Criminal Procedure:
A Free Law School Casebook

Ben Trachtenberg
Isidor Loeb Professor of Law
University of Missouri School of Law
Anne Alexander
Associate Teaching Professor of Law and
Director of Legal Research & Writing
University of Missouri School of Law

CALI eLangdell Press 2020

Dedication
We dedicate this book to our students, our colleagues, and our families, as well as to all
who support the mission of America’s public law schools.
Acknowledgements
From Ben Trachtenberg
First and foremost, I thank Joanna Trachtenberg for marrying me, agreeing to move with
me to Missouri, and being a far better spouse than I could possibly deserve. I also thank
Akiva and Shoshana Trachtenberg, who remind me of the importance of justice to the
world.
I thank Anne Alexander for agreeing to join this project, which I began somewhat
impulsively and could never have completed (at least not well and on time) without her
assistance.
From Anne Alexander
I am most thankful to my husband Marc, whose support and love keeps me grounded in
a way that helps me accomplish my dreams. I also thank our twin daughters, Lilly and
Sydney Alexander; their perseverance and search for equality motivate me to ask the hard
questions.
Thanks also goes to Ben Trachtenberg, who is a good friend and colleague. May his
penchant for pushing me into different projects continue to lead to great unforeseen
adventures in our academic careers.
From Ben Trachtenberg & Anne Alexander
We thank the University of Missouri System’s Affordable & Open Educational Resources
initiative and the UM System’s Diversity Equity and Inclusion inclusive teaching
incentive, both of which provided funding to support the first edition of this book.
We also thank MU law student research assistants Callie Haslag, who provided support
through the Shook, Hardy & Bacon research assistant program, and Samuel Thomas.
The authors give special thanks to research assistant Aaron Wynhausen, who joined this
project early in the fall 2018 semester and proofread most of the chapters in the first
edition, often under time pressure.
We also thank The Center for Computer-Assisted Legal Instruction (CALI) for publishing
the current edition. In particular, Deb Quentel has provided important support.

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Date & Edition
The first edition of this book was compiled and released for the fall semester of 2018, and
the book was used again during the spring 2019 semester. With a brief supplement (and
no significant revisions), the book was republished for 2019-2020.
This edition is substantially revised and is being released for use during the 2020-2021
year and beyond. Page numbers in this edition will not match those of previous versions.

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Notices
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About CALI eLangdell Press
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About the Authors
Ben Trachtenberg is the Isidor Loeb Professor of Law at the
University of Missouri School of Law. He serves as Director of
Undergraduate Studies at the MU School of Law, and also as Special
Advisor to the Chancellor of the University of Missouri.
Professor Trachtenberg joined the MU faculty in 2010. Before
coming to Missouri, Professor Trachtenberg was a Visiting Assistant
Professor at Brooklyn Law School from 2008-2010. From 20062008, he was a Litigation Associate at Covington & Burling LLP.
Professor Trachtenberg received his J.D. from Columbia Law School,
where he was an Articles Editor on the Columbia Law Review. He has an M.A. in
International Studies from the University of Limerick and a B.A. from Yale in Political
Science, with distinction. After graduating from law school, Professor Trachtenberg
clerked at the U.S. Court of Appeals for the Second Circuit with Judge José A. Cabranes.
In 2012, Professor Trachtenberg received the Gold Chalk Award for excellence in teaching
from the MU Graduate Professional Council. In 2014, he won the Provost’s Outstanding
Junior Faculty Teaching Award, and in 2015, he received the Husch Blackwell
Distinguished Faculty Award from the School of Law. In 2018, he received the Provost’s
Faculty Leadership Award for University Citizenship, and he won the UM System
President’s Award in that category in 2019. Professor Trachtenberg chaired the MU
Faculty Council on University Policy during 2015-2016 and 2016-2017.
Anne Alexander is an Associate Teaching Professor of Law and
the Director of Legal Research & Writing at the University of
Missouri School of Law. Her process-oriented methodology
encourages students to develop their own knowledge about legal
analysis and to communicate legal ideas to non-legal audiences. She
presents nationally about her teaching techniques.
In 2015, Professor Alexander won the University of Missouri
Excellence in Teaching with Technology Award (Graduate School). In 2016, she won the
Earnest L. Boyer International Award for Excellence in Teaching, Learning, and
Technology and was one of seven recipients of the Innovation Award at the International
Conference on College Teaching and Learning. In 2017 and 2019, Professor Alexander
was recognized as the Lloyd L Gaines Honoree by the Black Law Student Association; she
also received the Provost’s Outstanding Junior Faculty Teaching Award. In 2019, she
received the Carrie Mae Carroll Award from the Women’s Law Association and the Gold
Chalk Award for excellence in teaching from the MU Graduate Professional Council
Professor Alexander has a BA in Anthropology and an MS in Education from Indiana
University. She graduated magna cum laude and Order of the Coif from the University of
Missouri School of Law and then worked as an associate attorney at Jenner & Block in
Chicago. Prior to attending law school, she was an elementary school teacher.
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Notices & Permissions
CALI gratefully acknowledges permission from the following individuals and
organizations to reprint materials:
Incarceration rate of inmates incarcerated under state and federal
jurisdiction per 100,000 population 1925-2014. Page 29. Graph released into the
public domain by its author.
U.S. State and Federal Prison Population, 1925-2017. Page 30. Reprint
permission provided by The Sentencing Project.
How many women are locked up in the United States? Page 31. Reprint
permission provided by the Prison Policy Initiative.

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SUMMARY OF CONTENTS
INTRODUCTION ....................................................................... 21
THE SCOPE OF THE CRIMINAL JUSTICE SYSTEM ...............................................................................................28
A FEW RECENT CASES ..................................................................................................................................... 32
THE KEY CONSTITUTIONAL LANGUAGE ........................................................................................................... 37

