On the strength of a complaint for a search warrant based on an
informant's statements that he had observed tinfoil packets on the
person of a bartender and behind the bar at a certain tavern and
that he had been advised by the bartender that the latter would
have heroin for sale on a certain date, a judge of an Illinois
state court issued a warrant authorizing the search of the tavern
and the person of the bartender for "evidence of the offense of
possession of a controlled substance." Upon entering the tavern to
execute the warrant, police officers announced their purpose and
advised those present that they were going to conduct a "cursory
search for weapons." The officer who searched the customers felt
what he described as "a cigarette pack with objects in it" in his
first pat-down of appellant, one of the customers. The officer did
not then remove this pack from appellant's pocket but, after
patting down other customers, returned to appellant, frisked him
again, retrieved the cigarette pack from his pants pocket, and
found inside it six tinfoil packets containing heroin. After
appellant was indicted for unlawful possession of a controlled
substance, he filed a pretrial motion to suppress the contraband
seized from his person at the tavern. The trial court denied the
motion, finding that the search had been conducted under the
authority of an Illinois statute which empowers law enforcement
officers executing a search warrant to detain and search any person
found on the premises in order to protect themselves from attack or
to prevent the disposal or concealment of anything described in the
warrant. Appellant was convicted, and the Illinois Appellate Court
affirmed, holding that the Illinois statute was not
unconstitutional in its application to the facts of this case.
Held: The searches of appellant and the seizure of what
was in his pocket contravened the Fourth and Fourteenth Amendments.
Pp.
444 U. S.
90-96.
(a) When the search warrant was issued, the authorities had no
probable cause to believe that any person found in the tavern,
aside from the bartender, would be violating the law. The complaint
for the warrant did not allege that the tavern was frequented by
persons illegally purchasing drugs or that the informant had ever
seen a patron of the tavern purchase drugs from the bartender or
any other person.
Page 444 U. S. 86
And probable cause to search appellant was still absent when the
police executed the warrant; upon entering the tavern, the police
did not recognize appellant and had no reason to believe that he
had committed, was committing, or was about to commit any offense.
The police did possess a warrant based on probable cause to search
the tavern where appellant happened to be when the warrant was
executed, but 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.
Sibron v. New York,
392 U. S. 40,
392 U. S. 62-63.
Although the warrant gave the officers authority to search the
premises and the bartender, it gave them no authority to invade the
constitutional protections possessed individually by the tavern's
customers. Pp.
444 U. S.
90-92.
(b) Nor was the action of the police constitutionally
permissible on the theory that the first search of appellant
constituted a reasonable frisk for weapons under the doctrine of
Terry v. Ohio, 392 U. S. 1, and
yielded probable cause to believe that appellant was carrying
narcotics, thus justifying the second search for which no warrant
was required in light of the exigencies of the situation coupled
with the ease with which appellant could have disposed of the
illegal substance. A reasonable belief that a person is armed and
presently dangerous must form the predicate to a pat-down of the
person for weapons. Here, the State is unable to articulate any
specific fact that would have justified a police officer at the
scene in even suspecting that appellant was armed and dangerous.
Pp.
444 U. S.
92-93.
(c) The Fourth and Fourteenth Amendments will not be construed
to permit evidence searches of persons who, at the commencement of
the search, are on "compact" premises subject to a search warrant,
even where the police have a "reasonable belief" that such persons
"are connected with" drug trafficking and "may be concealing or
carrying away the contraband."
Cf. United States v. Di Re,
332 U. S. 581. Pp.
444 U. S.
94-96.
58 Ill.App.3d 57, 373 N.E.2d 1013, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined. BURGER,
C.J., filed a dissenting opinion, in which BLACKMUN and REHNQUIST,
JJ., joined,
post, p.
444 U. S. 96.
REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J.,
and BLACKMUN, J., joined,
post, p.
444 U. S.
98.
Page 444 U. S. 87
MR. JUSTICE STEWART delivered the opinion of the Court.
An Illinois statute authorizes law enforcement officers to
detain and search any person found on premises being searched
pursuant to a search warrant, to protect themselves from attack or
to prevent the disposal or concealment of anything described in the
warrant. [
Footnote 1] The
question before us is whether the application of this statute to
the facts of the present case violated the Fourth and Fourteenth
Amendments.
I
On March 1, 1976, a special agent of the Illinois Bureau of
Investigation presented a "Complaint for Search Warrant" to a judge
of an Illinois Circuit Court. The complaint recited that the agent
had spoken with an informant known to the police to be reliable
and:
"3. The informant related . . . that over the weekend of 28 and
29 February he was in the [Aurora Tap Tavern, located in the city
of Aurora, Ill.] and observed fifteen
Page 444 U. S. 88
to twenty-five tin-foil packets on the person of the bartender
'Greg' and behind the bar. He also has been in the tavern on at
least ten other occasions and has observed tin-foil packets on
'Greg' and in a drawer behind the bar. The informant has used
heroin in the past and knows that tin-foil packets are a common
method of packaging heroin."
"4. The informant advised . . . that over the weekend of 28 and
29 February he had a conversation with 'Greg' and was advised that
'Greg' would have heroin for sale on Monday, March 1, 1976. This
conversation took place in the tavern described."
On the strength of this complaint, the judge issued a warrant
authorizing the search of
"the following person or place: . . . [T]he Aurora Tap Tavern. .
. . Also the person of 'Greg,' the bartender, a male white with
blondish hair appx. 25 years."
The warrant authorized the police to search for "evidence of the
offense of possession of a controlled substance," to-wit,
"[h]eroin, contraband, other controlled substances, money,
instrumentalities and narcotics, paraphernalia used in the
manufacture, processing and distribution of controlled
substances."
