After purchasing a one-way airline ticket to New York City at
Miami International Airport under an assumed name and checking his
two suitcases bearing identification tags with the same assumed
name, respondent went to the concourse leading to the airline
boarding area, where he was approached by two detectives, who
previously had observed him and believed that his characteristics
fit the so-called "drug courier profile." Upon request, but without
oral consent, respondent produced his airline ticket and driver's
license, which carried his correct name. When the detectives asked
about the discrepancy in names, respondent explained that a friend
had made the ticket reservation in the assumed name. The detectives
then informed respondent that they were narcotics investigators and
that they had reason to suspect him of transporting narcotics, and,
without returning his airline ticket or driver's license, asked him
to accompany them to a small room adjacent to the concourse.
Without respondent's consent, one of the detectives retrieved
respondent's luggage from the airline and brought it to the room.
While he did not respond to the detectives' request that he consent
to a search of the luggage, respondent produced a key and unlocked
one of the suitcases in which marihuana was found. When respondent
said he did not know the combination to the lock on the second
suitcase, but did not object to its being opened, the officers
pried it open and found more marihuana. Respondent was then told he
was under arrest. Following the Florida trial court's denial of his
pretrial motion to suppress the evidence obtained in the search of
the suitcases, respondent was convicted of felony possession of
marihuana. The Florida District Court of Appeal reversed, holding
that respondent had been involuntarily confined within the small
room without probable cause, that, at the time his consent to
search was obtained, the involuntary detention had exceeded the
limited restraint permitted by
Terry v. Ohio, 392 U. S.
1, and that such consent was therefore invalid because
tainted by the unlawful confinement.
Held: The judgment is affirmed.
389 So. 2d 1007, affirmed.
JUSTICE WHITE, joined by JUSTICE MARSHALL, JUSTICE POWELL, and
JUSTICE STEVENS, concluded that respondent was being illegally
detained when he consented to the search of his luggage and that
such consent
Page 460 U. S. 492
was tainted by the illegality, and hence was ineffective to
justify the search. Pp.
460 U. S.
497-508.
(a) When the detectives identified themselves as narcotics
agents, told respondent he was suspected of transporting narcotics,
and asked him to accompany them to the police room, while retaining
his airline ticket and driver's license and without indicating in
any way that he was free to depart, respondent was effectively
seized for purposes of the Fourth Amendment. At the time respondent
produced the key to his suitcase, the detention to which he was
then subjected was a more serious intrusion on his personal liberty
than is allowable on mere suspicion of criminal activity. What had
begun as a consensual inquiry in a public place escalated into an
investigatory procedure in a police interrogation room, and
respondent, as a practical matter, was under arrest at that time.
Moreover, the detectives' conduct was more intrusive than necessary
to effectuate an investigative detention otherwise authorized by
the
Terry line of cases. Pp.
460 U. S.
501-507.
(b) Probable cause to arrest respondent did not exist at the
time he consented to the search of his luggage. P.
460 U. S.
507.
JUSTICE BRENNAN, concurring in the result, agreed that, at some
point after the initial stop, the officers' seizure of the
respondent matured into an arrest unsupported by probable cause.
The respondent's consent to the search of his suitcases, therefore,
was tainted by the illegal arrest. P.
460 U. S.
509.
WHITE, J., announced the judgment of the Court and delivered an
opinion, in which MARSHALL, POWELL, and STEVENS, JJ., joined.
POWELL, J., filed a concurring opinion,
post, p.
460 U. S. 508.
BRENNAN, J., filed an opinion concurring in the result,
post, p.
460 U. S. 509.
BLACKMUN, J., filed a dissenting opinion,
post, p.
460 U. S. 513.
REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J.,
and O'CONNOR, J., joined,
post, p.
460 U. S.
519.
Page 460 U. S. 493
JUSTICE WHITE announced the judgment of the Court and delivered
an opinion, in which JUSTICE MARSHALL, JUSTICE POWELL, and JUSTICE
STEVENS joined.
We are required in this case to determine whether the Court of
Appeal of Florida, Third District, properly applied the precepts of
the Fourth Amendment in holding that respondent Royer was being
illegally detained at the time of his purported consent to a search
of his luggage.
I
On January 3, 1978, Royer was observed at Miami International
Airport by two plainclothes detectives of the Dade County, Fla.,
Public Safety Department assigned to the county's Organized Crime
Bureau, Narcotics Investigation Section. [
Footnote 1] Detectives Johnson and Magdalena believed
that Royer's appearance, mannerisms, luggage, and actions fit the
so-called "drug courier profile." [
Footnote 2] Royer, apparently unaware of the attention he
had attracted, purchased a one-way ticket to New York City and
checked his two suitcases, placing on each suitcase an
identification tag bearing the name "Holt" and the destination "La
Guardia." As Royer made
Page 460 U. S. 494
his way to the concourse which led to the airline boarding area,
the two detectives approached him, identified themselves as
policemen working out of the sheriff's office, and asked if Royer
had a "moment" to speak with them; Royer said "Yes."
Upon request, but without oral consent, Royer produced for the
detectives his airline ticket and his driver's license. The airline
ticket, like the baggage identification tags, bore the name "Holt,"
while the driver's license carried respondent's correct name,
"Royer." When the detectives asked about the discrepancy, Royer
explained that a friend had made the reservation in the name of
"Holt." Royer became noticeably more nervous during this
conversation, whereupon the detectives informed Royer that they
were in fact narcotics investigators, and that they had reason to
suspect him of transporting narcotics.
The detectives did not return his airline ticket and
identification, but asked Royer to accompany them to a room,
approximately 40 feet away, adjacent to the concourse. Royer said
nothing in response, but went with the officers as he had been
asked to do. The room was later described by Detective Johnson as a
"large storage closet," located in the stewardesses' lounge and
containing a small desk and two chairs. Without Royer's consent or
agreement, Detective Johnson, using Royer's baggage check stubs,
retrieved the "Holt" luggage from the airline and brought it to the
room where respondent and Detective Magdalena were waiting. Royer
was asked if he would consent to a search of the suitcases. Without
orally responding to this request, Royer produced a key and
unlocked one of the suitcases, which one detective then opened
without seeking further assent from Royer. Marihuana was found in
that suitcase. According to Detective Johnson, Royer stated that he
did not know the combination to the lock on the second suitcase.
When asked if he objected to the detective opening the second
suitcase, Royer said "[n]o, go ahead," and did not object when the
detective
Page 460 U. S. 495
explained that the suitcase might have to be broken open. The
suitcase was pried open by the officers, and more marihuana was
found. Royer was then told that he was under arrest. Approximately
15 minutes had elapsed from the time the detectives initially
approached respondent until his arrest upon the discovery of the
contraband.
Prior to his trial for felony possession of marihuana, [
Footnote 3] Royer made a motion to
suppress the evidence obtained in the search of the suitcases. The
trial court found that Royer's consent to the search was "freely
and voluntarily given," and that, regardless of the consent, the
warrantless search was reasonable, because "the officer doesn't
have the time to run out and get a search warrant because the plane
is going to take off." [
Footnote
4] Following the denial of the motion to suppress, Royer
changed his plea from "not guilty" to "
nolo contendere,"
specifically reserving the right to appeal the denial of the motion
to suppress. [
Footnote 5] Royer
was convicted.
The District Court of Appeal, sitting en banc, reversed Royer's
conviction. [
Footnote 6] The
court held that Royer had been involuntarily confined within the
small room without probable cause; that the involuntary detention
had exceeded the limited restraint permitted by
Terry v.
Ohio, 392 U. S. 1 (1968),
at the time his consent to the search was obtained; and that the
consent to search was therefore invalid because tainted by the
unlawful confinement. [
Footnote
7]
Page 460 U. S. 496
Several factors led the court to conclude that respondent's
confinement was tantamount to arrest. Royer had
"found himself in a small enclosed area being confronted by two
police officers -- a situation which presents an almost classic
definition of imprisonment."
389 So. 2d 1007, 1018 (1980). The detectives' statement to Royer
that he was suspected of transporting narcotics also bolstered the
finding that Royer was "in custody" at the time the consent to
search was given.
Ibid. In addition, the detectives'
possession of Royer's airline ticket and their retrieval and
possession of his luggage made it clear, in the District Court of
Appeal's view, that Royer was not free to leave.
Ibid.
At the suppression hearing, Royer testified that he was under
the impression that he was not free to leave the officers'
presence. The Florida District Court of Appeal found that this
apprehension "was much more than a well-justified subjective
belief," for the State had conceded at oral argument before that
court that "the officers would not have permitted Royer to leave
the room even if he had erroneously thought he could."
Ibid. The nomenclature used to describe Royer's
confinement, the court found, was unimportant, because, under
Dunaway v. New York, 442 U. S. 200
(1979), "a police confinement which . . . goes beyond the limited
restraint of a
Terry investigatory stop may be
constitutionally justified only by probable cause." 389 So. 2d at
1019 (footnote omitted). Detective Johnson, who conducted the
search, had specifically stated at the suppression hearing that he
did not have probable cause to arrest Royer until the suitcases
were opened and their contents revealed.
Page 460 U. S. 497
Ibid. In the absence of probable cause, the court
concluded, Royer's consent to search, given only after he had been
unlawfully confined, was ineffective to justify the search.
Ibid. Because there was no proof at all that a "break in
the chain of illegality" had occurred, the court found that Royer's
consent was invalid as a matter of law.
Id. at 1020. We
granted the State's petition for certiorari, 454 U.S. 1079 (1981),
and now affirm.
II
Some preliminary observations are in order. First, it is
unquestioned that, without a warrant to search Royer's luggage and
in the absence of probable cause and exigent circumstances, the
validity of the search depended on Royer's purported consent.
Neither is it disputed that, where the validity of a search rests
on consent, the State has the burden of proving that the necessary
consent was obtained and that it was freely and voluntarily given,
a burden that is not satisfied by showing a mere submission to a
claim of lawful authority.
Lo-Ji Sales, Inc. v. New York,
442 U. S. 319,
442 U. S. 329
(1979);
Schneckloth v. Bustamonte, 412 U.
S. 218,
412 U. S.
233-234 (1973);
Bumper v. North Carolina,
391 U. S. 543,
391 U. S.
548-549 (1968);
Johnson v. United States,
333 U. S. 10,
333 U. S. 13
(1948);
Amos v. United States, 255 U.
S. 313,
255 U. S. 317
(1921).