THE FOURTH AMENDMENT .................................................... 39
WHAT IS A SEARCH? THE BASICS .................................................................................................................... 39
WHAT IS A SEARCH? SOME SPECIFICS ............................................................................................................. 57
WHAT IS A SEARCH?: MORE SPECIFICS ...........................................................................................................82
WHAT IS A SEARCH?: WRAPPING UP ............................................................................................................. 102
SEARCH REVIEW............................................................................................................................................ 126
PROBABLE CAUSE AND REASONABLE SUSPICION............................................................................................ 127
THE PHENOMENON OF “DRIVING WHILE BLACK” OR “DRIVING WHILE BROWN” .......................................... 148
WARRANTS .................................................................................................................................................... 150
EXECUTION OF WARRANTS ............................................................................................................................ 170
FURTHER RESOURCES FOR GREATER DETAIL ABOUT WARRANTS .................................................................. 186
WARRANT EXCEPTIONS ................................................................................................................................. 190
THE PLAIN VIEW EXCEPTION ........................................................................................................................ 190
THE AUTOMOBILE EXCEPTION ..................................................................................................................... 200
WARRANT EXCEPTION: SEARCHES INCIDENT TO A LAWFUL ARREST .............................................................. 213
WAIVING THE WARRANT REQUIREMENT: CONSENT ......................................................................................236
THE AUTHORITY OF CO-OCCUPANTS AND CO-OWNERS TO CONSENT TO SEARCHES .......................................256
WARRANT EXCEPTION: EXIGENT CIRCUMSTANCES........................................................................................ 257
EXIGENT CIRCUMSTANCES: HOT PURSUIT ..................................................................................................... 257
EXIGENT CIRCUMSTANCES: PUBLIC SAFETY.................................................................................................. 266
EXIGENT CIRCUMSTANCES: PRESERVING EVIDENCE FROM DESTRUCTION ..................................................... 272
EXIGENT CIRCUMSTANCE: DRUNK DRIVING ................................................................................................. 280
WARRANT EXCEPTION: PORTS OF ENTRY ..................................................................................................... 302
THE FUNCTIONAL BORDER AND EXTENDED BORDER ....................................................................................324
ELECTRONIC DEVICES AT OR NEAR THE BORDER ........................................................................................... 325
TREATMENT OF REFUGEES, ASYLUM SEEKERS, AND OTHER MIGRANTS ......................................................... 325
WARRANT EXCEPTION: CHECKPOINTS ...........................................................................................................326
WARRANT EXCEPTION: PROTECTIVE SWEEPS ................................................................................................339
WARRANT EXCEPTION: SEARCHES OF STUDENTS & PUBLIC EMPLOYEES .......................................................346
DRUG TESTING OF PUBLIC EMPLOYEES ........................................................................................................ 368
DRUG TESTING OF PUBLIC SCHOOL STUDENTS .............................................................................................. 375
DRUG TESTING OF PUBLIC HOSPITAL PATIENTS ........................................................................................... 384
WARRANT EXCEPTION: SEARCHES OF PERSONS IN JAILS AND PRISONS ........................................................ 390
WARRANT EXCEPTION: SEARCHES OF PROBATIONERS AND PAROLEES .......................................................... 397
WARRANT EXCEPTION: ADMINISTRATIVE SEARCHES.................................................................................... 402
DNA TESTS OF ARRESTEES............................................................................................................................407
SEIZURES AND ARRESTS ................................................................................................................................ 416
WHAT IS A SEIZURE? ..................................................................................................................................... 416
ARRESTS........................................................................................................................................................425
STOP & FRISK ............................................................................................................................................... 438
PERCEPTIONS OF STOP-AND-FRISK ............................................................................................................... 458
REASONABLE SUSPICION .............................................................................................................................. 460
REASONABLE SUSPICION BASED ON TIPS ....................................................................................................... 471
FOURTH AMENDMENT FLOWCHART EXERCISE ............................................................................................. 482

INTERROGATIONS ................................................................. 483
DUE PROCESS AND THE VOLUNTARINESS REQUIREMENT ............................................................................. 483
THE MIRANDA RULE .................................................................................................................................... 504
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HOW WELL MUST OFFICERS ADMINISTER THE MIRANDA WARNINGS? ......................................................... 517
THE ENDURANCE OF MIRANDA IN THE FACE OF CRITICISM ........................................................................... 523
THE MIRANDA RULE: WHAT IS CUSTODY? .................................................................................................... 527
THE PRACTICAL CONSEQUENCES OF THE MIRANDA RULE ............................................................................. 543
THE MIRANDA RULE: WHAT IS INTERROGATION? .........................................................................................546
THE MIRANDA RULE: WAIVER OF RIGHTS .....................................................................................................558
WHAT COUNTS AS AN UNAMBIGUOUS INVOCATION OF MIRANDA RIGHTS? ....................................................582
INVOCATION OF THE RIGHT TO SILENCE ....................................................................................................... 590
INVOCATION OF THE RIGHT TO COUNSEL.......................................................................................................594
THE MIRANDA RULE: EXCEPTIONS................................................................................................................ 612
THE SIXTH AMENDMENT: THE MASSIAH DOCTRINE .....................................................................................632
DOUBLE JEOPARDY AND THE “OFFENSE-SPECIFIC” SIXTH AMENDMENT ....................................................... 647
WHEN HAS THE RIGHT TO COUNSEL ATTACHED?..........................................................................................654
THE SIXTH AMENDMENT: MASSIAH DOCTRINE & WAIVER OF RIGHTS .......................................................... 655
WAIVER OF RIGHTS UNDER THE ASSISTANCE OF COUNSEL CLAUSE ............................................................... 667
INTERROGATION FLOWCHART EXERCISE ....................................................................................................... 676
INTERROGATION REVIEW .............................................................................................................................. 677

THE EXCLUSIONARY RULE................................................... 678
INTRODUCTION TO THE EXCLUSIONARY RULE ...............................................................................................678
WHEN DOES THE EXCLUSIONARY RULE APPLY? ............................................................................................695
EXCLUSIONARY RULE: STANDING AND EXCEPTIONS ...................................................................................... 716
WHO CAN INVOKE THE EXCLUSIONARY RULE?.............................................................................................. 716
EXCEPTIONS TO THE EXCLUSIONARY RULE.................................................................................................... 722
EXCLUSIONARY RULE: APPLICATION TO THE MIRANDA RULE ........................................................................740
THE BASICS OF SUPPRESSION HEARINGS ....................................................................................................... 763
AN INTRODUCTION TO THE AVAILABILITY OF MONETARY DAMAGES ..............................................................768

THE RIGHT TO COUNSEL ...................................................... 785
INTRODUCTION TO THE RIGHT TO COUNSEL AND INEFFECTIVE ASSISTANCE .................................................. 785
INEFFECTIVE ASSISTANCE OF COUNSEL .........................................................................................................790
SELF-REPRESENTATION AND MORE ON INEFFECTIVE ASSISTANCE ............................................................... 805
SELF-REPRESENTATION BY CRIMINAL DEFENDANTS ..................................................................................... 818

IDENTIFICATIONS ................................................................. 828
IDENTIFICATIONS AND THE RIGHT TO COUNSEL ........................................................................................... 828
IDENTIFICATIONS AND DUE PROCESS ........................................................................................................... 848
BEST PRACTICES AND MODERN STATE COURT APPROACHES ......................................................................... 871

CONFRONTING NEW CHALLENGES ..................................... 894
ELECTRONIC SURVEILLANCE, TORTURE, AND THE “WAR ON TERROR”.......................................................... 894

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TABLE OF CONTENTS
CHAPTER 1 ............................................................................... 21
Ed Brown v. Mississippi .......................................................................................................................... 22
THE SCOPE OF THE CRIMINAL JUSTICE SYSTEM ...............................................................................................28
A FEW RECENT CASES ..................................................................................................................................... 32
THE KEY CONSTITUTIONAL LANGUAGE ........................................................................................................... 37
Amendment IV.......................................................................................................................................... 37
Amendment V ........................................................................................................................................... 37
Amendment VI.......................................................................................................................................... 37
Amendment XIV ....................................................................................................................................... 37

CHAPTER 2 ............................................................................... 39
WHAT IS A SEARCH?: THE BASICS ................................................................................................................... 39
Charles Katz v. United States .................................................................................................................. 39
United States v. Antoine Jones ................................................................................................................44

CHAPTER 3 ............................................................................... 57
WHAT IS A SEARCH?: SOME SPECIFICS ............................................................................................................ 57
California v. Billy Greenwood ................................................................................................................ 57
Danny Lee Kyllo v. United States ...........................................................................................................62
United States v. Leroy Carlton Knotts.................................................................................................... 70
Michael Lee Smith v. Maryland .............................................................................................................. 74

CHAPTER 4 ............................................................................... 82
WHAT IS A SEARCH?: MORE SPECIFICS ...........................................................................................................82
Ray Oliver v. United States .....................................................................................................................82
United States v. Ronald Dunn ................................................................................................................. 87
California v. Ciraolo ................................................................................................................................92
Florida v. Michael Riley ..........................................................................................................................96