In the late afternoon of that day, seven or eight officers
proceeded to the tavern. Upon entering it, the officers announced
their purpose and advised all those present that they were going to
conduct a "cursory search for weapons." One of the officers then
proceeded to pat down each of the to 13 customers present in the
tavern, while the remaining officers engaged in an extensive search
of the premises.
The police officer who frisked the patrons found the appellant,
Ventura Ybarra, in front of the bar standing by a pinball machine.
In his first pat-down of Ybarra, the officer felt what he described
as "a cigarette pack with objects in it." He did not remove this
pack from Ybarra's pocket. Instead, he moved on and proceeded to
pat down other customers.
Page 444 U. S. 89
After completing this process, the officer returned to Ybarra
and frisked him once again. This second search of Ybarra took place
approximately 2 to 10 minutes after the first. The officer
relocated and retrieved the cigarette pack from Ybarra's pants
pocket. Inside the pack, he found six tinfoil packets containing a
brown powdery substance which later turned out to be heroin.
Ybarra was subsequently indicted by an Illinois grand jury for
the unlawful possession of a controlled substance. He filed a
pretrial motion to suppress all the contraband that had been seized
from his person at the Aurora Tap Tavern. At the hearing on this
motion, the State sought to justify the search by reference to the
Illinois statute in question. The trial court denied the motion to
suppress, finding that the search had been conducted under the
authority of subsection (b) of the statute, to "prevent the
disposal or concealment of [the] things particularly described in
the warrant." The case proceeded to trial before the court sitting
without a jury, and Ybarra was found guilty of the possession of
heroin.
On appeal, the Illinois Appellate Court held that the Illinois
statute was not unconstitutional "in its application to the facts"
of this case. 58 Ill.App.3d 57, 64, 373 N.E.2d 1013, 1017. The
court acknowledged that, had the warrant directed that a "large
retail or commercial establishment" be searched, the statute could
not constitutionally have been read to "authorize a
blanket
search' of persons or patrons found" therein. Id. at 62,
373 N.E.2d at 1016. The court interpreted the statute as
authorizing the search of persons found on premises described in a
warrant only if there is
"some showing of a connection with those premises, that the
police officer reasonably suspected an attack, or that the person
searched would destroy or conceal items described in the
warrant."
Id. at 61, 373 N.E.2d at 1016. Accordingly, the State
Appellate Court found that the search of Ybarra had been
constitutional because it had been "conducted in a
Page 444 U. S. 90
one-room bar where it [was] obvious from the complaint . . .
that heroin was being sold or dispensed,"
id. at 62, 373
N.E.2d at 1016, because "the six packets of heroin . . could easily
[have been] concealed by the defendant, and thus thwart the purpose
of the warrant,"
id. at 61, 373 N.E.2d at 1016, and
because Ybarra was not an "innocent strange[r] having no connection
with the premises,"
ibid. The court, therefore, affirmed
Ybarra's conviction, and the Illinois Supreme Court denied his
petition for leave to appeal. There followed an appeal to this
Court, and we noted probable jurisdiction. 440 U.S. 790.
II
There is no reason to suppose that, when the search warrant was
issued on March 1, 1976, the authorities had probable cause to
believe that any person found on the premises of the Aurora Tap
Tavern, aside from "Greg," would be violating the law. [
Footnote 2] The search warrant
complaint did not allege that the bar was frequented by persons
illegally purchasing drugs. It did not state that the informant had
ever seen a patron of the tavern purchase drugs from "Greg" or from
any other person. Nowhere, in fact, did the complaint even mention
the patrons of the Aurora Tap Tavern.
Not only was probable cause to search Ybarra absent at the time
the warrant was issued, it was still absent when the police
executed the warrant. Upon entering the tavern, the
Page 444 U. S. 91
police did not recognize Ybarra, and had no reason to believe
that he had committed, was committing, or was about to commit any
offense under state or federal law. Ybarra made no gestures
indicative of criminal conduct, made no movements that might
suggest an attempt to conceal contraband, and said nothing of a
suspicious nature to the police officers. In short, the agents knew
nothing in particular about Ybarra except that he was present,
along with several other customers, in a public tavern at a time
when the police had reason to believe that the bartender would have
heroin for sale.
It is true that the police possessed a warrant based on probable
cause to search the tavern in which Ybarra happened to be at the
time the warrant was executed. [
Footnote 3] But, 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.
Sibron
v. New York, 392 U. S. 40,
392 U. S. 62-63.
Where the standard is probable cause, a search or seizure of a
person must be supported by probable cause particularized with
respect to that person. This requirement cannot be undercut or
avoided by simply pointing to the fact that coincidentally there
exists probable cause to search or seize another or to search the
premises where the person may happen to be. The Fourth and
Fourteenth Amendments protect the "legitimate expectations of
privacy" of persons, not places.
See Rakas v. Illinois,
439 U. S. 128,
439 U. S.
138-143,
439 U. S.
148-149;
Katz v. United States, 389 U.
S. 347,
389 U. S.
351-352.
Each patron who walked into the Aurora Tap Tavern on March 1,
1976, was clothed with constitutional protection against an
unreasonable search or an unreasonable seizure. That individualized
protection was separate and distinct from
Page 444 U. S. 92
the Fourth and Fourteenth Amendment protection possessed by the
proprietor of the tavern or by "Greg." Although the search warrant,
issued upon probable cause, gave the officers authority to search
the premises and to search "Greg," it gave them no authority
whatever to invade the constitutional protections possessed
individually by the tavern's customers. [
Footnote 4]
Notwithstanding the absence of probable cause to search Ybarra,
the State argues that the action of the police in searching him and
seizing what was found in his pocket was nonetheless
constitutionally permissible. We are asked to find that the first
pat-down search of Ybarra constituted a reasonable frisk for
weapons under the doctrine of
Terry v. Ohio, 392 U. S.