Second, law enforcement officers do not violate the Fourth
Amendment by merely approaching an individual on the street or in
another public place, by asking him if he is willing to answer some
questions, by putting questions to him if the person is willing to
listen, or by offering in evidence in a criminal prosecution his
voluntary answers to such questions.
See Dunaway v. New York,
supra, at
442 U. S. 210,
n. 12;
Terry v. Ohio, 392 U.S. at
392 U. S. 31,
392 U. S. 32-33
(Harlan, J., concurring);
id. at
392 U. S. 34
(WHITE, J., concurring). Nor would the fact that the officer
identifies himself as a police officer, without more, convert the
encounter into a seizure requiring some level of objective
justification.
United States v. Mendenhall, 446 U.
S. 544,
446 U. S. 555
(1980) (opinion of Stewart, J.). The person
Page 460 U. S. 498
approached, however, need not answer any question put to him;
indeed, he may decline to listen to the questions at all, and may
go on his way.
Terry v. Ohio, 392 U.S. at
392 U. S. 32-33
(Harlan, J., concurring);
id. at
392 U. S. 34
(WHITE, J., concurring). He may not be detained even momentarily
without reasonable, objective grounds for doing so; and his refusal
to listen or answer does not, without more, furnish those grounds.
United States v. Mendenhall, supra, at
446 U. S. 556
(opinion of Stewart, J.). If there is no detention -- no seizure
within the meaning of the Fourth Amendment -- then no
constitutional rights have been infringed.
Third, it is also clear that not all seizures of the person must
be justified by probable cause to arrest for a crime. Prior to
Terry v. Ohio, supra, any restraint on the person
amounting to a seizure for the purposes of the Fourth Amendment was
invalid unless justified by probable cause.
Dunaway v. New
York, supra, at
442 U. S.
207-209.
Terry created a limited exception to
this general rule: certain seizures are justifiable under the
Fourth Amendment if there is articulable suspicion that a person
has committed or is about to commit a crime. In that case, a stop
and a frisk for weapons were found unexceptionable.
Adams v.
Williams, 407 U. S. 143
(1972), applied the same approach in the context of an informant's
report that an unnamed individual in a nearby vehicle was carrying
narcotics and a gun. Although not expressly authorized in
Terry, United States v. Brignoni-Ponce,
422 U. S. 873,
422 U. S.
881-882 (1975), was unequivocal in saying that
reasonable suspicion of criminal activity warrants a temporary
seizure for the purpose of questioning limited to the purpose of
the stop. In
Brignoni-Ponce, that purpose was to verify or
dispel the suspicion that the immigration laws were being violated,
a governmental interest that was sufficient to warrant temporary
detention for limited questioning. Royer does not suggest, nor do
we, that a similar rationale would not warrant temporary detention
for questioning on less than probable cause where the public
interest
Page 460 U. S. 499
involved is the suppression of illegal transactions in drugs or
of any other serious crime.
Michigan v. Summers, 452 U. S. 692
(1981), involved another circumstance in which a temporary
detention on less than probable cause satisfied the ultimate test
of reasonableness under the Fourth Amendment. There the occupant of
a house was detained while a search warrant for the house was being
executed. We held that the warrant made the occupant sufficiently
suspect to justify his temporary seizure. The "limited intrusio[n]
on the personal security" of the person detained was justified "by
such substantial law enforcement interests" that the seizure could
be made on articulable suspicion not amounting to probable cause.
Id. at
452 U. S.
699.
Fourth,
Terry and its progeny nevertheless created only
limited exceptions to the general rule that seizures of the person
require probable cause to arrest. Detentions may be
"investigative," yet violative of the Fourth Amendment absent
probable cause. In the name of investigating a person who is no
more than suspected of criminal activity, the police may not carry
out a full search of the person or of his automobile or other
effects. Nor may the police seek to verify their suspicions by
means that approach the conditions of arrest.
Dunaway v. New
York, supra, made this clear. There, the suspect was taken to
the police station from his home and, without being formally
arrested, interrogated for an hour. The resulting incriminating
statements were held inadmissible: reasonable suspicion of crime is
insufficient to justify custodial interrogation, even though the
interrogation is investigative.
Id. at
442 U. S.
211-212.
Brown v. Illinois, 422 U.
S. 590 (1975), and
Davis v. Mississippi,
394 U. S. 721
(1969), are to the same effect.
The Fourth Amendment's prohibition against unreasonable searches
and seizures has always been interpreted to prevent a search that
is not limited to the particularly described "place to be searched,
and the persons or things to be seized," U.S.Const., Amdt. 4, even
if the search is made pursuant to
Page 460 U. S. 500
a warrant and based upon probable cause. The Amendment's
protection is not diluted in those situations where it has been
determined that legitimate law enforcement interests justify a
warrantless search: the search must be limited in scope to that
which is justified by the particular purposes served by the
exception. For example, a warrantless search is permissible
incident to a lawful arrest because of legitimate concerns for the
safety of the officer and to prevent the destruction of evidence by
the arrestee.
E.g., Chimel v. California, 395 U.
S. 752,
395 U. S. 763
(1969). Nevertheless, such a search is limited to the person of the
arrestee and the area immediately within his control.
Id.
at
395 U. S. 762.
Terry v. Ohio, supra, also embodies this principle: "The
scope of the search must be
strictly tied to and justified by'
the circumstances which rendered its initiation permissible." 392
U.S. at 392 U. S. 19,
quoting Warden v. Hayden, 387 U.
S. 294, 387 U. S. 310
(1967) (Fortas, J., concurring). The reasonableness requirement of
the Fourth Amendment requires no less when the police action is a
seizure permitted on less than probable cause because of legitimate
law enforcement interests. The scope of the detention must be
carefully tailored to its underlying justification.
The predicate permitting seizures on suspicion short of probable
cause is that law enforcement interests warrant a limited intrusion
on the personal security of the suspect. The scope of the intrusion
permitted will vary to some extent with the particular facts and
circumstances of each case. This much, however, is clear: an
investigative detention must be temporary, and last no longer than
is necessary to effectuate the purpose of the stop. Similarly, the
investigative methods employed should be the least intrusive means
reasonably available to verify or dispel the officer's suspicion in
a short period of time.
See, e.g., United States v.
Brignoni-Ponce, supra, at
422 U. S.
881-882;
Adams v. Williams, supra, at
407 U. S. 146.
It is the State's burden to demonstrate that the seizure it seeks
to justify on the basis of a reasonable suspicion was sufficiently
limited in scope and duration to satisfy the conditions of an
investigative seizure.
Page 460 U. S. 501
Fifth,
Dunaway and
Brown hold that statements
given during a period of illegal detention are inadmissible, even
though voluntarily given, if they are the product of the illegal
detention and not the result of an independent act of free will.
Dunaway v. New York, 442 U.S. at
442 U. S.
218-219;
Brown v. Illinois, supra, at
422 U. S.
601-602. In this respect, those cases reiterated one of
the principal holdings of
Wong Sun v. United States,
371 U. S. 471
(1963).
Sixth, if the events in this case amounted to no more than a
permissible police encounter in a public place or a justifiable
Terry-type detention, Royer's consent, if voluntary, would
have been effective to legalize the search of his two suitcases.
Cf. United States v. Watson, 423 U.
S. 411,
423 U. S.
424-425 (1976). The Florida District Court of Appeal in
the case before us, however, concluded not only that Royer had been
seized when he gave his consent to search his luggage, but also
that the bounds of an investigative stop had been exceeded. In its
view, the "confinement" in this case went beyond the limited
restraint of a
Terry investigative stop, and Royer's
consent was thus tainted by the illegality, a conclusion that
required reversal in the absence of probable cause to arrest. The
question before us is whether the record warrants that conclusion.
We think that it does.
III
The State proffers three reasons for holding that, when Royer
consented to the search of his luggage, he was not being illegally
detained. First, it is submitted that the entire encounter was
consensual, and hence Royer was not being held against his will at
all. We find this submission untenable. Asking for and examining
Royer's ticket and his driver's license were, no doubt, permissible
in themselves, but when the officers identified themselves as
narcotics agents, told Royer that he was suspected of transporting
narcotics, and asked him to accompany them to the police room,
while retaining his ticket and driver's license and without
indicating in any way that he was free to depart, Royer was
effectively seized for the purposes of the Fourth Amendment.
Page 460 U. S. 502
These circumstances surely amount to a show of official
authority such that "a reasonable person would have believed that
he was not free to leave."
United States v. Mendenhall,
446 U.S. at
446 U. S. 554
(opinion of Stewart, J.) (footnote omitted).
Second, the State submits that, if Royer was seized, there
existed reasonable, articulable suspicion to justify a temporary
detention, and that the limits of a
Terry-type stop were
never exceeded. We agree with the State that, when the officers
discovered that Royer was traveling under an assumed name, this
fact, and the facts already known to the officers -- paying cash
for a one-way ticket, the mode of checking the two bags, and
Royer's appearance and conduct in general -- were adequate grounds
for suspecting Royer of carrying drugs and for temporarily
detaining him and his luggage while they attempted to verify or
dispel their suspicions in a manner that did not exceed the limits
of an investigative detention. We also agree that, had Royer
voluntarily consented to the search of his luggage while he was
justifiably being detained on reasonable suspicion, the products of
the search would be admissible against him. We have concluded,
however, that, at the time Royer produced the key to his suitcase,
the detention to which he was then subjected was a more serious
intrusion on his personal liberty than is allowable on mere
suspicion of criminal activity.
By the time Royer was informed that the officers wished to
examine his luggage, he had identified himself when approached by
the officers and had attempted to explain the discrepancy between
the name shown on his identification and the name under which he
had purchased his ticket and identified his luggage. The officers
were not satisfied, for they informed him they were narcotics
agents and had reason to believe that he was carrying illegal
drugs. They requested him to accompany them to the police room.
Royer went with them. He found himself in a small room -- a large
closet equipped with a desk and two chairs. He was alone with two
police officers who again told him that they thought
Page 460 U. S. 503
he was carrying narcotics. He also found that the officers,
without his consent, had retrieved his checked luggage from the
airline. What had begun as a consensual inquiry in a public place
had escalated into an investigatory procedure in a police
interrogation room, where the police, unsatisfied with previous
explanations, sought to confirm their suspicions. The officers had
Royer's ticket, they had his identification, and they had seized
his luggage. Royer was never informed that he was free to board his
plane if he so chose, and he reasonably believed that he was being
detained. At least as of that moment, any consensual aspects of the
encounter had evaporated, and we cannot fault the Florida District
Court of Appeal for concluding that
Terry v. Ohio and the
cases following it did not justify the restraint to which Royer was
then subjected. As a practical matter, Royer was under arrest.