CHAPTER 5 ............................................................................. 102
WHAT IS A SEARCH?: WRAPPING UP ............................................................................................................. 102
Timothy Carpenter v. United States ..................................................................................................... 102
United States v. Raymond J. Place ........................................................................................................112
Illinois v. Roy I. Caballes ....................................................................................................................... 114
Florida v. Joelis Jardines ...................................................................................................................... 118
Florida v. Clayton Harris .......................................................................................................................121
SEARCH REVIEW............................................................................................................................................ 126

CHAPTER 6 .............................................................................. 127
PROBABLE CAUSE AND REASONABLE SUSPICION............................................................................................ 127
Illinois v. Lance Gates ............................................................................................................................ 127
Michael A. Whren v. United States ....................................................................................................... 137
District of Columbia v. Theodore Wesby .............................................................................................. 142
THE PHENOMENON OF “DRIVING WHILE BLACK” OR “DRIVING WHILE BROWN” .......................................... 148

CHAPTER 7 ............................................................................. 150
WARRANTS .................................................................................................................................................... 150
Peter C. Andresen v. Maryland ............................................................................................................. 150
Jeff Groh v. Joseph R. Ramirez ............................................................................................................. 155
Sharlene Wilson v. Arkansas ................................................................................................................ 161
Steiney Richards v. Wisconsin .............................................................................................................. 165
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CHAPTER 8..............................................................................170
EXECUTION OF WARRANTS ............................................................................................................................ 170
Darin L. Muehler v. Iris Mena .............................................................................................................. 170
Maryland v. Harold Garrison .............................................................................................................. 176
Los Angeles County, California v. Max Rettele ................................................................................... 182
FURTHER RESOURCES FOR GREATER DETAIL ABOUT WARRANTS .................................................................. 186

CHAPTER 9 ............................................................................. 190
WARRANT EXCEPTIONS ................................................................................................................................. 190
THE PLAIN VIEW EXCEPTION ........................................................................................................................ 190
Edward H. Coolidge, Jr. v. New Hampshire ....................................................................................... 190
Minnesota v. Timothy Dickerson .......................................................................................................... 197
THE AUTOMOBILE EXCEPTION ..................................................................................................................... 200
California v. Charles R. Carney ............................................................................................................ 201
California v. Charles Steven Acevedo .................................................................................................. 206

CHAPTER 10 ............................................................................213
WARRANT EXCEPTION: SEARCHES INCIDENT TO A LAWFUL ARREST .............................................................. 213
Ted Steven Chimel v. California ............................................................................................................ 213
Patrick Knowles v. Iowa ........................................................................................................................ 218
Arizona v. Rodney Joseph Gant ........................................................................................................... 220
David Leon Riley v. California ............................................................................................................. 228

CHAPTER 11 ............................................................................ 236
WAIVING THE WARRANT REQUIREMENT: CONSENT ......................................................................................236
Merle R. Schneckloth v. Robert Clyde Bustamonte .............................................................................236
Georgia v. Scott Fitz Randolph ............................................................................................................ 244
Walter Fernandez v. California ........................................................................................................... 250
THE AUTHORITY OF CO-OCCUPANTS AND CO-OWNERS TO CONSENT TO SEARCHES .......................................256

CHAPTER 12 ........................................................................... 257
WARRANT EXCEPTION: EXIGENT CIRCUMSTANCES........................................................................................ 257
EXIGENT CIRCUMSTANCES: HOT PURSUIT ..................................................................................................... 257
Warden, Maryland Penitentiary v. Bennie Joe Hayden .................................................................... 257
Theodore Payton v. New York ............................................................................................................. 260
EXIGENT CIRCUMSTANCES: PUBLIC SAFETY.................................................................................................. 266
Brigham City, Utah v. Charles W. Stuart ........................................................................................... 266
Michigan v. Jeremy Fisher ................................................................................................................... 269
EXIGENT CIRCUMSTANCES: PRESERVING EVIDENCE FROM DESTRUCTION ..................................................... 272
Kentucky v. Hollis Deshaun King ......................................................................................................... 272

CHAPTER 13 ........................................................................... 280
EXIGENT CIRCUMSTANCE: DRUNK DRIVING ................................................................................................. 280
Missouri v. Tyler G. McNeely ............................................................................................................... 280
Danny Birchfield v. North Dakota ........................................................................................................287
Edward G. Welsh v. Wisconsin ............................................................................................................. 297

CHAPTER 14 ........................................................................... 302
WARRANT EXCEPTION: PORTS OF ENTRY ..................................................................................................... 302
United States v. Manuel Flores-Montano ........................................................................................... 302
United States v. Amado Martinez-Fuerte ........................................................................................... 305
United States v. Charles W. Ramsey .................................................................................................... 312
United States v. Rosa Elvira Montoya de Hernandez ........................................................................ 315
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THE FUNCTIONAL BORDER AND EXTENDED BORDER ....................................................................................324
ELECTRONIC DEVICES AT OR NEAR THE BORDER ........................................................................................... 325
TREATMENT OF REFUGEES, ASYLUM SEEKERS, AND OTHER MIGRANTS ......................................................... 325

CHAPTER 15 ........................................................................... 326
WARRANT EXCEPTION: CHECKPOINTS ...........................................................................................................326
Michigan State Police v. Rick Sitz .........................................................................................................326
City of Indianapolis v. James Edmond ............................................................................................... 330
Illinois v. Robert S. Lidster ....................................................................................................................336
WARRANT EXCEPTION: PROTECTIVE SWEEPS ................................................................................................339
Maryland v. Jerome Edward Buie ...................................................................................................... 340

CHAPTER 16 ........................................................................... 346
WARRANT EXCEPTION: SEARCHES OF STUDENTS & PUBLIC EMPLOYEES .......................................................346
New Jersey v. T.L.O. ..............................................................................................................................346
Safford Unified School District #1 v. April Redding ........................................................................... 354
City of Ontario, California v. Jeff Quon ............................................................................................... 361

CHAPTER 17 ........................................................................... 368
DRUG TESTING OF PUBLIC EMPLOYEES ........................................................................................................ 368
Samuel K. Skinner v. Railway Labor Executives’ Association .......................................................... 368
DRUG TESTING OF PUBLIC SCHOOL STUDENTS .............................................................................................. 375
Vernonia School District 47J v. Wayne Acton ..................................................................................... 375
Board of Education of Independent School District No. 92 of Pottawatomie County v. Lindsay
Earls ....................................................................................................................................................... 382
DRUG TESTING OF PUBLIC HOSPITAL PATIENTS ........................................................................................... 384
Crystal M. Ferguson v. City of Charleston .......................................................................................... 384

CHAPTER 18 ........................................................................... 390
WARRANT EXCEPTION: SEARCHES OF PERSONS IN JAILS AND PRISONS ........................................................ 390
Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington ........................... 390
WARRANT EXCEPTION: SEARCHES OF PROBATIONERS AND PAROLEES .......................................................... 397
WARRANT EXCEPTION: INVENTORY SEARCHES ............................................................................................ 398
South Dakota v. Donald Opperman .....................................................................................................399
WARRANT EXCEPTION: ADMINISTRATIVE SEARCHES.................................................................................... 402
Roland Camara v. Municipal Court of the City and County of San Francisco ................................ 402
DNA TESTS OF ARRESTEES............................................................................................................................407
Maryland v. Alonzo Jay King ...............................................................................................................407

CHAPTER 19 ........................................................................... 416
SEIZURES AND ARRESTS ................................................................................................................................ 416
WHAT IS A SEIZURE? ..................................................................................................................................... 416
United States v. Sylvia L. Mendenhall.................................................................................................. 416
California v. Hodari D. .......................................................................................................................... 421
ARRESTS........................................................................................................................................................425
Gail Atwater v. City of Lago Vista ........................................................................................................ 427
Virginia v. David Lee Moore .................................................................................................................434