1. If this finding is made, it is then possible to
conclude, the State argues, that the second search of Ybarra was
constitutionally justified. The argument is that the pat-down
yielded probable cause to believe that Ybarra was carrying
narcotics, and that this probable cause constitutionally supported
the second search, no warrant being required in light of the
exigencies of the situation coupled with the ease with which Ybarra
could have disposed of the illegal substance.
We are unable to take even the first step required by this
argument. The initial frisk of Ybarra was simply not supported by a
reasonable belief that he was armed and presently
Page 444 U. S. 93
dangerous, a belief which this Court has invariably held must
form the predicate to a pat-down of a person for weapons. [
Footnote 5]
Adams v. Williams,
407 U. S. 143,
407 U. S. 146;
Terry v. Ohio, supra at
392 U. S. 21-24,
392 U. S. 27.
When the police entered the Aurora Tap Tavern on March 1, 1976, the
lighting was sufficient for them to observe the customers. Upon
seeing Ybarra, they neither recognized him as a person with a
criminal history nor had any particular reason to believe that he
might be inclined to assault them. Moreover, as Police Agent
Johnson later testified, Ybarra, whose hands were empty, gave no
indication of possessing a weapon, made no gestures or other
actions indicative of an intent to commit an assault, and acted
generally in a manner that was not threatening. At the suppression
hearing, the most Agent Johnson could point to was that Ybarra was
wearing a 3/4-length lumber jacket, clothing which the State admits
could be expected on almost any tavern patron in Illinois in early
March. In short, the State is unable to articulate any specific
fact that would have justified a police officer at the scene in
even suspecting that Ybarra was armed and dangerous.
The
Terry case created an exception to the requirement
of probable cause, an exception whose "narrow scope" this Court
"has been careful to maintain." [
Footnote 6] Under that doctrine, a law enforcement
officer, for his own protection and safety, may conduct a pat-down
to find weapons that he reasonably believes or suspects are then in
the possession of the person he has accosted.
See, e.g., Adams
v. Williams, supra, (at night, in high-crime district, lone
police officer approached person believed by officer to possess gun
and narcotics). Nothing in
Terry can be understood to
allow a generalized
Page 444 U. S. 94
"cursory search for weapons" or, indeed, any search whatever for
anything but weapons. The "narrow scope" of the
Terry
exception does not permit a frisk for weapons on less than
reasonable belief or suspicion directed at the person to be
frisked, even though that person happens to be on premises where an
authorized narcotics search is taking place.
What has been said largely disposes of the State's second and
alternative argument in this case. Emphasizing the important
governmental interest "in effectively controlling traffic in
dangerous, hard drugs" and the ease with which the evidence of
narcotics possession may be concealed or moved around from person
to person, the State contends that the
Terry "reasonable
belief or suspicion" standard should be made applicable to aid the
evidence-gathering function of the search warrant. More precisely,
we are asked to construe the Fourth and Fourteenth Amendments to
permit evidence searches of persons who, at the commencement of the
search, are on "compact" premises subject to a search warrant, at
least where the police have a "reasonable belief" that such persons
"are connected with" drug trafficking and "may be concealing or
carrying away the contraband."
Over 30 years ago, the Court rejected a similar argument in
United States v. Di Re, 332 U. S. 581,
332 U. S.
583-587. In that case, a federal investigator had been
told by an informant that a transaction in counterfeit gasoline
ration coupons was going to occur at a particular place. The
investigator went to that location at the appointed time and saw
the car of one of the suspected parties to the illegal transaction.
The investigator went over to the car and observed a man in the
driver's seat, another man (Di Re) in the passenger's seat, and the
informant in the back. The informant told the investigator that the
person in the driver's seat had given him counterfeit coupons.
Thereupon, all three men were arrested and searched. Among the
arguments unsuccessfully advanced by the Government to support the
constitutionality of the search of Di Re was the contention that
the investigator could
Page 444 U. S. 95
lawfully have searched the car, since he had reasonable cause to
believe that it contained contraband, and correspondingly could
have searched any occupant of the car because the contraband sought
was of the sort "which could easily be concealed on the person."
[
Footnote 7] Not deciding
whether or not, under the Fourth Amendment, the car could have been
searched, the Court held that it was "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." [
Footnote 8]
The
Di Re case does not, of course, completely control
the case at hand. There the Government investigator was proceeding
without a search warrant, and here the police possessed a warrant
authorizing the search of the Aurora Tap Tavern. Moreover, in
Di Re, the Government conceded that its officers could not
search all the persons in a house being searched pursuant to a
search warrant. [
Footnote 9]
The State makes no such concession in this case. Yet the governing
principle in both cases is basically the same, and we follow that
principle today. The "long-prevailing" constitutional standard of
probable cause embodies
"'the best compromise that has been found for accommodating
[the] often opposing interests' in 'safeguard[ing] citizens from
rash and unreasonable interferences
Page 444 U. S. 96
with privacy' and in 'seek[ing] to give fair leeway for
enforcing he law in the community's protection.' [
Footnote 10]"
For these reasons, we conclude that the searches of Ybarra and
the seizure of what was in his pocket contravened the Fourth and
Fourteenth Amendments. [
Footnote
11] Accordingly, the judgment is reversed, and the case is
remanded to the Appellate Court of Illinois, Second District, for
further proceedings not inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
The statute in question is Ill.Rev.Stat., ch. 38, § 108-9
(1975), which provides in full:
"In the execution of the warrant the person executing the same
may reasonably detain to search any person in the place at the
time:"
"(a) To protect himself from attack, or"
"(b) To prevent the disposal or concealment of any instruments,
articles or things particularly described in the warrant."
