel to make a critical legal choice without the legal assistance that he has
requested and that the Constitution guarantees. See McNeil v. Wisconsin, supra, at 177 (“The
purpose of the Sixth Amendment counsel guarantee . . . is to ‘protect the unaided layman at critical
confrontations’ with his ‘expert adversary’”)); ABA Ann. Model Rule of Professional Conduct 4.2,
p. 398, comment. (4th ed. 1999) (“Rule 4.2 . . . exists to prevent lawyers from taking advantage of
uncounseled laypersons and to preserve the integrity of the lawyer-client relationship”).
For these reasons, the Sixth Amendment right at issue is independent of the Fifth
Amendment’s protections; and the importance of this Sixth Amendment right has been repeatedly
recognized in our cases. See, e.g., Michigan v. Jackson (“We conclude that the assertion [of the right
to counsel] is no less significant, and the need for additional safeguards no less clear, when the
request for counsel is made at an arraignment and when the basis for the claim is the Sixth
Amendment”).
Justice KENNEDY primarily relies upon Patterson v. Illinois in support of his conclusion that
Jackson is not good law. He quotes Patterson’s statement that the Constitution does “‘not bar an
accused from making an initial election as to whether’” to speak with the police without counsel’s
assistance.
This statement, however, cannot justify the overruling of Jackson. That is because, in
Patterson itself, this Court noted, “as a matter of some significance,” that, at the time he was
interrogated, the defendant had neither retained nor accepted the appointment of counsel. We
characterized our holding in Jackson as having depended upon “the fact that the accused ‘had asked
for the help of a lawyer’ in dealing with the police,” and explained that, “once an accused has a
lawyer, a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorneyclient relationship takes effect.”
Justice KENNEDY also criticizes Jackson on the ground that it prevents a suspect “from . . .
making the choice” to “give . . . a forthright account of the events that occurred.” But that is not so.
A suspect may initiate communication with the police, thereby avoiding the risk that the police
induced him to make, unaided, the kind of critical legal decision best made with the help of counsel,
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whom he has requested.
Unlike Justice KENNEDY, the majority does not call Jackson itself into question. But the
majority would undermine that case by significantly diminishing the Sixth Amendment protections
that the case provides. That is because criminal codes are lengthy and highly detailed, often
proliferating “overlapping and related statutory offenses” to the point where prosecutors can easily
“spin out a startlingly numerous series of offenses from a single . . . criminal transaction.” Thus, an
armed robber who reaches across a store counter, grabs the cashier, and demands “your money or
your life,” may through that single instance of conduct have committed several “offenses,” in the
majority’s sense of the term, including armed robbery, assault, battery, trespass, use of a firearm to
commit a felony, and perhaps possession of a firearm by a felon, as well. A person who is using and
selling drugs on a single occasion might be guilty of possessing various drugs, conspiring to sell
drugs, being under the influence of illegal drugs, possessing drug paraphernalia, possessing a gun in
relation to the drug sale, and, depending upon circumstances, violating various gun laws as well. A
protester blocking an entrance to a federal building might also be trespassing, failing to disperse,
unlawfully assembling, and obstructing Government administration all at one and the same time.
The majority’s rule permits law enforcement officials to question those charged with a crime
without first approaching counsel, through the simple device of asking questions about any other
related crime not actually charged in the indictment. Thus, the police could ask the individual charged
with robbery about, say, the assault of the cashier not yet charged, or about any other uncharged
offense (unless under Blockburger’s definition it counts as the “same crime”), all without notifying
counsel. Indeed, the majority’s rule would permit law enforcement officials to question anyone
charged with any crime in any one of the examples just given about his or her conduct on the single
relevant occasion without notifying counsel unless the prosecutor has charged every possible crime
arising out of that same brief course of conduct. What Sixth Amendment sense--what common sense-does such a rule make? What is left of the “communicate through counsel” rule? The majority’s
approach is inconsistent with any common understanding of the scope of counsel’s representation.
It will undermine the lawyer’s role as “‘medium’” between the defendant and the government. And
it will, on a random basis, remove a significant portion of the protection that this Court has found
inherent in the Sixth Amendment.
In fact, under the rule today announced by the majority, two of the seminal cases in our Sixth
Amendment jurisprudence would have come out differently. In Maine v. Moulton, which the majority
points out “expressly referred to the offense-specific nature of the Sixth Amendment right to
counsel,” we treated burglary and theft as the same offense for Sixth Amendment purposes. Despite
the opinion’s clear statement that “incriminating statements pertaining to other crimes, as to which
the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those
offenses,” the Court affirmed the lower court’s reversal of both burglary and theft charges even
though, at the time that the incriminating statements at issue were made, Moulton had been charged
only with theft by receiving. Under the majority’s rule, in contrast, because theft by receiving and
burglary each required proof of a fact that the other did not, only Moulton’s theft convictions should
have been overturned.
In Brewer v. Williams, the effect of the majority’s rule would have been even more dramatic.
Because first-degree murder and child abduction each required proof of a fact not required by the
other, and because at the time of the impermissible interrogation Williams had been charged only with
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abduction of a child, Williams’ murder conviction should have remained undisturbed. This is not to
suggest that this Court has previously addressed and decided the question presented by this case.
Rather, it is to point out that the Court’s conception of the Sixth Amendment right at the time that
Moulton and Brewer were decided naturally presumed that it extended to factually related but
uncharged offenses.
At the same time, the majority’s rule threatens the legal clarity necessary for effective law
enforcement. That is because the majority, aware that the word “offense” ought to encompass
something beyond “the four corners of the charging instrument,” imports into Sixth Amendment law
the definition of “offense” set forth in Blockburger, a case interpreting the Double Jeopardy Clause
of the Fifth Amendment, which Clause uses the word “offence” but otherwise has no relevance here.
Whatever Fifth Amendment virtues Blockburger may have, to import it into this Sixth Amendment
context will work havoc.
In theory, the test says that two offenses are the “same offense” unless each requires proof
of a fact that the other does not. That means that most of the different crimes mentioned above are
not the “same offense.” Under many States’ laws, for example, the statute defining assault and the
statute defining robbery each requires proof of a fact that the other does not. Compare, e.g., CAL.
PENAL CODE ANN . § 211 (West 1999) (robbery) (requiring taking of personal property of another)
with § 240 (assault) (requiring attempt to commit violent injury). Hence the extension of the definition
of “offense” that is accomplished by the use of the Blockburger test does nothing to address the
substantial concerns about the circumvention of the Sixth Amendment right that are raised by the
majority’s rule.
But, more to the point, the simple-sounding Blockburger test has proved extraordinarily
difficult to administer in practice. Judges, lawyers, and law professors often disagree about how to
apply it. The test has emerged as a tool in an area of our jurisprudence that THE CHIEF JUSTICE has
described as “a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial
navigator.” Albernaz v. United States, 450 U.S. 333 (1981). Yet the Court now asks, not the lawyers
and judges who ordinarily work with double jeopardy law, but police officers in the field, to navigate
Blockburger when they question suspects. Cf. New York v. Belton (noting importance of clear rules
to guide police behavior). Some will apply the test successfully; some will not. Legal challenges are
inevitable. The result, I believe, will resemble not so much the Sargasso Sea as the criminal law
equivalent of Milton’s “Serbonian Bog . . . Where Armies whole have sunk.”
