When police officers executing a warrant to search a house for
narcotics encountered respondent descending the front steps, they
requested his assistance in gaining entry and detained him while
they searched the premises. After finding narcotics and
ascertaining that respondent owned the house, the police arrested
him, searched his person, and found heroin in his coat pocket.
Respondent, who was charged with possession of the heroin found on
his person, moved to suppress the heroin as the product of an
illegal search in violation of the Fourth Amendment. The trial
judge granted the motion and quashed the information, and both the
Michigan Court of Appeals and the Michigan Supreme Court
affirmed.
Held: The initial detention of respondent, which
constituted a "seizure" and was assumed to be unsupported by
probable cause, did not violate his constitutional right to be
secure against an unreasonable seizure of his person. For Fourth
Amendment purposes, a warrant to search for contraband founded on
probable cause implicitly carries with it the limited authority to
detain the occupants of the premises while a proper search is
conducted. Because it was lawful to require respondent to reenter
and to remain in the house until evidence establishing probable
cause to arrest him was found, his arrest and the search incident
thereto were constitutionally permissible. Pp.
452 U. S.
694-705.
407 Mich. 432,
286 N.W.2d
226, reversed.
STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ.,
joined. STEWART, J., filed a dissenting opinion, in which BRENNAN
and MARSHALL, JJ., joined,
post, p.
452 U. S.
706.
Page 452 U. S. 693
JUSTICE STEVENS delivered the opinion of the Court.
As Detroit police officers were about to execute a warrant to
search a house for narcotics, they encountered respondent
descending the front steps. They requested his assistance in
gaining entry, and detained him while they searched the premises.
After finding narcotics in the basement and ascertaining that
respondent owned the house, the police arrested him, searched his
person, and found in his coat pocket an envelope containing 8.5
grams of heroin. [
Footnote
1]
Page 452 U. S. 694
Respondent was charged with possession of the heroin found on
his person. He moved to suppress the heroin as the product of an
illegal search in violation of the Fourth Amendment, [
Footnote 2] and the trial judge granted the
motion and quashed the information. That order was affirmed by a
divided panel of the Michigan Court of Appeals, 68 Mich.App. 571,
243 N.W.2d 689, and by the Michigan Supreme Court over the dissent
of three of its justices. 407 Mich. 432,
286 N.W.2d
226. We granted the State's petition for certiorari, 449 U.S.
898, and now reverse.
I
The dispositive question in this case is whether the initial
detention of respondent violated his constitutional right to be
secure against an unreasonable seizure of his person. The State
attempts to justify the eventual search of respondent's person by
arguing that the authority to search premises granted by the
warrant implicitly included the authority to search persons on
those premises, just as that authority included an authorization to
search furniture and containers in which the particular things
described might be concealed. But as the Michigan Court of Appeals
correctly noted, even if otherwise acceptable, this argument could
not justify the initial detention of respondent outside the
premises described in the warrant.
See 68 Mich.App. at
578-580, 243 N.W.
Page 452 U. S. 695
2d at 62-693. If that detention was permissible, there is no
need to reach the question whether a search warrant for premises
includes the right to search persons found there, because when the
police searched respondent, they had probable cause to arrest him
and had done so. [
Footnote 3]
Our appraisal of the validity of the search of respondent's person
therefore depends upon a determination whether the officers had the
authority to require him to reenter the house and to remain there
while they conducted their search. [
Footnote 4]
Page 452 U. S. 696
II
In assessing the validity of respondent's initial detention, we
note first that it constituted a "seizure" within the meaning of
the Fourth Amendment. [
Footnote
5] The State does not contend otherwise, and the record
demonstrates that respondent was not free to leave the premises
while the officers were searching his home. It is also clear that
respondent was not formally arrested until after the search was
completed. The dispute therefore involves only the
constitutionality of a pre-arrest "seizure," which we assume was
unsupported by probable cause.
In
Dunaway v. New York, 442 U.
S. 200, the Court reaffirmed the general rule that an
official seizure of the person must be supported by probable cause,
even if no formal arrest is made. In that case, police officers
located a murder suspect at a neighbor's house, took him into
custody, and transported him to the police station, where
interrogation ultimately produced a confession. Because the suspect
was not arrested until after he had confessed, and because he
presumably would have been set free if probable cause had not been
established during his questioning, the State argued that the
pre-arrest detention should not be equated with an arrest, and
should be upheld as "reasonable" in view of the serious character
of the crime and the fact that the police had an articulable basis
for suspecting that Dunaway was involved.
Id. at
442 U. S. 207.
The Court firmly rejected the State's argument, noting that "the
detention of petitioner was, in
Page 452 U. S. 697
important respects, indistinguishable from a traditional
arrest."
Id. at
442 U. S. 212.
[
Footnote 6] We stated:
"Indeed any 'exception' that could cover a seizure as intrusive
as that in this case would threaten to swallow the general rule
that Fourth Amendment seizures are 'reasonable' only if based on
probable cause."