[
Footnote 2]
The warrant issued on March 1, 1976, did not itself authorize
the search of Ybarra or of any other patron found on the premises
of the Aurora Tap Tavern. It directed the police to search "the
following person or place : . . . the Aurora Tap Tavern. . . . Also
the person of
Greg'. . . ." Had the issuing judge intended that
the warrant would or could authorize a search of every person found
within the tavern, he would hardly have specifically authorized the
search of "Greg" alone. "Greg" was an employee of the tavern, and
the complaint upon which the search warrant was issued gave every
indication that he would be present at the tavern on March
1.
[
Footnote 3]
Ybarra concedes that the warrant issued on March 1, 1976, was
supported by probable cause insofar as it purported to authorize a
search of the premises of the Aurora Tap Tavern and a search of the
person of "Greg," the bartender.
[
Footnote 4]
The Fourth Amendment directs that
"no Warrants shall issue, but upon probable cause . . . and
particularly describing the place to be searched, and the persons
or things to be seized."
Thus, "open-ended" or "general" warrants are constitutionally
prohibited.
See Lo-Ji Sales, Inc. v. New York,
442 U. S. 319;
Marshall v. Barlow's, Inc., 436 U.
S. 307,
436 U. S. 311;
United States v. Chadwick, 433 U. S.
1,
433 U. S. 7-8;
Stanford v. Texas,
379 U. S. 476,
379 U. S.
480-482. It follows that a warrant to search a place
cannot normally be construed to authorize a search of each
individual in that place. The warrant for the Aurora Tap Tavern
provided no basis for departing from this general rule.
Consequently, we need not consider situations where the warrant
itself authorizes the search of unnamed persons in a place and is
supported by probable cause to believe that persons who will be in
the place at the time of the search will be in possession of
illegal drugs.
[
Footnote 5]
Since we conclude that the initial pat-down of Ybarra was not
justified under the Fourth and Fourteenth Amendments, we need not
decide whether or not the presence on Ybarra's person of "a
cigarette pack with objects in it" yielded probable cause to
believe that Ybarra was carrying any illegal substance.
[
Footnote 6]
Dunaway v. New York, 442 U. S. 200,
442 U. S.
210.
[
Footnote 7]
332 U.S. at
332 U. S.
586.
[
Footnote 8]
Id. at
332 U. S.
587.
[
Footnote 9]
"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?"
Ibid.
[
Footnote 10]
Dunaway v. New York, 442 U.S. at
442 U. S. 208,
quoting
Brinegar v. United States, 338 U.
S. 160,
338 U. S.
176.
The circumstances of this case do not remotely approach those in
which the Court has said that a search may be made on less than
probable cause. In addition to
Terry v. Ohio, 392 U. S.
1,
see, e.g., Delaware v. Prouse, 440 U.
S. 648;
Marshall v. Barlow's, Inc.,
436 U. S. 307;
United States v. Martinez-Fuerte, 428 U.
S. 543;
South Dakota v. Opperman, 428 U.
S. 364;
United States v. Brignoni-Ponce,
422 U. S. 873;
United States v. Biswell, 406 U.
S. 311;
Camara v. Municipal Court, 387 U.
S. 523.
[
Footnote 11]
Our decision last Term in
Michigan v. DeFillippo,
443 U. S. 31, does
not point in a different direction. There we held that the Fourth
and Fourteenth Amendments had not been violated by an arrest based
on a police officer's probable cause to believe that the suspect
had committed or was committing a substantive criminal offense,
even though the statute creating the offense was subsequently
declared unconstitutional. Here, the police officers acted on the
strength of Ill.Rev.Stat., ch. 38, § 108-9 (1975), but that statute
does not define the elements of a substantive criminal offense
under state law. The statute purports instead to authorize the
police in some circumstances to make searches and seizures without
probable cause and without search warrants. This state law,
therefore, falls within the category of statutes purporting to
authorize searches without probable cause, which the Court has not
hesitated to hold invalid as authority for unconstitutional
searches.
See, e.g., Torres v. Puerto Rico, 442 U.
S. 465;
Almeida-Sanchez v. United States,
413 U. S. 266;
Sibron v. New York, 392 U. S. 40;
Berger v. New York, 388 U. S. 41.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN and MR.
JUSTICE REHNQUIST join, dissenting.
I join MR. JUSTICE REHNQUIST's dissent, since I cannot subscribe
to the Court's unjustifiable narrowing of the rule of
Page 444 U. S. 97
Terry v. Ohio, 392 U. S. 1 (1968).
The Court would require a particularized and individualized
suspicion that a person is armed and dangerous as a condition to a
Terry search. This goes beyond the rationale of
Terry, and overlooks the practicalities of a situation
which no doubt often confronts officers executing a valid search
warrant. The Court's holding is but another manifestation of the
practical poverty of the judge-made exclusionary rule.
"The suppression of truth is a grievous necessity, at best, more
especially when, as here, the inquiry concerns the public interest;
it can be justified at all only when the opposed private interest
is supreme."
McMann v. SEC, 87 F.2d 377, 378 (CA2 1937) (L. Hand,
J.). Here, the Court's holding operates as but a further hindrance
on the already difficult effort to police the narcotics traffic
which takes such a terrible toll on human beings.
These officers had validly obtained a warrant to search a named
person and a rather small, one-room tavern for narcotics. Upon
arrival, they found the room occupied by 12 persons. Were they to
ignore these individuals and assume that all were unarmed and
uninvolved? Given the setting and the reputation of those who trade
in narcotics, it does not go too far to suggest that they might pay
for such an easy assumption with their lives. The law does not
require that those executing a search warrant must be so foolhardy.