There is, of course, an alternative. We can, and should, define “offense” in terms of the
conduct that constitutes the crime that the offender committed on a particular occasion, including
criminal acts that are “closely related to” or “inextricably intertwined with” the particular crime set
forth in the charging instrument. This alternative is not perfect. The language used lacks the precision
for which police officers may hope; and it requires lower courts to specify its meaning further as they
apply it in individual cases. Yet virtually every lower court in the United States to consider the issue
has defined “offense” in the Sixth Amendment context to encompass such closely related acts. These
courts have found offenses “closely related” where they involved the same victim, set of acts,
evidence, or motivation. They have found offenses unrelated where time, location, or factual
circumstances significantly separated the one from the other.
One cannot say in favor of this commonly followed approach that it is perfectly clear--only
that, because it comports with common sense, it is far easier to apply than that of the majority. One
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might add that, unlike the majority’s test, it is consistent with this Court’s assumptions in previous
cases. See Maine v. Moulton (affirming reversal of both burglary and theft convictions); Brewer v.
Williams (affirming grant of habeas which vacated murder conviction). And, most importantly, the
“closely related” test furthers, rather than undermines, the Sixth Amendment’s “right to counsel,” a
right so necessary to the realization in practice of that most “noble ideal,” a fair trial. Gideon v.
Wainwright, 372 U.S. at 344.
The Texas Court of Criminal Appeals, following this commonly accepted approach, found
that the charged burglary and the uncharged murders were “closely related.” All occurred during a
short period of time on the same day in the same basic location. The victims of the murders were also
victims of the burglary. Cobb committed one of the murders in furtherance of the robbery, the other
to cover up the crimes. The police, when questioning Cobb, knew that he already had a lawyer
representing him on the burglary charges and had demonstrated their belief that this lawyer also
represented Cobb in respect to the murders by asking his permission to question Cobb about the
murders on previous occasions. The relatedness of the crimes is well illustrated by the impossibility
of questioning Cobb about the murders without eliciting admissions about the burglary. See, e.g., Tr.
157 (Feb. 19, 1997) (testimony by police officer who obtained murder confession) (“Basically what
he told us is he had gone over to the house to burglarize it and nobody was home”); (typed statement
by Cobb) (admitting that he committed the murders after entering the house and stealing stereo parts).
Nor, in my view, did Cobb waive his right to counsel. These considerations are sufficient. The police
officers ought to have spoken to Cobb’s counsel before questioning Cobb. I would affirm the decision
of the Texas court.
Consequently, I dissent.
Questions and Notes
1. What test does the Court adopt for “same offense”? How would it be applied?
2. Which opinion does the best job of following precedent? Explain.
3. Is Michigan v. Jackson on secure ground, or is it in serious danger of being overruled at
the next appropriate opportunity?
4. How would Brewer v. Williams be decided after Cobb? Why?
5. Assuming that for question 3, you answered: “Conviction affirmed,” does it necessarily
follow that Cobb was wrongly decided?
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CHAPTER 16: MIRANDA
Insert at page 699:
CHAPTER 16A: MIRANDA REVISITED
DICKERSON v. UNITED STATES
__ U.S. __ (2000)
Chief Justice REHNQUIST delivered the opinion of the Court.
In Miranda v. Arizona, 384 U.S. 436 (1966), we held that certain warnings must be given
before a suspect’s statement made during custodial interrogation could be admitted in evidence. In
the wake of that decision, Congress enacted 18 U.S.C. § 3501, which in essence laid down a rule that
the admissibility of such statements should turn only on whether or not they were voluntarily made.
We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled
by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that
Miranda and its progeny in this Court govern the admissibility of statements made during custodial
interrogation in both state and federal courts.
Petitioner Dickerson was indicted for bank robbery, conspiracy to commit bank robbery, and
using a firearm in the course of committing a crime of violence, all in violation of the applicable
provisions of Title 18 of the United States Code. Before trial, Dickerson moved to suppress a
statement he had made at a Federal Bureau of Investigation field office, on the grounds that he had
not received “Miranda warnings” before being interrogated. The District Court granted his motion
to suppress, and the Government took an interlocutory appeal to the United States Court of Appeals
for the Fourth Circuit. That court, by a divided vote, reversed the District Court’s suppression order.
It agreed with the District Court’s conclusion that petitioner had not received Miranda warnings
before making his statement. But it went on to hold that § 3501, which in effect makes the
admissibility of statements such as Dickerson’s turn solely on whether they were made voluntarily,
was satisfied in this case. It then concluded that our decision in Miranda was not a constitutional
holding, and that therefore Congress could by statute have the final say on the question of
admissibility.
Because of the importance of the questions raised by the Court of Appeals’ decision, we
granted certiorari, and now reverse.
We begin with a brief historical account of the law governing the admission of confessions.
Prior to Miranda, we evaluated the admissibility of a suspect’s confession under a voluntariness test.
The roots of this test developed in the common law, as the courts of England and then the United
States recognized that coerced confessions are inherently untrustworthy. Over time, our cases
recognized two constitutional bases for the requirement that a confession be voluntary to be admitted
into evidence: the Fifth Amendment right against self-incrimination and the Due Process Clause of
the Fourteenth Amendment. See, e.g., Bram v. United States, 168 U.S. 532, 542 (1897) (stating that
the voluntariness test “is controlled by that portion of the Fifth Amendment . . . commanding that no
person ‘shall be compelled in any criminal case to be a witness against himself ‘”); Brown v.
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Mississippi (reversing a criminal conviction under the Due Process Clause because it was based on
a confession obtained by physical coercion).
While Bram was decided before Brown and its progeny, for the middle third of the 20th
century our cases based the rule against admitting coerced confessions primarily, if not exclusively,
on notions of due process. We applied the due process voluntariness test in “some 30 different cases
decided during the era that intervened between Brown and Escobedo v. Illinois. Those cases refined
the test into an inquiry that examines “whether a defendant’s will was overborne” by the
circumstances surrounding the giving of a confession. The due process test takes into consideration
“the totality of all the surrounding circumstances—both the characteristics of the accused and the
details of the interrogation.”
We have never abandoned this due process jurisprudence, and thus continue to exclude
confessions that were obtained involuntarily. But our decisions in Malloy v. Hogan, 378 U.S. 1
(1964), and Miranda changed the focus of much of the inquiry in determining the admissibility of
suspects’ incriminating statements. In Malloy, we held that the Fifth Amendment’s Self-Incrimination
Clause is incorporated in the Due Process Clause of the Fourteenth Amendment and thus applies to
the States. We decided Miranda on the heels of Malloy.
In Miranda, we noted that the advent of modern custodial police interrogation brought with
it an increased concern about confessions obtained by coercion. Because custodial police
interrogation, by its very nature, isolates and pressures the individual, we stated that “even without
employing brutality, the ‘third degree’ or [other] specific stratagems, . . . custodial interrogation
exacts a heavy toll on individual liberty and trades on the weakness of individuals.” We concluded
that the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary
statements, and thus heightens the risk that an individual will not be “accorded his privilege under the
Fifth Amendment . . . not to be compelled to incriminate himself.” Accordingly, we laid down
“concrete constitutional guidelines for law enforcement agencies and courts to follow.” Those
guidelines established that the admissibility in evidence of any statement given during custodial
interrogation of a suspect would depend on whether the police provided the suspect with four
warnings. These warnings (which have come to be known colloquially as “Miranda rights”) are: a
suspect “has the right to remain silent, that anything he says can be used against him in a court of law,
that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will
be appointed for him prior to any questioning if he so desires.”