CHAPTER 20........................................................................... 438
STOP & FRISK ............................................................................................................................................... 438
John W. Terry v. State of Ohio ............................................................................................................. 438
United States v. Raymond J. Place .......................................................................................................445
United States v. William Harris Sharpe ............................................................................................. 449
Larry D. Hiibel v. Sixth Judicial District Court of Nevada ................................................................454
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PERCEPTIONS OF STOP-AND-FRISK ............................................................................................................... 458

CHAPTER 21 ........................................................................... 460
REASONABLE SUSPICION .............................................................................................................................. 460
United States v. Ralph Arvizu .............................................................................................................. 460
Illinois v. William aka Sam Wardlow ................................................................................................. 464
United States v. Andrew Sokolow......................................................................................................... 467
REASONABLE SUSPICION BASED ON TIPS ....................................................................................................... 471
Alabama v. Vanessa Rose White........................................................................................................... 471
Lorenzo Prado Navarette v. California ................................................................................................ 476
FOURTH AMENDMENT FLOWCHART EXERCISE ............................................................................................. 482

CHAPTER 22 ........................................................................... 483
DUE PROCESS AND THE VOLUNTARINESS REQUIREMENT ............................................................................. 483
Ed Brown v. Mississippi ....................................................................................................................... 483
E.E. Ashcraft v. Tennessee .................................................................................................................... 485
Frank Andrew Payne v. Arkansas ........................................................................................................487
Vincent Joseph Spano v. New York ..................................................................................................... 489
Arizona v. Oreste C. Fulminante .......................................................................................................... 494
Colorado v. Francis Barry Connelly .................................................................................................... 499

CHAPTER 23 ........................................................................... 504
THE MIRANDA RULE .................................................................................................................................... 504
Ernesto A. Miranda v. State of Arizona .............................................................................................. 504
HOW WELL MUST OFFICERS ADMINISTER THE MIRANDA WARNINGS? ......................................................... 517
California v. Randall James Prysock ................................................................................................... 517
Jack R. Duckworth v. Gary James Eagan .......................................................................................... 520
THE ENDURANCE OF MIRANDA IN THE FACE OF CRITICISM ........................................................................... 523
Charles Thomas Dickerson v. United States ........................................................................................ 523

CHAPTER 24 ........................................................................... 527
THE MIRANDA RULE: WHAT IS CUSTODY? .................................................................................................... 527
Oregon v. Carl Ray Mathiason ............................................................................................................. 527
J.D.B. v. North Carolina ....................................................................................................................... 530
Harry J. Berkemer, Sheriff of Franklin County, Ohio v. Richard N. McCarty .................................538
THE PRACTICAL CONSEQUENCES OF THE MIRANDA RULE ............................................................................. 543

CHAPTER 25 ........................................................................... 546
THE MIRANDA RULE: WHAT IS INTERROGATION? .........................................................................................546
Rhode Island v. Thomas J. Innis ...........................................................................................................546
Illinois v. Lloyd Perkins ......................................................................................................................... 553
THE MIRANDA RULE: WAIVER OF RIGHTS .....................................................................................................558
North Carolina v. Willie Thomas Butler ..............................................................................................558
Colorado v. John Leroy Spring .............................................................................................................562

CHAPTER 26 ........................................................................... 568
John Moran v. Brian K. Burbine ......................................................................................................... 568
Mary Berghuis v. Van Chester Thomkins ............................................................................................ 575
WHAT COUNTS AS AN UNAMBIGUOUS INVOCATION OF MIRANDA RIGHTS? ....................................................582
Robert L. Davis v. United States ...........................................................................................................582

CHAPTER 27 ........................................................................... 590
INVOCATION OF THE RIGHT TO SILENCE ....................................................................................................... 590
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Michigan v. Richard Bert Mosley ........................................................................................................ 590
INVOCATION OF THE RIGHT TO COUNSEL.......................................................................................................594
Robert Edwards v. Arizona ...................................................................................................................594
Robert S. Minnick v. Mississippi .......................................................................................................... 598
Maryland v. Michael Blaine Shatzer, Sr. ............................................................................................ 605

CHAPTER 28 ........................................................................... 612
THE MIRANDA RULE: EXCEPTIONS................................................................................................................ 612
Viven Harris v. New York ..................................................................................................................... 612
New York v. Benjamin Quarles ............................................................................................................. 615
Pennsylvania v. Inocencio Muniz ........................................................................................................ 624

CHAPTER 29 ........................................................................... 632
THE SIXTH AMENDMENT: THE MASSIAH DOCTRINE .....................................................................................632
Winston Massiah v. United States ........................................................................................................632
Lou V. Brewer v. Robert Anthony Williams ........................................................................................ 637
DOUBLE JEOPARDY AND THE “OFFENSE-SPECIFIC” SIXTH AMENDMENT ....................................................... 647
Texas v. Raymond Levi Cobb ............................................................................................................... 649
WHEN HAS THE RIGHT TO COUNSEL ATTACHED?..........................................................................................654

CHAPTER 30........................................................................... 655
THE SIXTH AMENDMENT: MASSIAH DOCTRINE & WAIVER OF RIGHTS .......................................................... 655
United States v. Billy Gale Henry ......................................................................................................... 655
R.H. Kuhlmann v. Joseph Allan Wilson .............................................................................................. 662
WAIVER OF RIGHTS UNDER THE ASSISTANCE OF COUNSEL CLAUSE ............................................................... 667
Jesse Jay Montejo v. Louisiana ............................................................................................................ 667
INTERROGATION FLOWCHART EXERCISE ....................................................................................................... 676
INTERROGATION REVIEW .............................................................................................................................. 677

CHAPTER 31 ........................................................................... 678
INTRODUCTION TO THE EXCLUSIONARY RULE ...............................................................................................678
Fremont Weeks v. United States ........................................................................................................... 679
Dollree Mapp v. Ohio ............................................................................................................................ 683

CHAPTER 32 ........................................................................... 695
WHEN DOES THE EXCLUSIONARY RULE APPLY? ............................................................................................695
Booker T. Hudson, Jr. v. Michigan .......................................................................................................695
Bennie Dean Herring v. United States ................................................................................................. 701
Willie Gene Davis v. United States ...................................................................................................... 708

CHAPTER 33 ............................................................................ 716
EXCLUSIONARY RULE: STANDING AND EXCEPTIONS ...................................................................................... 716
WHO CAN INVOKE THE EXCLUSIONARY RULE?.............................................................................................. 716
Rakas v. Illinois ...................................................................................................................................... 716
Minnesota v. Wayne Thomas Carter ....................................................................................................720
EXCEPTIONS TO THE EXCLUSIONARY RULE.................................................................................................... 722
Michael F. Murray v. United States ..................................................................................................... 722
Richard Brown v. Illinois ...................................................................................................................... 727
Utah v. Edward Joseph Strieff .............................................................................................................. 733

CHAPTER 34 ........................................................................... 740
EXCLUSIONARY RULE: APPLICATION TO THE MIRANDA RULE ........................................................................740
Michigan v. Thomas W. Tucker ............................................................................................................740
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Oregon v. Michael James Elstad .......................................................................................................... 744
Missouri v. Patrice Seibert .................................................................................................................... 753
United States v. Samuel Francis Patane .............................................................................................. 759

CHAPTER 35 ........................................................................... 763
THE BASICS OF SUPPRESSION HEARINGS ....................................................................................................... 763
AN INTRODUCTION TO THE AVAILABILITY OF MONETARY DAMAGES ..............................................................768
Andrew Kisela v. Amy Hughes ............................................................................................................. 770