That is precisely what Mr. Chief Justice Warren's opinion in
Terry stands for. Indeed, the
Terry Court
recognized that a balance must be struck between the privacy
interest of individuals and the safety of police officers in
performing their duty. I would hold that, when police execute a
search warrant for narcotics in a place of known narcotics
activity, they may protect themselves by conducting a
Terry search. They are not required to assume that they
will not be harmed by patrons of the kind of establishment shown
here, something quite different from a ballroom at the Waldorf.
"The officer need not be absolutely certain that the individual
is armed; the issue is
Page 444 U. S. 98
whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in
danger."
Terry v. Ohio, supra at
392 U. S. 27.
I do not find it controlling that the heroin was not actually
retrieved from appellant until the officer returned after
completing the first search. The "cigarette pack with objects in
it" was noticed in the first search. In the "second search," the
officer did no more than return to the appellant and retrieve the
pack he had already discovered. That there was a delay of minutes
between the search and the seizure is not dispositive in this
context, where the searching officer made the on-the-spot judgment
that he need not seize the suspicious package immediately. He could
first reasonably make sure that none of the patrons was armed
before returning to appellant. Thus, I would treat the second
search and its fruits just as I would had the officer taken the
pack immediately upon noticing it, which plainly would have been
permissible.
Under this analysis, I need not reach the validity of the
Illinois statute under which the Illinois court sustained the
search. Parenthetically, I find the Court's failure to pass on the
Illinois statute puzzling in light of the Court's holding that the
searches were not authorized by
Terry.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR.
JUSTICE BLACKMUN join, dissenting.
On March 1, 1976, agents of the Illinois Bureau of Investigation
executed a search warrant in the Aurora Tap Tavern in Aurora, Ill.
The warrant was based on information given by a confidential
informant who said that he had seen heroin on the person of the
bartender and in a drawer behind the bar on at least 10 occasions.
Moreover, the informant advised the affiant that the bartender
would have heroin for sale on March 1. The warrant empowered the
police to search the Aurora Tap and the person of "Greg," the
bartender.
When police arrived at the Aurora Tap, a drab, dimly lit tavern,
they found about a dozen or so persons standing or
Page 444 U. S. 99
sitting at the bar. The police announced their purpose and told
everyone at the bar to stand for a pat-down search. Agent Jerome
Johnson, the only officer to testify in the proceedings below,
explained that the initial search was a frisk for weapons to
protect the officers executing the warrant. Johnson frisked several
patrons, including appellant Ybarra. During this pat-down, Johnson
felt "a cigarette pack with objects in it" in Ybarra's front pants
pocket. He finished frisking the other patrons and then returned to
Ybarra. At that time, he frisked Ybarra once again, reached into
Ybarra's pocket, and removed the cigarette package that he had felt
previously. The package, upon inspection, confirmed the officer's
previously aroused suspicion that it contained not cigarettes but
packets of heroin.
Confronted with these facts, the Court concludes that the police
were without authority under the warrant to search any of the
patrons in the tavern and that, absent probable cause to believe
that Ybarra possessed contraband, the search of his person violated
the Fourth and Fourteenth Amendments. Because I believe that this
analysis is faulty, I dissent.
The first question posed by this case is the proper scope of a
policeman's power to search pursuant to a valid warrant. This Court
has had very few opportunities to consider the scope of such
searches. An early case,
Marron v. United States,
275 U. S. 192
(1927), held that police could not seize one thing under a search
warrant describing another thing.
See also Steele v. United
States, 267 U. S. 498
(1925) (warrant authorizing search of building used as a garage
empowers police to search connecting rooms). Three other cases,
Berger v. New York, 388 U. S. 41
(1967);
United States v. Kahn, 415 U.
S. 143 (1974); and
United States v. Donovan,
429 U. S. 413
(1977), examined the scope of a warrant in the context of
electronic surveillance. A number of cases involving warrantless
searches have offered dicta on the subject of searches pursuant to
a warrant.
See, e.g., Bivens v.
Six
Page 444 U. S. 100
Unknown Fed. Narcotics Agents, 403 U.
S. 388,
403 U. S. 394,
n. 7 (1971) (Fourth Amendment confines officer executing a warrant
"strictly within the bounds set by the warrant"). Closest for our
purposes, though concededly not dispositive, is
United States
v. Di Re, 332 U. S. 581,
332 U. S. 587
(1948), a case involving the warrantless search of an occupant of
an automobile. In that case, the Court suggested that police,
"armed with a search warrant for a residence only," could not
search "all persons found" in the residence.
Faced with such a dearth of authority, it makes more sense than
ever to begin with the language of the Fourth Amendment itself:
"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."
As often noted, the Amendment consists of two independent
clauses joined by the conjunction "and."
See, e.g., Go-Bart Co.
v. United States, 282 U. S. 344,
282 U. S.
356-357 (1931). The first clause forbids "unreasonable
searches and seizures" of "persons, houses, papers, and effects. .
. ." The second clause describes the circumstances under which a
search warrant or arrest warrant may issue, requiring specification
of the place to be searched as well as the persons or things to be
seized.
Much of the modern debate over the meaning of the Fourth
Amendment has focused on the relationship between the
reasonableness requirement and the warrant requirement. In
particular, the central question has been whether and under what
circumstances the police are entitled to conduct "reasonable"
searches without first securing a warrant. As this Court has
summarized:
"Some have argued that a determination by a magistrate of
probable cause as a precondition of any search or
Page 444 U. S. 101
seizure is so essential that the Fourth Amendment is violated
whenever the police might reasonably have obtained a warrant but
failed to do so. Others have argued with equal force that a test of
reasonableness, applied after the fact of search or seizure when
the police attempt to introduce the fruits in evidence, affords
ample safeguard for the rights in question, so that '[t]he relevant
test is not whether it is reasonable to procure a search warrant,
but whether the search was reasonable.'"