Consistent with this conclusion, the State conceded in the Florida
courts that Royer would not have been free to leave the
interrogation room had he asked to do so. [
Footnote 8] Furthermore, the State's brief in this
Court interprets the testimony of the officers at the suppression
hearing as indicating that, had Royer refused to consent to a
search of his luggage, the officers would have held the luggage and
sought a warrant to authorize the search. Brief for Petitioner 6.
[
Footnote 9]
Page 460 U. S. 504
We also think that the officers' conduct was more intrusive than
necessary to effectuate an investigative detention otherwise
authorized by the
Terry line of cases. First, by returning
his ticket and driver's license, and informing him that he was free
to go if he so desired, the officers might have obviated any claim
that the encounter was anything but a consensual matter from start
to finish. Second, there are undoubtedly reasons of safety and
security that would justify moving a suspect from one location to
another during an investigatory detention, such as from an airport
concourse to a more
Page 460 U. S. 505
private area.
Cf. Pennsylvania v. Mimms, 434 U.
S. 106,
434 U. S.
109-111 (1977) (per curiam). There is no indication in
this case that such reasons prompted the officers to transfer the
site of the encounter from the concourse to the interrogation room.
It appears, rather, that the primary interest of the officers was
not in having an extended conversation with Royer, but in the
contents of his luggage, a matter which the officers did not pursue
orally with Royer until after the encounter was relocated to the
police room. The record does not reflect any facts which would
support a finding that the legitimate law enforcement purposes
which justified the detention in the first instance were furthered
by removing Royer to the police room prior to the officers' attempt
to gain his consent to a search of his luggage. As we have noted,
had Royer consented to a search on the spot, the search could have
been conducted with Royer present in the area where the bags were
retrieved by Detective Johnson, and any evidence recovered would
have been admissible against him. If the search proved negative,
Royer would have been free to go much earlier, and with less
likelihood of missing his flight, which in itself can be a very
serious matter in a variety of circumstances.
Third, the State has not touched on the question whether it
would have been feasible to investigate the contents of Royer's
bags in a more expeditious way. The courts are not strangers to the
use of trained dogs to detect the presence of controlled substances
in luggage. [
Footnote 10]
There is no indication
Page 460 U. S. 506
here that this means was not feasible and available. If it had
been used, Royer and his luggage could have been momentarily
detained while this investigative procedure was carried out.
Indeed, it may be that no detention at all would have been
necessary. A negative result would have freed Royer in short order;
a positive result would have resulted in his justifiable arrest on
probable cause.
We do not suggest that there is a litmus-paper test for
distinguishing a consensual encounter from a seizure or for
determining when a seizure exceeds the bounds of an investigative
stop. Even in the discrete category of airport encounters, there
will be endless variations in the facts and circumstances, so much
variation that it is unlikely that the courts can reduce to a
sentence or a paragraph a rule that will
Page 460 U. S. 507
provide unarguable answers to the question whether there has
been an unreasonable search or seizure in violation of the Fourth
Amendment. Nevertheless, we must render judgment, and we think that
the Florida District Court of Appeal cannot be faulted in
concluding that the limits of a
Terry-stop had been
exceeded.
IV
The State's third and final argument is that Royer was not being
illegally held when he gave his consent, because there was probable
cause to arrest him at that time. Detective Johnson testified at
the suppression hearing, and the Florida District Court of Appeal
held that there was no probable cause to arrest until Royer's bags
were opened, but the fact that the officers did not believe there
was probable cause and proceeded on a consensual or
Terry-stop rationale would not foreclose the State from
justifying Royer's custody by proving probable cause, and hence
removing any barrier to relying on Royer's consent to search.
Peters v. New York, decided with
Sibron v. New
York, 392 U. S. 40,
392 U. S. 66-67
(1968). We agree with the Florida District Court of Appeal,
however, that probable cause to arrest Royer did not exist at the
time he consented to the search of his luggage. The facts are that
a nervous young man with two American Tourister bags paid cash for
an airline ticket to a "target city." These facts led to inquiry,
which in turn revealed that the ticket had been bought under an
assumed name. The proffered explanation did not satisfy the
officers. We cannot agree with the State, if this is its position,
that every nervous young man paying cash for a ticket to New York
City under an assumed name and carrying two heavy American
Tourister bags may be arrested and held to answer for a serious
felony charge.
V
Because we affirm the Florida District Court of Appeal's
conclusion that Royer was being illegally detained when he
consented to the search of his luggage, we agree that the
consent
Page 460 U. S. 508
was tainted by the illegality and was ineffective to justify the
search. The judgment of the Florida District Court of Appeal is
accordingly
Affirmed.
[
Footnote 1]
The facts set forth in this opinion are taken from the en banc
decision of the Florida District Court of Appeal, Third District,
389 So. 2d 1007, 1015-1018 (1980), and from the transcript of the
hearing on the motion to suppress contained in the joint appendix.
App. 11A-116A.
[
Footnote 2]
The "drug courier profile" is an abstract of characteristics
found to be typical of persons transporting illegal drugs. In
Royer's case, the detectives attention was attracted by the
following facts which were considered to be within the profile: (a)
Royer was carrying American Tourister luggage, which appeared to be
heavy, (b) he was young, apparently between 25-35, (c) he was
casually dressed, (d) he appeared pale and nervous, looking around
at other people, (e) he paid for his ticket in cash with a large
number of bills, and (f) rather than completing the airline
identification tag to be attached to checked baggage, which had
space for a name, address, and telephone number, he wrote only a
name and the destination. 389 So. 2d at 1016; App. 27A-40A.
[
Footnote 3]
Fla.Stat. § 893.13(1)(a)(2) (1975).
[
Footnote 4]
App. 114A-116A.
[
Footnote 5]
Under Florida law, a plea of
nolo contendere is
equivalent to a plea of guilty.
[
Footnote 6]
On appeal, a panel of the District Court of Appeal of Florida
found that, viewing the totality of the circumstances, the finding
of consent by the trial court was supported by clear and convincing
evidence. 389 So. 2d 1007 (1979). The panel decision was vacated,
and rehearing en banc granted.
Id. at 1015 (1980). It is
the decision of the en banc court that is reviewed here.
[
Footnote 7]
The Florida court was also of the opinion that "a mere
similarity with the contents of the drug courier profile is
insufficient even to constitute the articulable suspicion required
to justify" the stop authorized by
Terry v. Ohio. It went
on to hold that, even if it followed a contrary rule, or even if
articulable suspicion occurred at some point prior to Royer's
consent to search, the facts did not amount to probable cause that
would justify the restraint imposed on Royer. 389 So. 2d at 1019.
As will become clear, we disagree on the reasonable suspicion
issue, but do concur that probable cause to arrest was lacking.
[
Footnote 8]
In its brief and at oral argument before this Court, the State
contests whether this concession was ever made. We have no basis to
question the statement of the Florida court.
[
Footnote 9]
Our decision here is consistent with the Court's judgment in
United States v. Mendenhall, 446 U.
S. 544 (1980). In
Mendenhall, the respondent
was walking along an airport concourse when she was approached by
two federal Drug Enforcement Agency (DEA) officers. As in the
present case, the officers asked for Mendenhall's airline ticket
and some identification; the names on the ticket and identification
did not match. When one of the agents specifically identified
himself as attached to the DEA, Mendenhall became visibly shaken
and nervous.
Id. at
446 U. S.
548.
After returning the ticket and identification, one officer asked
Mendenhall if she would accompany him to the DEA airport office, 50
feet away, for further questions. Once in the office, Mendenhall
was asked to consent to a search of her person and her handbag; she
was advised of her right to decline.
Ibid. In a private
room, following further assurance from Mendenhall that she
consented to the search, a policewoman began the search of
Mendenhall's person by requesting that Mendenhall disrobe. As she
began to undress, Mendenhall removed two concealed packages that
appeared to contain heroin and handed them to the policewoman.
Id. at
446 U. S. 549.
The Court of Appeals determined that the initial "stop" of
Mendenhall was unlawful because not based upon a reasonable
suspicion of criminal activity. In the alternative, the court found
that, even if the initial stop was permissible, the officer's
request that Mendenhall accompany him to the DEA office constituted
an arrest without probable cause.
This Court reversed. Two Justices were of the view that the
entire encounter was consensual, and that no seizure had taken
place. Three other Justices assumed that there had been a seizure,
but would have held that there was reasonable suspicion to warrant
it; hence, a voluntary consent to search was a valid basis for the
search. Thus, the five Justices voting to reverse appeared to agree
that Mendenhall was not being illegally detained when she consented
to be searched. The four dissenting Justices also assumed that
there had been a detention, but were of the view that reasonable
grounds for suspecting Mendenhall did not exist, and concluded that
Mendenhall was thus being illegally detained at the time of her
consent.
The case before us differs in important respects. Here, Royer's
ticket and identification remained in the possession of the
officers throughout the encounter; the officers also seized and had
possession of his luggage. As a practical matter, Royer could not
leave the airport without them. In
Mendenhall, no luggage
was involved, the ticket and identification were immediately
returned, and the officers were careful to advise that the suspect
could decline to be searched. Here, the officers had seized Royer's
luggage and made no effort to advise him that he need not consent
to the search.
[
Footnote 10]
Courts of Appeals are in disagreement as to whether using a dog
to detect drugs in luggage is a search, but no Court of Appeals has
held that more than an articulable suspicion is necessary to
justify this kind of a warrantless search, if indeed it is a
search.
See, e.g., United States v. Sullivan, 625 F.2d 9,
13 (CA4 1980) (no search),
cert. denied, 450 U.S. 923
(1981);
United States v. Burns, 624 F.2d 95, 101 (CA10
1980) (same);
United States v. Beale, 674 F.2d 1327, 1335
(CA9 1982) (sniff is an intrusion requiring reasonable suspicion),
cert. pending, No. 82-674. Furthermore, the law of the
Circuit from which this case comes was and is that "use of
[drug-detecting canines] constitute[s] neither a search nor a
seizure under the Fourth Amendment."
United States v.
Goldstein, 635 F.2d 356, 361 (CA5),
cert. denied, 452
U.S. 962 (1981).
