Warren E. Burger: We will hear arguments next in Florida against Royer. Mr. Fox, I think you may proceed whenever you are ready.
Calvin L. Fox: Mr. Chief Justice, may it please the Court, this is a petition to review the decision of the Florida Third District Court of Appeal in which the Florida Third District Court of Appeal reversed both the appellate panel and the trial court upon their denial of the defendant's motion to suppress. The facts are extremely simple. The defendant was arrested at the Miami International Airport carrying 65 pounds of marijuana in his luggage. The state's witness, Detective Johnson, an experienced narcotics officer, testified generally as to his training and profile, so-called A, so-called D, a profile, and the fact that he observed thousands of passengers each week at the Miami International Airport eight hours a day, five days a week. On January 3rd, 1978, about noon, the defendant appeared at the airport. Detective Johnson testified that in his experience and Detective Magdalena's experience, it was undeniable that the defendant's conduct and demeanor attracted their attention. The defendant was extremely nervous, pale, uneasy, looking about, and Detective Johnson testified that in his experience, the defendant was not a so-called white knuckled flier, but rather was concerned about being detected. The bags the defendant was carrying were very heavy. He had produced an extremely large roll of cash to pay for his ticket. The defendant was observed placing on the airline identification labels the name of Holt, and his ticket apparently was also in that name also. It was undisputed below--
Byron R. White: That was on his baggage, you said?
Calvin L. Fox: --Yes, Your Honor.
Warren E. Burger: When did the officer find out that he bought a one-way ticket, if that was the case?
Calvin L. Fox: When they examined his ticket and license upon request at the initial encounter with the defendant, Your Honor. It was undisputed, as a matter of fact, including through the defendant's testimony, that they approached him and asked him if he had a moment to talk, and he said, fine. The defendant himself testified that upon request--
Byron R. White: Did they identify themselves at that time?
Calvin L. Fox: --Yes, Your Honor, they identified themselves as narcotics officers, and said, may we speak with you a moment. The defendant himself testified that he voluntarily produced his ticket and his license for their examination. They immediately noticed the discrepancy between his ticket and the baggage and the license, and he explained that someone else had made the reservation for him. Johnson then told the defendant that they believed that he was carrying narcotics, and would he come to a room a few feet away for further discussion. Johnson said the defendant was thoroughly cooperative throughout the transaction. The detectives were in plain clothes. They displayed no insignia. They carried weapons but they were concealed. They did not... There is no showing in this record that they blocked his path in any way. They were courteous at all times. They did not threaten--
Byron R. White: So what did he say when they asked him?
Calvin L. Fox: --He followed them to the room.
Speaker: He didn't say anything?
Calvin L. Fox: He did not say anything. He went with the room to them.
Byron R. White: Well, did they indicate that he didn't need to go, or not?
Calvin L. Fox: No, Your Honor. There is not a Mendenhall type warning, if you will, in this circumstance. The defendant proceeded to the room, as did Sylvia Mendenhall, without discussion.
John Paul Stevens: Who had possession of the ticket?
Calvin L. Fox: The ticket was in... evidently was in Detective Johnson's possession at all times, but it was never taken out of the--
Speaker: Once it was handed over.
Calvin L. Fox: --Pardon me?
Byron R. White: Once it was handed over. Did he hand it to the police?
Calvin L. Fox: Yes, Your Honor. Yes, but the ticket actually never left the defendant's possession. It was always right there with him, with Detective Johnson, as they were carrying out the discussion, and as they went to the adjacent room.
John Paul Stevens: Wait a minute. You said never left his possession. I thought he handed it to the detective. 0 [Generallaughter.]
Calvin L. Fox: Never left his presence. Excuse me, Your Honor.
John Paul Stevens: But it was in the possession of the detective. Is that not correct?
Calvin L. Fox: That's correct, Your Honor. That's correct.
John Paul Stevens: So if he wanted to get on the airplane, he would have had a little difficulty.
Calvin L. Fox: He would first of all have to ask to get the ticket back.
Speaker: For his ticket back.
Calvin L. Fox: That's correct, which he did not do in this case, of course, but there was also, as an indication of the nature of the transaction, the defendant indicated himself that he understood all that was going on, and there was no physical contact at any time. Detective Johnson, I think important to this Court's consideration here, testified that he wanted to go to the adjacent room to avoid any embarrassment to the defendant and to avoid any possible violence in the crowded airport area. In the room, which was 40 feet away, they again asked him if they could... they initially asked him for his consent to open his suitcase, and they told him again that they suspected him of transporting narcotics. In response, the defendant produced a key, unlocked one of the--
John Paul Stevens: Mr. Fox, let me ask you another question. You mentioned the violence concern that the officer expressed. Do you think the facts that were known to the officer at the time he requested the ticket would have justified a frisk of the passenger for weapons?
Calvin L. Fox: --Yes, Your Honor. I think in view of the--
John Paul Stevens: Did the officer frisk the passenger?
Calvin L. Fox: --No, Your Honor. I think in view of the extremely agitated condition of the defendant, I think a frisk would have been appropriate, but it was not done.
Warren E. Burger: He was carrying two suitcases, was he?
Calvin L. Fox: Yes, Your Honor, two suitcases. Onof the suitcases, he had the key. He unlocked it. The other suitcase, he did not have he key, but he said that they could go ahead and open it if they wanted to, and thereupon they opened it, and it contained the marijuana. The entire transaction took ten to fifteen minutes. The initial approach took a matter of only a few minutes.
Byron R. White: Well, suppose when they first stopped him he had said no, I don't particularly care to talk to you, I don't particularly care to identify myself, or hand you over my ticket? Would he have been free to go?
Calvin L. Fox: Detective Johnson specifically testified that when people refused to talk to them, that if they don't have enough facts, they let them go.
Byron R. White: And if he had said, when they asked him to go into the other room, he had said, no, I don't want to, the testimony is, they would have let him go?
Calvin L. Fox: Yes, Your Honor, that is--
Byron R. White: So he gets to the room, and they say, may we search your suitcase, and he says, no, you may not. What is the testimony about that?
Calvin L. Fox: --There is no indication one way or the other, Your Honor. Now, I was--
Thurgood Marshall: Did the officers at any time tell him that he was free to go?
Calvin L. Fox: --No, Your Honor, there was no specific advisement.
Thurgood Marshall: Did they also tell him that he was free not to turn his ticket loose?
Calvin L. Fox: No, Your Honor, they did not specifically advise him of that.
Thurgood Marshall: And did they also tell him he didn't have to go to the room with them?
Calvin L. Fox: No, Your Honor, they did not specifically advise him of that.
Thurgood Marshall: They didn't tell him any of the no's, did they?
Calvin L. Fox: No, Your Honor, they did not.
Thurgood Marshall: They only told him the do's.
Calvin L. Fox: Well, they asked him that, these questions, Your Honor, and the trial court accepted that as a matter of fact, that in fact the transaction was totally voluntary.
Thurgood Marshall: Well, you have two armed men who say, would you mind coming along with me. 0 [Generallaughter.] Is there any evidence that he knew that they were armed? And, I mean, how many people do you know wouldn't go?
Calvin L. Fox: Your Honor, I certainly wouldn't have gone.
Speaker: Would you go?
Calvin L. Fox: No, Your Honor.
Thurgood Marshall: You wouldn't go?
Calvin L. Fox: No.
Speaker: With two armed men?
Calvin L. Fox: I didn't know... I would not have known they were armed.
Speaker: Have you ever tried it?
Calvin L. Fox: Pardon me?
Thurgood Marshall: Have you ever tried it?
Calvin L. Fox: I have been to the airport and made observations of couriers.
Byron R. White: These officers were in plain clothes, weren't they?
Calvin L. Fox: Yes, Your Honor.
Byron R. White: And the fact that they were armed wasn't immediately evident.
Calvin L. Fox: It was not immediately--
Byron R. White: I don't see how you can miss it. But they did say they were narcotics agents.
Calvin L. Fox: --Yes, Your Honor.