CHAPTER 36 ........................................................................... 785
INTRODUCTION TO THE RIGHT TO COUNSEL AND INEFFECTIVE ASSISTANCE .................................................. 785
Clarence Earl Gideon v. Louie L. Wainwright..................................................................................... 785
INEFFECTIVE ASSISTANCE OF COUNSEL .........................................................................................................790
Charles E. Strickland v. David Leroy Washington .............................................................................790

CHAPTER 37 ........................................................................... 805
SELF-REPRESENTATION AND MORE ON INEFFECTIVE ASSISTANCE ............................................................... 805
Missouri v. Galin E. Frye ...................................................................................................................... 805
SELF-REPRESENTATION BY CRIMINAL DEFENDANTS ..................................................................................... 818
Indiana v. Ahmad Edwards .................................................................................................................. 821

CHAPTER 38 ........................................................................... 828
IDENTIFICATIONS AND THE RIGHT TO COUNSEL ........................................................................................... 828
United States v. Billy Joe Wade ........................................................................................................... 828
Jesse James Gilbert v. California .........................................................................................................835
Thomas Kirby v. Illinois ....................................................................................................................... 838
United States v. Charles J. Ash, Jr. ....................................................................................................... 841

CHAPTER 39 ........................................................................... 848
IDENTIFICATIONS AND DUE PROCESS ........................................................................................................... 848
Thomas Earl Simmons v. United States .............................................................................................. 849
Walter B. Foster v. California ...............................................................................................................852
William S. Neil v. Archie Nathaniel Biggers ........................................................................................855
John R. Manson v. Nowell A. Brathwaite ........................................................................................... 858
Barion Perry v. New Hampshire ......................................................................................................... 865

CHAPTER 40............................................................................871
BEST PRACTICES AND MODERN STATE COURT APPROACHES ......................................................................... 871
State of Connecticut v. Brady Guilbert ................................................................................................. 871
State of New Jersey v. Larry R. Henderson ........................................................................................876

CHAPTER 41 ........................................................................... 894
ELECTRONIC SURVEILLANCE, TORTURE, AND THE “WAR ON TERROR”.......................................................... 894
United States v. U.S. District Court for the Eastern District of Michigan ........................................ 894
Clapper v. Amnesty International USA .............................................................................................. 903