See United States v. Viera, 644 F.2d 509,
510 (CA5),
cert. denied, 454 U.S. 867 (1981). Decisions of
the United States Court of Appeals for the Fifth Circuit rendered
prior to September 30, 1981, are binding precedent on the United
States Court of Appeals for the Eleventh Circuit.
Bonner v.
City of Prichard, 661 F.2d 1206, 1207 (CA11 1981).
In any event, we hold here that the officers had reasonable
suspicion to believe that Royer's luggage contained drugs, and we
assume that the use of dogs in the investigation would not have
entailed any prolonged detention of either Royer or his luggage
which may involve other Fourth Amendment concerns. In
United
State v. Beale, supra, for example, after briefly questioning
two suspects who had checked baggage for a flight from the Fort
Lauderdale, Fla., airport, the officers proceeded to the baggage
area, where a trained dog alerted to one of the checked bags.
Meanwhile, the suspects had boarded their plane for California,
where their bags were again sniffed by a trained dog, and they were
arrested. The Court of Appeals for the Ninth Circuit vacated a
judgment convicting the suspects on the ground that articulable
suspicion was necessary to justify the use of a trained dog to
sniff luggage, and that the existence or not of that requirement
should have been determined in the District Court. 674 F.2d at
1335. In the case before us, the officers, with founded suspicion,
could have detained Royer for the brief period during which Florida
authorities at busy airports seem able to carry out the
dog-sniffing procedure.
JUSTICE POWELL, concurring.
I join the plurality opinion. This is an airport "stop for
questioning" case similar in its general setting to that before us
in
United States v. Mendenhall, 446 U.
S. 544 (1980). [
Footnote
2/1] The plurality opinion today has discussed helpfully the
principles applicable to investigative stops for questioning. Since
I was the author of one of the opinions in
Mendenhall, id.
at
446 U. S. 560,
I write briefly to repeat that the public has a compelling interest
in identifying by all lawful means those who traffic in illicit
drugs for personal profit. As the plurality opinion emphasizes,
ante at
460 U. S.
506-507, the facts and circumstances of investigative
stops necessarily vary. In view of the extent to which air
transportation is used in the drug traffic, the fact that the stop
at issue is made by trained officers in an airport warrants special
consideration. [
Footnote 2/2]
This case, however, differs strikingly from
Mendenhall
in the circumstances following the lawful initial questioning and
the request that the suspect accompany the officers to a more
private place. Royer then found himself in a small, windowless room
-- described as a "large closet" -- alone with two officers who,
without his consent, already had obtained possession of his checked
luggage. In addition, they had retained his driver's license and
airline ticket. Neither the evidence
Page 460 U. S. 509
in this case nor common sense suggests that Royer was free to
walk away. I agree with the plurality that, as a practical matter,
he then was under arrest, and his surrender of the luggage key to
the officers cannot be viewed as consensual.
[
Footnote 2/1]
As the plurality notes,
ante at
460 U. S. 504,
n. 9, five Justices in
Mendenhall were of the view that
the respondent in that case had not been illegally detained, and
therefore that she had consented to be searched.
[
Footnote 2/2]
Since 1974, the Drug Enforcement Administration has assigned
highly skilled agents to the major airports as part of a nationwide
program to intercept drug couriers. These agents are guided in part
by a "drug courier profile" that identifies characteristics that
experience has shown to be relevant in identifying suspects.
See Mendenhall, 446 U.S. at
446 U. S.
562.
JUSTICE BRENNAN, concurring in the result.
In this case, the Florida District Court of Appeal's decision
rested on its holding that, at some point after the initial stop,
the officers' seizure of Royer matured into an arrest unsupported
by probable cause. 389 So. 2d 1007, 1019 (1980) (en banc). Royer's
consent to the search of his suitcases, therefore, was tainted by
the illegal arrest.
Id. at 1019-1020. The District Court
of Appeal's conclusion is amply supported by the record and by our
decision in
Dunaway v. New York, 442 U.
S. 200 (1979). I therefore concur that the District
Court of Appeal's judgment should be affirmed. But the plurality
reaches certain issues that it clearly need not reach to support an
affirmance.
To the extent that the plurality endorses the legality of the
officers' initial stop of Royer,
see post at
460 U. S. 523,
n. 3 (REHNQUIST, J., dissenting), it was wholly unnecessary to
reach that question. For even assuming the legality of the initial
stop, the plurality correctly holds, and I agree, that the
officers' subsequent actions clearly exceeded the permissible
bounds of a
Terry "investigative" stop.
Ante at
460 U. S. 501,
460 U. S.
507.
"[A]ny '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."
Dunaway v. New York, supra, at
442 U. S. 213.
Thus, most of the plurality's discussion of the permissible scope
of
Terry investigative stops is also unnecessary to the
decision.
I emphasize that
Terry v. Ohio, 392 U. S.
1 (1968), was a very limited decision that expressly
declined to address the "constitutional propriety of an
investigative
seizure' upon less than probable cause for
purposes of `detention' and/or
Page 460 U. S.
510
interrogation." Id. at 392 U. S. 19, n.
16. Terry simply held that, under certain carefully
defined circumstances, a police officer
"is entitled for the protection of himself and others in the
area to conduct a carefully limited search of the outer clothing .
. . in an attempt to discover weapons which might be used to
assault him."
Id. at
392 U. S. 30.
Adams v. Williams, 407 U. S. 143
(1972), endorsed "brief" investigative stops based on reasonable
suspicion,
id. at
407 U. S. 145-146, but the search for weapons upheld in
that case was very limited, and was based on
Terry's
safety rationale. 407 U.S. at
407 U. S. 146.
In
Adams, we stated that the purpose of the "limited"
weapons search was "not to discover evidence of crime, but to allow
the officer to pursue his investigation without fear of violence. .
. ."
Ibid. In
United States v. Brignoni-Ponce,
422 U. S. 873
(1975), we held that
"when an officer's observations lead him reasonably to suspect
that a particular vehicle may contain aliens who are illegally in
the country, he may stop the car briefly and investigate the
circumstances that provoke suspicion."
Id. at
422 U. S. 881.
We based this holding on the importance of the governmental
interest in stemming the flow of illegal aliens, on the minimal
intrusion of a brief stop, and on the absence of practical
alternatives for policing the border.
Ibid. We noted the
limited holdings of
Terry and
Adams, and, while
authorizing the police to
"question the driver and passengers about their citizenship and
immigration status, and . . . ask them to explain suspicious
circumstances,"
we expressly stated that "any further detention or search must
be based on consent or probable cause." 422 U.S. at
422 U. S.
881-882.
See also Dunaway v. New York, supra,
at
442 U. S.
208-212 (discussing the narrow scope of
Terry
and its progeny).
The scope of a
Terry-type "investigative" stop and any
attendant search must be extremely limited or the
Terry
exception would "swallow the general rule that Fourth Amendment
seizures [and searches] are
reasonable' only if based on
probable cause." Dunaway v. New York, supra, at
442 U. S. 213.
In my view, any suggestion that the Terry reasonable
suspicion
Page 460 U. S. 511
standard justifies anything but the briefest of detentions or
the most limited of searches finds no support in the
Terry
line of cases.
*
In any event, I dissent from the plurality's view that the
initial stop of Royer was legal. For plainly Royer was "seized" for
purposes of the Fourth Amendment when the officers asked him to
produce his driver's license and airline ticket.
Terry
stated that "whenever a police officer accosts an individual and
restrains his freedom to walk away, he has
seized' that
person." 392 U.S. at 392 U. S. 16.
Although I agree that "not all personal intercourse between
policemen and citizens involves `seizures' of persons,"
id. at 392 U. S. 19, n.
16, and that policemen may approach citizens on the street and ask
them questions without "seizing" them for purposes of the Fourth
Amendment, once an officer has identified himself and asked a
traveler for identification and his airline ticket, the traveler
has been "seized" within the meaning of the Fourth Amendment. By
identifying themselves and asking for Royer's airline ticket and
driver's license the officers, as a practical matter, engaged in a
"show of authority" and "restrained
Page 460 U. S. 512
[Royer's] liberty."
Ibid. It is simply wrong to suggest
that a traveler feels free to walk away when he has been approached
by individuals who have identified themselves as police officers
and asked for, and received, his airline ticket and driver's
license.
Before
Terry, only "seizures" of persons based on
probable cause were held to satisfy the Fourth Amendment.
Dunaway v. New York, 442 U.S. at
442 U. S.
208-209. As we stated in
United States v.
Brignoni-Ponce, supra, however,
Terry and
Adams
"establish that, in appropriate circumstances, the Fourth
Amendment allows a properly limited 'search' or 'seizure' on facts
that do not constitute probable cause to arrest or to search for
contraband or evidence of crime."
422 U.S. at
422 U. S. 881.
But to justify such a seizure, an officer must have a reasonable
suspicion of criminal activity based on "specific and articulable
facts . . . [and] rational inferences from those facts. . . ."
Terry v. Ohio, 392 U.S. at
392 U. S. 21.
See also Brown v. Texas, 443 U. S. 47,
443 U. S. 51
(1979). In this case, the officers decided to approach Royer
because he was carrying American Tourister luggage, which appeared
to be heavy; he was young; he was casually dressed; he appeared to
be pale and nervous, and was looking around at other people; he
paid for his airline ticket in cash with a large number of bills;
and he did not completely fill out the identification tags for his
luggage, which was checked to New York.
See ante at
460 U. S. 493,
n. 2. These facts clearly are not sufficient to provide the
reasonable suspicion of criminal activity necessary to justify the
officers' subsequent seizure of Royer. Indeed, considered
individually or collectively, they are perfectly consistent with
innocent behavior, and cannot possibly give rise to any inference
supporting a reasonable suspicion of criminal activity. The
officers' seizure of Royer, therefore, was illegal.
Although I recognize that the traffic in illicit drugs is a
matter of pressing national concern, that cannot excuse this Court
from exercising its unflagging duty to strike down official
activity that exceeds the confines of the Constitution.
Page 460 U. S. 513
In discussing the Fourth Amendment in
Coolidge v. New
Hampshire, 403 U. S. 443
(1971), Justice Stewart stated:
"In times of unrest, whether caused by crime or racial conflict
or fear of internal subversion, this basic law and the values that
it represents may appear unrealistic or 'extravagant' to some. But
the values were those of the authors of our fundamental
constitutional concepts."
