During the course of a pat-down search of the person of
petitioner, who had been arrested for not having his driver's
license in his possession, the arresting officer seized marihuana
cigarettes, for the unlawful possession of which petitioner was
subsequently tried and convicted. The State Supreme Court upheld
the conviction, concluding that the search leading to the discovery
of the marihuana, which was used as evidence in petitioner's trial,
was not unreasonable.
Held: The full search of the person of the suspect made
incident to a lawful custodial arrest did not violate the Fourth
and Fourteenth Amendments,
United States v. Robinson,
ante, p.
414 U. S. 218, and
it is of no constitutional significance that, contrary to the
situation in
Robinson, police regulations did not require
that petitioner be taken into custody or establish the conditions
under which a full-scale body search should be conducted, nor, as
in
Robinson, is it relevant that the arresting officer had
no subjective fear of petitioner or suspicion that he was armed,
since it is the fact of custodial arrest that gives rise to the
authority to search. Pp.
414 U. S.
263-266.
258 So. 2d 1,
affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ.,
joined. STEWART, J.,
post, p.
414 U. S. 266,
and POWELL, J.,
ante, p.
414 U. S. 237,
filed concurring opinions. MARSHALL, J., filed a dissenting
opinion, in which DOUGLAS and BRENNAN, JJ., joined,
post,
p.
414 U. S.
267.
Page 414 U. S. 261
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner James Gustafson was convicted in a Florida trial
court for unlawful possession of marihuana. At his trial, the State
introduced into evidence marihuana which had been seized from him
during a search incident to his arrest on a charge of driving
without possession of an operator's license. The District Court of
Appeal of Florida, Fourth District, reversed petitioner's
conviction, holding that the search which had led to the discovery
of the marihuana was unreasonable under the Fourth and Fourteenth
Amendments. 243 So. 2d 615 (1971). The Supreme Court of Florida, in
turn, reversed that decision,
258 So. 2d 1
(1972), and petitioner sought certiorari in this Court. We granted
certiorari, 410 U.S. 982 (1073), and set the case for argument with
No. 72-936,
United States v. Robinson, also decided today,
ante, p.
414 U. S. 218. For
the reasons set forth below, we affirm the judgment of the Supreme
Court of Florida.
At approximately 2 a.m. on January 12, 1969, Lieutenant Paul R.
Smith, a uniformed municipal police officer of Eau Gallie, Florida,
was on a routine patrol in an unmarked squad car when he observed a
1953 white Cadillac, bearing New York license plates, driving
Page 414 U. S. 262
south through the town. Smith observed the automobile weave
across the center line and back to the right side of the road
"three or four" times. Smith testified that he observed the two
occupants of the Cadillac look back; after they apparently saw the
squad car, the car drove across the highway and behind a grocery
store, and then headed south on another city street.
At that point, Smith turned on his flashing light and ordered
the Cadillac over to the side of the road. After stopping the
vehicle, Smith asked petitioner, the driver, to produce his
operator's license. Petitioner informed Smith that he was a student
and that he had left his operator's license in his dormitory room
in the neighboring city of Melbourne, Florida. Petitioner was then
placed under arrest for failure to have his vehicle operator's
license in his possession. It was conceded by the parties below and
in this Court that the officer had probable cause to arrest upon
learning that petitioner did not have his license in his
possession, and that he took petitioner into custody in order to
transport him to the stationhouse for further inquiry. [
Footnote 1]
Smith then proceeded to search the petitioner's person. Smith
testified that he patted down the clothing of the petitioner,
"outside and inside, I checked the belt, the shirt pockets and all
around the belt, completely around inside." Upon completing his
pat-down, he testified, he placed his hand into the left front coat
pocket of the coat petitioner was wearing. From that pocket he
extracted a "long chain" and a Benson and Hedges cigarette box.
Smith testified that he then
"opened [the cigarette box] and it appeared there were marihuana
cigarettes in the box. [
Footnote
2] I had been shown this in training
Page 414 U. S. 263
at the police department and these appeared to be marihuana to
me."
Petitioner urges that there could be no evidentiary purpose for
the search conducted by Smith, and therefore the authority to
search for weapons incident to a lawful arrest is controlled by the
standards laid down in
Terry v. Ohio, 392 U. S.
1 (1968). Petitioner contends that this case is
different from
United States v. Robinson, ante, p.
414 U. S. 218, in
that petitioner had experienced no previous encounters with the
officer in this case, and the offense for which he was arrested was
"benign or trivial in nature," carrying with it no mandatory
minimum sentence, as did the offense for which Robinson was
arrested. Petitioner points out that here, unlike Robinson, there
were no police regulations which required the officer to take
petitioner into custody, nor were there police department policies
requiring full-scale body searches upon arrest in the field.
Petitioner also points to the fact that here, as in Robinson, the
officer expressed no fear for his own wellbeing or for that of
others in dealing with the petitioner.