Two years after Miranda was decided, Congress enacted § 3501. That section provides, in
relevant part:
(a) In any criminal prosecution brought by the United States or by the District
of Columbia, a confession . . . shall be admissible in evidence if it is voluntarily given.
Before such confession is received in evidence, the trial judge shall, out of the
presence of the jury, determine any issue as to voluntariness. If the trial judge
determines that the confession was voluntarily made it shall be admitted in evidence
and the trial judge shall permit the jury to hear relevant evidence on the issue of
voluntariness and shall instruct the jury to give such weight to the confession as the
jury feels it deserves under all the circumstances.
(b) The trial judge in determining the issue of voluntariness shall take into
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consideration all the circumstances surrounding the giving of the confession, including
(1) the time elapsing between arrest and arraignment of the defendant making the
confession, if it was made after arrest and before arraignment, (2) whether such
defendant knew the nature of the offense with which he was charged or of which he
was suspected at the time of making the confession, (3) whether or not such
defendant was advised or knew that he was not required to make any statement and
that any such statement could be used against him, (4) whether or not such defendant
had been advised prior to questioning of his right to the assistance of counsel; and (5)
whether or not such defendant was without the assistance of counsel when questioned
and when giving such confession.
The presence or absence of any of the above-mentioned factors to be taken
into consideration by the judge need not be conclusive on the issue of voluntariness
of the confession.
Given § 3501’s express designation of voluntariness as the touchstone of admissibility, its
omission of any warning requirement, and the instruction for trial courts to consider a nonexclusive
list of factors relevant to the circumstances of a confession, we agree with the Court of Appeals that
Congress intended by its enactment to overrule Miranda. See also Davis v. United States (SCALIA,
J., concurring) (stating that, prior to Miranda, “voluntariness vel non was the touchstone of
admissibility of confessions”). Because of the obvious conflict between our decision in Miranda and
§ 3501, we must address whether Congress has constitutional authority to thus supersede Miranda.
If Congress has such authority, § 3501's totality-of-the-circumstances approach must prevail over
Miranda’s requirement of warnings; if not, that section must yield to Miranda’s more specific
requirements.
The law in this area is clear. This Court has supervisory authority over the federal courts, and
we may use that authority to prescribe rules of evidence and procedure that are binding in those
tribunals. However, the power to judicially create and enforce nonconstitutional “rules of procedure
and evidence for the federal courts exists only in the absence of a relevant Act of Congress.”
Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence
and procedure that are not required by the Constitution.
But Congress may not legislatively supersede our decisions interpreting and applying the
Constitution. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 517-521 (1997). This case therefore
turns on whether the Miranda Court announced a constitutional rule or merely exercised its
supervisory authority to regulate evidence in the absence of congressional direction. Recognizing this
point, the Court of Appeals surveyed Miranda and its progeny to determine the constitutional status
of the Miranda decision. Relying on the fact that we have created several exceptions to Miranda’s
warnings requirement and that we have repeatedly referred to the Miranda warnings as
“prophylactic,” New York v. Quarles, and “not themselves rights protected by the Constitution,”
Michigan v. Tucker, 417 U.S. 433, 444 (1974),2 the Court of Appeals concluded that the protections
2
See also Davis v. United States, 512 U.S. 452, 457-458 (1994); Withrow v. Williams, 507 U.S. 680,
690-691 (1993) (“Miranda’s safeguards are not constitutional in character”); Duckworth v. Eagan, 492 U.S. 195, 203
(1989); Connecticut v. Barrett, 479 U.S. 523, 528 (1987) (“The Miranda Court adopted prophylactic rules designed
143
announced in Miranda are not constitutionally required.
We disagree with the Court of Appeals’ conclusion, although we concede that there is
language in some of our opinions that supports the view taken by that court. But first and foremost
of the factors on the other side—that Miranda is a constitutional decision—is that both Miranda and
two of its companion cases applied the rule to proceedings in state courts—to wit, Arizona,
California, and New York. Since that time, we have consistently applied Miranda’s rule to
prosecutions arising in state courts. See, e.g., Stansbury v. California; Minnick v. Mississippi;
Arizona v. Roberson; Edwards v. Arizona. It is beyond dispute that we do not hold a supervisory
power over the courts of the several States. Smith v. Phillips, 455 U.S. 209, 221 (1982) (“Federal
courts hold no supervisory authority over state judicial proceedings and may intervene only to correct
wrongs of constitutional dimension”).3
The Miranda opinion itself begins by stating that the Court granted certiorari “to explore
some facets of the problems . . . of applying the privilege against self-incrimination to in-custody
interrogation, and to give concrete constitutional guidelines for law enforcement agencies and courts
to follow.” (emphasis added). In fact, the majority opinion is replete with statements indicating that
the majority thought it was announcing a constitutional rule. Indeed, the Court’s ultimate conclusion
was that the unwarned confessions obtained in the four cases before the Court in Miranda “were
obtained from the defendant under circumstances that did not meet constitutional standards for
protection of the privilege.”5
Additional support for our conclusion that Miranda is constitutionally based is found in the
Miranda Court’s invitation for legislative action to protect the constitutional right against coerced
self-incrimination. After discussing the “compelling pressures” inherent in custodial police
interrogation, the Miranda Court concluded that, “in order to combat these pressures and to permit
a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately
and effectively appraised of his rights and the exercise of those rights must be fully honored.”
However, the Court emphasized that it could not foresee “the potential alternatives for protecting the
to insulate the exercise of Fifth Amendment rights”); Oregon v. Elstad, 470 U.S. 298, 306 (1985); Edwards v. Arizona,
451 U.S. 477, 492 (1981) (Powell, J., concurring in result).
3
Our conclusion regarding Miranda’s constitutional basis is further buttressed by the fact that we have
allowed prisoners to bring alleged Miranda violations before the federal courts in habeas corpus proceedings. See
Thompson v. Keohane, 516 U.S. 99 (1995); Withrow. Habeas corpus proceedings are available only for claims that a
person “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Since the Miranda rule is clearly not based on federal laws or treaties, our decision allowing habeas review for Miranda
claims obviously assumes that Miranda is of constitutional origin.
5
Many of our subsequent cases have also referred to Miranda’s constitutional underpinnings. See, e.g.,
Withrow (“‘Prophylactic’ though it may be, in protecting a defendant’s Fifth Amendment privilege against selfincrimination, Miranda safeguards a ‘fundamental trial right’”); Illinois v. Perkins (describing Miranda’s warning
requirement as resting on “the Fifth Amendment privilege against self-incrimination”); Butler v. McKellar, 494 U.S.
407, 411 (1990) (“The Fifth Amendment bars police-initiated interrogation following a suspect’s request for counsel
in the context of a separate investigation”); Michigan v. Jackson (“The Fifth Amendment protection against compelled
self-incrimination provides the right to counsel at custodial interrogations”); Moran v. Burbine (referring to Miranda
as “our interpretation of the Federal Constitution”); Edwards.