Id. at
403 U. S. 455
(plurality opinion). We must not allow our zeal for effective law
enforcement to blind us to the peril to our free society that lies
in this Court's disregard of the protections afforded by the Fourth
Amendment.
* I interpret the plurality's requirement that the investigative
methods employed pursuant to a
Terry stop be "the least
intrusive means reasonably available to verify or dispel the
officer's suspicion in a short period of time,"
ante at
460 U. S. 500,
to mean that the availability of a less intrusive means may make an
otherwise reasonable stop unreasonable. I do not interpret it to
mean that the absence of a less intrusive means can make an
otherwise unreasonable stop reasonable.
In addition, contrary to the plurality's apparent suggestion, I
am not at all certain that the use of trained narcotics dogs
constitutes a less intrusive means of conducting a lawful
Terry investigative stop.
See ante at
460 U. S. 505.
Such a suggestion finds no support in our cases, and any question
concerning the use of trained dogs to detect the presence of
controlled substances in luggage is clearly not before us.
In any event, the relevance of a least intrusive means
requirement within the context of a
Terry investigative
stop is not clear to me. As I have discussed, a lawful stop must be
so strictly limited that it is difficult to conceive of a less
intrusive means that would be effective to accomplish the purpose
of the stop.
JUSTICE BLACKMUN, dissenting.
JUSTICE POWELL, concurring in
United States v.
Mendenhall, 446 U. S. 544
(1980), observed:
"The public has a compelling interest in detecting those who
would traffic in deadly drugs for personal profit. Few problems
affecting the health and welfare of our population, particularly
our young, cause greater concern than the escalating use of
controlled substances. Much of the drug traffic is highly organized
and conducted by sophisticated criminal syndicates. The profits are
enormous. And many drugs . . . may be easily concealed. As a
result, the obstacles to detection of illegal conduct may be
unmatched in any other area of law enforcement."
Id. at
446 U. S.
561-562.
In my view, the police conduct in this case was minimally
intrusive. Given the strength of society's interest in overcoming
the extraordinary obstacles to the detection of drug traffickers,
such conduct should not be subjected to a requirement of probable
cause. Because the Court holds otherwise, I dissent.
I
The Florida District Court of Appeal, Third District, held that
respondent Royer had been arrested without probable cause before he
consented to the search of his luggage, and that his consent was
therefore tainted by this illegal detention.
Page 460 U. S. 514
I concur in the plurality's adoption of the Fourth Amendment
"seizure" standard proposed by Justice Stewart in
Mendenhall: Fourth Amendment protections apply when
"official authority" is exercised "such that
a reasonable
person would have believed he was not free to leave.'"
Ante at 460 U. S. 502,
quoting 446 U.S. at 446 U. S. 554.
I do not quarrel with the plurality's conclusion that, at some
point in this encounter, that threshold was passed. I also agree
that the information available prior to the opening of Royer's
suitcases did not constitute probable cause to arrest; thus, if
probable cause was required, the seizure was illegal, and the
resulting consent to search was invalid. Dunaway v. New
York, 442 U. S. 200,
442 U. S.
216-219 (1979); Brown v. Illinois, 422 U.
S. 590, 422 U. S.
601-604 (1975). The dispositive issue, however, is
whether the officers needed probable cause to arrest before they
could take the actions that led to Royer's consent and the
subsequent discovery of the contraband. I conclude that they did
not.
A
"
[T]he key principle of the Fourth Amendment is
reasonableness -- the balancing of competing interests.'"
Michigan v. Summers, 452 U. S. 692,
452 U. S. 700,
n. 12 (1981), quoting Dunaway v. New York, 442 U.S. at
442 U. S. 219
(WHITE, J., concurring). Previous cases suggest a two-step analysis
to distinguish seizures requiring probable cause from those
requiring reasonable suspicion. On the one hand, any formal arrest,
and any seizure "having the essential attributes of a formal
arrest, is unreasonable unless it is supported by probable cause."
Michigan v. Summers, 452 U.S. at 452 U. S. 700.
On the other hand, a more limited intrusion, if supported by a
special law enforcement need for greater flexibility, may be
justifiable under the lesser "reasonable suspicion" standard. These
lesser seizures are "not confined to the momentary, on-the-street
detention accompanied by a frisk for weapons." Ibid. In
the case of a seizure less intrusive than a formal arrest,
determining whether the less demanding reasonable
Page 460 U. S. 515
suspicion standard will be applied requires balancing the amount
of intrusion upon individual privacy against the special law
enforcement interests that would be served by permitting such an
intrusion on less than probable cause.
See Michigan v.
Summers, 452 U.S. at
452 U. S.
699-701;
United States v. Mendenhall, 446 U.S.
at
446 U. S. 561
(POWELL, J., concurring in part);
Dunaway v. New York, 442
U.S. at
442 U. S.
219-220 (WHITE, J., concurring);
United States v.
Martinez-Fuerte, 428 U. S. 543,
428 U. S. 555
(1976);
United States v. Brignoni-Ponce, 422 U.
S. 873,
422 U. S.
878-881 (1975).
B
At the suppression hearing in this case, Royer agreed that he
was not formally arrested until after his suitcases were opened.
App. 84A, 85A. In my view, it cannot fairly be said that, prior to
the formal arrest, the functional equivalent of an arrest had taken
place. The encounter had far more in common with automobile stops
justifiable on reasonable suspicion,
see United States v.
Brignoni-Ponce, 422 U.S. at
422 U. S.
880-882, than with the detention deemed the functional
equivalent of a formal arrest in
Dunaway v. New York,
supra. In
Dunaway, the suspect was taken from his
neighbor's home and involuntarily transported to the police station
in a squad car. At the precinct house, he was placed in an
interrogation room and subjected to extended custodial
interrogation. 442 U.S. at
442 U. S. 203,
442 U. S.
206-207,
442 U. S. 212.
Here, Royer was not taken from a private residence, where
reasonable expectations of privacy perhaps are at their greatest.
Instead, he was approached in a major international airport where,
due in part to extensive anti-hijacking surveillance and equipment,
reasonable privacy expectations are of significantly lesser
magnitude, certainly no greater than the reasonable privacy
expectations of travelers in automobiles.
See United States v.
Martinez-Fuerte, 428 U.S. at
428 U. S. 561.
As in the automobile stop cases, and indeed as in every case in
which the Court has upheld seizures upon reasonable suspicion,
Royer was questioned where he was found, and all
Page 460 U. S. 516
questions were directly related to the purpose of the stop.
Thus, the officers asked about Royer's identity, the purposes of
his travel, and the suspicious circumstances they had noted. As the
plurality appears to concede,
ante at
460 U. S. 502,
probable cause was certainly not required at this point, and the
officers' conduct was fully supported by reasonable suspicion.
What followed was within the scope of the lesser intrusions
approved on less than probable cause in our prior cases, and was
far removed from the circumstances of
Dunaway. In the
context of automobile stops, the Court has held that an officer
"may question the driver and passengers about their citizenship
and immigration status, and he may ask them to explain suspicious
circumstances, but any further detention or search must be based on
consent or probable cause."
United States v. Brignoni-Ponce, 422 U.S. at
422 U. S.
881-882, quoted with approval in
Dunaway, 442
U.S. at
442 U. S. 212.
Here, Royer was not subjected to custodial interrogation, for which
probable cause is required.
Dunaway, 442 U.S. at
442 U. S. 216.
Instead, the officers first sought Royer's consent to move the
detention 40 feet to the police room, and then sought his consent
to search his luggage. The question is whether, as in
Dunaway, the move was involuntary, in which case probable
cause might have been required, or whether, as in
Mendenhall, 446 U.S. at
446 U. S.
557-558, Royer consented voluntarily to this change of
locale. Like JUSTICE REHNQUIST,
post at
460 U. S.
530-531, I do not understand the plurality to dispute
that Royer consented to go to the police room. Because the
detention up to this point was not unlawful, the voluntariness of
Royer's consent is to be judged on the totality of the
circumstances.
Schneckloth v. Bustamonte, 412 U.
S. 218,
412 U. S. 227
(1973). As in
Mendenhall, 446 U.S. at
446 U. S. 557,
quoting
Sibron v. New York, 392 U. S.
40,
392 U. S. 63
(1968), Royer went "
voluntarily, in a spirit of apparent
cooperation.'" [Footnote
3/1]
Page 460 U. S.
517
Had Royer initially refused to consent to the search of his
suitcases, and had the officers continued the detention in the hope
that he would change his mind, a situation much closer to
Dunaway would have been presented. But once he was in the
room, [
Footnote 3/2] Royer
consented to the search immediately upon request. Neither the
plurality nor the Florida Court of Appeal suggests that, judged on
the totality of the circumstances, Royer's consent to the search
was involuntary.
Page 460 U. S. 518
Thus, the officers in this case followed the formula for "lesser
intrusions" set forth in
Brignoni-Ponce and approved in
Dunaway: beyond the initial stop and properly limited
questioning, further detention and search were based on Royer's
consent. Certainly, the intrusion on Royer's privacy was not so
extreme as to make the countervailing public interest in greater
flexibility irrelevant to the question whether probable cause was
required. Consequently, I do not understand why the plurality fails
to balance the character of the detention and the degree to which
it intruded upon Royer's privacy against its justification as
measured by "both the law enforcement interest and the nature of
the
articulable facts' supporting the detention." Michigan
v. Summers, 452 U.S. at 452 U. S. 702.
This balance should determine whether probable cause or reasonable
suspicion was required to support the officers' conduct, and
whether that conduct was lawful under the appropriate
standard.
II
The officers in this case began their encounter with Royer with
reasonable suspicion. They continued their questioning and
requested further cooperation only as more facts, heightening their
suspicion, came to their attention. Certainly, as any such
detention continues or escalates, a greater degree of reasonable
suspicion is necessary to sustain it, and at some point probable
cause will be required. But here, the intrusion was short-lived and
minimal. Only 15 minutes transpired from the initial approach to
the opening of the suitcases. The officers were polite, and sought
and immediately obtained Royer's consent at each significant step
of the process. [
Footnote 3/3]
Royer knew that, if the search of the suitcases did not
Page 460 U. S. 519
turn up contraband, he would be free to go on his way. [
Footnote 3/4] Thus, it seems clear to me
that "
the police [were] diligently pursuing a means of
investigation which [was] likely to resolve the matter one way or
another very soon. . . .'" Michigan v. Summers, 452 U.S.
at 452 U. S. 701,
n. 14, quoting 3 W. LaFave, Search and Seizure § 9.2, p. 40 (1978).