"The central importance of the probable cause requirement to the
protection of a citizen's privacy afforded by the Fourth
Amendment's guarantees cannot be compromised in this fashion. "The
requirement of probable cause has roots that are deep in our
history."
Henry v. United States, 361 U. S.
98,
361 U. S. 100
(1959). Hostility to seizures based on mere suspicion was a prime
motivation for the adoption of the Fourth Amendment, and decisions
immediately after its adoption affirmed that "common rumor or
report, suspicion, or even
strong reason to suspect' was not
adequate to support a warrant for arrest." Id. at
361 U. S. 101
(footnotes omitted). The familiar threshold standard of probable
cause for Fourth Amendment seizures reflects the benefit of
extensive experience accommodating the factors relevant to the
"reasonableness" requirement of the Fourth Amendment, and provides
the relative simplicity and clarity necessary to the implementation
of a workable rule. See Brinegar v. United States, [338
U.S. at 338 U. S.
175-176]."
Id. at
442 U. S.
213.
Although we refused in
Dunaway to find an exception
that would swallow the general rule, our opinion recognized that
some seizures significantly less intrusive than an arrest have
withstood scrutiny under the reasonableness standard embodied in
the Fourth Amendment. In these cases, the intrusion
Page 452 U. S. 698
on the citizen's privacy "was so much less severe" than that
involved in a traditional arrest that "the opposing interests in
crime prevention and detection and in the police officer's safety"
could support the seizure as reasonable.
Id. at
442 U. S.
209.
In the first such case,
Terry v. Ohio, 392 U. S.
1, the Court recognized the narrow authority of police
officers who suspect criminal activity to make limited intrusions
on an individual's personal security based on less than probable
cause. The Court approved a "frisk" for weapons as a justifiable
response to an officer's reasonable belief that he was dealing with
a possibly armed and dangerous suspect. [
Footnote 7] In the second such case,
Adams v.
Williams, 407 U. S. 143, the
Court relied on
Terry to hold that an officer could
forcibly stop a suspect to investigate an informant's tip that the
suspect was armed and carrying narcotics. [
Footnote 8] And in
United States v.
Brignoni-Ponce, 422 U. S. 873, the
Court held that the special enforcement problems confronted by
roving Border Patrol agents, though not sufficient to justify
random stops of vehicles
Page 452 U. S. 699
near the Mexican border to question their occupants about their
citizenship,
id. at
422 U. S.
882-884, [
Footnote
9] were adequate to support vehicle stops based on the agents'
awareness of specific articulable facts indicating that the vehicle
contained illegal aliens. The Court reasoned that the difficulty in
patrolling the long Mexican border and the interest in controlling
the influx of illegal aliens justified the limited intrusion,
usually lasting no more than a minute, involved in the stop.
Id. at
422 U. S.
878-880. [
Footnote
10]
See also United States v. Cortez, 449 U.
S. 411.
These cases recognize that some seizures admittedly covered by
the Fourth Amendment constitute such limited intrusions on the
personal security of those detained, and are justified by such
substantial law enforcement interests that they may be made on less
than probable cause, so long as police have an articulable basis
for suspecting criminal activity. In these cases, as in
Dunaway, the Court was applying the ultimate standard of
reasonableness embodied in the
Page 452 U. S. 700
Fourth Amendment. [
Footnote
11] They are consistent with the general rule that every
arrest, and every seizure having the essential attributes of a
formal arrest, is unreasonable unless it is supported by probable
cause. But they demonstrate that the exception for limited
intrusions that may be justified by special law enforcement
interests is not confined to the momentary, on-the-street detention
accompanied by a frisk for weapons involved in
Terry and
Adams. [
Footnote 12]
Therefore, in
Page 452 U. S. 701
order to decide whether this case is controlled by the general
rule, it is necessary to examine both the character of the official
intrusion and its justification.
III
Of prime importance in assessing the intrusion is the fact that
the police had obtained a warrant to search respondent's house for
contraband. A neutral and detached magistrate had found probable
cause to believe that the law was being violated in that house, and
had authorized a substantial invasion of the privacy of the persons
who resided there. The detention of one of the residents while the
premises were searched, although admittedly a significant restraint
on his liberty, was surely less intrusive than the search itself.
[
Footnote 13] Indeed, we may
safely assume that most citizens -- unless they intend flight to
avoid arrest -- would elect to remain in order to observe the
search of their possessions. Furthermore, the type of detention
imposed here is not likely to be exploited by the officer or unduly
prolonged in order to gain more information, because the
information the officers seek normally will be obtained through the
search, and not through the detention. [
Footnote 14]
Page 452 U. S. 702
Moreover, because the detention in this case was in respondent's
own residence, it could add only minimally to the public stigma
associated with the search itself, and would involve neither the
inconvenience nor the indignity associated with a compelled visit
to the police station. [
Footnote
15] In sharp contrast to the custodial interrogation in
Dunaway, the detention of this respondent was
"substantially less intrusive" than an arrest. 442 U.S. at
442 U. S. 210.
[
Footnote 16]
In assessing the justification for the detention of an occupant
of premises being searched for contraband pursuant to a valid
warrant, both the law enforcement interest and the nature of the
"articulable facts" supporting the detention are relevant. Most
obvious is the legitimate law enforcement interest in preventing
flight in the event that incriminating evidence is found. Less
obvious, but sometimes of greater importance, is the interest in
minimizing the risk of harm to the officers. 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. [
Footnote 17] The risk of harm to both the
Page 452 U. S. 703
police and the occupants is minimized if the officers routinely
exercise unquestioned command of the situation.