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privilege which might be devised by Congress or the States,” and it accordingly opined that the
Constitution would not preclude legislative solutions that differed from the prescribed Miranda
warnings but which were “at least as effective in apprising accused persons of their right of silence
and in assuring a continuous opportunity to exercise it.”6
The Court of Appeals also relied on the fact that we have, after our Miranda decision, made
exceptions from its rule in cases such as New York v. Quarles and Harris v. New York. But we have
also broadened the application of the Miranda doctrine in cases such as Doyle v. Ohio, 426 U.S. 610
(1976), and Arizona v. Roberson. These decisions illustrate the principle—not that Miranda is not
a constitutional rule—but that no constitutional rule is immutable. No court laying down a general
rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort
of modifications represented by these cases are as much a normal part of constitutional law as the
original decision.
The Court of Appeals also noted that in Oregon v. Elstad, we stated that “‘the Miranda
exclusionary rule . . . serves the Fifth Amendment and sweeps more broadly than the Fifth
Amendment itself.’” Our decision in that case—refusing to apply the traditional “fruits” doctrine
developed in Fourth Amendment cases—does not prove that Miranda is a nonconstitutional decision,
but simply recognizes the fact that unreasonable searches under the Fourth Amendment are different
from unwarned interrogation under the Fifth Amendment.
As an alternative argument for sustaining the Court of Appeals’ decision, the court-invited
amicus curiae7 contends that the section complies with the requirement that a legislative alternative
to Miranda be equally as effective in preventing coerced confessions. We agree with the amicus’
contention that there are more remedies available for abusive police conduct than there were at the
time Miranda was decided, see, e.g., Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989) (applying
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), to hold that a suspect may bring
a federal cause of action under the Due Process Clause for police misconduct during custodial
interrogation). But we do not agree that these additional measures supplement § 3501's protections
sufficiently to meet the constitutional minimum. Miranda requires procedures that will warn a suspect
in custody of his right to remain silent and which will assure the suspect that the exercise of that right
will be honored. As discussed above, § 3501 explicitly eschews a requirement of pre-interrogation
warnings in favor of an approach that looks to the administration of such warnings as only one factor
in determining the voluntariness of a suspect’s confession. The additional remedies cited by amicus
do not, in our view, render them, together with § 3501 an adequate substitute for the warnings
required by Miranda.
The dissent argues that it is judicial overreaching for this Court to hold § 3501
unconstitutional unless we hold that the Miranda warnings are required by the Constitution, in the
sense that nothing else will suffice to satisfy constitutional requirements. But we need not go farther
6
The Court of Appeals relied in part on our statement that the Miranda decision in no way “creates
a ‘constitutional straightjacket.’” However, a review of our opinion in Miranda clarifies that this disclaimer was
intended to indicate that the Constitution does not require police to administer the particular Miranda warnings, not
that the Constitution does not require a procedure that is effective in securing Fifth Amendment rights.
7
Because no party to the underlying litigation argued in favor of § 3501's constitutionality in this
Court, we invited Professor Paul Cassell to assist our deliberations by arguing in support of the judgment below.
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than Miranda to decide this case. In Miranda, the Court noted that reliance on the traditional totalityof-the-circumstances test raised a risk of overlooking an involuntary custodial confession, risk that
the Court found unacceptably great when the confession is offered in the case in chief to prove guilt.
The Court therefore concluded that something more than the totality test was necessary. As discussed
above, § 3501 reinstates the totality test as sufficient. Section 3501 therefore cannot be sustained if
Miranda is to remain the law.
Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we
addressing the issue in the first instance, the principles of stare decisis weigh heavily against
overruling it now.
We do not think there is such justification for overruling Miranda. Miranda has become
embedded in routine police practice to the point where the warnings have become part of our national
culture. See Mitchell v. United States, 526 U.S. 314, 331-332 (1999) (SCALIA, J., dissenting)
(stating that the fact that a rule has found “‘wide acceptance in the legal culture’” is “adequate reason
not to overrule” it). While we have overruled our precedents when subsequent cases have undermined
their doctrinal underpinnings, see, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 173
(1989), we do not believe that this has happened to the Miranda decision. If anything, our subsequent
cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming
the decision’s core ruling that unwarned statements may not be used as evidence in the prosecution’s
case in chief.
The disadvantage of the Miranda rule is that statements which may be by no means
involuntary, made by a defendant who is aware of his “rights,” may nonetheless be excluded and a
guilty defendant go free as a result. But experience suggests that the totality-of-the-circumstances test
which § 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform
to, and for courts to apply in a consistent manner. The requirement that Miranda warnings be given
does not, of course, dispense with the voluntariness inquiry. But as we said in Berkemer v. McCarty,
“cases in which a defendant can make a colorable argument that a self-incriminating statement was
‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda
are rare.”
In sum, we conclude that Miranda announced a constitutional rule that Congress may not
supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves.
The judgment of the Court of Appeals is therefore
Reversed.
Justice SCALIA, with whom Justice THOMAS joins, dissenting.
Those to whom judicial decisions are an unconnected series of judgments that produce either
favored or disfavored results will doubtless greet today’s decision as a paragon of moderation, since
it declines to overrule Miranda v. Arizona. Those who understand the judicial process will appreciate
that today’s decision is not a reaffirmation of Miranda, but a radical revision of the most significant
element of Miranda (as of all cases): the rationale that gives it a permanent place in our jurisprudence.
Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803), held that an Act of Congress will not
be enforced by the courts if what it prescribes violates the Constitution of the United States. That was
the basis on which Miranda was decided. One will search today’s opinion in vain, however, for a
statement (surely simple enough to make) that what 18 U.S.C. § 3501 prescribes—the use at trial of
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a voluntary confession, even when a Miranda warning or its equivalent has failed to be
given—violates the Constitution. The reason the statement does not appear is not only (and perhaps
not so much) that it would be absurd, inasmuch as § 3501 excludes from trial precisely what the
Constitution excludes from trial, viz., compelled confessions; but also that Justices whose votes are
needed to compose today’s majority are on record as believing that a violation of Miranda is not a
violation of the Constitution. See Davis v. United States, 512 U.S. 452 (1994) (opinion of the Court,
in which KENNEDY, J., joined); Duckworth v. Eagan, 492 U.S. 195 (1989) (opinion of the Court, in
which KENNEDY, J., joined); Oregon v. Elstad, 470 U.S. 298 (1985) (opinion of the Court by
O’CONNOR, J.); New York v. Quarles, 467 U.S. 649 (1984) (opinion of the Court by REHNQUIST, J.).
And so, to justify today’s agreed-upon result, the Court must adopt a significant new, if not entirely
comprehensible, principle of constitutional law. As the Court chooses to describe that principle,
statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution,
but when what they prescribe contradicts a decision of this Court that “announced a constitutional
rule.” As I shall discuss in some detail, the only thing that can possibly mean in the context of this
case is that this Court has the power, not merely to apply the Constitution but to expand it, imposing
what it regards as useful “prophylactic” restrictions upon Congress and the States. That is an immense
and frightening antidemocratic power, and it does not exist.
It takes only a small step to bring today’s opinion out of the realm of power-judging and into
the mainstream of legal reasoning: The Court need only go beyond its carefully couched iterations
that “Miranda is a constitutional decision,” that “Miranda is constitutionally based,” that Miranda
has “constitutional underpinnings,” and come out and say quite clearly: “We reaffirm today that
custodial interrogation that is not preceded by Miranda warnings or their equivalent violates the
Constitution of the United States.” It cannot say that, because a majority of the Court does not
believe it. The Court therefore acts in plain violation of the Constitution when it denies effect to this
Act of Congress.
