SUPREME COURT OF THE UNITED STATES

                                    --------
                                   No. 95-891
                                    --------
                     OHIO, PETITIONER v. ROBERT D. ROBINETTE
                                     ____


                   ON WRIT OF CERTIORARI TO THE SUPREME COURT
                                     OF OHIO

                               [November 18, 1996]

  JUSTICE STEVENS, dissenting.

  The Court's holding today is narrow: The Federal Constitution does not require
that a lawfully seized person be advised that he is "free to go" before his
consent to search will be recognized as voluntary.  I agree with that holding.
Given the Court's reading of the opinion of the Supreme Court of Ohio, I also
agree that it is appropriate for the Court to limit its review to answering the
sole question presented in the State's certiorari
petition. (Ftnote. 1)  As I read the state court opinion, however, the
          (Ftnote. 1)
prophylactic rule announced in the second syllabus was intended as a guide to
the decision of future cases rather than an explanation of the decision in this
case.  I would therefore affirm the judgment of the Supreme Court of Ohio
because it correctly held that respondent's consent to the search of his vehicle
was the product of an unlawful detention.  Moreover, it is important to
emphasize that nothing in the Federal Constitution - or in this Court's opinion
- prevents a State from requiring its law enforcement officers to give





















                    
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   1)  "Whether the Fourth Amendment to the United States Constitution requires
   1)  
police officers to inform motorists, lawfully stopped for traffic violations,
that the legal detention has concluded before any subsequent interrogation or
search will be found to be consensual?"  Pet. for Cert. i.  

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2                               OHIO v. ROBINETTE
                                    ____

detained motorists the advice mandated by the Ohio Court.
                                        I
  The relevant facts are undisputed. (Ftnote. 2)  Officer Newsome
                                     (Ftnote. 2)
stopped respondent because he was speeding.  Neither at the time of the stop nor
at any later time prior to the search of respondent's vehicle did the officer
have any basis for believing that there were drugs in the car.  After ordering
respondent to get out of his car, issuing a warning, and returning his driver's
license, Newsome took no further action related to the speeding violation.  He
did, however, state: "One question before you get gone: are you carrying any
illegal contraband in your car? Any weapons of any kind, drugs, anything like
that?"  Thereafter, he obtained respondent's consent to search the car.
  These facts give rise to two questions of law: whether respondent was still
being detained when the "one question" was asked, and, if so, whether that
detention was unlawful.  In my opinion the Ohio Appellate Court and the Ohio
Supreme Court correctly answered both of those questions.
  The Ohio Supreme Court correctly relied upon United States v. Mendenhall, 446
                                               _____________    ___________
U. S. 544 (1980), (Ftnote. 3) which stated that "a person has been
                  (Ftnote. 3)
`seized' within the meaning of the Fourth Amendment . . . if, in view of all of
the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave." Id., at 554 (opinion of Stewart, J.);
                                         ___
see Michigan v. Chesternut, 486 U. S. 567, 573 (1988) (noting that "[t]he Court
    ________    ___________
has since embraced this test").  See also Florida v. Bostick, 501 U. S. 429,
                                          _______    ________
435-36 (1991) (apply-




























                    
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   2)  This is in part because crucial portions of the exchange were
   2)  
videotaped; this recording is a part of the record.
   3)  See 73 Ohio St. 3d 650, 654, 653 N. E. 2d 695, 698 (1995).
   3)  

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                                OHIO v. ROBINETTE                              3
                                    ____

ing variant of this approach).  The Ohio Court of Appeals applied a similar
analysis.  See App. to Pet. for Cert. 17-18.
  Several circumstances support the Ohio courts' conclusion that a reasonable
motorist in respondent's shoes would have believed that he had an obligation to
answer the "one question" and that he could not simply walk away from the
officer, get back in his car, and drive away.  The question itself sought an
answer "before you get gone."   In addition, the facts that respondent had been
        ______
detained, had received no advice that he was free to leave, and was then
standing in front of a television camera in response to an official command, are
all inconsistent with an assumption that he could reasonably believe that he had
no duty to respond.  The Ohio Supreme Court was surely correct in stating: "Most
people believe that they are validly in a police officer's custody as long as
the officer continues to interrogate them.  The police officer retains the upper
hand and the accouterments of authority.  That the officer lacks legal license
to continue to detain them is unknown to most citizens, and a reasonable person
would not feel free to walk away as the officer continues to address him." 73
Ohio St. 3d, at 655, 653 N. E. 2d, at 698. (Ftnote. 4)
                                           (Ftnote. 4)
  Moreover, as an objective matter it is fair to presume that most drivers who
have been stopped for speeding

