Cf. 2 W.
LaFave Search and Seizure § 4.9, pp. 150-151 (1978). Finally, the
orderly completion of the search may be facilitated if the
occupants of the premises are present. Their self-interest may
induce them to open locked doors or locked containers to avoid the
use of force that is not only damaging to property but may also
delay the completion of the task at hand.
It is also appropriate to consider the nature of the articulable
and individualized suspicion on which the police base the detention
of the occupant of a home subject to a search warrant. We have
already noted that the detention represents only an incremental
intrusion on personal liberty when the search of a home has been
authorized by a valid warrant. The existence of a search warrant,
however, also provides an objective justification for the
detention. A judicial officer has determined that police have
probable cause to believe that someone in the home is committing a
crime. Thus, a neutral magistrate, rather than an officer in the
field, has made the critical determination that the police should
be given a special authorization to thrust themselves into the
privacy of a home. [
Footnote
18] The connection of an occupant to that home
Page 452 U. S. 704
gives the police officer an easily identifiable and certain
basis for determining that suspicion of criminal activity justifies
a detention of that occupant.
In
Payton v. New York, 445 U.
S. 573, we held that police officers may not enter a
private residence to make a routine felony arrest without first
obtaining a warrant. In that case, we rejected the suggestion that
only a search warrant could adequately protect the privacy
interests at stake, noting that the distinction between a search
warrant and an arrest warrant was far less significant than the
interposition of the magistrate's determination of probable cause
between the zealous officer and the citizen:
"It is true that an arrest warrant requirement may afford less
protection than a search warrant requirement, but it will suffice
to interpose the magistrate's determination of probable cause
between the zealous officer and the citizen. If there is sufficient
evidence of a citizen's participation in a felony to persuade a
judicial officer that his arrest is justified, it is
constitutionally reasonable to require him to open his doors to the
officers of the law. Thus, for Fourth Amendment purposes, 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."
Id. at
445 U. S.
602-603. That holding is relevant today. If the evidence
that a citizen's residence is harboring contraband is sufficient to
persuade
Page 452 U. S. 705
a judicial officer that an invasion of the citizen's privacy is
justified, it is constitutionally reasonable to require that
citizen to remain while officers of the law execute a valid warrant
to search his home. [
Footnote
19] Thus, for Fourth Amendment purposes, we hold that a warrant
to search for contraband [
Footnote 20] founded on probable cause implicitly carries
with it the limited authority to detain the occupants of the
premises while a proper search is conducted. [
Footnote 21]
Because it was lawful to require respondent to reenter and to
remain in the house until evidence establishing probable cause to
arrest him was found, his arrest and the search incident thereto
were constitutionally permissible. The judgment
Page 452 U. S. 706
of the Supreme Court of Michigan must therefore be reversed.
It is so ordered.
[
Footnote 1]
The execution of the warrant is described in greater detail in
Justice Moody's opinion for the Michigan Supreme Court:
"Upon arriving at the named address, Officer Roger Lehman saw
the defendant go out the front door of the house and proceed across
the porch and down the steps. When defendant was asked to open the
door, he replied that he could not, because he left his keys
inside, but he could ring someone over the intercom. Dwight Calhoun
came to the door, but did not admit the police officers. As a
result, the officers obtained entrance to the premises by forcing
open the front door. Once admittance had been gained, Officer
Lehman instructed Officer Conant, previously stationed along the
side of the house, to bring the defendant, still on the porch, into
the house."
"After the eight occupants of the house were detained, a search
of the premises revealed two plastic bags of suspected narcotics
under the bar in the basement. After finding the suspected
narcotics in the basement and upon determining that the defendant
was the owner of the house, Officer Conant formally arrested the
defendant for violation of the Controlled Substances Act of 1971.
MCL 335.341 (4)(a); MSA 18.1070(41)(4)(a). A custodial search
conducted by Officer Conant revealed a plastic bag containing
suspected heroin in the defendant's jacket pocket. It is this
heroin, discovered on the person of the defendant, that forms the
basis of the instant possession charge."
407 Mich. 432, 441,
286 N.W.2d
226, 26 227.
[
Footnote 2]
The Fourth Amendment to the United States Constitution
provides:
"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 Fourteenth Amendment requires the several States to secure
these rights.
See Payton v. New York, 445 U.