Coolidge v. New Hampshire, 403 U.
S. 443,
403 U. S. 474
(1971), quoting
United States v. Rabinowitz, 339 U. S.
56,
339 U. S. 66
(1950).
MR. JUSTICE STEWART explained the current accommodation of the
two clauses in
Katz v. United States, 389 U.
S. 347,
389 U. S. 357
(1967):
"[S]earches 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."
See also Schneckloth v. Bustamonte, 412 U.
S. 218,
412 U. S. 219
(1973). Here, however, we must look to the language of the Fourth
Amendment to answer a wholly different question: whether and under
what circumstances the police may search a person present at the
place named in a warrant. In this regard, the second clause of the
Amendment, by itself, offers no guidance. It is merely a set of
standards that must be met before a search warrant or arrest
warrant may "issue." The restrictions on a policeman's authority to
search pursuant to a warrant derive, of course, from the first
clause of the Amendment, which prohibits all "unreasonable"
searches, whether those searches are pursuant to a warrant or not.
See Go-Bart Co. v. United States, supra at
282 U. S. 357.
Reading the two clauses together, we can infer that some searches
or seizures are
per se unreasonable: searches extending
beyond the place specified,
cf. Steele v. United States,
supra, or seizures of
Page 444 U. S. 102
persons or things other than those specified.
Cf. Marron v.
United States, 275 U. S. 192
(1927). No such presumption is available to Ybarra here, however,
because the second clause of the Amendment does not require the
warrant to specify the "persons" to be searched. [
Footnote 2/1] As this Court has noted in the
context of electronic surveillance,
""[t]he Fourth Amendment requires a warrant to describe only
the place to be searched, and the persons or things to be
seized," not the persons from whom things will be
seized.'"
United States v. Kahn, 415 U.S. at
415 U. S. 155,
n. 15, quoting
United States v. Fiorella, 468 F.2d 688,
691 (CA2 1972). [
Footnote 2/2]
Nor, as a practical matter, could we require the police to
specify in advance all persons that they were going to search at
the time they execute the warrant. A search warrant is, by
definition, an anticipatory authorization. The police must offer
the magistrate sufficient information to confine the search, but
must leave themselves enough flexibility to react reasonably to
whatever situation confronts them when they enter the premises. An
absolute bar to searching persons not named in the warrant would
often allow a person to frustrate the search simply by placing the
contraband in his pocket. I cannot subscribe to any interpretation
of the Fourth Amendment that would support such a result, and I
doubt that this Court would sanction it if that precise fact
situation were before it.
Recognizing that the authority to search premises must, under
some circumstances, include the authority to search
Page 444 U. S. 103
persons present on those premises, [
Footnote 2/3] courts and legislatures have struggled to
define the precise contours of that power. Some courts, for
example, have required an indication that the person searched had a
"connection" with the premises.
See, e.g., Purkey v. Maby,
33 Idaho 281, 193 P. 79 (1920);
State v. Massie, 95 W.Va.
233, 120 S.E. 514 (1923). These courts do not explain, however,
what form that connection must take or how it might manifest itself
to the police. Some States have relied on the Uniform Arrest Act,
which allows police executing a warrant to detain and question a
suspicious person for up to two hours.
See, e.g., State v.
Wise, 24 A.2d 292 (Del. Super.1971). Proponents of this
approach fail to explain, however, how detention for questioning
will produce any hidden contraband. Moreover, in light of the
Fourth Amendment's requirement that the warrant specify the person
to be "seized," it is at least arguable that this approach
substitutes a greater constitutional intrusion for a lesser.
Several other States, Illinois included, have simply passed over
the constitutional question by identifying the permissible purposes
for a search without specifying the circumstances under which that
search can be conducted. Illinois' provision, for example, permits
an officer to search persons present on the named premises
"(a) To protect himself from attack, or"
"(b) To prevent the disposal or concealment of any instruments,
articles or things particularly described in the warrant."
Ill.Rev.Stat., ch. 38, § 109 (197).
The generality of these attempts to define the proper limits of
such searches does not mean, of course, that no limits exist.
Page 444 U. S. 104
A person does not forfeit the protection of the Fourth Amendment
merely because he happens to be present during the execution of a
search warrant. To define those limits, however, this Court need
look no further than the first clause of that Amendment, and need
ask no question other than whether, under all the circumstances,
the actions of the police in executing the warrant were reasonable.
Significantly, the concept of reasonableness in this context is
different from the prevailing concept of reasonableness in the
context of warrantless searches. In that latter context, as noted
earlier, there is a tension between giving full scope to the
authority of police to make reasonable searches and the inferred
requirement that the police secure a judicial approval in advance
of a search. In the past, we have resolved that tension by allowing
"jealously and carefully drawn" exceptions to the warrant
requirement.
See Jones v. United States, 357 U.
S. 493,
357 U. S. 499
(1958);
Katz v. United States, 389 U.S. at
389 U. S. 357.
The rationale for drawing these exceptions closely is obvious.
Loosely drawn, they could swallow the warrant requirement
itself.
In this case, however, the warrant requirement has been fully
satisfied. As a result, in judging the reasonableness of the search
pursuant to the warrant, we need not measure it against jealously
drawn exceptions to that requirement. Only once before, to my
knowledge, has this Court been relieved of concern for the warrant
requirement to the extent that we could give full scope to the
notion of reasonableness. In
Terry v. Ohio, 392 U. S.
1 (1968), this Court considered the applicability of the
Fourth Amendment to an on-the-street encounter between a policeman
and three men who had aroused his suspicions. In upholding the
ensuing "stop and frisk," this Court found the warrant requirement
completely inapposite because "on-the-spot" interactions between
police and citizens "historically [have] not been, and as a
practical matter could not be, subjected to the warrant procedure."