Byron R. White: Unarmed. And unarmed, that is rather rare, isn't it?
Calvin L. Fox: Your Honor--
Byron R. White: If you had been accosted by two narcotics agents who identified themselves, would you assume they were armed or not?
Calvin L. Fox: --Your Honor, I probably would assume they were armed.
John Paul Stevens: Well, go ahead. Well, isn't it also true they showed them their badge?
Calvin L. Fox: Yes, Your Honor, that's correct.
John Paul Stevens: And they also said they had been expecting him, didn't they?
Calvin L. Fox: No, Your Honor. That was the defendant's testimony.
Speaker: Oh, I see.
Calvin L. Fox: That was not accepted by the trial court in this case. Your Honor, with respect to the voluntary nature of this transaction, which seems to be the Court's concern, we would submit that there was evidence which the trial court chose to believe in this case that the transaction was a voluntary transaction. The defendant was a 22-year-old college educated college graduate. He had a degree in communications. The detectives approached him, asked him if he had a moment to talk. The defendant voluntarily produced his identification and ticket. He was asked if he would accompany them to a room a few feet away. He was asked if he would consent to the search. The defendant produced a key for one bag, and said it was all right.
Byron R. White: The difficulty with that submission is that the state courts found that he was detained against his will. They found he was arrested.
Calvin L. Fox: The state court certainly did, but--
Byron R. White: Must we overturn that to relieve you of this judgment?
Calvin L. Fox: --The panel decision in the trial court did not find that he was arrested, Your Honor. What we are asking the Court to do is reinstate the panel decision and withdraw corresponding--
Byron R. White: Well, I know, but we have to disagree with the Florida Court of Appeals.
Calvin L. Fox: --Absolutely, Your Honor. I think--
Byron R. White: They made a finding based on the record, I guess.
Calvin L. Fox: --They made a finding based upon the fact that his luggage had been detained and--
Byron R. White: Well, whatever it was, you do say, turn that conclusion over.
Calvin L. Fox: --This was in no means an arrest, Your Honor. That is what the Florida Third District en banc held, that it was an arrest.
William H. Rehnquist: What precisely does the holding that something was an arrest mean? Is that basically a factual issue or a legal issue, or is it a mixed question of fact and law?
Calvin L. Fox: It is a mixed question based upon the facts presented. We would submit--
William H. Rehnquist: Does it imply a determination by whoever is making the finding that subjectively the person felt he was not free to go, or that objectively a reasonable person in his position would not have felt free to go, which of those two?
Calvin L. Fox: --I think objectively, the reasonable person innocent of crime is the standard which this Court has articulated. In particular, Your Honor, the defendant himself said in the room that he was not under arrest. I think that totally belies the Third District Court of Appeals conclusion that he was under arrest. In particular, we would point to the fact that the numerous reasons announced by the Third District Court of Appeals as reasons for the arrest were not thought of or dreamed up by anybody in the trial court. In fact, the argument in the motion to suppress, the defendant said he did what he did because they were police officers. That is the only reason he offered whatsoever. He offered no other reason for the detention which he claimed. We are here years later arguing matters which the trier of fact, the defendant, and the police officers never thought of.
John Paul Stevens: But, Mr. Fox, just to interrupt for a moment, what is the court that we should look to for the facts, the trial court or the appellate court? It is a state court, and I suppose we have a limited right to disagree with them on the facts, and the appellate court did say he was in fact not free to leave. They said that unequivocally.
Calvin L. Fox: The en banc court.
Speaker: Yes.
Calvin L. Fox: Yes, sir.
Speaker: Are we bound by that?
Calvin L. Fox: No, Your Honor. I think the record in the trial court is what we are bound by here, as a matter of fact. I think there was another thing that was determined by the Third District Court of Appeal en banc. They kept calling it the police room.
John Paul Stevens: What standard of review do we follow in deciding whether or not a state appellate court was wrong in disagreeing with the state trial court on the facts? Is it clearly erroneous, or substantial evidence, or what is the standard we should apply?
Calvin L. Fox: I think that if there is substantial evidence in the trial court to base... for the trial court to have reached the conclusion that this was a voluntary transaction, that that must be flagrantly erroneous, it must be clearly erroneous, and must be a substantial departure from the constitutional law of this Court.
Byron R. White: Why? Must a state have... must a state appellate court have some standard about overruling its trial courts? What standard does the Constitution require? Here surely the Florida appellate court overruled the district court.
Calvin L. Fox: Well, that--
Byron R. White: It may be that if it applied the wrong legal standard in adjudicating the federal constitutional question, we could certainly correct that, and even if it didn't apply the right... even if it applied the right standard, we could disagree with it if it is a mixed question of fact and law.
Calvin L. Fox: --Absolutely, Your Honor, and we have argued vigorously in our brief that the standard here is, as this Court found in Mendenhall, is that the circuit court of appeal was totally mistaken in substituting its judgment for that of the trier of fact as to the issues of fact before the trial court, and that is--
Warren E. Burger: Did the Court of Appeals of Florida have anything before it that we haven't before us in this case now?
Calvin L. Fox: --No, Your Honor.
John Paul Stevens: Didn't it have a concession that the state made at the oral argument before that court which they refer to that the state conceded at oral argument that the officers would not have permitted Royer to leave? We don't have that before us, but they had it before them.
Calvin L. Fox: You have my offer in the brief, Your Honor, that in fact after an extensive argument with Judge Schwartz, I stated to him that in fact I wasn't there, I don't know what the officers would have done.
John Paul Stevens: Are you telling us there was no such concession?
Calvin L. Fox: There was a concession, but the concession was qualified in a certain context, and that context was that in fact if--
John Paul Stevens: What I am suggesting to you is, we have something different before us than they had before them. They heard your argument there. We didn't.
Calvin L. Fox: --Yes, Your Honor, they do... they did, but I don't think... I don't think the concession is a dispositive issue in this case.
Speaker: Why not?
Calvin L. Fox: I think that the officers would not have let him leave, Your Honor. I don't think that is... speculating what they might have done is not the issue. The question is what did they do.
John Paul Stevens: And you think the issue is what a reasonable person would have thought about whether he was free to leave?
Calvin L. Fox: Innocent of crime.
Byron R. White: The officers may have decided in their own minds, we will never let him go, but a reasonable person might have thought that he was free to go. Is that your argument?
Calvin L. Fox: Certainly it could be a voluntary transaction, irrespective as to the officer's intent in the case. They proceeded on the basis that it was a voluntary transaction, and Your Honors, I think at the point where the defendant said, no, I don't want to give you consent to look in my suitcase, and I want to leave, I think that circumstance is a different circumstance than what transpired here. At that point, the officers would have had to make a decision as to whether or not they could detain the defendant within the meaning of the Constitution, but they never reached that point. That's why my concession, which is put in the footnote in the Third District Court of Appeal, if we accept the concession as it is stated facially, which I say is absolutely incorrect, and not in proper context, that concession does not affect the outcome here. The question is what the record shows as to what transpired in the... between the--
Thurgood Marshall: Then the only reason we disregard this finding of the court that you did make a concession is that you deny it here?
Calvin L. Fox: --No, Your Honor. That is not correct.
Thurgood Marshall: Well, what else do we have?
Calvin L. Fox: I have only offered my statement of the context of that remark. That is, I stated, if the defendant had refused consent, then the officer--
Thurgood Marshall: What other reason do you have for us to disregard it?
Calvin L. Fox: --Because it's not relevant to a determination of the constitutional issues here, Your Honor.
Byron R. White: But the en banc court did find that the defendant was under the reasonable impression that he was not free to leave, not just a subjective impression, but on the objective facts, he was under a reasonable impression that he was not free to leave. So that in order to find for you, we must disagree with that mixed question of law and fact.
Calvin L. Fox: I... My analysis of the Third District Court of Appeal decision is that they... the en banc decision, that is, that they flatly decided that because his luggage had been detained, and that because his ticket was still in the possession of Johnson, that in fact those factors created a situation where he was not free to leave as a matter of law.