Preliminary Material – Page 14

CASES
Adams v. Williams, 407 U. S. 143 (1972) ....................................................................................................... 476
Aguilar v. Texas, 378 U.S. 108 (1964) ............................................................................................ 128, 133, 134
Alabama v. White, 496 U.S. 325 (1990) .................................................................................................472, 476
Alberty v. United States, 162 U.S. 499 (1896) ........................................................................................425, 467
Alderman v. United States, 394 U.S. 165 (1969).............................................................................................. 47
Almeida-Sanchez v. United States, 413 U.S. 266 (1973) .............................................................................. 308
Andresen v. Maryland, 427 U.S. 463 (1976) ...................................................................................................151
Arar v. Ashcroft, 585 F.3d 559 (2nd Cir. 2009) ............................................................................................. 914
Argersinger v. Hamlin, 407 U.S. 25 (1972) ....................................................................................................789
Arizona v. Fulminante, 499 U.S. 279 (1991) ..................................................................................................495
Arizona v. Gant, 556 U.S. 332 (2009) ............................................................................................ 221, 433, 710
Arizona v. Hicks, 480 U.S. 321 (1987) ............................................................................................................ 196
Arizona v. Mauro, 481 U.S. 520 (1987) .......................................................................................................... 554
Arizona v. Roberson, 486 U.S. 675 (1988) ............................................................................................ 598, 648
Arkansas v. Sanders, 442 U.S. 753 (1979) ..................................................................................................... 209
Ashby v. White, 92 Eng. Rep. 126 (1703) .........................................................................................................29
Ashcraft v. Tennessee, 322 U.S. 143 (1944) .................................................................................................. 486
Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ............................................................................... 428, 437
Bailey v. United States, 568 U.S. 186 (2013).................................................................................................. 177
Baldwin v. New York, 399 U.S. 66 (1970) ......................................................................................................790
Bd. of Edu. of Ind. School Dis. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822 (2002)...................... 383
Berghuis v. Thomkins, 560 U.S. 370 (2010) .................................................................................................. 576
Berkemer v. McCarty, 468 U.S. 420 (1984) .................................................................................. 458, 539, 624
Betts v. Brady, 316 U.S. 455 (1942) ........................................................................................................786, 787
Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) ....................................................................................... 288
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) ....................................................................... 770
Blockburger v. United States, 284 U.S. 299 (1932) .............................................................................. 648, 652
Bolling v. Sharpe, 347 U.S. 497, 500 (1954), supplemented sub nom. Brown v. Bd. of Educ. of Topeka,
Kan., 349 U.S. 294 (1955) ........................................................................................................................... 142
Bond v. United States, 529 U.S. 334 (2000) .................................................................................................. 118
Boumediene v. Bush, 553 U.S. 723 (2008) .................................................................................................... 914
Bowers v. Hardwick, 478 U.S. 186 (1986) ...................................................................................................... 537
Brady v. Maryland, 373 U.S. 83 (1963) .......................................................................................... 776, 779, 782
Bram v. United States, 168 U.S. 532 (1897) .................................................................................................. 486
Brendlin v. California, 551 U.S. 249 (2007) .......................................................................................... 538, 722
Brewer v. Williams, 430 U.S. 387 (1977) ............................................................................... 638, 659, 679, 727
Brigham City v. Stuart, 547 U.S. 398 (2006) ................................................................................................. 267
Brown v. Illinois, 422 U.S. 590 (1975) ............................................................................................................728
Brown v. Mississippi, 297 U.S. 278 (1936) ...................................................................................... 23, 484, 502
Brown v. Texas, 443 U. S. 47 (1979) ..................................................................................................... 339, 456
Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ............................................................................................... 776
Byrd v. United States, 138 S.Ct. 1518 (2018) ..................................................................................................720
California v. Acevedo, 500 U.S. 565 (1991) ....................................................................................................207
California v. Carney, 471 U.S. 386 (1985) ..................................................................................................... 202
California v. Ciraolo, 476 U.S. 207 (1986) .................................................................................... 65, 93, 98, 99
California v. Greenwood, 486 U.S. 35 (1988) ......................................................................................... 58, 389
California v. Hodari D., 499 U.S. 621 (1991) ..................................................................................................422
California v. Prysock, 453 U.S. 355 (1981) ..................................................................................................... 518
Camara v. Municipal Court, 387 U.S. 523 (1967) ......................................................................................... 403
Cardwell v. Lewis, 417 U.S. 583 (1974) .......................................................................................................... 204
Carpenter v. United States, 138 S.Ct. 2206 (2018) ........................................................................................ 103
Carpenter v. United States, 138 S.Ct. 2206 (2018) .......................................................................... 57, 103, 236
Carroll v. United States, 267 U.S. 132 (1925) ........................................................................................ 203, 208
Chandler v. Miller, 520 U.S. 305 (1997) ......................................................................................................... 376
Chimel v. California, 395 U.S. 752 (1969) .............................................................................. 214, 221, 227, 231
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City of Los Angeles v. Patel, 135 S.Ct. 2443 (2015)........................................................................................407
City of Ontario, California v. Quon, 560 U.S. 746 (2010) .............................................................................362
City of Riverside v. Rivera, 477 U.S. 561 (1986)............................................................................................. 770
Clapper v. Amnesty International USA, 568 U.S. 398 (2013) ..................................................................... 904
Coleman v. Alabama, 399 U.S. 1 (1970) .........................................................................................................790
Collins v. Virginia, 138 S.Ct. 1663 (2018) ....................................................................................................... 213
Colorado v. Connelly, 479 U.S. 157 (1986) .................................................................................................... 500
Colorado v. Spring, 479 U.S. 564 (1987) ................................................................................................ 563, 576
Connally v. Georgia, 429 U.S. 245 (1977) ........................................................................................................151
Connecticut v. Guilbert, 49 A.3d 705 (Conn. 2012).......................................................................................872
Connick v. Thompson, 563 U.S. 51 (2011) ...................................................................................................... 776
Coolidge v. New Hampshire, 403 U.S. 443 (1971) .......................................................................... 136, 151, 191
Cuyler v. Sullivan, 446 U.S. 335 (1980) ......................................................................................................... 794
Davis v. United States, 512 U.S. 452 (1994) ...................................................................................................583
Davis v. United States, 564 U.S. 229 (2011) ...................................................................................................709
Debs v. United States, 249 U.S. 211 (1919). .................................................................................................... 913
Delaware v. Prouse, 440 U.S. 648 (1979) .......................................................................................................538
Dickerson v. United States, 530 U.S. 428 (2000) ................................................................................. 524, 755
District of Columbia v. Wesby, 138 S.Ct. 577 (2018) ..................................................................................... 143
Douglas v. California, 372 U.S. 353 (1963) .................................................................................................... 512
Dow Chemical Company v. United States, 476 U.S. 227 (1986) ..................................................................... 65
Drope v. Missouri, 420 U.S. 162 (1975) ......................................................................................................... 824
Duckworth v. Eagan, 492 U.S. 195 (1989)...................................................................................................... 521
Duncan v. Louisiana, 391 U.S. 145 (1968) ............................................................................................... 28, 790
Dusky v. United States, 362 U.S. 402 (1960) ................................................................................................ 824
Edwards v. Arizona, 451 U.S. 477, (1981) ..................................................... 583, 589, 595, 600, 603, 606, 671
Elkins v. United States, 364 U.S. 206 (1960) ................................................................................................ 694
Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765).........................................................................................46
Escobedo v. State of Illinois, 378 U.S. 478 (1964) ......................................................................................... 831
Faretta v. California, 422 U.S. 806 (1975).............................................................................................. 819, 827
Ferguson v. City of Charleston, 532 U.S. 67 (2001).......................................................................................385
Fernandez v. California, 571 U.S. 292 (2014)................................................................................................. 251
Fisher v. State, 145 Miss. 116 (1926) ................................................................................................................. 27
Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. 318 (2012) ........................... 391
Florida v. Bostick, 501 U. S. 429 (1991) ..........................................................................................................245
Florida v. Harris, 568 U.S. 237 (2013) ........................................................................................................... 122
Florida v. J.L., 529 U.S. 266 (2000) ............................................................................................................... 475
Florida v. Jardines, 569 U.S. 1 (2013) ...................................................................................................... 111, 119
Florida v. Nixon, 543 U.S. 175 (2004) ............................................................................................................ 812
Florida v. Riley. 488 U.S. 445 (1989) ............................................................................................................... 97
Florida v. Royer, 460 U.S. 491 (1983) ........................................................................................................... 466
Florida v. Wells, 495 U.S. 1 (1990) ................................................................................................................ 402
Floyd v. City of New York, 959 F. Supp. 2d 540 (S. D. N. Y. 2013) ................................................................ 35
Foster v. California, 394 U.S. 440 (1969) .......................................................................................................853
Frank v. State of Maryland, 359 U.S. 360 (1959) ......................................................................................... 404
Franks v. Delaware, 438 U.S. 154 (1978) ....................................................................................................... 765
Gamble v. United States, 139 S. Ct. 1960 (2019) .......................................................................................... 649
Georgia v. Randolph, 547 U.S. 103 (2006) .................................................................................... 245, 251, 256
Gideon v. Wainwright, 372 U.S. 335 (1963) ........................................................................................... 512, 786
Gilbert v. California, 388 U.S. 263 (1967) ............................................................................................. 836, 839
Glasser v. United States, 315 U.S. 60 (1942) .................................................................................................. 136
Godinez v. Moran, 509 U.S. 389 (1993) ................................................................................................ 824, 827
Goldman v. United States, 316 U.S. 129 (1942) .........................................................................................42, 53
Graham v. Connor, 490 U.S. 386 (1989) ....................................................................................................... 174
Griffin v. Wisconsin, 483 U. S. 868 (1987) ................................................................................................... 398
Groh v. Ramirez, 540 U.S. 551 (2004) ........................................................................................................... 156
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ...................................................................................................... 914
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Harris v. New York, 401 U.S. 222 (1971) ........................................................................................................ 613
Hernandez v. Mesa, No. 17–1678 (U.S. Feb. 25, 2020) ................................................................................. 770
Herring v. United States, 555 U.S. 135 (2009) ..............................................................................................702
Hester v. United States, 265 U.S. 57 (1924) .................................................................................. 83, 84, 85, 92
Hiibel v. Sixth Jud. Dist. Court of Nevada, 542 U.S. 177 (2004) .................................................................. 455
Hill v. Lockhart, 474 U.S. 52 (1985) .............................................................................................................. 807
Hinton v. Alabama, 571 U.S. 263 (2014) ........................................................................................................ 819
Horton v. California, 496 U.S. 128 (1990) ..................................................................................................... 197
Hudson v. Michigan, 547 U.S. 586 (2006)............................................................................................ 696, 770
Hurtado v. California, 110 U.S. 516 (1884) ......................................................................................................28
Illinois v. Caballes, 543 U.S. 405 (2005) ................................................................................................ 115, 453
Illinois v. Gates, 462 U.S. 213 (1983) ..................................................................................................... 128, 473
Illinois v. Krull, 480 U.S. 340 (1987) .............................................................................................................704
Illinois v. Lafayette, 462 U.S. 640 (1983) ...................................................................................................... 402
Illinois v. Lidster, 540 U.S. 419 (2004) .......................................................................................................... 337
Illinois v. Perkins, 496 U.S. 292 (1990) ................................................................................................ 554, 624
Illinois v. Rodriguez, 497 U.S. 177 (1990) .............................................................................................. 249, 251
Illinois v. Wardlow, 528 U.S. 119 (2000) .......................................................................................................465
Indiana v. Edwards, 554 U.S. 164 (2008) ..................................................................................................... 822
Indianapolis v. Edmond, 531 U.S. 32 (2000) ........................................................................................ 331, 337
J.D.B. v. North Carolina, 564 U.S. 261 (2011)................................................................................................ 531
Johnson v. Zerbst, 304 U.S. 458 (1938) ................................................................................................. 241, 786
Jones v. United States, 362 U.S. 257 (1960) .................................................................................................. 722
Joy v. Penn-Harris-Madison School Corp., 212 F.3d 1052 (7th Cir. 2000) .................................................385
Katz v. United States, 389 U.S. 347 (1967) ..................................................................... 40, 47, 53, 76, 96, 720
Kentucky v. King, 563 U.S. 452 (2011) ........................................................................................................... 273
Kirby v. Illinois, 406 U.S. 682 (1972) ............................................................................................................ 839
Kisela v. Hughes, 138 S.Ct. 1148 (2018) ......................................................................................................... 771