I
Early in this Nation’s history, this Court established the sound proposition that constitutional
government in a system of separated powers requires judges to regard as inoperative any legislative
act, even of Congress itself, that is “repugnant to the Constitution.”
So if a law be in opposition to the constitution; if both the law and the
constitution apply to a particular case, so that the court must either decide that case
conformably to the law, disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must determine which of these conflicting
rules governs the case.
Marbury. The power we recognized in Marbury will thus permit us, indeed require us, to “disregard”
§ 3501, a duly enacted statute governing the admissibility of evidence in the federal courts, only if it
“be in opposition to the constitution”—here, assertedly, the dictates of the Fifth Amendment.
It was once possible to characterize the so-called Miranda rule as resting (however
implausibly) upon the proposition that what the statute here before us permits—the admission at trial
of un-Mirandized confessions—violates the Constitution. That is the fairest reading of the Miranda
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case itself. The Court began by announcing that the Fifth Amendment privilege against selfincrimination applied in the context of extrajudicial custodial interrogation,—itself a doubtful
proposition as a matter both of history and precedent, see Harlan, J., dissenting (characterizing the
Court’s conclusion that the Fifth Amendment privilege, rather than the Due Process Clause, governed
stationhouse confessions as a “trompe l’oeil”). Having extended the privilege into the confines of the
station house, the Court liberally sprinkled throughout its sprawling 60-page opinion suggestions that,
because of the compulsion inherent in custodial interrogation, the privilege was violated by any
statement thus obtained that did not conform to the rules set forth in Miranda, or some functional
equivalent.
The dissenters, for their part, also understood Miranda’s holding to be based on the “premise
. . . that pressure on the suspect must be eliminated though it be only the subtle influence of the
atmosphere and surroundings.” And at least one case decided shortly after Miranda explicitly
confirmed the view. See Orozco v. Texas (“The use of these admissions obtained in the absence of
the required warnings was a flat violation of the Self-Incrimination Clause of the Fifth Amendment
as construed in Miranda”).
So understood, Miranda was objectionable for innumerable reasons, not least the fact that
cases spanning more than 70 years had rejected its core premise that, absent the warnings and an
effective waiver of the right to remain silent and of the (thitherto unknown) right to have an attorney
present, a statement obtained pursuant to custodial interrogation was necessarily the product of
compulsion. See Crooker v. California (confession not involuntary despite denial of access to
counsel); Cicenia v. Lagay (same); Powers v. United States, 223 U.S. 303 (1912) (lack of warnings
and counsel did not render statement before United States Commisioner involuntary); Wilson v.
United States, 162 U.S. 613 (1896) (same). Moreover, history and precedent aside, the decision in
Miranda, if read as an explication of what the Constitution requires, is preposterous. There is, for
example, simply no basis in reason for concluding that a response to the very first question asked, by
a suspect who already knows all of the rights described in the Miranda warning, is anything other than
a volitional act. See Miranda (White, J., dissenting). And even if one assumes that the elimination of
compulsion absolutely requires informing even the most knowledgeable suspect of his right to remain
silent, it cannot conceivably require the right to have counsel present. There is a world of difference,
which the Court recognized under the traditional voluntariness test but ignored in Miranda, between
compelling a suspect to incriminate himself and preventing him from foolishly doing so of his own
accord. Only the latter (which is not required by the Constitution) could explain the Court’s inclusion
of a right to counsel and the requirement that it, too, be knowingly and intelligently waived. Counsel’s
presence is not required to tell the suspect that he need not speak; the interrogators can do that. The
only good reason for having counsel there is that he can be counted on to advise the suspect that he
should not speak. See Watts v. Indiana (Jackson, J., concurring in result in part and dissenting in
part) (“Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to
police under any circumstances”).
Preventing foolish (rather than compelled) confessions is likewise the only conceivable basis
for the rules (suggested in Miranda) that courts must exclude any confession elicited by questioning
conducted, without interruption, after the suspect has indicated a desire to stand on his right to
remain silent, see Michigan v. Mosley, or initiated by police after the suspect has expressed a desire
to have counsel present, see Edwards v. Arizona. Nonthreatening attempts to persuade the suspect
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to reconsider that initial decision are not, without more, enough to render a change of heart the
product of anything other than the suspect’s free will. Thus, what is most remarkable about the
Miranda decision—and what made it unacceptable as a matter of straightforward constitutional
interpretation in the Marbury tradition—is its palpable hostility toward the act of confession per se,
rather than toward what the Constitution abhors, compelled confession. See United States v.
Washington, 431 U.S. 181, 187 (1977) (“Far from being prohibited by the Constitution, admissions
of guilt by wrongdoers, if not coerced, are inherently desirable”). The Constitution is not, unlike the
Miranda majority, offended by a criminal’s commendable qualm of conscience or fortunate fit of
stupidity. Cf. Minnick v. Mississippi (SCALIA, J., dissenting).
For these reasons, and others more than adequately developed in the Miranda dissents and
in the subsequent works of the decision’s many critics, any conclusion that a violation of the Miranda
rules necessarily amounts to a violation of the privilege against compelled self-incrimination can claim
no support in history, precedent, or common sense, and as a result would at least presumptively be
worth reconsidering even at this late date. But that is unnecessary, since the Court has (thankfully)
long since abandoned the notion that failure to comply with Miranda’s rules is itself a violation of the
Constitution.
II
As the Court today acknowledges, since Miranda we have explicitly, and repeatedly,
interpreted that decision as having announced, not the circumstances in which custodial interrogation
runs afoul of the Fifth or Fourteenth Amendment, but rather only “prophylactic” rules that go beyond
the right against compelled self-incrimination. Of course the seeds of this “prophylactic” interpretation
of Miranda were present in the decision itself. See Miranda (discussing the “necessity for procedures
which assure that the [suspect] is accorded his privilege”). In subsequent cases, the seeds have
sprouted and borne fruit: The Court has squarely concluded that it is possible—indeed not
uncommon—for the police to violate Miranda without also violating the Constitution.
Michigan v. Tucker, 417 U.S. 433 (1974), an opinion for the Court written by then-Justice
REHNQUIST, rejected the true-to-Marbury, failure-to-warn-as-constitutional-violation interpretation
of Miranda. It held that exclusion of the “fruits” of a Miranda violation—the statement of a witness
whose identity the defendant had revealed while in custody—was not required. The opinion explained
that the question whether the “police conduct complained of directly infringed upon respondent’s
right against compulsory self-incrimination” was a “separate question” from “whether it instead
violated only the prophylactic rules developed to protect that right.” The “procedural safeguards”
adopted in Miranda, the Court said, “were not themselves rights protected by the Constitution but
were instead measures to insure that the right against compulsory self-incrimination was protected,”
and to “provide practical reinforcement for the right.” Comparing the particular facts of the custodial
interrogation with the “historical circumstances underlying the privilege,” the Court concluded,
unequivocally, that the defendant’s statement could not be termed “involuntary as that term has been
defined in the decisions of this Court,” and thus that there had been no constitutional violation,
notwithstanding the clear violation of the “procedural rules later established in Miranda.” Lest there
be any confusion on the point, the Court reiterated that the “police conduct at issue here did not
abridge respondent’s constitutional privilege against compulsory self-incrimination, but departed only
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from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege.”
It is clear from our cases, of course, that if the statement in Tucker had been obtained in violation of
the Fifth Amendment, the statement and its fruits would have been excluded. See Nix v. Williams.