                    
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   4)  A learned commentator has expressed agreement on this point.  See 4 W.
   4)  
LaFave, Search and Seizure S9.3(a), p. 112 (3d ed. 1996 and Supp. 1997) ("Given
the fact that [defendant] quite clearly had been seized when his car was pulled
over, the return of the credentials hardly manifests a change in status when it
was immediately followed by interrogation concerning other criminal activity");
see also ibid. (approving of Ohio Supreme Court's analysis in this case).  We
         _____
have indicated as much ourselves in the past.  See Berkemer v. McCarty, 468
                                                   ________    _______
U. S. 420, 436 (1984) ("Certainly few motorists would feel free either to
disobey a directive to pull over or to leave the scene of a traffic stop without
being told they might do so").

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4                               OHIO v. ROBINETTE
                                    ____

are in a hurry to get to their destinations; such drivers have no interest in
prolonging the delay occasioned by the stop just to engage in idle conversation
with an officer, much less to allow a potentially lengthy
search. (Ftnote. 5)  I also assume that motorists - even those who
        (Ftnote. 5)
are not carrying contraband - have an interest in preserving the privacy of
their vehicles and possessions from the prying eyes of a curious stranger.  The
fact that this particular officer successfully used a similar method of
obtaining consent to search roughly 786 times in one year, State v. Retherford,
                                                           _____    __________
93 Ohio App. 3d 586, 591-592, 639 N. E. 2d 498, 502, dism'd, 69 Ohio St. 3d
1488, 635 N. E. 2d 43 (1994), indicates that motorists generally respond in a
manner that is contrary to their self-interest.  Repeated decisions by ordinary
citizens to surrender that interest cannot satisfactorily be explained on any
hypothesis other than an assumption that they believed they had a legal duty to
do so.
  The Ohio Supreme Court was therefore entirely correct to presume in the first
syllabus preceding its opinion that a "continued detention" was at issue here. 
73 Ohio St. 3d, at 650, 653 N. E. 2d, at 696. (Ftnote. 6)  The Ohio
                                              (Ftnote. 6)
Court


















                    
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   5)  Though this search does not appear to have been particularly intrusive,
   5)  
that may not always be so.  See Brief for American Civil Liberties Union et al.
as Amici Curiae 28-29.  Indeed, our holding in Florida v. Jimeno, 500 U. S. 248
   ____________                                _______    _______
(1991), allowing police to open closed containers in the context of an auto-
mobile consent search where the "consent would reasonably be understood to
extend to a particular container," id., at 252, ensures that many motorists will
                                  ____
wind up "consenting" to a far broader search than they might have imagined.  See
id., at 254-255 ("only objection that the police could have to" a rule requiring
___
police to seek consent to search containers as well as the automobile itself "is
that it would prevent them from exploiting the ignorance of a citizen who simply
did not anticipate that his consent to search the car would be understood to
authorize the police to rummage through his packages") (Marshall, J.,
dissenting).
   6)  It is ordinarily the syllabus that precedes an Ohio Supreme Court
   6)  
opinion, rather than the opinion itself, that states the law of the case. 
Cassidy v. Glossip, 12 Ohio St. 2d 17, 24, 231 N. E. 2d 64, 68 (1967); see Migra
_______    _______                                                         _____
v. Warren City School Dist. Bd. of Ed., 465 U. S. 75, 86, n. 8 (1984); Ohio v.
   ____________________________________                                ____
Gallagher, 425 U. S. 257, 259 (1976).
__________

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                                OHIO v. ROBINETTE                              5
                                    ____

of Appeals reached a similar conclusion.  In response to the State's contention
that Robinette "was free to go" at the time consent was sought, that court held -
 after reviewing the record - that "a reasonable person in Robinette's position
would not believe that the investigative stop had been concluded, and that he or
she was free to go, so long as the police officer was continuing to ask
investigative questions."  App. to Pet. for Cert. 17-18.  As I read the Ohio
opinions, these determinations were independent of the bright-line rule
criticized by the majority. (Ftnote. 7)  I see no reason to disturb
                            (Ftnote. 7)
them.
  In the first syllabus the Ohio Supreme Court also answered the question
whether the officer's continued detention of respondent was lawful or unlawful. 
See ante, at 3-4.  Although there is a possible ambiguity in the use of the word
    ____
"motivation" in the Ohio Supreme Court's explanation of why the traffic
officer's continued detention of respondent was an illegal seizure, the first
syllabus otherwise was a correct statement of the relevant federal rule as well
as the relevant Ohio rule.  As this Court points out in its opinion, as a matter
of federal law the subjective motivation of the officer does not determine the
legality of a detention.  Because I assume that the learned judges sitting on
the Ohio Supreme Court were well aware of this proposition, we





