Kittle-Aikeley v. Strong, 844 F.3d 727 (8th Cir. 2016) ..................................................................................385
Knowles v. Iowa, 525 U.S. 113 (1998) .....................................................................................................219, 438
Korematsu v. United States, 323 U.S. 214 (1944) .......................................................................................... 913
Kuhlmann v. Wilson, 477 U.S. 436 (1986) .....................................................................................................663
Kyllo v. United States, 533 U.S. 27 (2001) ............................................................................... 63, 116, 118, 684
Lawrence v. Texas, 539 U.S. 558 (2003) ........................................................................................................ 537
Lego v. Twomey, 404 U.S. 477 (1972) ................................................................................................... 486, 764
Lisbena v. California, 314 U.S. 219 (1941) ..................................................................................................... 494
Los Angeles County, California v. Rettele, 550 U.S. 609 (2007) .................................................................. 183
Manson v. Brathwaite, 432 U.S. 98 (1977) ............................................................................................ 859, 869
Mapp v. Ohio, 367 U.S. 643 (1961) ........................................................................................................ 684, 768
Marbury v. Madison, 5 U.S. 137 (1803) ......................................................................................................... 527
Maryland v. Buie, 494 U.S. 325 (1990) .......................................................................................................... 341
Maryland v. Garrison, 480 U.S. 79 (1987) ..................................................................................................... 177
Maryland v. King, 569 U.S. 435 (2013) ................................................................................................. 292, 408
Maryland v. Shatzer, 559 U.S. 98 (2010) ...................................................................................................... 606
Massiah v. United States, 377 U.S. 201 (1964) .................................... 633, 642, 646, 656, 658, 661, 665, 831
McCoy v. Louisiana, 138 S.Ct. 1500 (2018).................................................................................................... 812
McNeil v. Wisconsin, 501 U.S. 171 (1991) ...................................................................................................... 648
Michigan State Police v. Sitz, 496 U.S. 444 (1990)........................................................................................ 327
Michigan v. Fisher, 558 U.S. 45 (2009) .........................................................................................................270
Michigan v. Jackson, 475 U.S. 625 (1986) .................................................................................... 668, 670, 674
Michigan v. Long, 463 U. S. 1032 (1983) .......................................................................................................343
Michigan v. Mosley, 423 U.S. 96 (1975) ................................................................................................. 591, 598
Michigan v. Summers, 452 U.S. 692 (1981) .................................................................................... 171, 173, 185
Michigan v. Tucker, 417 U.S. 433 (1974) ........................................................................................................ 741
Minnesota v. Carter, 525 U.S. 83 (1998) ........................................................................................................ 721
Minnesota v. Dickerson, 508 U.S. 366 (1993) ............................................................................................... 198
Minnesota v. Olson, 495 U.S. 91 (1990) .........................................................................................................720
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Minnick v. Mississippi, 498 U.S. 146 (1990) .................................................................................................599
Miranda v. Arizona, 384 U.S. 436 (1966) .... 240, 505, 518, 520, 523, 524, 526, 528, 536, 542, 547, 554, 557,
559, 564, 569, 578, 585, 592, 596, 613, 616, 625, 831
Missouri v. Frye, 566 U.S. 134 (2012) ........................................................................................................... 806
Missouri v. McNeely, 569 U.S. 141 (2013) ...................................................................................... 281, 291, 296
Missouri v. Seibert, 542 U.S. 600 (2004) ...................................................................................................... 754
Mitchell v. Wisconsin, 139 S. Ct 2525 (2019) ................................................................................................ 298
Montejo v. Louisiana, 556 U.S. 778 (2009) .................................................................................................. 668
Moran v. Burbine, 475 U.S. 412 (1986) ..........................................................................................................569
Muehler v. Mena, 544 U.S. 93 (2005) .....................................................................................................171, 679
Murray v. United States, 487 U.S. 533 (1988) ............................................................................................... 723
National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) ............................................. 375, 381
Navarette v. California, 572 U.S. 393 (2014) ................................................................................................. 477
Neil v. Biggers, 409 U.S. 188 (1972) ...................................................................................................... 856, 859
New Jersey v. T.L.O., 469 U.S. 325 (1985) .............................................................................................347, 356
New York v. Belton, 453 U.S. 454 (1981) ............................................................................................... 221, 223
New York v. Burger, 482 U.S. 691 (1987) .......................................................................................................407
New York v. Class, 475 U.S. 106 (1986)........................................................................................................... 48
New York v. Quarles, 467 U.S. 649 (1984) ..................................................................................................... 616
Nix v. Williams, 467 U.S. 431 (1984) .............................................................................................................. 727
North Carolina v. Butler, 441 U.S. 369 (1979) ............................................................................... 559, 569, 581
O’Connor v. Ortega, 480 U.S. 709 (1987) ............................................................................................. 364, 366
Ohio v. Robinette, 519 U.S. 33 (1996) ............................................................................................................245
Oliver v. United States, 466 U.S. 170 (1984) ....................................................................................... 49, 83, 93
Olmstead v. United States, 277 U.S. 438 (1928) ......................................................................... 42, 47, 53, 689
On Lee v. United States, 343 U.S. 747 (1952) ................................................................................................. 48
Oregon v. Elstad, 470 U.S. 298 (1985) ................................................................................................... 745, 757
Oregon v. Mathiason, 429 U.S. 492 (1977) ....................................................................................................528
P.M. ex rel. Whitworth v. Bolinger, No. 2:10–CV–04208–NKL, 2011 WL 5838406 (W.D. Mo. Nov. 21,
2011)............................................................................................................................................................. 187
Padilla v. Kentucky, 559 U.S. 356 (2010) ...................................................................................................... 807
Payne v. Arkansas, 356 U.S. 560 (1958) ........................................................................................................ 488
Payton v. New York, 445 U.S. 573 (1980) ..............................................................................................261, 298
Pennsylvania v Muniz, 496 U.S. 582 (1990) ..................................................................................................625
People v. Cregan, 10 N.E.3d 1196 (Ill. 2014) ................................................................................................. 228
People v. Defore, 150 N.E. 585 (N.Y. 1926) ................................................................................................... 686
People v. Hill, 150 A.D.3d 627 (N.Y. App. Div. 2017) ....................................................................................425
People v. Martinez, 606 N.E.2d 951 (N.Y. 1992) ...........................................................................................425
People v. Wear, 893 N.E.2d 631 (Ill. 2008) ................................................................................................... 261
Perry v. New Hampshire, 565 U.S. 228 (2012) ..................................................................................... 866, 872
Powell v. Alabama, 287 U.S. 45 (1932) .................................................................................. 641, 786, 820, 831
Rakas v. Illinois, 439 U.S. 128 (1978) ............................................................................................................. 717
Rasul v. Bush, 542 U.S. 466 (2004) ............................................................................................................... 914
Rhode Island v. Innis, 446 U.S. 291 (1980) ........................................................................................... 547, 647
Richards v. Wisconsin, 520 U.S. 385 (1997) .................................................................................................. 166
Riley v. California, 134 S.Ct. 2473 (2014) ............................................................................................... 229, 291
Rodriguez v. United States, 135 S.Ct. 1609 (2015) ........................................................................................ 453
Rompilla v. Beard, 545 U.S. 374 (2005) ......................................................................................................... 819
Rothgery v. Gillespie County, 554 U.S. 191 (2008) .............................................................................. 655, 790
Rumsfeld v. Padilla, 542 U.S. 426 (2004) ...................................................................................................... 914
Safford Unified School District #1 v. Redding, 557 U.S. 364 (2009) ........................................................... 355
Samson v. California, 547 U.S. 843 (2006) ................................................................................................... 398
Schmerber v. California, 384 U.S. 757 (1966) ................................................................................ 281, 291, 627
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .................................................................................. 237, 398
See v. City of Seattle, 387 U.S. 541 (1967) ......................................................................................................407
Segura v. United States, 468 U.S. 796 (1984) ................................................................................................ 723
Silverman v. United States, 365 U.S. 505 (1961) ............................................................................................. 52
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Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) .................................................................. 683
Simmons v. United States, 390 U.S. 377 (1968) ........................................................................... 764, 769, 850
Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989).............................................369, 381
Smith v. Maryland, 442 U.S. 735 (1979) .......................................................................................................... 75
Snyder v. Massachusetts, 291 U.S. 97 (1934) ...................................................................................................26
Soldal v. Cook County, 506 U.S. 56 (1992) ...................................................................................................... 47
South Dakota v. Dole, 483 U.S. 203 (1987) .................................................................................................. 302
South Dakota v. Opperman, 428 U.S. 364 (1976) ................................................................................204, 400
Spano v. New York, 360 U.S. 315 (1959) ............................................................................................... 490, 634
Spinelli v. United States, 393 U.S. 410 (1969) ........................................................................128, 132, 133, 134
Stanton v. Sims, 571 U.S. 3 (2013) .................................................................................................................. 261
State v. Henderson, 27 A.3d 872 (N.J. 2011) ................................................................................................ 877
State ex rel. Koster v. Green, 388 S.W.3d 603 (Mo. Ct. App. 2012) ............................................................... 34
State v. Batts, 195 P.3d 144 (2008) ................................................................................................................. 615
State v. Demesme, No. 2017-KK-0954, 2017 WL 4876733 (La. Oct. 27, 2017) .......................................... 589
State v. Edstrom, 916 N.W.2d 512 ...................................................................................................................121
State v. Mack, 66 S.W.3d 706 (Mo. 2002) .................................................................................................... 340
State v. Merrit Alonzo Sims (Fla. 2007) ......................................................................................................... 126
State v. Mobley, 834 S.E.2d 785 (Ga. 2019) ................................................................................................... 212
State v. Morris, 680 A.2d 90, 92–93 (Vt 1996) ............................................................................................... 63
State v. Soto, 734 A.2d 350 (N.J. Super. 1996) .............................................................................................. 149
State v. Walker, 138 P.3d 113, 120 (Wash. 2006) .......................................................................................... 427
Stovall v. Denno, 388 U.S. 293 (1967) ...........................................................................................849, 859, 869
Strickland v. Washington, 466 U.S. 668 (1984) .................................................................................... 791, 807
Terry v. Ohio, 392 U.S. 1 (1968)............................................................. 176, 439, 448, 457, 459, 465, 475, 679
Texas v. Cobb, 532 U.S. 162 (2001) ....................................................................................................... 648, 650
Thornton v. United States, 541 U. S. 615 (2004) ...........................................................................................226
Timbs v. Indiana, 139 S. Ct. 682 (2019) ...........................................................................................................28
Treasury Employees v. Von Raab, 489 U.S. 656 (1989) ................................................................................ 365
Twining v. New Jersey, 211 U.S. 78 (1908) ......................................................................................................26
United States v. Albers, 136 F.3d 670, 673 & n.3 (9th Cir. 1997)..................................................................207
United States v. Arvizu, 534 U.S. 266 (2002) ................................................................................................ 461
United States v. Ash, 413 U.S. 300 (1973) ..................................................................................................... 842
United States v. Banks, 540 U.S. 31 (2003) ................................................................................................... 169
United States v. Beltran-Gutierrez, 19 F.3d 1287, 1290–91 (9th Cir. 1994) ................................................. 769
United States v. Brignoni-Ponce, 422 U.S. 873 (1975) .......................................................................... 308, 311
United States v. Chadwick, 433 U.S. 1 (1977)........................................................................................ 209, 228
United States v. Cortez, 449 U.S. 411 (1981) ...................................................................................................131
United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013)............................................................................326
United States v. Cronic, 466 U.S. 648 (1984) ............................................................................................... 804
United States v. De La Rosa, 922 F.2d 675, 678 (11th Cir. 1991) ..................................................................422
United States v. Di Re, 332 U.S. 581 (1948) ................................................................................................... 176
United States v. Drayton, 536 U.S. 194 (2002) ..............................................................................................245
United States v. Dunn, 480 U.S. 294 (1987) ............................................................................................. 88, 93
United States v. Fadual, 16 F. Supp. 3d 270 (S.D.N.Y. 2014) .......................................................................346
United States v. Flores-Montano, 541 U.S. 149 (2004) ................................................................................ 303
United States v. Geraldo, 271 F.3d 1112, 1116 (D.C. Cir. 2001). .................................................................... 769
United States v. Gould, 364 F.3d 578 (5th Cir. 2004) ...................................................................................346
United States v. Henry, 447 U.S. 264 (1980) ................................................................................ 656, 665, 667
United States v. Hill, 855 F.2d 664, 668 (10th Cir. 1988) .............................................................................207
United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) .....................................................................................326
United States v. Jones, 565 U.S. 400 (2012) ............................................................................................. 45, 111
United States v. Jones, 565 U.S. 400 (2012) .................................................................................................... 93
United States v. Karo, 468 U.S. 705, (1984) ................................................................................................... 48
United States v. Knights, 534 U.S. 112 (2001) .............................................................................................. 398
United States v. Knotts, 460 U.S. 276 (1983) ............................................................................... 48, 52, 71, 115
United States v. Leon, 468 U.S. 897 (1984) ................................................................................................... 744
Preliminary Material – Page 19