The next year, in Oregon v. Hass, 420 U.S. 714 (1975), the Court held that a defendant’s
statement taken in violation of Miranda that was nonetheless voluntary could be used at trial for
impeachment purposes. This holding turned upon the recognition that violation of Miranda is not
unconstitutional compulsion, since statements obtained in actual violation of the privilege against
compelled self-incrimination, “as opposed to . . . taken in violation of Miranda,” quite simply “may
not be put to any testimonial use whatever against [the defendant] in a criminal trial,” including as
impeachment evidence. New Jersey v. Portash, 440 U.S. 450, 459 (1979). See also Mincey v. Arizona
(holding that while statements obtained in violation of Miranda may be used for impeachment if
otherwise trustworthy, the Constitution prohibits “any criminal trial use against a defendant of his
involuntary statement”).
Nearly a decade later, in New York v. Quarles, the Court relied upon the fact that “the
prophylactic Miranda warnings . . . are ‘not themselves rights protected by the Constitution,’” to
create a “public safety” exception. In that case, police apprehended, after a chase in a grocery store,
a rape suspect known to be carrying a gun. After handcuffing and searching him (and finding no
gun)—but before reading him his Miranda warnings—the police demanded to know where the gun
was. The defendant nodded in the direction of some empty cartons and responded that “the gun is
over there.” The Court held that both the unwarned statement—“the gun is over there”—and the
recovered weapon were admissible in the prosecution’s case in chief under a “public safety exception”
to the “prophylactic rules enunciated in Miranda.” It explicitly acknowledged that if the Miranda
warnings were an imperative of the Fifth Amendment itself, such an exigency exception would be
impossible, since the Fifth Amendment’s bar on compelled self-incrimination is absolute, and its
“‘strictures, unlike the Fourth’s are not removed by showing reasonableness.’”
The next year, the Court again declined to apply the “fruit of the poisonous tree” doctrine to
a Miranda violation, this time allowing the admission of a suspect’s properly warned statement even
though it had been preceded (and, arguably, induced) by an earlier inculpatory statement taken in
violation of Miranda. Oregon v. Elstad [infra]. As in Tucker, the Court distinguished the case from
those holding that a confession obtained as a result of an unconstitutional search is inadmissible, on
the ground that the violation of Miranda does not involve an “actual infringement of the suspect’s
constitutional rights.” Miranda, the Court explained, “sweeps more broadly than the Fifth
Amendment itself,” and “Miranda’s preventive medicine provides a remedy even to the defendant
who has suffered no identifiable constitutional harm.” “Errors [that] are made by law enforcement
officers in administering the prophylactic Miranda procedures . . . should not breed the same
irremediable consequences as police infringement of the Fifth Amendment itself.”
In light of these cases, and our statements to the same effect in others, it is simply no longer
possible for the Court to conclude, even if it wanted to, that a violation of Miranda’s rules is a
violation of the Constitution. But as I explained at the outset, that is what is required before the Court
may disregard a law of Congress governing the admissibility of evidence in federal court. The Court
today insists that the decision in Miranda is a “constitutional” one, that it has “constitutional
underpinnings”, a “constitutional basis” and a “constitutional origin”, that it was “constitutionally
based”, and that it announced a “constitutional rule.” It is fine to play these word games; but what
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makes a decision “constitutional” in the only sense relevant here—in the sense that renders it
impervious to supersession by congressional legislation such as § 3501—is the determination that the
Constitution requires the result that the decision announces and the statute ignores. By disregarding
congressional action that concededly does not violate the Constitution, the Court flagrantly offends
fundamental principles of separation of powers, and arrogates to itself prerogatives reserved to the
representatives of the people.
The Court seeks to avoid this conclusion in two ways: First, by misdescribing these postMiranda cases as mere dicta. The Court concedes only “that there is language in some of our
opinions that supports the view” that Miranda’s protections are not “constitutionally required.” It
is not a matter of language; it is a matter of holdings. The proposition that failure to comply with
Miranda’s rules does not establish a constitutional violation was central to the holdings of Tucker,
Hass, Quarles, and Elstad.
The second way the Court seeks to avoid the impact of these cases is simply to disclaim
responsibility for reasoned decisionmaking. It says:
These decisions illustrate the principle—not that Miranda is not a
constitutional rule—but that no constitutional rule is immutable. No court laying
down a general rule can possibly foresee the various circumstances in which counsel
will seek to apply it, and the sort of modifications represented by these cases are as
much a normal part of constitutional law as the original decision.
The issue, however, is not whether court rules are “mutable”; they assuredly are. It is not whether,
in the light of “various circumstances,” they can be “modified”; they assuredly can. The issue is
whether, as mutated and modified, they must make sense. The requirement that they do so is the only
thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or
thumbs-down to whatever outcome, case by case, suits or offends its collective fancy. And if
confessions procured in violation of Miranda are confessions “compelled” in violation of the
Constitution, the post-Miranda decisions I have discussed do not make sense. The only reasoned
basis for their outcome was that a violation of Miranda is not a violation of the Constitution. If, for
example, as the Court acknowledges was the holding of Elstad, “the traditional ‘fruits’ doctrine
developed in Fourth Amendment cases” (that the fruits of evidence obtained unconstitutionally must
be excluded from trial) does not apply to the fruits of Miranda violations, and if the reason for the
difference is not that Miranda violations are not constitutional violations (which is plainly and flatly
what Elstad said); then the Court must come up with some other explanation for the difference. (That
will take quite a bit of doing, by the way, since it is not clear on the face of the Fourth Amendment
that evidence obtained in violation of that guarantee must be excluded from trial, whereas it is clear
on the face of the Fifth Amendment that unconstitutionally compelled confessions cannot be used.)
To say simply that “unreasonable searches under the Fourth Amendment are different from unwarned
interrogation under the Fifth Amendment,” is true but supremely unhelpful.
Finally, the Court asserts that Miranda must be a “constitutional decision” announcing a
“constitutional rule,” and thus immune to congressional modification, because we have since its
inception applied it to the States. If this argument is meant as an invocation of stare decisis, it fails
because, though it is true that our cases applying Miranda against the States must be reconsidered
if Miranda is not required by the Constitution, it is likewise true that our cases (discussed above)
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based on the principle that Miranda is not required by the Constitution will have to be reconsidered
if it is. So the stare decisis argument is a wash. If, on the other hand, the argument is meant as an
appeal to logic rather than stare decisis, it is a classic example of begging the question: Congress’s
attempt to set aside Miranda, since it represents an assertion that violation of Miranda is not a
violation of the Constitution, also represents an assertion that the Court has no power to impose
Miranda on the States. To answer this assertion—not by showing why violation of Miranda is a
violation of the Constitution—but by asserting that Miranda does apply against the States, is to
assume precisely the point at issue. In my view, our continued application of the Miranda code to the
States despite our consistent statements that running afoul of its dictates does not necessarily—or
even usually—result in an actual constitutional violation, represents not the source of Miranda’s
salvation but rather evidence of its ultimate illegitimacy. As Justice STEVENS has elsewhere
explained, “this Court’s power to require state courts to exclude probative self-incriminatory
statements rests entirely on the premise that the use of such evidence violates the Federal
Constitution. . . . If the Court does not accept that premise, it must regard the holding in the Miranda
case itself, as well as all of the federal jurisprudence that has evolved from that decision, as nothing
more than an illegitimate exercise of raw judicial power.” Elstad (dissenting opinion). Quite so.