S. 573,
445 U. S. 576;
Dunaway v. New York, 442 U. S. 200,
442 U. S.
207.
[
Footnote 3]
Because there were several other occupants of the house, under
Michigan law, the evidence that narcotics had been found in the
basement of respondent's house would apparently be insufficient to
support a conviction.
See People v. Davenport, 39
Mich.App. 252, 197 N.W.2d 521 (1972). The Michigan Court of Appeals
relied on Davenport to conclude that the officers did not have
probable cause to arrest or search respondent even though he was
the owner of a house in which contraband was found. 68 Mich.App. at
580-582, 243 N.W.2d at 692-693. Judge Bashara, dissenting in the
Court of Appeals,
id. at 585, 243 N.W.2d at 695, and the
three dissenting justices of the Michigan Supreme Court, 407 Mich.
at 450, 463-464, 286 N.W.2d at 231, 237, pointed out that
Davenport, which concerns the proof necessary to support a
conviction, is not dispositive of the question whether the police
had probable cause to arrest.
See Brinegar v. United
States, 338 U. S. 160,
338 U. S.
174-176. Regardless of whether the police had probable
cause to arrest respondent under Michigan law, probable cause
within the meaning of the Fourth Amendment is not at issue here.
Respondent does not challenge the conclusion that the evidence
found in his home established probable cause to arrest him.
See Brief for Respondent 17.
[
Footnote 4]
The "seizure" issue in this case should not be confused with the
"search" issue presented in
Ybarra v. Illinois,
444 U. S. 85. In
Ybarra, the police executing a search warrant for a public
tavern detained and searched all of the customers who happened to
be present. No question concerning the legitimacy of the detention
was raised. Rather, the Court concluded that the search of Ybarra
was invalid because the police had no reason to believe he had any
special connection with the premises, and the police had no other
basis for suspecting that he was armed or in possession of
contraband.
See id. at
444 U. S. 90-93.
In this case, only the detention is at issue. The police knew
respondent lived in the house, and they did not search him until
after they had probable cause to arrest, and had done so.
[
Footnote 5]
"It is quite plain that the Fourth Amendment governs 'seizures'
of the person which do not eventuate in a trip to the station house
and prosecution for crime -- 'arrest' in traditional terminology.
It must be recognized that, where a police officer accosts
individual and restrains his freedom to walk way, he has 'seized'
that person."
Terry v. Ohio, 392 U. S. 1,
392 U. S. 16.
[
Footnote 6]
The Court noted that Dunaway was "taken from a neighbor's home
lo a police car, transported to a police station, and placed in an
interrogation room." He was not informed that he was free to leave;
he would not have been free to leave, and would have been
physically restrained had he attempted to do so. 442 U.S. at
442 U. S.
212.
[
Footnote 7]
In upholding the "frisk" employed by the officer in that case,
the Court assumed, without explicitly stating, that the Fourth
Amendment does not prohibit forcible stops when the officer has a
reasonable suspicion that a crime has been or is being committed.
See 392 U.S. at
392 U. S. 32-33
(Harlan, J., concurring);
id. at
392 U. S. 34
(WHITE, J., concurring). In
Adams v. Williams, 407 U.S. at
407 U. S. 146,
the Court made explicit what was implicit in
Terry:
"A brief stop of a suspicious individual, in order to determine
his identity or to maintain the
status quo momentarily
while obtaining more information, may be most reasonable in light
of the facts known to the officer at the time."
See also United States v. Brignoni-Ponce, 422 U.
S. 873;
United States v. Cortez, 449 U.
S. 411.
[
Footnote 8]
The Court noted that the informant's tip was insufficient to
justify an arrest or search based on probable cause under
Spinelli v. United States, 393 U.
S. 410, and
Aguilar v. Texas, 378 U.
S. 108, but the information "carried enough indicia of
reliability to justify the officer's forcible stop of Williams."
407 U.S. at
407 U. S.
147.
[
Footnote 9]
In several cases, the Court has concluded that the absence of
any articulable facts available to the officer rendered a detention
unreasonable. In
Delaware v. Prouse, 440 U.
S. 648,
440 U. S. 663,
the Court held that police could not make random stops of vehicles
in order to check drivers' licenses and vehicle registrations in
the absence of "articulable and reasonable suspicion" that the
motorist was unlicensed or the car unregistered. In
Brown v.
Texas, 443 U. S. 47, we
held that a statute requiring individuals to identify themselves
was unconstitutional as applied, because the police did not have
any reasonable suspicion that the petitioner had committed or was
committing a crime. Finally, in
Ybarra v. Illinois,
444 U. S. 85, we
held that police executing a search warrant at a tavern could not
invoke
Terry to frisk a patron unless the officers had
individualized suspicion that the patron might be armed or
dangerous.
[
Footnote 10]
The detention approved in
Brignoni-Ponce did not
encompass a search of the vehicle. The Court had held in
Almeida-Sanchez v. United States, 413 U.
S. 266, that such a search must be supported by probable
cause. In
United States v. Martinez-Fuerte, 428 U.