Id. at
392 U. S. 20. The
conduct in question had to be judged solely
Page 444 U. S. 105
under "the Fourth Amendment's general proscription against
unreasonable searches and seizures."
Ibid.
The petitioner in
Terry had sought a "rigid
all-or-nothing model of justification and regulation under the
[Fourth] Amendment," a model allowing the police to search some
individuals completely and other individuals not at all. Such a
model, however, would have overlooked "the utility of limitations
upon the scope, as well as the initiation, of police actions as a
means of constitutional regulation."
Id. at
392 U. S. 17.
This Court, therefore, opted for a flexible model balancing the
scope of the intrusion against its justification:
"In order to assess the reasonableness of [the challenged
search] as a general proposition, it is necessary 'first to focus
upon the governmental interest which allegedly justifies official
intrusion upon the constitutionally protected interests of the
private citizen,' for there is 'no ready test for determining
reasonableness other than by balancing the need to search [or
seize] against the invasion which the search [or seizure]
entails.'"
Id. at
392 U. S.
20-21, quoting
Camara v. Municipal Court,
387 U. S. 523,
387 U. S.
534-535,
387 U. S.
536-537 (1967).
In the present case, Ybarra would have us eschew such
flexibility in favor of a rule allowing the police to search only
those persons on the premises for whom the police have probable
cause to believe that they possess contraband. Presumably, such a
belief would entitle the police to search those persons completely.
But such a rule not only reintroduces the rigidity condemned in
Terry, it also renders the existence of the search warrant
irrelevant. Given probable cause to believe that a person possesses
illegal drugs, the police need no warrant to conduct a full body
search. They need only arrest that person and conduct the search
incident to that arrest.
See Chimel v. California,
395 U. S. 752,
395 U. S. 763
(1969). It should not matter, of course, whether the arrest
precedes the search or vice versa.
See, e.g., United States v.
Gorman, 355
Page 444 U. S. 106
F.2d 151, 159 (CA2 1965),
cert. denied, 384 U.S. 1024
(1966);
Holt v. Simpson, 340 F.2d 853, 856 (CA7 1965).
As already noted, I believe it error to analyze this case as if
the police were under an obligation to act within one of the narrow
exceptions to the warrant requirement, yet this is precisely what
Ybarra would have us do. Whereas, in
Terry, the warrant
requirement was inapposite, here the warrant requirement has been
fully satisfied. In either case, we should give full scope to the
reasonableness requirement of the first clause of the Fourth
Amendment. Thus, in judging the reasonableness of a search pursuant
to a warrant, which search extends to persons present on the named
premises, this Court should consider the scope of the intrusion as
well as its justification.
Viewed sequentially, the actions of the police in this case
satisfy the scope/justification test of reasonableness established
by the first clause of the Fourth Amendment as interpreted in
Terry. The police entered the Aurora Tap pursuant to the
warrant and found themselves confronting a dozen people, all
standing or sitting at the bar, the suspected location of the
contraband. Because the police were aware that heroin was being
offered for sale in the tavern, it was quite reasonable to assume
that any one or more of the persons at the bar could have been
involved in drug trafficking. This assumption, by itself, might not
have justified a full-scale search of all the individuals in the
tavern . Nevertheless, the police also were quite conscious of the
possibility that one or more of the patrons could be armed in
preparation for just such an intrusion. In the narcotics business,
"firearms are as much
tools of the trade' as are most commonly
recognized articles of narcotics paraphernalia." United States
v. Oates, 560 F.2d 45, 62 (CA2 1977). The potential danger to
the police executing the warrant and to innocent individuals in
this dimly lit tavern cannot be minimized. By conducting an
immediate frisk of those persons at the bar, the police
eliminated
Page 444 U. S. 107
this danger and "froze" the area in preparation for the search
of the premises.
Ybarra contends that
Terry requires an "individualized"
suspicion that a particular person is armed and dangerous. While
this factor may be important in the case of an on-the-street stop,
where the officer must articulate some reason for singling the
person out of the general population, there are at least two
reasons why it has less significance in the present situation,
where execution of a valid warrant had thrust the police into a
confrontation with a small, but potentially dangerous, group of
people. First, in place of the requirement of "individualized
suspicion" as a guard against arbitrary exercise of authority, we
have here the determination of a neutral and detached magistrate
that a search was necessary. As this Court noted in
Fisher v.
United States, 425 U. S. 391,
425 U. S. 400
(1976), the Framers of the Fourth Amendment
"struck a balance so that, when the State's reason to believe
incriminating evidence will be found becomes sufficiently great,
the invasion of privacy becomes justified and a warrant to search
and seize will issue."
The question then becomes whether, given the initial decision to
intrude, the scope of the intrusion is reasonable.
In addition, the task performed by the officers executing a
search warrant is inherently more perilous than is a momentary
encounter on the street. The danger is greater
"not only because the suspect and officer will be in close
proximity for a longer period of time, but also . . . because the
officer's investigative responsibilities under the warrant require
him to direct his attention to the premises, rather than the
person."
W. LaFave, Search and Seizure § 4.9, pp. 150-151 (1978). To hold
a police officer in such a situation to the same standard of
"individualized suspicion" as might be required in the case of an
on-the-street stop would defeat the purpose of gauging
reasonableness in terms of all the circumstances surrounding an
encounter.
Page 444 U. S. 108
Terry suggests an additional factor that courts must
consider when confronting an allegedly illegal frisk for weapons.