Byron R. White: But he was under the reasonable... as a matter of law, he was under the reasonable impression he was not free to leave. That is what they said.
Calvin L. Fox: Flatly because of those factors.
William H. Rehnquist: Mr. Fox, could you turn to Page... if you have it before you, Page 49 of the supplemental appendix, which I think contains the opinion of the D.C.... or perhaps you are familiar enough. I just wanted to read you one sentence which I think is what the DCA said about this thing. Do you call them DCA's in Florida?
Calvin L. Fox: Yes, Your Honor, District Court of Appeal.
William H. Rehnquist: The court said, "Applying the test adopted in Frost, it is obvious that Royer, as he himself testified, was under the reasonable impression that he was not free to leave the presence of the officers. " and then I guess it is a cite to the Frost opinion. Now, why did they incorporate the test adopted in Frost in what would otherwise appear to be pretty much of a factual finding? Did Frost say something about when you would find that someone was under a reasonable impression?
Calvin L. Fox: Frost went off and said, as a matter of law, when you keep a defendant's ticket, he is absolutely detained.
William H. Rehnquist: So they were simply applying Frost to this situation?
Calvin L. Fox: They were applying that ruling in Frost. Frost went on and made a number of other rulings, but they were applying that... that is the single factor which they say... as a matter of law, you are detained. Now, that conflicts with Elmore, and Elmore just flatly says, just because the officer has gotten the ticket does not mean you are detained. You are not detained until he leaves your presence with that ticket, and Elmore is the leading case in the Fifth Circuit, and Frost absolutely disregarded and severely criticized the Elmore court, which was brought to its attention. That holding was brought to its attention. I would like to reserve some time for rebuttal. Thank you.
Warren E. Burger: Mr. Frey.
Mr. Andrew L. Frey: Thank you, Mr. Chief Justice, and may it please the Court, this case has several issues in it that are of great importance doctrinally to Fourth Amendment law and to federal law enforcement. If you analyze the sequence of events that arose here, you begin with the initial contact between the agents and Mr. Royer, and there is an issue whether at that point you had a seizure of his person within the meaning of the Fourth Amendment or simply a contact not regulated by the Fourth Amendment. That issue is important because if you had a seizure, you can consider in the effort to justify that seizure only the facts known to the agents at the time they first approached Mr. Royer, and not facts that they learned during the initial interview with him. Now, when the situs of the transaction moved from the concourse to the office nearby, you have a question whether that movement was either fully voluntary and not subject to the Fourth Amendment, as was said in Mendenhall, or a continuation of an investigative detention, or an arrest requiring probable cause. Now, I would like to turn first to the arrest issue, because I believe that is what the state court rested on. There is, of course, a final issue as to whether the consent to the search of the suitcases was voluntary. I won't address that. I don't think it was decided by the lower court. The rationale of the lower court was a fruits rationale, that even if the consent was voluntary, it was the product of an antecedent illegal seizure of Mr. Royer's person. Now, I think it is crystal clear that the lower court used the wrong test in identifying whether Mr. Royer was under arrest at the time he was moved to the office and the consent was secured.
Byron R. White: You are talking about the court of appeals?
Mr. Andrew L. Frey: The District Court of Appeal, yes.
Speaker: En banc?
Mr. Andrew L. Frey: En banc. The opinion that is under review here. That opinion suggests that the criterion for determining whether there was an arrest requiring probable cause is whether the suspect was free to leave. As we have indicated in our brief--
Byron R. White: I thought that it said whether he reasonably believed he was free--
Mr. Andrew L. Frey: --Well, if he reasonably believed he was free to leave, yes.
Byron R. White: --Well, that is quite different. That is quite different.
Mr. Andrew L. Frey: Well, not for my point. I absolutely agree that the test is an objective one, and not his subjective belief or the subjective intentions of the officer. But the point that I am making here is that the test of free to leave is a test that distinguishes not arrests from non-arrests, but Fourth Amendment seizures from non-seizures, and it is well settled that Fourth Amendment seizures consist of two kinds of things, the Terry type investigative detention or an arrest. One can be based on reasonable suspicion not amounting to probable cause; the latter requires probable cause. Now, in deciding whether what happened here was an arrest, it seems to me that it strains the English language and the logical structure of Fourth Amendment analysis to call this an arrest. If you view these events as occurring to an innocent traveler who has mistakenly been seized upon as a possible drug courier by the agents, it would be quite clear to that person that he had not yet been arrested, that he was being detained for a brief course of investigation which would result in his release if he knew he was innocent after the officers looked in the luggage. It did not have the indicia of duration. If you compare it to Dunaway, you are talking about moving him a number of miles to the police station, keeping him for an indefinite period until he confessed. From the standpoint of Mr. Dunaway, even if he were innocent, he would have perceived what happened to him, I think, quite clearly as being... having the essential attributes of a formal arrest, which is the language the Court used last term in Michigan against Summers. Now, it is important in our view not to place undue emphasis in defining an arrest on the factors that the lower court here, the en banc court relied upon, which is movement or detention or extended custody beyond a momentary stop, because those factors may arise in many contexts where we believe that they can be legitimately done as part of an investigative detention, for instance, the detention of a suspected robber near the scene of the robbery and the question whether he could be moved, let's say, a block to the scene of the robbery for purposes of a show-up without having probable cause. Now, let me say finally on the arrest issue that if you don't say this was not an arrest, that does not leave the subject of investigative detentions unregulated under the Fourth Amendment. An investigative detention, like an arrest, must be reasonable, and you have the ability to say in this case that the detention under the circumstances may have been unreasonable, but calling it an arrest, I think, would be most unfortunate.
John Paul Stevens: Mr. Frey, may I just ask you one question? You say the court used the wrong test in the free to leave business for an arrest. How would you phrase the test of an arrest?
Mr. Andrew L. Frey: Well, I think that is a difficult question. We know what a formal arrest is, but I think--
John Paul Stevens: Well, if that is the wrong test, you ought to know what the right test is.
Mr. Andrew L. Frey: --Well, I don't have to. I can know what it isn't when I don't see it-- 0 [Generallaughter.]
Speaker: But you don't have something--
Mr. Andrew L. Frey: --without knowing necessarily exactly what--
John Paul Stevens: --You don't have a test to propose to us that is better?
Mr. Andrew L. Frey: --Well, I think what you would look at is the duration and the reasonable understanding of the individual as to whether he is likely to be charged with a crime or held for an indefinite period until he is presented--
John Paul Stevens: Well, under that test, if one believed the testimony that the man said... he must have thought he was going to be charged with a crime, didn't he?
Mr. Andrew L. Frey: --He couldn't have thought... well, I think it is very important that you look at it from the perspective of an innocent person, because the purpose of these rules is to protect against innocent people being mistakenly seized upon and imposed upon by police officers.
John Paul Stevens: And so an innocent person who is just patient and knows if he waits out several hours, say, in the room--
Mr. Andrew L. Frey: Oh, we are not--
John Paul Stevens: --he knows he will get free eventually. Is that it?
Mr. Andrew L. Frey: --Well, the purpose of what... what occurred here, which took about ten to fifteen minutes, was to secure his consent and then carry out on the basis of his consent the examination of his luggage. If it had turned up nothing, he clearly would have been released.
John Paul Stevens: Arrest turns on what happens after the investigation is over?
Mr. Andrew L. Frey: But the suspect would know what would happen. That is, that he would give his consent. There is nothing in this situation--
John Paul Stevens: In other words, it all... so you are backing into a corner where it is the suspect's state of mind that determines whether the officer's conduct constitutes an arrest, as I understand it.
Mr. Andrew L. Frey: --It is not his subjective state of mind. It is what a reasonable person in his situation would perceive based on the officer's conduct. I think that is very important.
Byron R. White: You apparently agree that there was a seizure, then.
Mr. Andrew L. Frey: Well--
Byron R. White: Or at least you say that if you accept the trial court or the court of appeal's finding, at least there was a seizure. There may not have been an arrest.