S. 543, the Court held that stops at permanent
checkpoints involved even less intrusion to a motorist than the
detention by the roving patrol, and thus a stop at such a
checkpoint need not even be based on any individualized
suspicion.
[
Footnote 11]
In his opinion for the Court in
Terry, Chief Justice
Warren identified "the central inquiry under the Fourth Amendment"
as "the reasonableness in all the circumstances of the particular
governmental invasion of a citizen's personal security." 392 U.S.
at
392 U. S. 19.
Before analyzing the specific stop and frisk involved in that case,
he stated:
"The scheme of the Fourth Amendment 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. And in making that assessment, it is imperative that
the facts be judged against an objective standard: would the facts
available to the officer at the moment of the seizure or the search
'warrant a man of reasonable caution in the belief' that the action
taken was appropriate?
Cf. Carroll v. United States,
267 U. S.
132 (1925);
Beck v. Ohio, 379 U. S.
89,
379 U. S. 96-97 (1964)."
Id. at
392 U. S. 21-22
(footnotes omitted).
[
Footnote 12]
JUSTICE WHITE, concurring in
Dunaway, noted that
Terry is not "an almost unique exception to a
hard-and-fast standard of probable cause." Rather, "the key
principle of the Fourth Amendment is reasonableness -- the
balancing of competing interests." 442 U.S. at
442 U. S. 219.
If the purpose underlying a
Terry stop -- investigating
possible criminal activity -- is to be served, the police must,
under certain circumstances, be able to detain the individual for
longer than the brief time period involved in
Terry and
Adams. As one commentator observed:
"It is clear that there are several investigative techniques
which may be utilized effectively in the course of a
Terry-type stop. The most common is interrogation, which
may include both a request for identification and inquiry
concerning the suspicious conduct of the person detained. Sometimes
the officer will communicate with others, either police or private
citizens, in an effort to verify the explanation tendered or to
confirm the identification or determine whether a person of that
identity is otherwise wanted. Or the suspect may be detained while
it is determined if, in fact, an offense has occurred in the area,
a process which might involve checking certain premises, locating
and examining objects abandoned by the suspect, or talking with
other people. If it is known that an offense has occurred in the
area, the suspect may be viewed by witnesses to the crime. There is
no reason to conclude that any investigative methods of the type
just listed are inherently objectionable; they might cast doubt
upon the reasonableness of the detention, however, if their use
makes the period of detention unduly long or involves moving the
suspect to another locale."
3 W. LaFave, Search and Seizure § 9.2, pp. 36-37 (1978).
[
Footnote 13]
"As the Court reiterated just a few years ago, the 'physical
entry of the home is the chief evil against which the wording of
the Fourth Amendment is directed.'
United States v. United
States District Court, 407 U. S. 297,
407 U. S.
313. And we have long adhered to the view that the
warrant procedure minimizes the danger of needless intrusions of
that sort."
Payton v. New York, 445 U.S. at
445 U. S.
585-586.
[
Footnote 14]
Professor LaFave has noted that the reasonableness of a
detention may be determined in part by "whether the police are
diligently pursuing a means of investigation which is likely to
resolve the matter one way or another very soon. . . ." 3 W.
LaFave, Search and Seizure § 9.2, p. 40 (1978).
[
Footnote 15]
Moreover, unlike the seizure in
Dunaway, which was
designed to provide an opportunity for interrogation and did lead
to Dunaway's confession, the seizure in this case is not likely to
have coercive aspects likely to induce self-incrimination.
[
Footnote 16]
We do not view the fact that respondent was leaving his house
when the officers arrived to be of constitutional significance. The
seizure of respondent on the sidewalk outside was no more intrusive
than the detention of those residents of the house whom the police
found inside.
[
Footnote 17]
The fact that our holding today deals with a case in which the
police had a warrant does not, of course, preclude the possibility
that comparable police conduct may be justified by exigent
circumstances in the absence of a warrant. No such question,
however, is presented by this case.
[
Footnote 18]
Justice Jackson recognized the significance of this
determination in
Johnson v. United States, 333 U. S.
10,
333 U. S.
13-14:
"The point of the Fourth Amendment, which often is not grasped
by zealous officers, is not that it denies law enforcement the
support of the usual inferences which reasonable men draw from
evidence. Its protection consists in requiring that those
inferences be drawn by a neutral and detached magistrate, instead
of being judged by the officer engaged in the often competitive
enterprise of ferreting out crime. Any assumption that evidence
sufficient to support a magistrate's disinterested determination to
issue a search warrant will justify the officers in making a search
without a warrant would reduce the Amendment to a nullity, and
leave the people's homes secure only in the discretion of police
officers. Crime, even in the privacy of one's own quarters, is, of
course, of grave concern to society, and the law allows such crime
to be reached on proper showing. The right of officers to thrust
themselves into a home is also a grave concern, not only to the
individual, but to a society which chooses to dwell in reasonable
security and freedom from surveillance. When the right of privacy
must reasonably yield to the right of search is, as a rule, to be
decided by a judicial officer, not by a policeman or government
enforcement agent."