[Footnote 3/5]
The special need for flexibility in uncovering illicit drug
couriers is hardly debatable. Surely the problem is as serious, and
as intractable, as the problem of illegal immigration discussed in
United States v. Brignoni-Ponce, 422 U.S. at
422 U. S.
878-879, and in
United States v.
Martinez-Fuerte, 428 U.S. at
428 U. S. 552.
In light of the extraordinary and well-documented difficulty of
identifying drug couriers, the minimal intrusion in this case,
based on particularized suspicion, was eminently reasonable.
I dissent.
[
Footnote 3/1]
The trial judge, App. 115A-116A, and the appellate panel, 389
So. 2d 1007, 1008-1010 (Fla. App.1979), so found, and the Florida
District Court of Appeal, which viewed the evidence in the light
most favorable to the State,
id. at 1016, did not
contradict this finding. This is not inconsistent with a possible
finding that, at the time the request was made, Royer reasonably
believed that he was not free to leave the officers' presence. As
the officers framed the request, Royer might have believed that his
only choices, for the moment, were to accompany the officers to the
police room or to continue the discussion in the public concourse.
His consent to moving the discussion, therefore, was voluntary,
even if the detention itself was not.
[
Footnote 3/2]
The character of the police room did not transform the encounter
into the functional equivalent of an arrest.
See post at
460 U. S. 532,
and n. 10 (REHNQUIST, J., dissenting). Indeed, the plurality does
not rely on any differences between this room and the one in
Mendenhall to distinguish this encounter from the
encounter held in
Mendenhall to require, at most,
reasonable suspicion.
Ante at
460 U. S.
503-504, n. 9. The plurality instead points to several
other differences between this case and
Mendenhall: the
officers retained Royer's ticket and identification, momentarily
took possession of Royer's luggage, and did not advise him that he
could decline to be searched.
Ante at
460 U. S. 504,
n. 9. Like JUSTICE POWELL, I considered the question whether a
threshold seizure had taken place in
Mendenhall to be
"extremely close." 446 U.S. at
446 U. S. 560,
n. 1 (POWELL, J., concurring in part). Thus, notwithstanding the
facts that, unlike the suspect in
Mendenhall, Royer was a
well-educated, adult, Caucasian male,
cf. id. at
460 U. S. 558
("that the respondent, a female and a Negro, may have felt
unusually threatened by the officers, who were white males," is
"not irrelevant" to the degree of coercion), the differences noted
by the plurality lead me to agree that a reasonable person in
Royer's circumstances would not have felt free to walk away. But
while these differences did transform this otherwise identical
encounter from an arguably consensual one into a seizure clearly
requiring
some justification under the Fourth Amendment,
they are not so significant as to require the conclusion that Royer
had been subjected to the equivalent of a full-blown arrest.
[
Footnote 3/3]
The officers acted reasonably in taking Royer's baggage stubs
and bringing his luggage to the police room without his consent.
Royer had already surrendered the suitcases to a third party, the
airline. The officers brought the suitcases to him immediately, and
their contents were not revealed until Royer gave his consent.
Thus, Royer's privacy was not substantially invaded. At that time,
moreover, Royer himself was validly detained, the object of the
encounter had become the securing of Royer's consent to search his
luggage, and the luggage would otherwise have been loaded onto the
airplane.
[
Footnote 3/4]
The fact that Royer knew the search was likely to turn up
contraband is, of course, irrelevant; the potential intrusiveness
of the officers' conduct must be judged from the viewpoint of an
innocent person in Royer's position.
See United States v.
Wylie, 186 U.S.App.D.C. 231, 237, 569 F.2d 62, 68 (1977),
cert. denied, 435 U.S. 944 (1978).
[
Footnote 3/5]
Like JUSTICE REHNQUIST,
post at
460 U. S. 528,
I cannot accept the "least intrusive" alternative analysis the
plurality would impose on the law of the Fourth Amendment.
See
ante at
460 U. S. 500.
Prior cases do establish that "an investigative detention must be
temporary, and last no longer than is necessary to effectuate the
purpose of the stop."
Ibid. The detention at issue fully
met that standard. The cases relied upon by the plurality do not,
however, support the further proposition for which it cites
them.
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and JUSTICE
O'CONNOR join, dissenting.
The plurality's meandering opinion contains in it a little
something for everyone, and although it affirms the reversal of a
judgment of conviction, it can scarcely be said to bespeak
Page 460 U. S. 520
a total indifference to the legitimate needs of law enforcement
agents seeking to curb trafficking in dangerous drugs. Indeed, in
both manner and tone, the opinion brings to mind the old nursery
rhyme:
"The King of France"
"With forty thousand men"
"Marched up the hill"
"And then marched back again."
The opinion nonetheless, in my view, betrays a mind-set more
useful to those who officiate at shuffleboard games, primarily
concerned with which particular square the disc has landed on, than
to those who are seeking to administer a system of justice whose
twin purposes are the conviction of the guilty and the vindication
of the innocent. The plurality loses sight of the very language of
the Amendment which it purports to interpret:
"The right of the people to be secure in their persons, houses,
papers, and effects, against
unreasonable searches and
seizures, shall not be violated. . . ."
(Emphasis added.)
Analyzed simply in terms of its "reasonableness," as that term
is used in the Fourth Amendment, the conduct of the investigating
officers toward Royer would pass muster with virtually all
thoughtful, civilized persons not overly steeped in the mysteries
of this Court's Fourth Amendment jurisprudence. Analyzed even in
terms of the most meticulous regard for our often conflicting
cases, it seems to me to pass muster equally well.
The facts of this case, which are doubtless typical of those
facing narcotics officers in major airports throughout the country,
may be usefully stated in a somewhat different manner than that
followed in the opinion of the plurality. Officers Magdalena and
Johnson, members of the "Smuggling Detail" of the Dade County
Public Safety Department created in response to a growing drug
problem at the Miami Airport,
Page 460 U. S. 521
were on duty at that airport on January 3, 1978. Since this is
one of the peak periods of the tourist season in south Florida and
the Caribbean, we may presumably take judicial notice that the
airport was, in all probability, very crowded and busy at that
time.
The detectives first saw Royer walking through the airport
concourse. He was a young man, casually dressed, carrying two
heavily laden suitcases. The officers described him as nervous in
appearance, and looking around in a manner which suggested that he
was trying to detect and avoid police officers. Before they
approached him, the officers followed Royer to a ticket counter. He
there requested a ticket for New York City, and in paying for it
produced a large roll of cash in small denomination bills from
which he peeled off the necessary amount. He then affixed two
baggage tags to his luggage and checked it. Rather than filling out
his full name, address, and phone number in the spaces provided on
the tags, Royer merely wrote the words "Holt" and "La Guardia" on
each tag.
At this point, the officers approached Royer, identified
themselves, and asked if he had a moment to talk. He answered
affirmatively, and the detectives then asked to see his airline
ticket and some identification. [
Footnote 4/1] Although his ticket was for the name
"Holt," his driver's license was in the name of "Mark Royer." When
asked to explain this discrepancy, he said that a friend named Holt
had made the ticket reservation. This explanation, of course, did
not account for his use of the name "Holt" on the baggage tags that
he had just filled out.
By this time, Royer had become all the more obviously nervous.
The detectives told Royer that they suspected he was transporting
narcotics, and asked if he would accompany
Page 460 U. S. 522
them for further questioning to a room adjacent to the concourse
"to get out of the general population of the Airport." 389 So. 2d
1007, 1017 (Fla. App.1980) (en banc). Royer agreed to go. The room
was no more than 40 feet from the place where the detectives first
approached Royer; it was described in the testimony of one of the
officers as a "large storage closet" off a stewardesses' lounge
converted into a room used by the Smuggling Detail,
ibid.;
the room contained a desk and two chairs. At this time, the
detectives also, without Royer's consent, retrieved Royer's
suitcases from the place where they had been checked through on the
flight to New York, and brought them to the room off the
concourse.
Once inside, the detectives asked Royer if he would consent to a
search of the luggage so that they could dispel or confirm their
suspicion that he was smuggling narcotics. The plurality's opinion
describes what then happened:
"Without orally responding to this request, Royer produced a key
and unlocked one of the suitcases, which the detective then opened
without seeking further assent from Royer. Marihuana was found in
that suitcase. According to Detective Johnson, Royer stated that he
did not know the combination to the lock on the second suitcase.
When asked if he objected to the detective's opening the second
suitcase, Royer said, 'no, go ahead,' and did not object when the
detective explained that the suitcase might have to be broken open.
The suitcase was pried open by the officers, and more marihuana was
found. Royer was then told that he was under arrest. Approximately
15 minutes had elapsed from the time the detectives initially
approached respondent until his arrest upon the discovery of the
contraband."
Ante at
460 U. S.
494-495. [
Footnote
4/2]
Page 460 U. S. 523
The plurality inferentially concedes, as of course it must,
that, at the time the suitcases were opened and 65 pounds of
marihuana were disclosed, the officers had probable cause to arrest
and detain Royer. But, working backward through this very brief
encounter, the plurality manages to sufficiently fault the
officers' conduct so as to require that Royer's conviction for
smuggling drugs be set aside. Analyzed in terms of the
"reasonableness" which must attend any search and seizure under the
requirements of the Fourth Amendment, I find it impossible to
conclude that any step in the officers' efforts to apprehend Royer
fails to meet that test.
The plurality concedes that, after their initial conversation
with Royer, the officers had
"grounds for suspecting Royer of carrying drugs and for
temporarily detaining him and his luggage while they attempted to
verify or dispel their suspicions. . . ."
Ante at
460 U. S. 502.
See also Michigan v. Summers, 452 U.
S. 692,
452 U. S.
697-700 (1981);
Adams v. Wlliams, 407 U.
S. 143,
407 U. S. 146
(1972);
Terry v. Ohio, 392 U. S. 1,
392 U. S. 20-21
(1968). I agree that their information reached at least this level.