Mr. Andrew L. Frey: --I... Well, let me say this. We strongly disagree that there was a seizure at the point of initial contact.
Byron R. White: Well, all right, but you do agree that at least it is the right test for the seizure, if a person--
Mr. Andrew L. Frey: The test for whether there is a seizure is whether the person reasonably believes that he is free to leave.
Byron R. White: --That is the right test for seizure.
Mr. Andrew L. Frey: And in the circumstance, I think it is very important in the circumstance in which there is no clarification either by a statement from the officer or an inquiry from--
Byron R. White: But you wouldn't state that even if... if there was a seizure here, under the right test, and you haven't said there wasn't yet, you wouldn't think that would give the officers ipso facto the right to search his luggage.
Mr. Andrew L. Frey: --Certainly not. The search has to be based on a consent. The issue in this case is whether the consent was the fruit of an illegal seizure. Our position is that if at the time they moved him to the office he had been seized, they had ample, reasonable suspicion--
Byron R. White: Well, let's just assume everybody agreed there was a valid Terry stop. There is a quick frisk, and the fellow says, I want to ask you a question. May I search your luggage? The fellow says, sure, and right on the spot, right then, in 30 seconds, the luggage is searched. You say that, A, there is a seizure, but B, it is a completely consensual search. That is your--
Mr. Andrew L. Frey: --The search would have to be consensual in that case because there was no warrant.
Byron R. White: --Yes, and your only difference is that they... instead of searching him on the spot, they moved him into another room.
Mr. Andrew L. Frey: We are saying that that does not convert what would otherwise be a valid--
Byron R. White: But it certainly extends the seizure, doesn't it?
Mr. Andrew L. Frey: --It is a somewhat extended seizure beyond--
Byron R. White: And have we ever approved that kind of seizure? Mendenhall.
Mr. Andrew L. Frey: --Michigan against Summers.
Byron R. White: And Summers?
Mr. Andrew L. Frey: Michigan against Summers. Not really in Mendenhall, because Mendenhall rested on a consent rationale, but in Summers quite clearly there was an extended seizure of, I think, quite considerably longer duration than this, which involved moving him a distance equal, I assume, to the distance that he was moved in this case. So I don't think that--
Byron R. White: Yes, but that was incident to the issue of the warrant.
Mr. Andrew L. Frey: --But the court's discussion first--
Byron R. White: And here's a person who came out of the house that was about to be searched.
Mr. Andrew L. Frey: --I understand, but if you look at the court's analysis, the court begins by creating an analytical framework within which the issue is to be decided.
Byron R. White: There is nothing like that here.
Mr. Andrew L. Frey: We have exactly like that. We have a reasonable suspicion justifying an investigative detention, an investigative detention--
Byron R. White: Well, no one is... we don't have any cases justifying this long of an investigative detention.
Mr. Andrew L. Frey: --Well, I am not sure what that... I think that the detention in Summers was investigative. They were... the execution of the warrant was an investigation, and it was an investigation which as it happened--
Byron R. White: I know, but it was at least authorized by a warrant, which is the whole argument here--
Mr. Andrew L. Frey: --Well, there is nothing in the warrant that--
Byron R. White: --that there was no warrant for the search of the luggage.
Mr. Andrew L. Frey: --The warrant did not authorize the detention of Summers. I see my time has expired.
Warren E. Burger: Mr. Klein.
Theodore Klein: Mr. Chief Justice, and may it please the Court, Mr. Royer was walking in the airport, he was stopped by the police, told that they suspected him of carrying drugs. He was moved into a converted storage closet. They keep his tickets. They get his bags without his consent. He is told by the police that they would like to look in his bags to either confirm or dispel their suspicions, and he opens the bags. Under those circumstances--
Speaker: When you say he--
Theodore Klein: --The officer opens the bags.
Warren E. Burger: --With the consent of your client.
Theodore Klein: No, Your Honor. We do not contend that there was any consent whatsoever in this case.
Warren E. Burger: How did he get the key?
Theodore Klein: Your Honor, the exact words of the agent when questioned about this issue of consent was, we told them we suspected him of carrying narcotics, and we asked him to open the bags to either confirm or dispel our suspicions. Mr. Royer, without saying a word, took his key out of the bag... out of his pocket, opened the bag, unlocked it, and then the officer actually did the opening of the bag.
Warren E. Burger: And you say that was not voluntary?
Theodore Klein: Pardon me?
Speaker: You say that was--
Theodore Klein: We say that it was not voluntary, Your Honor. We say... our position basically under these circumstances is that--
Warren E. Burger: --Don't you think he could have said, you can open my bag when you get a warrant?
Theodore Klein: --Your Honor, he could have said very many things.
Warren E. Burger: Well--
Theodore Klein: He could have said a number of things.
Warren E. Burger: --I am just posing one to you.
Theodore Klein: Pardon me?
Warren E. Burger: I am just posing one hypothetical, not many.
Theodore Klein: All right, Your Honor. If he had said that, then I think that there would be no consent at all, if he said you can open my bags when you get a warrant. I think that would be quite clear that there would be no consent whatsoever under those circumstances.
Warren E. Burger: Then we don't know what would have happened, whether he would have been detained while they went to get a warrant, or whether they would have opened it without a warrant.
Theodore Klein: Your Honor, we can go on the basis of either the state's concession at oral argument or as they now--
Warren E. Burger: The state's concession isn't evidence in the case.
Theodore Klein: --No, Your Honor, but I think that the state's argument that is set forth in their reply brief points out specifically on Page 9, it said, what would have... what would have happened after that is that certainly in that event the officers could have readily sought other means of gathering information, including the use of a trained narcotics dog. So I think that their basic argument is that irrespective of whether or not the consent was ultimately granted, then this individual was not going anywhere until the police had completed their investigation. Now, we maintain that either this situation represents the most expansive Terry stop that has ever been recognized, and possibly the most coercive consent that could ever be validated, or, as we say, that it was an illegal arrest, and regardless of the nomenclature, it was tantamount to an arrest--
Lewis F. Powell, Jr.: Mr. Klein--
Theodore Klein: --Yes, Your Honor.
Lewis F. Powell, Jr.: --at what point in time did the arrest become illegal?
Theodore Klein: Your Honor, it is impossible to say at the precise moment when it occurred.
Lewis F. Powell, Jr.: Do you agree there was reasonable suspicion to ask questions?
Theodore Klein: Your Honor, I would concede that there was reasonable suspicion for the officers to approach the defendant in the airport and to engage in a contact, and nothing more.
Lewis F. Powell, Jr.: What do you mean by a contact?
Theodore Klein: A contact is a voluntary encounter, as the Court pointed out in the footnotes in Terry, and all of its progeny, it is a voluntary encounter. The police are not isolated from citizenry. They are permitted to talk to them and to go and engage and to see whether or not there is something that arouses their suspicions any further.
Lewis F. Powell, Jr.: So there was a limited Terry type stop or seizure up to what point?
Theodore Klein: Your Honor, we maintain that there was a limited encounter that took place in the form of the conversation, and then beyond that I think that it is unreasonable to say that anybody who is approached by officers in a public place, regardless of whether they are guilty or they are innocent, and the standard is an innocent person, we maintain that an innocent person who is asked by officers to please show his driver's license and his ticket, that it is unreasonable for--
Lewis F. Powell, Jr.: Do you think the conversation became unlawful at the moment the request was made to see the driver's license?
Theodore Klein: --Your Honor, we maintain that at the point that they asked for... at the point that he was asked for his driver's license and his ticket, at that juncture a reasonable person would not feel that they were free to walk away. It is natural for an individual, whether they are guilty or they are innocent, when they are approached by a police officer, to produce those documents.
Lewis F. Powell, Jr.: Mr. Klein, in the Summers decision that has been mentioned, it is perfectly clear that the individual there was not free to walk away.
Theodore Klein: Yes, Your Honor.
Lewis F. Powell, Jr.: The rationale of that case, as I understood it, was that under circumstances that create a reasonable suspicion, the officers may detain an individual for a period of time.