(Footnotes omitted.)
[
Footnote 19]
In refusing to approve seizures based on less than probable
cause, the
Dunaway Court declined to adopt a "multifactor
balancing test of
reasonable police conduct under the
circumstances` to cover all seizures that do not amount to
technical arrests." The Court noted:
"[T]he protections intended by the Framers could all too easily
disappear in the consideration and balancing of the multifarious
circumstances presented by different cases, especially when that
balancing may be done in the first instance by police officers
engaged in the 'often competitive enterprise of ferreting out
crime.'"
442 U.S. at
442 U. S.
213.
As JUSTICE WHITE noted in his concurrence in
Dunaway,
if police are to have workable rules, the balancing of the
competing interests inherent in the
Terry principle "must
in large part be done on a categorical basis -- not in an
ad
hoc, case-by-case fashion by individual police officers." 442
U.S. at
442 U. S.
219-220. The rule we adopt today does not depend upon
such an
ad hoc determination, because the officer is not
required to evaluate either the quantum of proof justifying
detention or the extent of the intrusion to be imposed by the
seizure.
[
Footnote 20]
We do not decide whether the same result would be justified if
the search warrant merely authorized a search for evidence.
Cf.
Zurcher v. Stanford Daily, 436 U. S. 547,
436 U. S. 560.
See also id. at
436 U. S. 581
(STEVENS, J., dissenting) .
[
Footnote 21]
Although special circumstances, or possibly a prolonged
detention, might lead to a different conclusion in an unusual case,
we are persuaded that this routine detention of residents of a
house while it was being searched for contraband pursuant to a
valid warrant is not such a case.
JUSTICE STEWART, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting.
The Court is correct in stating that
"some seizures significantly less intrusive than an arrest have
withstood scrutiny under the reasonableness standard embodied in
the Fourth Amendment."
Ante at
452 U. S. 697.
But to escalate this statement into some kind of a general rule is
to ignore the protections that the Fourth Amendment guarantees to
us all. There are only two types of seizures that need not be based
on probable cause. The first, represented by the
Terry
line of cases, is a limited stop to question a person and to
perform a patdown for weapons when the police have reason to
believe that he is armed and dangerous.
E.g., Terry v.
Ohio, 392 U. S. 1,
392 U. S. 23-24.
The second is a brief stop of vehicles near our international
borders to question occupants of the vehicles about their
citizenship.
E.g., United States v. Brignoni-Ponce,
422 U. S. 873,
422 U. S.
881.
From these two special exceptions to the general prohibition on
seizures not based on probable cause, the Court leaps to the very
broad idea that courts may approve a wide variety of seizures not
based on probable cause so long as the courts find, after balancing
the law enforcement purposes of the police conduct against the
severity of their intrusion, that the seizure appears "reasonable."
Ante at
452 U. S.
700-701, and nn. 11, 12. But those two lines of cases do
not represent some sort of exemplary balancing test for Fourth
Amendment cases. Rather, they represent two isolated exceptions to
the general rule that the Fourth Amendment itself has already
performed the constitutional balance between police objectives and
personal privacy. The seizure permitted by the Court today, the
detention of a person at his home while the police execute a search
warrant for contraband inside it, is categorically
Page 452 U. S. 707
different from those two special exceptions to the warrant and
probable cause requirement, and poses a significantly greater
threat to the protections guaranteed by the Constitution.
I
The common denominator of the
Terry cases and the
border checkpoint cases is the presence of some governmental
interest independent of the ordinary interest in investigating
crime and apprehending suspects, an interest important enough to
overcome the presumptive constitutional restraints on police
conduct. At issue in
Terry was
"more than the governmental interest in investigating crime; in
addition, there is the more immediate interest of the police
officer in taking steps to assure himself that the person with whom
he is dealing is not armed with a weapon that could unexpectedly
and fatally be used against him."
Terry v. Ohio, 392 U.S. at
392 U. S. 23.
Though the officer in
Terry was engaged in investigating
crime, the governmental purpose that justified the stop and patdown
was not the investigation itself, but "the neutralization of danger
to the policeman in the investigative circumstance."
Id.
at
392 U. S. 26.
Stating its essential holding, the Court said:
"When an officer is justified in believing that the individual
whose suspicious behavior he is investigating at close range is
armed and presently dangerous to the officer or to others, it would
appear to be clearly unreasonable to deny the officer the power to
take necessary measures to determine whether the person is, in
fact, carrying a weapon, and to neutralize the threat of physical
harm."
Id. at
392 U. S. 24.
Similarly, in
Adams v. Williams, 407 U.