[
Footnote 4/3] The detectives had
learned, among other things, that (1) Royer was carrying two heavy
suitcases; (2) he was visibly nervous, exhibiting the behavior of a
person trying to identify
Page 460 U. S. 524
and evade police officers; (3) at a ticket counter in a major
import center for illicit drugs, he had purchased a ticket for a
city that is a major distribution center for such drugs; (4) he
paid for his ticket from a large roll of small denomination bills,
avoiding the need to show identification; (5) in filling out his
baggage tags, Royer listed only a last name and the airport of
destination, failing to give his full name, address, and phone
number in the provided spaces, and (6) he was traveling under an
assumed name. [
Footnote 4/4]
The Florida court felt that even these facts did not amount to
articulable suspicion, reasoning that this behavior was "at least
equally, and usually far more frequently, consistent with complete
innocence." [
Footnote 4/5] 389 So.
2d at 1016. This evaluation
Page 460 U. S. 525
of the evidence seems to me singularly akin to observing that,
because a stranger who was loitering near a building shortly before
an arsonist set fire to the building could not be detained against
his will for questioning solely on the basis of that fact, the same
conclusion would be reached even though the same stranger had been
found loitering in the presence of four other buildings shortly
before arsonists had likewise set them on fire. Any one of these
factors relied upon by the Miami police may have been as consistent
with innocence as with guilt; but the combination of several of
these factors is the essence of both "articulable suspicion" and
"probable cause." [
Footnote
4/6]
Page 460 U. S. 526
The point at which I part company with the plurality's opinion
is in the assessment of the reasonableness of the officers' conduct
following their initial conversation with Royer.
Page 460 U. S. 527
The plurality focuses on the transfer of the place of the
interview from the main concourse of the airport to the room off
the concourse, and observes that Royer
"found himself in a small room -- a large closet equipped with a
desk and two chairs. He was alone with two police officers, who
again told him that they thought he was carrying narcotics. He also
found that the officers, without his consent, had retrieved his
checked luggage from the airline."
Ante at
460 U. S.
502-503.
Obviously, this quoted language is intended to convey stern
disapproval of the described conduct of the officers. To my mind,
it merits no such disapproval, and was eminently reasonable. Would
it have been preferable for the officers to have detained Royer for
further questioning, as they concededly had a right to do, without
paying any attention to the fact that his luggage had already been
checked on the flight to New York, and might be put aboard the
flight even though Royer himself was not on the plane? Would it
have been more "reasonable" to interrogate Royer about the contents
of his suitcases, and to seek his permission to open the
suitcases
Page 460 U. S. 528
when they were retrieved, in the busy main concourse of the
Miami Airport, rather than to find a room off the concourse where
the confrontation would surely be less embarrassing to Royer? If
the room had been large and spacious, rather than small, if it had
possessed three chairs, rather than two, would the officers'
conduct have been made reasonable by these facts?
The plurality's answers to these questions, to the extent that
it attempts any, are scarcely satisfying. It commences with the
observation that
"the officers' conduct was more intrusive than necessary to
effectuate an investigative detention otherwise authorized by the
Terry line of cases."
Ante at
460 U. S. 504.
Earlier in its opinion, the plurality set the stage for this
standard when the familiar "least intrusive means" principle of
First Amendment law is suddenly carried over into Fourth Amendment
law by the citation of two cases,
United States v.
Brignoni-Ponce, 422 U. S. 873,
422 U. S.
881-882 (1975), and
Adams v. Williams, 407 U.S.
at
407 U. S. 146,
see ante at
460 U. S. 500,
neither one of which lends any support to the principle as a part
of Fourth Amendment law. The plurality goes on to say that, had the
officers returned Royer's ticket and driver's license, the
encounter clearly would have been consensual. The plurality also
states that, while there were good reasons to justify moving Royer
from one location to another, the officers' motives in seeking to
examine his luggage render these reasons unavailing -- a conclusion
the reason for which wholly escapes me. Finally, the plurality
suggests that the officers might have examined Royer's bags in a
more expeditious way, such as the use of trained dogs.
All of this, to my mind, adds up to little more than saying
that, if my aunt were a man, she would be my uncle. The officers
might have taken different steps than they did to investigate
Royer, but the same may be said of virtually every investigative
encounter that has more than one step to it. The question we must
decide is what was
unreasonable about the steps which
these officers took with respect to
this
suspect
Page 460 U. S. 529
in the Miami Airport on this particular day. On this point, the
plurality stutters, fudges, and hedges:
"What had begun as a consensual inquiry in a public place had
escalated into an investigatory procedure in a police interrogation
room, where the police, unsatisfied with previous explanations,
sought to confirm their suspicions."
Ante at
460 U. S. 503.
But since even the plurality concedes that there was articulable
suspicion warranting an investigatory detention, the fact that the
inquiry had become an "investigatory procedure in a police
interrogation room" would seem to have little bearing on the proper
disposition of a claim that the officers violated the Fourth
Amendment. The plurality goes on to say:
"At least as of that moment, any consensual aspects of the
encounter had evaporated, and we cannot fault the Florida District
Court of Appeal in concluding that
Terry v. Ohio and the
cases following it did not justify the restraint to which Royer was
then subjected. As a practical matter, Royer was under arrest."
Ibid.
Does the plurality intimate that, if the Florida District Court
of Appeal had reached the opposite conclusion with respect to the
holdings of
Terry and the cases which follow it, it would
affirm that holding? [
Footnote 4/7]
Does it mean that the 15-minute duration of the total encounter,
and the even lesser amount of elapsed time during which Royer was
in the "interrogation room," was more than a
Terry
investigative stop can ever consume? These possible conclusions are
adumbrated, but not stated; if the plurality's opinion were to
be
Page 460 U. S. 530
judged by standards appropriate to Impressionist paintings, it
would perhaps receive a high grade, but the same cannot be said if
it is to be judged by the standards of a judicial opinion.
Since the plurality concedes the existence of "articulable
suspicion" at least after the initial conversation with Royer, the
only remaining question is whether the detention of Royer during
that period of time was permissible under the rule enunciated in
Terry v. Ohio, 392 U. S. 1 (1968).
Although
Terry itself involved only a protective patdown
for weapons, subsequent cases have expanded the permissible scope
of such a "seizure." In
Adams v. Williams, supra, we
upheld both a search and seizure of a pistol being carried by a
suspect seated in a parked automobile. In
United States v.
Martinez-Fuerte, 428 U. S. 543
(1976), we allowed Government officials to stop, and divert for
visual inspection and questioning, automobiles which were suspected
of harboring illegal aliens. These stops, including waiting time,
could clearly have approximated in length the time which Royer was
detained, and yet
Martinez-Fuerte allowed them to be made
"in the absence of
any individualized suspicion at
reasonably located checkpoints."
Id. at
428 U. S. 562
(emphasis supplied). Unless we are to say that commercial drug
trafficking is somehow quantitatively less weighty on the Fourth
Amendment scale than trafficking in illegal aliens, I think the
articulable suspicion which concededly focused upon Royer justified
the length and nature of his detention. [
Footnote 4/8]
The reasonableness of the officers' activity in this case did
not depend on Royer's consent to the investigation. Nevertheless,
the presence of consent further justifies the action taken. The
plurality does not seem to dispute that Royer
Page 460 U. S. 531
consented to go to the room in the first instance. Certainly
that conclusion is warranted by the totality of the circumstances.
Schneckloth v. Bustamonte, 412 U.
S. 218,
412 U. S. 227
(1973). The facts are similar to those addressed in
United
States v. Mendenhall, 446 U. S. 544
(1980), where a majority of the Court determined that the consent
to accompany police officers had been voluntary. Royer was not told
that he had to go to the room, but was simply asked, after a brief
period of questioning, if he would accompany the detectives to the
room. Royer was informed as to why the officers wished to question
him further. There were neither threats nor any show of force.
Detectives Johnson and Magdalena were not in uniform, and did not
display weapons. The detectives did not touch Royer, and made no
demands. In fact, Royer admits that the detectives were quite
polite. [
Footnote 4/9]
The plurality concludes that, somewhere between the beginning of
the 40-foot journey and the resumption of conversation in the room,
the investigation became so intrusive that Royer's consent
"evaporated" leaving him "[a]s a practical matter . . . under
arrest."
Ante at
460 U. S. 503.
But if Royer was legally approached in the first instance and
consented to accompany the detectives to the room, it does not
follow that his consent went up in smoke and he was "arrested" upon
entering the room. As we made clear in
Mendenhall, logical
analysis would focus on whether the environment in the room
rendered the subsequent consent to a search of the luggage
involuntary.
Page 460 U. S. 532
As we said in
Mendenhall, "the fact that she was [in
the room] is little or no evidence that she was in any way
coerced." 446 U.S. at
446 U. S. 559.
Other than the size of the room, described as "a large storage
closet," [
Footnote 4/10] there is
nothing in the record which would indicate that Royer's resistance
was overborne by anything about the room. Royer, who was in his
fourth year of study at Ithaca College at the time and has since
graduated with a degree in
communications, simply
continued to cooperate with the detectives as he had from the
beginning of the encounter. Absent any evidence of objective
indicia of coercion, and even absent any claim of such indicia by
Royer, the size of the room itself does not transform a voluntary
consent to search into a coerced consent.
For any of these several reasons, I would reverse the judgment
of the Florida District Court of Appeal.
[
Footnote 4/1]
The plurality recites these facts by noting that, while Royer
"produced" the ticket and identification, he did so "without oral
consent."
Ante at
460 U. S. 494.
See 460
U.S. 491fn4/2|>n. 2,
infra.
[
Footnote 4/2]
Why it should make the slightest difference that Royer did not
"orally" consent to the opening of the first bag, when, in response
to the request by the officers that he consent to a search, Royer
produced a key and unlocked it, is one of the many opaque nuances
of the plurality's opinion.
[
Footnote 4/3]
I also agree with the plurality's intimation that, when the
detectives first approached and questioned Royer, no seizure
occurred, and thus the constitutional safeguards of the Fourth
Amendment were not invoked.
Ante at
460 U. S.
497.
"[N]ot all personal intercourse between policemen and citizens
involves 'seizures' of persons. Only when the officer, by means of
physical force or show of authority, has in some way restrained the
liberty of a citizen may we conclude that a 'seizure' has
occurred."
Terry v. Ohio, 392 U.S. at
392 U. S. 19, n.
16.
See also United State v. Mendenhall, 446 U.
S. 544,
446 U. S.
551-557 (1980) (opinion of Stewart, J.);
id. at
446 U. S. 560,
n. 1 (POWELL, J., concurring in part);
United State v.