Theodore Klein: Your Honor--
Lewis F. Powell, Jr.: Do you agree with that or not?
Theodore Klein: --Your Honor, Michigan versus Summers was a highly limited situation, and I think that the underlying rationale there was that the issue of probable cause had already been submitted to a neutral, detached magistrate.
Lewis F. Powell, Jr.: Probable cause to detain the individual outside of his home?
Theodore Klein: No, Your Honor. It was probable cause for the search of the house, and under those circumstances, a limited seizure detention of the individual was appropriate in order to ascertain if there was going to be any evidence that was turned up in the house. But I don't think the Michigan versus Summers reflects the proper model for determination of the issues here.
Byron R. White: Who was the person detained in that case?
Theodore Klein: It was the owner of the house.
Byron R. White: And that house was covered by a search warrant?
Theodore Klein: That's correct, and that was really the underlying rationale, that a neutral, detached magistrate had issued a search warrant, and I think the Court made it quite clear that that function should be served by someone in that position rather than those who are on the front line such as police who are often engaged in the competitive aspects of ferreting out crime.
Lewis F. Powell, Jr.: Refresh my recollection, Mr. Klein. Did the Court in Sumner rely on Terry? That was my recollection.
Theodore Klein: Your Honor, it was a Terry extension.
Lewis F. Powell, Jr.: A Terry type limited seizure, was my recollection.
Theodore Klein: Your Honor, it was a Terry type limited seizure.
Speaker: Right.
Theodore Klein: But it was based upon the rationale of a neutral magistrate already having secured a warrant, and I think that that is the way that that can be justified under those circumstances, and it was justified on the basis that it was necessary in order to determine whether or not there was any individual or any proof that might turn up during the course of the search itself, which is far more intrusive in and of itself than the seizure of the individual. Now, what our position is is that whatever Terry stop may have been justified in the first instance in this matter became increasingly more custodial and ultimately culminated in an illegal arrest. The traditional dividing point has always been, of course, probable cause. The Terry case recognized an intermediate step which was limited in nature and in purpose. It is between the contact and an arrest. Articulable suspicion permits a limited seizure of the person, but it must be done with the clear caveat that whatever intrusion takes place pursuant to this seizure must be limited to that which made its initiation permissible in the first place. So that asking a seized driver to get out of his car for the immediate safety of the officer has been upheld. A patdown, as in Terry, has been upheld. In Fuenta, Martinez, Martinez Fuenta, border stop inquiry with reference to immigration status has been upheld, but none of those cases and none of the Terry line of cases have expanded the intermediate step to the extreme here without either requiring probable cause or calling it an arrest. So therefore the real question is, is what happened here, up to the actual point of the search of the luggage, can it be justified as a Terry stop. Now, first of all, I think it is important to distinguish this case from the Mendenhall--
Byron R. White: Could I ask you what I asked your colleague?
Theodore Klein: --Yes, Your Honor.
Byron R. White: A voluntary stop, even, you would say that is a voluntary stop, a quick patdown and one question, may I search your luggage. The man says yes. The luggage is searched. Wouldn't the only question be the question whether the consent was voluntary? You wouldn't say--
Theodore Klein: I would have no problem with that.
Byron R. White: --And you wouldn't say that just because there was a seizure, a momentary seizure under Terry, that his consent to search would be an invalid fruit?
Theodore Klein: I would have no problem with that whatsoever.
Byron R. White: And you think that... Let's assume there was a valid Terry stop here initially. Just assume that.
Theodore Klein: Yes, Your Honor.
Byron R. White: If they had then asked him, may we search your luggage, and he said yes, and they searched it right on the spot, no problem.
Theodore Klein: I have no problem with that whatsoever.
Byron R. White: It is just the movement into the other room?
Theodore Klein: Even under certain circumstances, a movement may be appropriate, but it was the combination of factors here.
Harry A. Blackmun: A movement could be a lot less embarrassing.
Theodore Klein: Your Honor, that is true, but if that is the case, then every time that the police conduct a so-called Terry stop, and they want to avoid embarrassment to the subject of the Terry stop, that would in their rationale permit them to move him off to some isolated place.
Byron R. White: And then what?
Theodore Klein: And then conduct whatever it is that they want to do.
Byron R. White: Is it just the lapse of time, or is it the change of atmosphere which makes it reasonable for somebody to think that he is still being detained?
Theodore Klein: Your Honor, the lapse of time is only one factor, and I don't think this is critical in this case. The lapse of time has been held to be a long time to be reasonable. In Michigan versus Summers, two hours was reasonable.
Byron R. White: But let's concede there was an initial seizure, as in my example.
Theodore Klein: Yes, sir.
Byron R. White: A Terry stop and seizure, and then he is just moved somewhere, and they ask him, may we search your luggage, and he says yes. That consent then is bad, although it wouldn't have been--
Theodore Klein: I'm sorry, I didn't follow.
Byron R. White: --A voluntary stop initially--
Theodore Klein: Your Honor--
Byron R. White: --and a seizure, and they take him away to another place, and five minutes later they ask him, may we search your luggage, and he says yes. You think that is necessarily a fruit of an arrest?
Theodore Klein: --I'm sorry, I didn't quite follow the question. If there is an initial Terry stop--
Byron R. White: Well, if he can consent to searching his luggage initially--
Theodore Klein: --Yes, Your Honor.
Byron R. White: --under a valid stop, why can't he validly consent to it five minutes later?
Theodore Klein: He could, if the circumstances were right. If they hadn't engaged in any more coercive conduct.
Speaker: Like what?
Theodore Klein: Like taking his ticket, as they did here. Like going and getting his bags and putting them in the room, isolating him, as they did here, advising him, now, we suspect you under these circumstances of carrying narcotics, we would like you to open the bag to see whether or not there is anything in there.
Byron R. White: And that makes it more likely that he would consent to searching his bags?
Theodore Klein: I think it would, Your Honor. I think that placing him in that kind of a coercive atmosphere makes it more likely. I think it is unreasonable after an individual such as this has been removed to a room, they've gotten his bags, they've gotten his ticket, they tell him, now, we suspect you of carrying narcotics, and we would like you to open up the bag in order to confirm or dispel our suspicions, I think it is unreasonable to think that anybody, guilty or innocent, can simply say, well, I've had quite enough of this, gentlemen, I've got to go on my way.
Byron R. White: Is your conclusion then that his consent is coerced, or that there is an arrest and a fruit of an invalid arrest? That is a completely different thing.
Theodore Klein: Your Honor, it's both. It's both. I haven't gotten to the consent--
Byron R. White: Well, you don't need to get to the arrest then. It is just a coerced--
Theodore Klein: --We don't have to.
Byron R. White: --It's just a coerced consent.
Theodore Klein: I believe that it is. I think that that would be the easiest way to decide this, is that this was a coerced consent under the circumstances, and regardless of whether or not we call it an arrest or not, it is a clear confinement which exceeds the scope--
Byron R. White: Well, the court below didn't decide that.
Theodore Klein: --Your Honor--
Byron R. White: The court below said there was an arrest and a fruit of an invalid arrest.
Theodore Klein: --Your Honor, I think that the exact--
Byron R. White: Isn't that what it said?
Theodore Klein: --Your Honor, I think that the exact holding of the court--
Byron R. White: Well, they said there was an arrest.
Theodore Klein: --They said that regardless of the exact nomenclature employed to describe this situation, it is unimportant.
William H. Rehnquist: Where are you reading from in the supplemental appendix?
Theodore Klein: I don't have the supplemental appendix. I am reading under the section that is Consent Invalid, and then then it says... Royer Involuntarily Confined is the first section, and then the second section, Number Two, it's Page 50.
William H. Rehnquist: No Probable Cause?
Theodore Klein: Pardon me? That's correct. The section that says No Probable Cause.
William H. Rehnquist: It says Royer had been placed under arrest, no probable cause.
Theodore Klein: Yes, Your Honor. It says, "For all practical purposes, he had been placed under arrest when the alleged consent was given. " "The exact nomenclature employed to describe this situation is, however, unimportant. " I don't think that the term "arrest" should be dispositive of the situation, because of his precise situation.