S. 143, the officer had received an informant's tip, not
amounting to probable cause, that Williams was carrying narcotics
and a gun. The Court held that the officer acted legally in
reaching into the car and intruding on Williams' person to see if
Williams indeed was in possession of a lethal weapon. In so
holding, the Court made clear that what justified this intrusion on
Williams' person was not the possibility of finding contraband
Page 452 U. S. 708
narcotics, but rather the officer's need to protect himself from
harm by seizing the suspected gun:
"The purpose of this limited search is not to discover evidence
af crime, but to allow the officer to pursue his investigation
without fear of violence. . . ."
Id. at
407 U. S. 146;
accord, Pennsylvania v. Mimms, 434 U.
S. 106,
434 U. S. 110.
See Ybarra v. Illinois, 444 U. S. 85,
444 U. S.
93.
In
United States v. Brignoni-Ponce, supra, the Court
approved a limited stop of vehicles by patrols of immigration
officers near the Mexican border, but, in doing so, it stressed the
unique governmental interest in preventing the illegal entry of
aliens. The Court held that brief stops and inquiries based on less
than probable cause to search or arrest were necessary because the
entry of undocumented aliens creates
"significant economic and social problems, competing with
citizens and legal resident aliens for jobs, and generating extra
demand for social services."
422 U.S. at
422 U. S.
878-879. And in
United States v.
Martinez-Fuerte, 428 U. S. 543,
upholding similarly brief stops and inquiries at permanent
checkpoints, the Court relied on the unique difficulty of
patrolling a 2000-mile long and virtually uninhabited border area,
a difficulty that would prove insuperable if the Government could
stop a vehicle only on the basis of probable cause to believe that
that particular vehicle contained illegal entrants.
Id. at
428 U. S.
552.
It seems clear, therefore, that before a court can uphold a
detention on less than probable cause on the ground that it is
"reasonable" in the light of the competing interests, the
government must demonstrate an important purpose beyond the normal
goals of criminal investigation, or must demonstrate an
extraordinary obstacle to such investigation.
II
What the Court approves today is justified by no such special
governmental interest or law enforcement need. There were only two
governmental purposes supporting the detention
Page 452 U. S. 709
of the respondent. [
Footnote
2/1] One was "the legitimate law enforcement interest in
preventing flight in the event that incriminating evidence is
found."
Ante at
452 U. S. 702.
The other was that "the orderly completion of the search may be
facilitated if the occupants of the premises are present."
Ante at
452 U. S. 703.
Unlike the law enforcement objectives that justified the police
conduct in
Terry and the border stop cases, these
objectives represented nothing more than the ordinary police
interest in discovering evidence of crime and apprehending
wrongdoers. And the Fourth and Fourteenth Amendments impose
significant restraints upon these traditional police activities,
even though the police and the courts may find those restraints
unreasonably inconvenient.
If the police, acting without probable cause, can seize a person
to make him available for arrest in case probable cause is later
developed to arrest him, the requirement of probable cause for
arrest has been turned upside down. And if the police may seize a
person without probable cause in order to "facilitate" the
execution of a warrant that did not authorize his arrest, the
fundamental principle that the scope of a search and seizure can be
justified only by the scope of the underlying warrant has suffered
serious damage. There is no authority in this Court for the
principle that the police can engage in searches and seizures
without probable cause simply because to do so enhances their
ability to conduct
Page 452 U. S. 710
investigations which may eventually lead to probable cause.
See Davis v. Mississippi, 394 U.
S. 721,
394 U. S.
726-27. [
Footnote
2/2]
Beyond the issue of the governmental interest justifying the
detention, I question the Court's view that the detention here is
of the limited, unintrusive sort that permits the Court to engage
in a "reasonableness" balancing test. As the Court said in
Dunaway v. New York, 442 U. S. 200,
442 U. S. 210,
Terry v. Ohio
"defined a special category of Fourth Amendment 'seizures'
so substantially less intrusive than arrests that the
general rule requiring probable cause to make Fourth Amendment
'seizures' reasonable could be replaced by a balancing test."
(Emphasis added.) As we then noted in
Dunaway, the
patdown searches in
Terry, Adams, and
Mimms were
declared legal because they were extremely limited in time and in
the degree of personal intrusion. 442 U.S. at
442 U. S.
210-211. The Court also noted that, in the border cases,
the stops normally consumed less than a minute, and involved no
more than brief interrogation.
Id. at
442 U. S. 211.
Thus, in the rare cases in which the Court has permitted an
independent balancing of interests, the police intrusion has been
extremely narrow. Moreover, the Court has required that the stop
and inquiry or search be "reasonably related in scope to the
justification for their initiation,"
Terry v. Ohio, 392
U.S. at
392 U. S. 29;
see United States v. Brignoni-Ponce, 422 U.S. at
422 U. S. 881,
and, under that requirement, the unusual governmental or law
enforcement interests justifying the patdown stops and border
stops
Page 452 U. S. 711
have provided a limiting principle ensuring the narrowness of
the police action. The detention approved by the Court today,
however, is of a very different order.
The explicit holding of the Court is that
"a warrant to search for contraband founded on probable cause
implicitly carries with it the limited authority to detain the
occupants of the premises while a proper search is conducted."