Herbst, 641 F.2d 1161, 1166 (CA5),
cert. denied, 454
U.S. 851 (1981);
United States v. Berd, 634 F.2d 979,
984-985 (CA5 1981);
United States v. Turner, 628 F.2d 461,
462-465 (CA5 1980),
cert. denied, 451 U.S. 988 (1981);
United States v. Hill, 626 F.2d 429, 432-433, and n. 6
(CA5 1980);
United States v. Fry, 622 F.2d 1218, 1220-1221
(CA5 1980);
United State v. Elmore, 595 F.2d 1036,
1038-1042 (CA5 1979),
cert. denied, 447 U.S. 910
(1980).
[
Footnote 4/4]
The facts of this case bear a strong resemblance to those we
examined in
United States v. Mendenhall, supra. In that
case, DEA agents in the Detroit Metropolitan Airport observed
Mendenhall as she was the last passenger to deplane from a flight
originating in Los Angeles. Once inside the terminal, Mendenhall,
who appeared very nervous, slowly scanned the populace of the
concourse and then walked very slowly toward the baggage area.
Rather than claim any baggage, however, Mendenhall asked for
directions to the Eastern Airlines ticket counter. At the counter,
which was located in another terminal, Mendenhall, who carried an
American Airlines ticket for a flight from Detroit to Pittsburgh,
asked for an Eastern Airlines ticket for the same trip. Before
Mendenhall could board the Eastern Airlines flight, agents stopped
her for questioning. Three Members of this Court concluded that,
based on these observations alone, the agents had a reasonable
suspicion which justified the stop. 446 U.S. at
446 U. S.
560-565 (POWELL, J., joined by BURGER, C.J., and
BLACKMUN, J., concurring in part). Two Members of the Court did not
reach the question, finding instead that Mendenhall had never been
"seized."
Id. at
446 U. S.
546-557 (opinion of Stewart, J., joined by REHNQUIST,
J.). To the extent that the present case differs from
Mendenhall, the basis for a reasonable suspicion is
stronger on the facts before us now.
[
Footnote 4/5]
The Florida District Court of Appeal took specific exception to
the officers' conclusion that Royer appeared to be nervously
attempting to evade police contact. The lower court said that,
since police officers are not psychiatrists, this conclusion "must
be completely disregarded." 389 So. 2d at 1016, n. 4. This Court,
however, has repeatedly emphasized that a trained police officer
may draw inferences and make deductions that could elude any
untrained person observing the same conduct.
See, e.g., United
States v. Cortez, 449 U. S. 411,
449 U. S. 418
(1981). We have noted as an example the behavior of a suspect who
appears to the officer to be evading police contact.
See, e.g.,
United States v. Mendenhall, supra, at
446 U. S. 564
(opinion of Stewart, J.);
United States v. Brignoni-Ponce,
422 U. S. 873,
422 U. S.
884-885 (1975).
[
Footnote 4/6]
While the plurality does not address the use of "drug courier
profiles" in narcotics investigations, it affirms a decision where
the Florida District Court of Appeal took the liberty to fashion a
bright-line rule with regard to the use of these profiles. The
state court concluded that conformity with a "drug courier
profile," "without more," is insufficient to establish even
reasonable suspicion that criminal activity is afoot. 389 So. 2d at
1017, n. 6 (emphasis deleted).
In 1974, the Department of Justice Drug Enforcement
Administration instituted training programs for its narcotics
officers wherein instruction was given on a "drug courier profile."
A "profile" is, in effect, the collective or distilled experience
of narcotics officers concerning characteristics repeatedly seen in
drug smugglers. As one DEA agent explained:
"Basically, it's a number of characteristics which we attribute
or which we believe can be used to pick out drug couriers. And
these characteristics are basically things that normal travelers do
not do. . . ."
* * * *
"Essentially, when we started this detail at the airport, we
didn't really know what we were looking for. The majority of our
cases, when we first started, involved cases we made based on
information from law enforcement agencies or from airline
personnel. And as these cases were made, certain characteristics
were noted among the defendants."
"At a later time, we began to see a pattern in these
characteristics, and began using them to pick out individuals we
suspected as narcotic couriers without any prior information."
United States v. McClain, 452 F.
Supp. 195, 199 (ED Mich.1977).
Few statistics have been kept on the effectiveness of "profile"
usage, but the data available suggest it has been a success. In the
first few months of a "profile" program at the Detroit Metropolitan
Airport, 141 persons were searched in 96 different encounters;
drugs were discovered in 77 of the searches.
See United States
v. Van Lewis, 409 F.
Supp. 535, 538 (ED Mich.1976),
aff'd, 556 F.2d 385
(CA6 1977),
cert. denied, 434 U.S. 1011 (1978). A DEA
agent working at the La Guardia Airport in New York City estimated
that some 60% percent of the persons identified as having "profile"
characteristics are found to be carrying drugs.
United States
v. Price, 599 F.2d 494, 501, n. 8 (CA2 1979).
Because of this success, state and local law enforcement
agencies also have instructed narcotics officers according to "drug
courier profiles." It was partly on the basis of "profile"
characteristics that Detectives Johnson and Magdalena initially
began surveillance of Royer. Certainly in this case, the use of the
"profile" proved effective.
Use of "drug courier profiles" has played an important part in a
number of lower court decisions.
See, e.g., United States v.
Forero-Rincon, 626 F.2d 218 (CA2 1980);
United States v.
Vasquez, 612 F.2d 1338 (CA2 1979),
cert. denied, 447
U.S. 907 (1980);
United States v. Price, 599 F.2d 494 (CA2
1979);
United States v. Diaz, 503 F.2d 1025 (CA3 1974);
United States v. Sullivan, 625 F.2d 9 (CA4 1980),
cert. denied, 450 U.S. 923 (1981);
United States v.
Hill, 626 F.2d 429 (CA5 1980);
United States v.
Ballard, 573 F.2d 913 (CA5 1978);
United States v.
Smith, 574 F.2d 882 (CA6 1978);
United States v.
Scott, 545 F.2d 38 (CA8 1976),
cert. denied 429 U.S.
1066 (1977);
United States v. Beck, 598 F.2d 497 (CA9
1979). In fact, the function of the "profile" has been somewhat
overplayed. Certainly, a law enforcement officer can rely on his
own experience in detection and prevention of crime. Likewise, in
training police officers, instruction focuses on what has been
learned through the collective experience of law enforcers. The
"drug courier profile" is an example of such instruction. It is not
intended to provide a mathematical formula that automatically
establishes grounds for a belief that criminal activity is afoot.
By the same reasoning, however, simply because these
characteristics are accumulated in a "profile," they are not to be
given less weight in assessing whether a suspicion is well founded.
While each case will turn on its own facts, sheer logic dictates
that where certain characteristics repeatedly are found among drug
smugglers, the existence of those characteristics in a particular
case is to be considered accordingly in determining whether there
are grounds to believe that further investigation is appropriate.
Cf. United States v. Cortez, 449 U.
S. 411,
449 U. S. 418
(1981).
The "drug courier profile" is not unfamiliar to this Court. We
have held that conformity with certain aspects of the "profile"
does not automatically create a particularized suspicion which will
justify an investigatory stop.
Reid v. Georgia,
448 U. S. 438
(1980) (per curiam). Yet our decision in
United States v.
Mendenhall, 446 U. S. 544
(1980), made it clear that a police officer is entitled to assess
the totality of the circumstances in the light of his own training
and experience, and that instruction on a "drug courier profile"
would be a part of his accumulated knowledge. This process is not
amenable to bright-line rules such as the Florida court tried to
establish. We are not dealing
"with hard certainties, but with probabilities. Long before the
law of probabilities was articulated as such, practical people
formulated certain common-sense conclusions about human behavior;
jurors as factfinders are permitted to do the same -- and so are
law enforcement officers. Finally, the evidence thus collected must
be seen and weighed not in terms of library analysis by scholars,
but as understood by those versed in the field of law
enforcement."
United States v. Cortez, supra, at
449 U. S. 418.
See also Brown v. Texas, 443 U. S. 47,
443 U. S. 52, n.
2 (1979).
[
Footnote 4/7]
See also ante at
460 U. S. 501
("The question before us is whether the record warrants that
conclusion");
ante at
460 U. S. 507
("[W]e think that the Florida District Court of Appeal cannot be
faulted in concluding that the limits of a
Terry stop had
been exceeded"). Certainly we owe no such deference to the Florida
court's conclusion.
See Haynes v. Washington, 373 U.
S. 503,
373 U. S.
515-516 (1963) (citing
Stein v. New York,
346 U. S. 156,
346 U. S. 181
(1953));
Fiske v. Kansas, 274 U.
S. 380,
274 U. S.
385-386 (1927).
[
Footnote 4/8]
The detention of Royer would also pass muster under this Court's
Fourth Amendment jurisprudence if the officers had "a reasonable
ground for belief of guilt" prior to their adjournment to the room.
Brinegar v. United States, 338 U.
S. 160,
338 U. S. 175
(1949). But since the officers clearly had an articulable suspicion
to justify the detention under
Terry v. Ohio, 392 U. S.
1 (1968), the probable cause issue need not be decided
in this case.
[
Footnote 4/9]
Contrary to the Florida court's view, this phase of the
encounter contrasts sharply with the circumstances we examined in
Dunaway v. New York, 442 U. S. 200
(1979). In that case, police officers deliberately sought out the
suspect at a neighbor's house and, with a show of force, brought
the suspect to police headquarters in a police car, placed him in
an interrogation room, and questioned him extensively after giving
him a
Miranda warning. Unlike in
Dunaway, Royer,
after brief questioning, was
asked to cooperate by
accompanying the officers to a room no more than 40 feet away, so
that the questioning could proceed out of the view of the general
public.
[
Footnote 4/10]
The characterization of the room as a "closet" is quite
misleading. The room contained one desk and two chairs. It was
large enough to allow three persons to enter with two heavy
suitcases. It also is relevant that it was the Florida court, not
Royer, who focused on the size of the room. Royer appealed his
conviction arguing that his consent to a search was invalid as a
matter of law because he was not informed that he could refuse
consent. A panel of the Florida court properly rejected this
contention, relying on
Schneckloth v. Bustamonte,
412 U. S. 218,
412 U. S. 234
(1973), where we said that "proof of knowledge of a right to refuse
[is not] the
sine qua non of an effective consent to a
search." It was during rehearing by the court en banc that the
conviction was reversed, with the court finding that, when Royer
was taken into the private room he was, in effect, placed under
arrest.