Byron R. White: I know, but we have held that even so-called voluntary consents or voluntary statements after an invalid arrest are still fruits--
Theodore Klein: Yes, Your Honor.
Byron R. White: --and inadmissible.
Theodore Klein: Yes.
Byron R. White: Without finding them coerced.
Theodore Klein: Yes, Your Honor, I agree.
Byron R. White: What is your submission here? Is it that the consent was coerced and therefore invalid?
Theodore Klein: Your Honor, the consent... there was no consent, is our position, is therefore invalid, but irrespective of that, it was a Terry stop that exceeded the scope of what is reasonably necessary.
Byron R. White: And thereupon became an arrest.
Theodore Klein: Yes, Your Honor, it did, and in connection with that, the Court's inquiry of the government as to when a seizure becomes an arrest, and the government was unable to come up with a clear definition. Well, I like the definition that the government itself gave, and that was in their brief in this case. They advert to their brief in the Michigan versus Summers case, and on Page 10, they point out in their brief that after saying that Dunaway made it clear that the formal label is not dispositive, that "probable cause is required whenever there is a sufficiently substantial invasion of the suspect's freedom of movement. " "What constitutes a sufficiently substantial deprivation of liberty to require probable cause remains to be fleshed out. " "If, however, a detention is deemed to be of sufficient severity to fall within this category, its lawfulness will not be evaluated by reference to a general reasonable analysis, but will ordinarily depend solely upon the existence of probable cause. " That's what we have here, Your Honor. I maintain that the Terry stop exceeded the initial reason for the intrusion. It was unnecessary to expand it to the point that it was. It was unnecessary under these circumstances, and therefore constitutionally unreasonable.
Warren E. Burger: You indicated that you thought the initial stop was perfectly valid, the stop and the inquiry. Is that right?
Theodore Klein: Yes, Your Honor.
Warren E. Burger: Now, it was about roughly 15 steps from where they then stood to the room. At what point did he... you say he became under arrest? The first step, fifth step, tenth step?
Theodore Klein: No, Your Honor. I would say that by the time he was asked for his consent, he was under arrest, and I think that it is impossible to single out any of those crucial elements that I have adverted to, and the court, the Florida court, the appeals court did not try to distinguish between those crucial elements, and I think that the government is incorrect when they say that the sole basis of the Florida court's position about an illegal arrest was based upon his... the reasonable apprehension that he was not free to go. That was merely one of the factors that the Florida court adverted to in making its ultimate determination that an arrest had occurred. It specifically cited the other instances of misconduct indicating that the man was not free to go, such as the... and that he was in effect in a classic case of imprisonment.
Byron R. White: You haven't argued, unless I have missed it, that there was not even any grounds for a valid Terry stop here.
Theodore Klein: No, Your Honor, I have not as yet, but I will be glad to address that point.
Byron R. White: Well, that is part of your submission, I take it.
Theodore Klein: Yes, Your Honor, and on that particular point, what our problem is is that this is... this Terry stop was based upon the so-called profile, drug courier profile, and the government has submitted in their orange book to the Court a compilation of the law and the cases, and they point out, for one thing, that there is no national profile, and the reason for this is that a perusal of the cases that they have in their book shows that all of the elements are contradictory. In one case, it is the last passenger off the plane. The next time, it is the first passenger. No bags, heavy bags, or empty bags. Walking very fast, very slow. A one-way ticket, a round-trip ticket.
Byron R. White: They are always nervous.
Theodore Klein: They are always... not always. Sometimes nervous. Nervousness seems to be a factor in Atlanta but not necessarily in Los Angeles. 0 [Generallaughter.]
William H. Rehnquist: What point are you trying to make.
Theodore Klein: Pardon me?
William H. Rehnquist: What point are you trying to make?
Theodore Klein: The point that I am trying to make is that it is very much like analyzing why the stock market has gone up the previous day. It permits the police to take what is essentially a hunch. They select out the factors that fit. They give it a label, and they mask what is essentially a hunch and essentially arbitrary action--
William H. Rehnquist: What is arbitrary about following a hunch?
Theodore Klein: --There is nothing.
William H. Rehnquist: I personally am not persuaded that police officers enjoy running around after red herrings or running after people who really aren't going to provide any leads or clues. Shouldn't the courts give some deference in this situation to the considered experience of law enforcement personnel, just on the basis that they are the ones on the scene, and probably know a little bit more about it than we do?
Theodore Klein: Your Honor, in some instances, that's true. First of all, though, we are dealing with a particular case, and here, this case, the officer had all of one month's experience. He had been on the job since November. This was January.
William H. Rehnquist: Well, but the profile was presumably devised by people other than him.
Theodore Klein: All right. Yes, Your Honor.
William H. Rehnquist: What does the one month's experience have to do with it?
Theodore Klein: All right, Your Honor, because we are talking about what essentially must be individualized suspicion, and a perfect example here is that some of the characteristics that were adverted to by the officer in his testimony as to why he suspected this person was because he was carrying American Tourister luggage. He said he was carrying one old suitcase, one new suitcase, and he put them up near the counter, and most people carry their luggage with them. Now, the profile has its place. It is an excellent administrative tool for the police to use to single out possible suspicious activity for further investigation, but it should not be used as a justification for intruding on the Fourth Amendment.
William H. Rehnquist: Why not?
Theodore Klein: Because the fact of being part of a profile in and of itself should not be used in connection with a Terry stop as a substitute for individualized suspicion. I think every case since Terry has talked about individualized suspicion as to why it was that a particular element in the profile was or was not--
William H. Rehnquist: Supposing the government could produce evidence, which I take it it hasn't here, that if each of these elements of the profile when they were run down, 70 percent of the follow-ups indicated a person who was probably guilty of some offense and 30 percent didn't. Now, would you say that an officer couldn't simply apply that profile across the board if it were documented in that way, without making any further individualized determination?
Theodore Klein: --I still think that he needs to make an individualized determination in every instance. I think that that sort of statistical approach--
William H. Rehnquist: Well, what if the individualized determination he makes was that this person whom I am following now exhibits eight of the ten characteristics that the profile says to look for, and each of those ten characteristics is documented by experience?
Theodore Klein: --I still think, Your Honor, under those circumstances, that he has to be able to articulate whether or why any particular item of behavior, regardless of whether it is on or off the profile--
Warren E. Burger: Any particular item or the combination of all of them?
Theodore Klein: --He can use a combination of all of them, but he still must articulate why it is that he believes that these things lead him to suspect that a crime is being committed.
William H. Rehnquist: Why not past experience? If 80 percent of the follow-ups in the past of people with a particular kind of luggage have indicated that you find a guilty person, why isn't that a perfectly adequate basis of using that in the case of an expert who comes along?
Theodore Klein: Your Honor, I still think that under those circumstances, that there has got to be some showing that in this particular case that they suspect him of a crime, because each of those things are innocent in and of themselves.
William H. Rehnquist: Of course, but that is a very fallacious approach of the undistributed middle, which really doesn't mean anything in this kind of situation. You say... You keep referring to what you think and what you believe.
Theodore Klein: Yes, Your Honor.
William H. Rehnquist: What cases from this Court support your view that a profile of this sort is not usable in any circumstances?
Theodore Klein: Your Honor, I think that the concurring opinion in the Mendenhall case in Footnote Number 6, Justice Powell specifically indicated that a mere profile match in and of itself would not take the substitute... it would not be a substitute for that sort of individualized suspicion. Its appearance on the profile may or may not have significance, but the mere fact that it does appear on the profile cannot be used as a substitute to make the determination that in fact a suspicion of a crime has been committed. There still must be something that is articulated as to why--
Harry A. Blackmun: On your approach, a profile has no use whatsoever.
Theodore Klein: --No, I believe that it has a very, very useful approach, to single out from the very large universe of people those whom there is some unusual activity that would cause the police then to go and conduct a further inquiry.
Warren E. Burger: It worked pretty well here, didn't it?