III
There was available to the Court a means of reconciling the established proposition that a
violation of Miranda does not itself offend the Fifth Amendment with the Court’s assertion of a right
to ignore the present statute. That means of reconciliation was argued strenuously by both petitioner
and the United States, who were evidently more concerned than the Court is with maintaining the
coherence of our jurisprudence. It is not mentioned in the Court’s opinion because, I assume, a
majority of the Justices intent on reversing believes that incoherence is the lesser evil. They may be
right.
Petitioner and the United States contend that there is nothing at all exceptional, much less
unconstitutional, about the Court’s adopting prophylactic rules to buttress constitutional rights, and
enforcing them against Congress and the States. Indeed, the United States argues that “prophylactic
rules are now and have been for many years a feature of this Court’s constitutional adjudication.”
That statement is not wholly inaccurate, if by “many years” one means since the mid-1960's.
However, in their zeal to validate what is in my view a lawless practice, the United States and
petitioner greatly overstate the frequency with which we have engaged in it. For instance, petitioner
cites several cases in which the Court quite simply exercised its traditional judicial power to define
the scope of constitutional protections and, relatedly, the circumstances in which they are violated.
See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436-437 (1982) (holding that
a permanent physical occupation constitutes a per se taking); Maine v. Moulton, 474 U.S. 159, 176
(1985) (holding that the Sixth Amendment right to the assistance of counsel is actually “violated
when the State obtains incriminating statements by knowingly circumventing the accused’s right to
have counsel present in a confrontation between the accused and a state agent”).
Similarly unsupportive of the supposed practice is Bruton v. United States, 391 U.S. 123
(1968), where we concluded that the Confrontation Clause of the Sixth Amendment forbids the
admission of a nontestifying co-defendant’s facially incriminating confession in a joint trial, even
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where the jury has been given a limiting instruction. That decision was based, not upon the theory that
this was desirable protection “beyond” what the Confrontation Clause technically required; but rather
upon the self-evident proposition that the inability to cross-examine an available witness whose
damaging out-of-court testimony is introduced violates the Confrontation Clause, combined with the
conclusion that in these circumstances a mere jury instruction can never be relied upon to prevent the
testimony from being damaging, see Richardson v. Marsh, 481 U.S. 200, 207-208 (1987).
The United States also relies on our cases involving the question whether a State’s procedure
for appointed counsel’s withdrawal of representation on appeal satisfies the State’s constitutional
obligation to “‘afford adequate and effective appellate review to indigent defendants.’” Smith v.
Robbins, 528 U.S.__ ,__ (2000) (quoting Griffin v. Illinois, 351 U.S. 12, 20 (1956). In Anders v.
California, 386 U.S. 738 (1967), we concluded that California’s procedure governing withdrawal
fell short of the constitutional minimum, and we outlined a procedure that would meet that standard.
But as we made clear earlier this Term in Smith, which upheld a procedure different from the one
Anders suggested, the benchmark of constitutionality is the constitutional requirement of adequate
representation, and not some excrescence upon that requirement decreed, for safety’s sake, by this
Court.
In a footnote, the United States directs our attention to certain overprotective First
Amendment rules that we have adopted to ensure “breathing space” for expression. See Gertz v.
Robert Welch, Inc., 418 U.S. 323, 340, 342 (1974) (recognizing that in New York Times Co. v.
Sullivan, 376 U.S. 254 (1964), we “extended a measure of strategic protection to defamatory
falsehood” of public officials); Freedman v. Maryland, 380 U.S. 51, 58 (1965) (setting forth
“procedural safeguards designed to obviate the dangers of a censorship system” with respect to
motion picture obscenity). In these cases, and others involving the First Amendment, the Court has
acknowledged that in order to guarantee that protected speech is not “chilled” and thus forgone, it
is in some instances necessary to incorporate in our substantive rules a “measure of strategic
protection.” But that is because the Court has viewed the importation of “chill” as itself a violation
of the First Amendment—not because the Court thought it could go beyond what the First
Amendment demanded in order to provide some prophylaxis.
Petitioner and the United States are right on target, however, in characterizing the Court’s
actions in a case decided within a few years of Miranda, North Carolina v. Pearce, 395 U.S. 711
(1969). There, the Court concluded that due process would be offended were a judge vindictively to
resentence with added severity a defendant who had successfully appealed his original conviction.
Rather than simply announce that vindictive sentencing violates the Due Process Clause, the Court
went on to hold that “in order to assure the absence of such a [vindictive] motivation, . . . the reasons
for [imposing the increased sentence] must affirmatively appear” and must “be based upon objective
information concerning identifiable conduct on the part of the defendant occurring after the time of
the original sentencing proceeding.” The Court later explicitly acknowledged Pearce’s prophylactic
character, see Michigan v. Payne, 412 U.S. 47, 53 (1973). It is true, therefore, that the case exhibits
the same fundamental flaw as does Miranda when deprived (as it has been) of its original
(implausible) pretension to announcement of what the Constitution itself required. That is, although
the Due Process Clause may well prohibit punishment based on judicial vindictiveness, the
Constitution by no means vests in the courts “any general power to prescribe particular devices ‘in
order to assure the absence of such a motivation’” (Black, J., dissenting). Justice Black surely had
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the right idea when he derided the Court’s requirement as “pure legislation if there ever was
legislation,” although in truth Pearce’s rule pales as a legislative achievement when compared to the
detailed code promulgated in Miranda.1
The foregoing demonstrates that, petitioner’s and the United States’ suggestions to the
contrary notwithstanding, what the Court did in Miranda (assuming, as later cases hold, that Miranda
went beyond what the Constitution actually requires) is in fact extraordinary. That the Court has, on
rare and recent occasion, repeated the mistake does not transform error into truth, but illustrates the
potential for future mischief that the error entails. Where the Constitution has wished to lodge in one
of the branches of the Federal Government some limited power to supplement its guarantees, it has
said so. See Amdt. 14, § 5 (“The Congress shall have power to enforce, by appropriate legislation,
the provisions of this article”). The power with which the Court would endow itself under a
“prophylactic” justification for Miranda goes far beyond what it has permitted Congress to do under
authority of that text. Whereas we have insisted that congressional action under § 5 of the Fourteenth
Amendment must be “congruent” with, and “proportional” to, a constitutional violation, see City of
Boerne v. Flores, 521 U.S. 507, 520 (1997), the Miranda nontextual power to embellish confers
authority to prescribe preventive measures against not only constitutionally prohibited compelled
confessions, but also (as discussed earlier) foolhardy ones.
I applaud, therefore, the refusal of the Justices in the majority to enunciate this boundless
doctrine of judicial empowerment as a means of rendering today’s decision rational. In nonetheless
joining the Court’s judgment, however, they overlook two truisms: that actions speak louder than
silence, and that (in judge-made law at least) logic will out. Since there is in fact no other principle
that can reconcile today’s judgment with the post-Miranda cases that the Court refuses to abandon,
what today’s decision will stand for, whether the Justices can bring themselves to say it or not, is the
power of the Supreme Court to write a prophylactic, extraconstitutional Constitution, binding on
Congress and the States.