We have held today in
United States v. Robinson
that
"[i]t is the fact of the lawful arrest which establishes the
Page 414 U. S. 264
authority to search, and . . . , in the case of a lawful
custodial arrest, a full search of the person is not only an
exception to the warrant requirement of the Fourth Amendment, but
is also a 'reasonable' search under that Amendment."
Ante at
414 U. S. 235.
Our decision in
Robinson indicates that the limitations
placed by
Terry v. Ohio, supra, on protective searches
conducted in an investigatory stop situation based on less than
probable cause are not to be carried over to searches made incident
to lawful custodial arrests. We stated in
Robinson:
"The justification or reason for the authority to search
incident to a lawful arrest rests quite as much on the need to
disarm the suspect in order to take him into custody as it does on
the need to preserve evidence on his person for later use at trial.
Agnello v. United States, 269 U. S. 20
(1925);
Abel v. United States, 362 U. S.
217 (1960). The standards traditionally governing a
search incident to lawful arrest are not, therefore, commuted to
the stricter
Terry standards by the absence of probable
fruits or further evidence of the particular crime for which the
arrest is made."
Ante at
414 U. S.
234.
Neither
Chimel v. California, 395 U.
S. 752 (1969), nor
Peters v. New York,
392 U. S. 40
(1968), relied upon by petitioner, purported to limit the
traditional authority of the arresting officer to conduct a full
search of the person of an arrestee incident to a lawful custodial
arrest.
United States v. Robinson, ante at
414 U. S.
225-226,
414 U. S.
228-229. Indeed, as our decision in
Robinson
indicates, not only has this been established Fourth Amendment law
since the decision in
Weeks v. United States, 232 U.
S. 383 (1914), but it was also the rule both at common
law and in the early development of American law.
United States
v. Robinson, ante at
414 U. S.
230-233.
Page 414 U. S. 265
Though the officer here was not required to take the petitioner
into custody by police regulations as he was in
Robinson,
and there did not exist a departmental policy establishing the
conditions under which a full-scale body search should be
conducted, we do not find these differences determinative of the
constitutional issue.
Id. at
414 U. S. 223
n. 2. [
Footnote 3] It is
sufficient that the officer had probable cause to arrest the
petitioner and that he lawfully effectuated the arrest and placed
the petitioner in custody. In addition, as our decision in
Robinson makes clear, the arguable absence of
"evidentiary" purpose for a search incident to a lawful arrest is
not controlling.
Id. at
414 U. S. 233.
[
Footnote 4]
"The authority to search the person incident to a lawful
custodial arrest, while based upon the need
Page 414 U. S. 266
to disarm and to discover evidence, does not depend on what a
court may later decide was the probability in a particular arrest
situation that weapons or evidence would, in fact, be found upon
the person of the suspect."
Id. at
414 U. S.
235.
II
We hold, therefore, that upon arresting petitioner for the
offense of driving his automobile without possession of a valid
operator's license, and taking him into custody, Smith was entitled
to make a full search of petitioner's person incident to that
lawful arrest. Since it is the fact of custodial arrest which gives
rise to the authority to search, it is of no moment that Smith did
not indicate any subjective fear of the petitioner or that he did
not himself suspect that the petitioner was armed. Having in the
course of his lawful search come upon the box of cigarettes, Smith
was entitled to inspect it; and when his inspection revealed the
home-made cigarettes which he believed to contain an unlawful
substance, he was entitled to seize them as "fruits,
instrumentalities, or contraband" probative of criminal conduct.
Harris v. United States, 331 U. S. 145,
331 U. S.
154-155 (1947);
Warden v. Hayden, 387 U.
S. 294,
387 U. S. 299,
387 U. S. 307
(1967);
Adams v. Williams, 407 U.
S. 143,
407 U. S. 149
(1972);
United States v. Robinson, ante at
414 U. S. 236.
The judgment of the Supreme Court of Florida is therefore
Affirmed.
[For concurring opinion of MR. JUSTICE POWELL,
see
ante, p.
414 U. S.
237.]
[
Footnote 1]
Brief for Petitioner 9.
[
Footnote 2]
Upon placing petitioner under arrest for driving without
possession of an operator's license and after removing the chain
and the cigarette box from petitioner's clothing, Smith told the
assisting officer on the scene to check the other passenger of the
Cadillac to see if he had an operator's permit so that he could
drive the car to the station. Smith then put petitioner in the back
seat of the squad car. Smith then opened the cigarette box and
observed the rolled cigarettes he believed to be marihuana. He then
told the other officer to place the other passenger in the squad
car so that he could also be transported to the station for the
purpose of investigation. The passenger was frisked by the other
officer and placed in the squad car; no charges were placed against
the passenger. In addition to the marihuana conviction which we
here review, petitioner was charged with driving without possession
of an operator's license; that charge was dropped when petitioner
produced a valid operator's license at a later date.