As this Court admitted in that case, "[t]he exclusionary rule has
its limitations . . . as a tool of judicial control." 392 U.S. at
392 U. S. 13.
Premised as that rule is on the hypothesis that police will avoid
illegal searches if threatened with exclusion of the fruits of such
searches,
"it is powerless to deter invasions of constitutionally
guaranteed rights where the police either have no interest in
prosecuting or are willing to forgo successful prosecution in the
interest of serving some other goal."
Id. at
392 U. S. 14.
Where, as here, a preliminary frisk is based on an officer's well
honed sense of self-preservation, I have little doubt that "the
[exclusionary] rule is ineffective as a deterrent."
Id. at
392 U. S. 13.
Measured against the purpose for the initial search is the scope
of that search, I do not doubt that a pat-down for weapons is a
substantial intrusion into one's privacy.
See Terry v.
Ohio, 392 U.S. at
392 U. S. 17, n.
13. Nevertheless, such an intrusion was more than justified, under
the circumstances here, by the potential threat to the lives of the
searching officers and innocent bystanders. In the rubric of
Terry itself, a "man of reasonable caution" would have
been warranted in the belief that it was appropriate to frisk the
12 or so persons in the vicinity of the bar for weapons.
See
id. at
392 U. S. 21-22.
Thus, the initial frisk of Ybarra was legitimate.
During this initial pat-down, Officer Johnson felt something
suspicious: a cigarette package with objects in it. The record
below is not entirely clear as to the shape or texture of the
objects, but it is clear that Officer Johnson had at least a
subjective suspicion that the objects were packets of heroin like
those described in the warrant. He testified, for example, that
after patting down the other persons at the bar, he returned
directly to Ybarra to search him "for controlled substances." App.
49. At this point, he reached into Ybarra's pants pocket, removed
the cigarette package, and confirmed his suspicion.
Page 444 U. S. 109
While the test of reasonableness under the Fourth Amendment is
necessarily objective, as opposed to subjective,
see Terry v.
Ohio, supra at
392 U. S. 21-22,
Officer Johnson's subjective suspicions help fill out his cryptic
description of the "objects" that he felt in Ybarra's pocket. The
objects clearly did not feel like cigarettes. [
Footnote 2/4] In this case, we need not decide
whether, as a general rule, an officer conducting an on-the-street
frisk under
Terry can carry his search into the pockets of
a suspect to examine material that he suspects to be contraband. We
are dealing here with a case where the police had obtained a
warrant to search for precisely the item that Officer Johnson
suspected was present in Ybarra's pocket. Whether Officer Johnson's
level of certainty could be labeled "probable cause," "reasonable
suspicion," or some indeterminate, intermediate level of cognition,
the limited pursuit of his suspicions by extracting the item from
Ybarra's pocket was reasonable. The justification for the intrusion
was linked closely to the terms of the search warrant; the
intrusion itself was carefully tailored to conform to its
justification.
The courts below reached a similar conclusion. The trial court
noted correctly that
"[i]t might well not be reasonable to search 350 people on the
first floor of Marshall Field, but we're talking about, by
description, a rather small tavern."
See App. 43. The question, as understood by the trial
court, was the "reasonableness" of the intrusion under all the
surrounding circumstances.
Ibid. The Illinois Appellate
Court agreed. In an earlier case,
People v. Pugh, 69
Ill.App.2d 312, 217 N.E.2d 557 (1966), the Appellate Court had
concluded that the police acted reasonably in searching the brother
of the owner of the named premises during the execution
Page 444 U. S. 110
of a search warrant for narcotics. According to the Appellate
Court in that case,
"[t]he United States Constitution prohibits unreasonable
searches . . . ; the search of Raymond Pugh under the circumstances
of this case cannot be so classified."
Id. at 316, 217 N.E.2d at 559. In this case, the
Appellate Court relied expressly on the holding and reasoning in
Pugh, and found no constitutional violation in the
searches of Ybarra. These findings should not be overturned
lightly.
I would conclude that Officer Johnson, acting under the
authority of a valid search warrant, did not exceed the reasonable
scope of that warrant in locating and retrieving the heroin
secreted in Ybarra's pocket. This is not a case where Ybarra's
Fourth Amendment rights were at the mercy of overly zealous
officers "engaged in the often competitive enterprise of ferreting
out crime."
Johnson v. United States, 333 U. S.
10,
333 U. S. 13-14
(1948). On the contrary, the need for a search was determined, as
contemplated by the second clause of the Fourth Amendment, by a
neutral and detached magistrate, and the officers performed their
duties pursuant to their warrant in an appropriate fashion. The
Fourth Amendment requires nothing more
[
Footnote 2/1]
Technically, the police must temporarily "seize" a person before
they can search him. Such incidental seizures, however, never have
been nor could be subjected to the warrant requirement.
See
Terry v. Ohio, 392 U. S. 1,
392 U. S. 20
(1968).
See also infra at
444 U. S.
104-105.
[
Footnote 2/2]
The failure of the Fourth Amendment to require specification of
the persons to be searched does not, of course, prohibit such
specification. Thus, in the present case, the warrant specifically
authorized the police to search Greg, the bartender.
[
Footnote 2/3]
As even a critic of the approach employed by the court below
admitted,
"a realistic appraisal of the situation facing the officer
executing a search warrant compels the conclusion that, under some
circumstances, a right to search occupants of the place named in
the warrant is essential."
LaFave, Search and Seizure: "The Course of True Law . . . Has
Not . . . Run Smooth," 1966 Law Forum 255, 272.
[
Footnote 2/4]
In fact, Officer Johnson did testify that the objects felt
exactly like what they were: heroin.
See App. 9 ("I felt
some objects that I felt to be heroin").
See also id. at
50 ("I felt objects in his pocket which I believed -- "). In both
cases defense counsel interposed objections to Officer Johnson's
characterization of the objects, which objections the trial court
sustained.