IV
Thus, while I agree with the Court that § 3501 cannot be upheld without also concluding that
Miranda represents an illegitimate exercise of our authority to review state-court judgments, I do not
share the Court’s hesitation in reaching that conclusion. For while the Court is also correct that the
doctrine of stare decisis demands some “special justification” for a departure from longstanding
precedent—even precedent of the constitutional variety—that criterion is more than met here. To
repeat Justice STEVENS’ cogent observation, it is “obviou[s]” that “the Court’s power to reverse
Miranda’s conviction rested entirely on the determination that a violation of the Federal Constitution
had occurred.”(dissenting opinion) (emphasis added). Despite the Court’s Orwellian assertion to the
contrary, it is undeniable that later cases (discussed above) have “undermined [Miranda’s] doctrinal
underpinnings,” denying constitutional violation and thus stripping the holding of its only
1
As for Michigan v. Jackson, upon which petitioner and the United States also rely, in that case we
extended to the Sixth Amendment, postindictment, context the Miranda-based prophylactic rule of Edwards v. Arizona,
that the police cannot initiate interrogation after counsel has been requested. I think it less a separate instance of
claimed judicial power to impose constitutional prophylaxis than a direct, logic-driven consequence of Miranda itself.
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constitutionally legitimate support. Miranda’s critics and supporters alike have long made this point.
The Court cites Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989), as accurately
reflecting our standard for overruling,—which I am pleased to accept, even though Patterson was
speaking of overruling statutory cases and the standard for constitutional decisions is somewhat more
lenient. What is set forth there reads as though it was written precisely with the current status of
Miranda in mind:
In cases where statutory precedents have been overruled, the primary reason
for the Court’s shift in position has been the intervening development of the law,
through either the growth of judicial doctrine or further action taken by Congress.
Where such changes have removed or weakened the conceptual underpinnings from
the prior decision, . . . or where the later law has rendered the decision irreconcilable
with competing legal doctrines or policies, . . . the Court has not hesitated to overrule
an earlier decision.
Neither am I persuaded by the argument for retaining Miranda that touts its supposed
workability as compared with the totality-of-the-circumstances test it purported to replace. Miranda’s
proponents cite ad nauseam the fact that the Court was called upon to make difficult and subtle
distinctions in applying the “voluntariness” test in some 30-odd due process “coerced confessions”
cases in the 30 years between Brown v. Mississippi and Miranda. It is not immediately apparent,
however, that the judicial burden has been eased by the “bright-line” rules adopted in Miranda. In
fact, in the 34 years since Miranda was decided, this Court has been called upon to decide nearly 60
cases involving a host of Miranda issues, most of them predicted with remarkable prescience by
Justice White in his Miranda dissent.
Moreover, it is not clear why the Court thinks that the “totality-of-the-circumstances test .
. .is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply
in a consistent manner.” Indeed, I find myself persuaded by Justice O’CONNOR ’s rejection of this
same argument in her opinion in Williams (O’CONNOR , J., joined by REHNQUIST, C.J., concurring in
part and dissenting in part):
Miranda, for all its alleged brightness, is not without its difficulties; and
voluntariness is not without its strengths . . . . Miranda creates as many close
questions as it resolves. The task of determining whether a defendant is in “custody”
has proved to be “a slippery one.” And the supposedly “bright” lines that separate
interrogation from spontaneous declaration, the exercise of a right from waiver, and
the adequate warning from the inadequate, likewise have turned out to be rather dim
and ill defined. The totality-of-the-circumstances approach, on the other hand, permits
each fact to be taken into account without resort to formal and dispositive labels. By
dispensing with the difficulty of producing a yes-or-no answer to questions that are
often better answered in shades and degrees, the voluntariness inquiry often can make
judicial decisionmaking easier rather than more onerous. (Emphasis added)
But even were I to agree that the old totality-of-the-circumstances test was more
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cumbersome, it is simply not true that Miranda has banished it from the law and replaced it with a
new test. Under the current regime, which the Court today retains in its entirety, courts are frequently
called upon to undertake both inquiries. That is because, as explained earlier, voluntariness remains
the constitutional standard, and as such continues to govern the admissibility for impeachment
purposes of statements taken in violation of Miranda, the admissibility of the “fruits” of such
statements, and the admissibility of statements challenged as unconstitutionally obtained despite the
interrogator’s compliance with Miranda, see, e.g., Colorado v. Connelly.
Finally, I am not convinced by petitioner’s argument that Miranda should be preserved
because the decision occupies a special place in the “public’s consciousness.” As far as I am aware,
the public is not under the illusion that we are infallible. I see little harm in admitting that we made
a mistake in taking away from the people the ability to decide for themselves what protections
(beyond those required by the Constitution) are reasonably affordable in the criminal investigatory
process. And I see much to be gained by reaffirming for the people the wonderful reality that they
govern themselves—which means that “the powers not delegated to the United States by the
Constitution” that the people adopted, “nor prohibited . . . to the States” by that Constitution, “are
reserved to the States respectively, or to the people,” U.S. Const., Amdt. 10. 2
Today’s judgment converts Miranda from a milestone of judicial overreaching into the very
Cheops’ Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance. In
imposing its Court-made code upon the States, the original opinion at least asserted that it was
demanded by the Constitution. Today’s decision does not pretend that it is—and yet still asserts the
right to impose it against the will of the people’s representatives in Congress. Far from believing that
stare decisis compels this result, I believe we cannot allow to remain on the books even a celebrated
decision—especially a celebrated decision—that has come to stand for the proposition that the
Supreme Court has power to impose extraconstitutional constraints upon Congress and the States.
This is not the system that was established by the Framers, or that would be established by any sane
supporter of government by the people.
I dissent from today’s decision, and, until § 3501 is repealed, will continue to apply it in all
cases where there has been a sustainable finding that the defendant’s confession was voluntary.
QUESTIONS AND NOTES
1.
Does Chief Justice Rehnquist appear to have changed his view regarding Miranda?
Why do you suppose that he wrote the majority opinion?
2.
Does stare decisis support the Court’s view or is Justice Scalia correct in suggesting
that stare decisis is a wash? Explain.
2
The Court cites my dissenting opinion in Mitchell v. United States, 526 U.S. 314, 331-332 (1999),
for the proposition that “the fact that a rule has found ‘wide acceptance in the legal culture’ is ‘adequate reason not
to overrule’ it.” But the legal culture is not the same as the “public’s consciousness”; and unlike the rule at issue in
Mitchell (prohibiting comment on a defendant’s refusal to testify) Miranda has been continually criticized by lawyers,
law enforcement officials, and scholars since its pronouncement (not to mention by Congress, as § 3501 shows). In
Mitchell, moreover, the constitutional underpinnings of the earlier rule had not been demolished by subsequent cases.
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3.
What, if anything, does Dickerson portend for the future of Miranda?
4.
Is a prophylactic rule legitimately a constitutional rule? Why? Why not?
5.
How many other prophylactic rules can you identify?
6.
How much of Dickerson is predicated on the Court’s rejecting Congress’ power to
overrule a Constitutional decision? C.f. City of Boerne v. Flores.
7.
How relevant to the Court’s decision was the Government’s decision to defend
Miranda? Why do you suppose that the Government did that? Didn’t it want Dickerson convicted?
8.
Is Miranda related to preventing only compelled self incrimination, or also foolish self
incrimination? Is compelled self incrimination self defining? Explain..
9.
Could (should) Miranda be reconceptualized as a Sixth Amendment decision? How,
if at all, would that change the law?
10.
What do you think of the last sentence of Justice Scalia’s dissent? Is it jurisprudentially
sound or unwarranted petulance from the losing side? Explain.
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