[
Footnote 3]
Smith testified that he wrote about eight to 10 traffic
citations per week, and that about three or four out of every 10
persons he arrested for the offense of driving without a license
were taken into custody to the police station. Smith indicated that
an offender is more likely to be taken into custody if he does not
reside in the city of Eau Gallie. Finally, Smith testified that,
after making a custodial arrest, he always searches the arrestee
before placing him into the patrol car.
[
Footnote 4]
The State of Florida argues in this Court that there was an
evidentiary purpose for the search of petitioner. It is contended
that Smith's observation of the erratic motions of the car that
petitioner was driving created a reasonable suspicion that the
petitioner may have been under the influence of some intoxicant.
Upon confronting petitioner after stopping the car, Smith indicated
that he noticed that the petitioner's eyes were "bleary." The State
argues that the officer had probable cause to arrest the petitioner
for driving while intoxicated, and that Smith thought Gustafson was
intoxicated when he confronted him. Since Smith did not detect an
odor of alcohol during that confrontation, the State argues it was
reasonable for the officer to search the petitioner's person for
drugs that may have been the cause of the suspected intoxication.
Florida makes it a criminal offense to drive while intoxicated not
only by alcohol, but also by unlawful drugs. Fla.Stat.Ann. §
317.201 (1968).
MR. JUSTICE STEWART, concurring.
It seems to me that a persuasive claim might have been made in
this case that the custodial arrest of the petitioner for a minor
traffic offense violated his rights
Page 414 U. S. 267
under the Fourth and Fourteenth Amendments. But no such claim
has been made. Instead, the petitioner has fully conceded the
constitutional validity of his custodial arrest. That being so, it
follows that the incidental search of his person was also
constitutionally valid. To hold otherwise would, as the Court makes
clear in this case and in
United States v. Robinson, ante,
p.
414 U. S. 218,
mark an abrupt departure from settled constitutional precedent.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE BRENNAN join, dissenting.
I respectfully dissent for the reasons stated in my opinion in
United States v. Robinson, ante, p.
414 U. S. 238.
The facts show that, after arresting petitioner Gustafson for
driving without possession of an operator's license, Officer Smith
conducted a search of petitioner's person in which he removed a
Benson and Hedges cigarette box. The officer put petitioner in the
back seat of the squad car and then opened the cigarette box,
disclosing marihuana cigarettes. As my Brother STEWART indicates,
ante at
414 U. S. 266
and this page, no challenge was made either here or below with
respect to the lawfulness of Officer Smith's decision to effect a
full custodial arrest for this minor traffic offense. Whether or
not it was lawful for the officer to have searched petitioner's
person and removed the cigarette package before placing petitioner
in the squad car,
see United States v. Robinson, ante at
414 U. S.
250-255 (MARSHALL, J., dissenting), there was no
justification for his opening the package and looking inside.
There was no reason to believe, and Officer Smith did not, in
fact, believe, that petitioner was a dangerous person or that the
package contained a weapon. The package's weight alone no doubt
would have indicated that it did not contain a gun or knife. In any
event,
Page 414 U. S. 268
even were it possible that the package contained some sort of
weapon -- say, a razor blade -- there was no chance the petitioner
could use it once it was in the officer's hands. The opening of the
package had no connection whatsoever with the protective purpose of
the search.
The State argues, and the Florida Supreme Court found,
see 258 So. 2d 1,
2 (1972), that Officer Smith had a reasonable suspicion petitioner
was intoxicated, justifying searching for intoxicating drugs such
as marihuana. Leaving aside the question whether the officer could
search for intoxicants, absent probable cause that petitioner had
committed an offense involving intoxication, I do not find
sufficient evidence in this record to support the conclusion that
Officer Smith even had a reasonable suspicion petitioner was
intoxicated. To begin with, Officer Smith neither arrested
petitioner for driving while intoxicated nor did he give petitioner
a sobriety test.
See Fla.Stat.Ann. §§ 322.261 and 322.262
(1968). Smith testified that petitioner did not have any trouble
getting out of his car, did not have difficulty standing up, and
did not slur his speech when answering the officer's questions. Nor
did the fact that petitioner's car weaved across a lane justify
such a suspicion. As Officer Smith testified, he did not arrest
petitioner on a "careless driving by weaving" charge because there
was simply not enough evidence. If there was not enough evidence to
justify a charge for the weaving itself, I find it hard to
understand how there could be enough evidence to suspect that
petitioner was intoxicated. Officer Smith testified that
petitioner's eyes looked bleary, but that was hardly surprising,
since the arrest took place at 2 a.m.
The only need for a search in this case was to disarm petitioner
to protect Officer Smith from harm while the two were together in
the patrol car. The search conducted
Page 414 U. S. 269
by Officer Smith went far beyond what was reasonably necessary
to achieve that end. It therefore fell outside the scope of a
properly drawn "search incident to arrest" exception to the Fourth
Amendment's warrant requirement. I would reverse the judgment of
the Florida Supreme Court holding that the fruits of the search
could be admitted at petitioner's trial.