Theodore Klein: Pardon me?
Warren E. Burger: It worked pretty well here.
Theodore Klein: Well, I think we must look at things at the point prior to the search. Otherwise... we can't look at it afterwards as a bootstrapping sort of thing, because in every case in which there is a... a criminal case in which there is a motion to suppress, it means that it works, but the determination still must be made prior to the actual--
Warren E. Burger: You were emphasizing the individual components here some time back.
Theodore Klein: --Yes, Your Honor.
Warren E. Burger: It turned out that one of these suitcases weighed 65 pounds.
Theodore Klein: No, they were 65 together, Your Honor.
Speaker: Together?
Theodore Klein: It was an aggregate. Yes.
Warren E. Burger: That is quite a lot for two suitcases for the size indicated by this record.
Theodore Klein: They were heavy suitcases, Your Honor. There is no doubt about it. But the fact that somebody is carrying heavy suitcases does not give one the kind of articulable suspicion that a crime is being committed.
Warren E. Burger: Not standing alone.
Theodore Klein: Pardon me.
Warren E. Burger: Not standing alone. But it is one of the factors, you would concede.
Theodore Klein: Your Honor, it is a factor, but it still does not show why a crime has been committed. The fact that it is American Tourister, or that it is a heavy suitcase, the fact that the person looked nervous... and by the way, there is a case that says... pointed out as one of the characteristics that the defendant looked very calm, so again, there is a contradiction to every single one of these items that occurs.
Byron R. White: Well, then I say again that in your position the profile is perfectly useless.
Theodore Klein: No, I believe that it is very useful for the police to go and to make the initial contact so that they don't have to just select people out at random to see whether or not they are drug couriers in an airport, and at that point, then, they would go and make their contact. Now, if the state and the government are fearful of a person getting away with crime, the police don't have to shrug their shoulders and simply walk away. They can still limit the intrusion to the reason within the Terry standards.
Byron R. White: You are not suggesting that they have to have reasonable suspicion to go up and ask the fellow just to--
Theodore Klein: No, I am not suggesting that at all, Your Honor. They could do it--
Byron R. White: --So, let's assume on these facts you applied the rationale of the plurality in Mendenhall.
Theodore Klein: --Yes, Your Honor.
Byron R. White: Where would you be then?
Theodore Klein: I'm sorry, I didn't understand.
Byron R. White: Justice Stewart's opinion in Mendenhall.
Theodore Klein: Yes, Your Honor.
Byron R. White: Apply that to this case.
Theodore Klein: If you would apply that to this case, then there would be no seizure at all in the first instance, but--
Byron R. White: The facts aren't really different from Mendenhall, are they?
Theodore Klein: --Yes, Your Honor, there are.
Byron R. White: Why was there more of a seizure here than there was in Mendenhall?
Theodore Klein: First of all, the ticket was handed back in Mendenhall. The trial court made a specific finding in Mendenhall that Mrs. Mendenhall had agreed to go to the room in a spirit of cooperation. She was never told--
Byron R. White: That's a finding. I'm talking about the facts.
Theodore Klein: --All right. She was never told either out in the concourse or in the office that she was suspected of carrying narcotics, so that there is a focus issue that is involved there. There was no retrieval of her luggage. She was advised in the room of her right to refuse.
Byron R. White: Well, let's assume there was no reasonable suspicion in this case, there was just the profile, and assume we agreed with you that that doesn't amount to reasonable suspicion, but nevertheless it did sort this person out.
Theodore Klein: Yes, Your Honor.
Byron R. White: So you go up to him, and you say, may I ask you some questions? We are narcotics officers, and we suspect you of carrying narcotics. We want to ask you one question. May we search your luggage, and he says yes.
Theodore Klein: Again, I still would have--
Speaker: You don't have any problem at all.
Theodore Klein: --If that took place out in the concourse, I would have no problem with it, and in fact I think that if--
Speaker: So, next question.
Theodore Klein: --Yes, sir.
Byron R. White: He goes up to him, we are narcotics officers, we suspect you of carrying narcotics, but we have no articulatable suspicion about that. One question. Would you come over and let us search your luggage in this room over here? And he says yes.
Theodore Klein: Your Honor, now we are beginning to build hypothets that I can't answer, because I think that it may or may not be.
Byron R. White: Well, he doesn't say... now they just say, will you come over to this room, and he says yes, and he gets over there, and they say, may we search your luggage.
Theodore Klein: Then we are closer to a Mendenhall situation.
Byron R. White: Now, Justice Stewart said that is just complete consent all the way down, no seizure, no nothing.
Theodore Klein: Your Honor, then perhaps we get closer to a Mendenhall situation, but that's not the situation that we have here, and I think again in order to determine--
Byron R. White: Well, one of the government's arguments is that it is.
Theodore Klein: --Your Honor, that's correct, but I think in order to determine these issues of the scope of the Terry seizure, that we have got to go back and look at the Terry poll stars, and see what it is that is sought to be accomplished, and one of the things that must be determined is how far we can extend this Terry stop without running afoul of the original principle. The whole object of all of the Terry cases, including the investigative stop cases, is that the scope of the intrusion must be limited to the reason for the initial seizure, and that is what justified the Terry rationale in the first place. Now, if we limit that under these circumstances to the Terry seizure, then I think it is clear that whatever occurs should occur out there in the concourse. It is constitutionally unreasonable to take all the--
Byron R. White: Why should the test of a seizure be what the seizee reasonably thought about whether he was free to go or not?
Theodore Klein: --Why should it be?
Byron R. White: Yes, because on that basis, you probably will never permit the police to go up to anybody and say, may I ask you a question.
Theodore Klein: Your Honor, I agree, but that is what the Court has said, that that is the test, because I don't think there's any way--
Byron R. White: Why shouldn't it rest on some act of compulsion or show of force by the police?
Theodore Klein: --Your Honor, the cases have said the question is whether or not the "seizee" is under the reasonable belief that he was not free to walk away. I think it's a very, very difficult rationale to apply, but nevertheless that is the standard that this Court has adopted--
Byron R. White: In what cases was that? What case?
Theodore Klein: --Your Honor, I think that it's a number of cases that follow Terry, and I think that under... I can't recall exactly which of those cases, but the question has always been stated under whether or not the seizee--
Byron R. White: In one case, have five Justices agreed to that? It was Justice Stewart's opinion joined by one other Justice in Mendenhall.
Theodore Klein: --All right. My own feeling is that that is an unworkable standard, that it ought to be a standard as to whether or not... whether or not some act is done by the police officer that would reasonably indicate that the defendant was not free to go, not the subjective standard of what was in the defendant's mind, because that's an impossible standard to apply, and I think that looking at it from the standpoint of the law enforcement authorities rather than from the subjective standard of the defendant makes a lot more sense. And looking at it from that standard, if a police officer asks an individual on the street or anywhere, can I see your license, it is unreasonable to believe that the person thinks that he can freely walk away without giving up his license or without arousing further suspicion.
Byron R. White: Well, there is one way to find out, and that is by saying no.
Theodore Klein: That's correct, Your Honor, but again, we are talking about what would happen afterwards on the basis of a hypothetical. Now, if the state and the government are fearful of a person in Mr. Royer's position getting away with crime, the police do not have to shrug their shoulders and walk away. They can still limit the intrusion to the reason within the Terry standards and yet carry on with a number of efficacious techniques. They can continue the brief seizure on the spot. They can continue the questioning. They can ask there if he would consent. They can check with the ticket agent. They can do a dog sniff of his luggage. Also, they know that he's getting on a plane, and they know where he's going to--
John Paul Stevens: How long can they continue the questioning?
Theodore Klein: --Pardon me?
John Paul Stevens: How long can they continue the questioning?
Theodore Klein: How long? Your Honor, I think that the standard just has to be one of whether or not it is reasonable, and I don't think that they can--
John Paul Stevens: Can they retain the man's ticket while they do the questioning, in your view?