                    
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   7)  Indeed, the first paragraph of the Ohio Supreme Court's opinion clearly
   7)  
indicates that the bright-line rule was meant to apply only in future cases. 
                                                               ______
The Ohio Supreme Court first explained: "We find that the search was invalid
since it was the product of an unlawful seizure."  73 Ohio St. 3d., at 652, 653
N. E. 2d, at 697.  Only then did the court proceed to point out that it would
"also use this case to establish a bright-line test . . . ."  Ibid.
                                                              _____

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6                               OHIO v. ROBINETTE
                                    ____

should construe the syllabus generously by replacing the ambiguous term
"motivation behind" with the term "justification for" in order to make the
syllabus unambiguously state the correct rule of federal law.  So amended, the
controlling proposition of federal law reads:

   "When the [justification for] a police officer's continued detention of a
   person stopped for a traffic violation is not related to the purpose of the
   original, constitutional stop, and when that continued detention is not based
   on any articulable facts giving rise to a suspicion of some separate illegal
   activity justifying an extension of the detention, the continued detention
   constitutes an illegal seizure."  73 Ohio St. 3d, at 650, 653 N. E. 2d, at
   696.

  Notwithstanding that the subjective motivation for the officer's decision to
stop respondent related to drug interdiction, the legality of the stop depended
entirely on the fact that respondent was speeding.  Of course, "[a]s a general
matter, the decision to stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has occurred."  Whren v.
                                                                   _____
United States, 517 U. S. ___ (1996) (slip op., at 3).  As noted above, however,
______________
by the time Robinette was asked for consent to search his automobile, the lawful
traffic stop had come to an end; Robinette had been given his warning, and the
speeding violation provided no further justification for detention.  The
continued detention was therefore only justifiable, if at all, on some other
grounds. (Ftnote. 8)
         (Ftnote. 8)
























                    
____________________

   8)  Cf. Florida v. Royer, 460 U. S. 491, 500 (1983) (plurality opinion)
   8)      _______    ______
("[A]n investigative detention must be temporary and last no longer than is
necessary to effectuate the purpose of the stop"); United States v.
                                                   _____________
Brignoni-Ponce, 422 U. S. 873, 881 (1975) ("stop and inquiry must be `reasonably
_______________
related in scope to the justification for their initiation'" (quoting Terry v.
                                                                      _____
Ohio, 392 U. S. 1, 29 (1968)).
_____

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                                OHIO v. ROBINETTE                              7
                                    ____

  At no time prior to the search of respondent's vehicle did any articulable
facts give rise to a reasonable suspicion of some separate illegal activity that
would justify further detention.  See United States v. Sharpe, 470 U. S. 675,
                                      _____________    _______
682 (1985); United States v. Brignoni-Ponce, 422 U. S. 873, 881-882 (1975);
            _____________    _______________
Terry v. Ohio, 392 U. S. 1, 21 (1968).  As an objective matter, it inexorably
_____    _____
follows that when the officer had completed his task of either arresting or
reprimanding the driver of the speeding car, his continued detention of that
person constituted an illegal seizure.  This holding by the Ohio Supreme Court
is entirely consistent with federal law. (Ftnote. 9)
                                         (Ftnote. 9)
  The proper disposition follows as an application of well-settled law.  We held
in Florida v. Royer, 460 U. S. 491 (1983), that a consent obtained during an
   _______    ______
illegal detention is ordinarily ineffective to justify an otherwise invalid
search. (Ftnote. 10)  See also Florida v. Bostick, 501 U. S. 429,
        (Ftnote. 10)           _______    ________
433-434 (1991) (noting that if consent was given

























                    
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   9)  Since "this Court reviews judgments, not opinions," Chevron U. S. A.
   9)                                                      ________________
Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984), the
____    ________________________________________
Ohio Supreme Court's holding that Robinette's continued seizure was illegal on
these grounds provides a sufficient basis for affirming its judgment.
   10)  Writing for a plurality of the Court, Justice White explained that
   10)  
"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."  460 U. S., at 501.  The
defendant in Royer had been "illegally detained when he consented to the
             _____
search."  Id., at 507.  As a result, the plurality agreed "that the consent was
          ___
tainted by the illegality and was ineffective to justify the search."  Id., at
                                                                       ___
507-508.  Concurring in the result, Justice Brennan agreed with this much of the
plurality's decision, diverging on other grounds.  See id., at 509.  Justice
                                                       ___
Brennan's agreement on that narrow principle represents the holding of the
Court.  See Marks v. United States, 430 U. S. 188, 193 (1977).
            _____    ______________