Ante at
452 U. S. 705
(footnotes omitted). Though on superficial reading, this language
may suggest a minor intrusion of brief duration, a detention "while
a proper search is being conducted" can mean a detention of several
hours. [
Footnote 2/3] The police
thereby make the person a prisoner in his own home for a
potentially very long period of time. [
Footnote 2/4] Moreover, because of the questionable
Page 452 U. S. 712
nature of the governmental interest asserted by the State and
acknowledged by the Court in this case, the requirement that the
scope of the intrusion be reasonably related to its justification
does not provide a limiting principle for circumscribing the
detention. If the purpose of the detention is to help the police
make the search, the detention can be as long as the police find it
necessary to protract the search. [
Footnote 2/5]
In
Dunaway, the Court reaffirmed that the
"'long-prevailing standards' of probable cause embodied 'the
best compromise that has been found for accommodating [the] often
opposing interests' in 'safeguard[ing] citizens from rash and
unreasonable interferences with privacy' and in 'seek[ing] to give
fair leeway for enforcing the law in the community's
protection.'"
422 U.S. at
422 U. S. 208,
quoting
Brinegar v. United States, 338 U.
S. 160,
338 U. S. 176.
Because the present case presents no occasion for departing from
this principle, I respectfully dissent.
[
Footnote 2/1]
As the Court acknowledges
ante at
452 U. S. 702,
the record in this case presents no evidence whatsoever that the
police feared any threat to their safety or that of others from the
conduct of the respondent, or that they could reasonable have so
feared. The Court says that this nevertheless was the "kind of
transaction that may give rise to sudden violence. . . ."
Ibid. But where the police cannot demonstrate, on the
basis of specific and articulable facts, a reasonable belief that a
person threatens physical harm to them or others, the speculation
that other persons in that circumstance might pose such a threat
cannot justify a search or seizure.
Ybarra v. Illinois,
444 U. S. 85,
444 U. S.
92-93.
[
Footnote 2/2]
In a perplexing citation, the Court notes our holding in
Payton v. New York, 445 U. S. 573,
that an arrest warrant based on probable cause justifies entering a
person's home to carry out the arrest, and declares that
Payton "is relevant today."
Ante at
452 U. S. 704.
But I had thought that the very point of the passage the Court
quotes from
Payton is that the police would be justified
in arresting a person in his own home because they had a warrant
for his arrest based upon probable cause to believe that he had
violated the criminal law. Since it is the absence of such probable
cause that lies at the heart of this case, I fail to understand
Payton's "relevance."
[
Footnote 2/3]
The record does not clearly reveal the length of the search in
this case. In
Harris v. United States, 331 U.
S. 145, a Federal Bureau of Investigation search of a
one-bedroom apartment for burglar tools and a pair of checks
consumed five hours.
See also Stanford v. Texas,
379 U. S. 476,
379 U. S.
477.
[
Footnote 2/4]
I also question the Court's confident assertions about the
inoffensive nature of the detention in this case. First, the Court
says the detention was innocuous because it was less intrusive than
the search that was mandated by the warrant.
Ante at
452 U. S. 701.
This reasoning is, of course, circular, since the very question of
the severity of the detention arises only because it was not based
on a warrant or probable cause.
Second, the Court says that the intrusion was not a serious one
because a reasonable-minded citizen would, in fact, want to be
present at a search of his house unless he was fleeing to avoid
arrest.
Ibid. But I must infer that the respondent here
did not want to be present in his house during the search, else he
would not have brought this claim, and the law cannot penalize him
for "fleeing arrest" when the police did not have probable cause to
arrest him. This second reason amounts to the view that a person
cannot assert his rights under the exclusionary rule if he stands
to benefit from the exclusion.
Finally, the Court observes that this sort of detention is not
likely to be exploited or unduly prolonged by the police, since the
officers are more likely to find the information they seek through
the search than through the detention.
Ibid. I confess I
do not understand this reason. It seems no more than a restatement
of the view that the police may detain the person to have him
available for arrest when they complete the search, but that view
merely begs the question whether the potential duration of the
search threatens the person with a lengthy detention.
[
Footnote 2/5]
The Court adverts to this problem only by suggesting that
"special circumstances, or possibly a prolonged detention, might
lead to a different conclusion in an unusual case."
Ante
at
452 U. S. 705,
n. 21. But the Court provides no criteria for identifying "special
circumstances" of for determining when a detention is "prolonged;"
in particular, it fails to tell law enforcement officers whether a
detention will always be permissible, however protracted, so long
as it does not exceed the length of the search of the house. This
ambiguity casts doubt on the Court's assertion,
ante at
452 U. S. 705,
n. 19, that its holding will not require individual police officers
to engage in the sort of on-the-scene,
ad hoc legal
judgments which pose a serious threat to Fourth and Fourteenth
Amendment protections.
Dunaway v. New York, 442 U.
S. 200,
442 U. S.
213.