Theodore Klein: --Your Honor, if it's a seizure on the spot, I think that they could retain his ticket. That would be a means of holding him on a leash, because if there is a proper Terry seizure in the first instance, then I would think that under those circumstances it would be reasonable to hold their ticket while they are questioning him on the spot, but if they are going to attempt to remove him to some other place, then in order to expand that, they've got to have some legitimate reason why it is necessary to go to another place other than the general law enforcement objectives.
John Paul Stevens: Do I understand you to say, then, that if they had asked him in the terminal rather than in the office to open the bags, you'd have no objection?
Theodore Klein: I think that that would be appropriate under those circumstances. They can ask for a consent there, but it was merely the coercive elements that inhered in the situation in this instance. Also, they know... I started to give some reasons as to why it was that they could conduct it in another manner. He is getting on a plane for New York, so they know very well where he is going to be for the next two and a half hours. And the agent testified in this case that he is in constant communication with agents in every other city throughout the country, checking on passengers coming and going in these instances, so it is very easy for them to do what they have to do.
Warren E. Burger: The logical result of what you say, that they could have required him to open his suitcases right on the spot--
Theodore Klein: Yes, Your Honor.
Warren E. Burger: --in your response to Justice Stevens, but because he takes 15 steps to save him some public embarrassment, then they lose some rights?
Theodore Klein: Your Honor, it is not just the movement of the 15 steps. First of all, they put him into a converted storage closet. It could be five steps, but once they move behind a door which is only three inches wide--
Warren E. Burger: You call it a closet. How big was the room, as long as you have defined it as a closet?
Theodore Klein: --It was defined by the police as a converted storage closet. The Court of Appeals pointed out that the officer did testify, contrary to what the state says, that it was a police room. It was outfitted with a desk and two chairs, and it's impossible to say. There's nothing in the record to indicate.
Speaker: A big closet.
Theodore Klein: Pardon me?
Byron R. White: The size of a closet with a desk and two chairs?
Theodore Klein: Yes.
Harry A. Blackmun: The situation would be different in your view if it were as large as this courtroom?
Theodore Klein: Your Honor, I think that that would be an element, but I don't think that it is dispositive at all. I think that the coercive elements that all combined in this case added up to the situation that existed here.
Byron R. White: Well, let's assume that the officers said, we hereby arrest you, and then they asked--
Theodore Klein: It could be an illegal arrest.
Byron R. White: --Well, let's assume there was even probable cause.
Theodore Klein: Yes, Your Honor.
Byron R. White: And they say, may we search your suitcase, and he says yes. There is nothing wrong with that consent necessarily, is there?
Theodore Klein: I would say that there is, Your Honor.
Byron R. White: There was probable cause.
Theodore Klein: If there was probable cause, even... oh, if there was probable cause, no. I would say not. Under Schneckloth it would be an acceptable... it would be an acceptable standard.
Byron R. White: Even if the case turned on the voluntariness, it could be found completely voluntary.
Theodore Klein: That's correct, Your Honor, it could.
Warren E. Burger: Very well. Mr. Fox, do you have anything further?
Calvin L. Fox: Yes, Your Honor, I have--
Warren E. Burger: You have six minutes remaining.
Calvin L. Fox: --Yes, Your Honor. Thank you. First of all, Your Honor, we certainly do not abandon any arguments we raise in our extensive brief, including the good faith exception. I would like to address why the voluntariness issue in this Court should be overturned, and that is, this Court's various holdings, and we quote United States versus Price that a finding of consent should not be overturned unless it is clearly erroneous. The evidence in this case is not so overwhelming that either this Court or the District Court of Appeal en banc should overturn both the panel opinion and the trial court on the question of voluntariness. The defendant just stated that this was a police room, and the witnesses so testified. In fact, Johnson was asked, "Is that an official police room. " "No, it's a closet that has shelves on one end. " "Do you have any police paraphernalia whatsoever in that room? " "No, because it's an area that we really couldn't secure very well. " The police room is something that the Third District called this room. It is not something that it was in fact. With respect to why the defendant was stopped... assuming the defendant was detained... excuse me... when he was taken to the room, he was not detained because he had American Tourister luggage, Your Honor. He was detained because of numerous facts and circumstances, not the least of which included the profile as a written indication of the officers' experience, and particularly his efforts to avoid detection as are observed by the officers, and particularly Johnson's observations of the defendant's counter-surveillance, if you will. Certainly, normal airline passengers don't conduct counter-surveillance to see if they are being observed.
Warren E. Burger: When did they discover that he was using a false name, at least a different name?
Calvin L. Fox: The alias was discovered at the very moment of the initial contact with the defendant, Your Honor, and that alias, Elmore, and Partino, cited in our brief, Elmore said, "It would be a failure of duty had the federal agents not detained Elmore at that point to investigate him further. " Now, that is detained to investigate further, which, assuming this was a detention, that it was absolutely lawful under Elmore. Elmore also said, "Upon these facts, profile or no profile, the officers also had a right to ask the defendant if he would consent to the search of his luggage. " Patino reached exactly a similar result. With respect to the test to be applied, Your Honors, there's a two-part test here that we've argued in our brief. First of all, Terry and Mendenhall held that there is no detention unless there is physical force or a show of authority, and neither one of those circumstances was present in this case. The second--
Thurgood Marshall: Didn't they say they were officers? Isn't that... They showed him a badge?
Calvin L. Fox: --That is not a show of authority, Your Honor.
Thurgood Marshall: Well, what is it a show of?
Calvin L. Fox: It's a show of the officers not wanting to have a nervous courier react to the fact that he was about to be taken out in the Everglades and left in the trunk of an automobile. These officers identify themselves for that specific reason, that the courier realizes that he is not being trailed by somebody else.
Thurgood Marshall: Then you must not object to the word "authority". You want to show them the authority to protect them.
Calvin L. Fox: You want to show them the authority to--
Thurgood Marshall: You want to show them authority.
Calvin L. Fox: --alleviate their fear that somebody who is not lawful and who--
Thurgood Marshall: Well, do you want to show them authority or not?
Calvin L. Fox: --It is not a show of authority. Merely identifying oneself as a police officer is not a show of authority.
John Paul Stevens: How does an officer make a show of authority?
Calvin L. Fox: Pardon me?
John Paul Stevens: How does an officer make a show of authority if he doesn't by identifying himself and showing the authorization to act as an officer?
Calvin L. Fox: He does it by announcing to the defendant, you stay here, some sort of announcement, some sort of indication to the defendant.
Thurgood Marshall: They asked him to open the baggage. Would that be a show of authority?
Calvin L. Fox: Merely a request to open the bag is not a show of authority, Your Honor. This Court has so held in Schneckloth. If this Court accepts that announcement of identification is a show of authority, then we are out the window on the mere contact concept, which this Court accepted in Mendenhall.
Warren E. Burger: Your friend has conceded that they could have told him to open the bags immediately on the spot.
Calvin L. Fox: Yes, Your Honor. His whole thing apparently rests at this point on whether or not the movement to the room is some sort of detention.
Warren E. Burger: Is that a show of authority or an exercise of authority?
Calvin L. Fox: No, Your Honor, I think it was merely a request.
Byron R. White: Well, there still could be a difference between asking a person, may we search your luggage, and saying to him, stay right here, now, open your luggage, we are officers.
Calvin L. Fox: Yes, Your Honor.
Speaker: That's an order.
Calvin L. Fox: That's a different circumstance. Exactly. That is a show of authority. Now, the second part of the--
Byron R. White: That is an exercise of coercion.
Calvin L. Fox: --Stay right here, we are going to get a warrant, that certainly is an exercise--
Byron R. White: Well, or saying, now, open your luggage, we order you to open your luggage.
Calvin L. Fox: --Assuming that had been held in the trial court, that would be an exercise of authority. Your Honor, there is a second part to our analysis here as to the test to be applied in this case, and that is, there must be a balancing test between the public's interest in... the compelling public interest in law enforcement and the de minimus intrusion which is present in this case, and we would urge this Court to follow the balancing test as articulated in Michigan versus Summers. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.
Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.