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8                               OHIO v. ROBINETTE
                                    ____

during the course of an unlawful seizure, the results of the search "must be
suppressed as tainted fruit"); Dunaway v. New York, 442 U. S. 200, 218-219
                               _______    _________
(1979); Brown v. Illinois, 422 U. S. 590, 601-602 (1975).  Cf. Wong Sun v.
        _____    _________                                     ________
United States, 371 U. S. 471 (1963).  Because Robinette's consent to the search
______________
was the product of an unlawful detention, "the consent was tainted by the
illegality and was ineffective to justify the search."  Royer, 460 U. S., at
                                                        _____
507-508 (plurality opinion).  I would therefore affirm the judgment below.
                                       II
  A point correctly raised by JUSTICE GINSBURG merits emphasis.  The Court's
opinion today does not address either the wisdom of the rule announced in the
second syllabus preceding the Ohio Supreme Court's opinion, or the validity of
that rule as a matter of Ohio law.  Nevertheless the risk that the narrowness of
the Court's holding may not be fully understood prompts these additional words.
  There is no rule of federal law that precludes Ohio from requiring its police
officers to give its citizens warnings that will help them to understand whether
a valid traffic stop has come to an end, and will help judges to decide whether
a reasonable person would have felt free to leave under the circumstances at
issue in any given case. (Ftnote. 11)  Nor, as I have previously
                         (Ftnote. 11)
ob-

























                    
____________________

   11)  Indeed, we indicated in Florida v. Bostick, 501 U. S. 429, 437 (1991),
   11)                          _______    _________
that the fact a defendant had been explicitly advised that he could refuse to
give consent was relevant to the question whether he was seized at the time
consent was sought.  And, in other cases we have stressed the importance of
similar advice as a circumstance supporting the conclusion that a consent to
search was voluntary.  See Schneckloth v. Bustamonte, 412 U. S. 218, 227 (1973);
                           ___________    ___________
United States v. Mendenhall, 446 U. S. 544, 558-559 (1980).  Cf. Washington v.
_____________    ___________                                     __________
Chrisman, 455 U. S. 1, 9 (1982) (consent to search was voluntary where defendant
_________
"consented, in writing, . . . after being advised that his consent must be
voluntary and that he had an absolute right to refuse consent").

                                95-891 - DISSENT

                                OHIO v. ROBINETTE                              9
                                    ____

served, is there anything "in the Federal Constitution that prohibits a State
from giving lawmaking power to its courts."  Minnesota v. Clover Leaf Creamery
                                             _________    ____________________
Co., 449 U. S. 456, 479, and n. 3 (1981) (dissenting opinion).  Thus, as far as
____
we are concerned, whether Ohio acts through one branch of its government or
another, it has the same power to enforce a warning rule as other States that
may adopt such rules by executive action. (Ftnote. 12)
                                          (Ftnote. 12)
  Moreover, while I recognize that warning rules provide benefits to the law
enforcement profession and the courts, as well as to the public, I agree that it
is not our function to pass judgment on the wisdom of such rules.  Accordingly,
while I have concluded that the judgment of the Supreme Court of Ohio should be
affirmed, and thus dissent from this Court's disposition of the case, I am in
full accord with its conclusion that the Federal Constitution neither mandates
nor prohibits the warnings prescribed by the Ohio Court.  Whether such a
practice should be followed in Ohio is a matter for Ohio lawmakers to decide.

























                    
____________________

   12)  As we are informed by a brief amicus curiae filed by Americans For
   12)                                _____________
Effective Law Enforcement, Inc.: "Such a warning may be good police practice,
and indeed amicus knows that many law enforcement agencies among our
           ______
constituents have routinely incorporated a warning into their Fourth Amendment
consent forms that they use in the field, but it is precisely that - a practice
                                                                       ________
and not a constitutional imperative.  An officer who includes such a warning in
    _______________________________
his request for consent undoubtedly presents a stronger case for a finding of
voluntariness in a suppression hearing, and we would not suggest that such
agencies and officers do otherwise.  We know, too, that instructors in many
police training programs of leading universities and management institutes
routinely recommend such warnings as a sound practice, likely to bolster the
voluntariness of a consent to search.  [We ourselves] conduct[] law enforcement
training programs at the national level and many of our own speakers have made
this very point."  Brief for Americans For Effective Law Enforcement, Inc., as
Amicus Curiae 7.
_____________