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) ....................................................................... 306, 329
United States v. Matlock, 415 U.S. 164 (1974) .............................................................................................. 246
United States v. Mendenhall, 446 U.S. 544 (1980) ............................................................................... 417, 723
United States v. Miller, 430 F.3d 93, 95 (2d Cir. 2005) ................................................................................346
United States v. Molina-Tarazon, 279 F.3d 709 (2002) .............................................................................. 304
United States v. Montana, 958 F.2d 516, 518 (2d Cir. 1992) ........................................................................ 554
United States v. Montgomery, 620 F.2d 753 (10th Cir. 1980) ......................................................................207
United States v. Montoya de Hernandez, 473 U.S. 531 (1985) .............................................................304, 316
United States v. Neff, 681 F.3d 1134 (10th Cir. 2012) ................................................................................... 340
United States v. Nigro, 727 F.2d 100, 107 (6th Cir. 1984) .............................................................................207
United States v. Ortiz, 422 U.S. 891 (1975) ................................................................................................... 308
United States v. Patane, 542 U.S. 630 (2004) ...............................................................................................760
United States v. Place, 462 U.S. 696 (1983) ............................................................................ 113, 117, 332, 446
United States v. Rabinowitz, 339 U.S. 56 (1950) ........................................................................................... 101
United States v. Ramsey, 431 U.S. 606 (1977) ............................................................................................... 313
United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000) .........................................................................346
United States v. Robinson, 414 U.S. 218 ....................................................................................... 228, 231, 438
United States v. Ross, 456 U.S. 798 (1982) ................................................................................................... 208
United States v. Santana, 427 U.S. 38 (1976) ............................................................................................... 260
United States v. Sharpe, 470 U.S. 675 (1985) ............................................................................................... 450
United States v. Sokolow, 490 U.S. 1 (1989) ................................................................................................. 468
United States v. Thompson, 712 F.2d 1356, 1360-61 (11th Cir. 1983) ..........................................................422
United States v. Torres-Castro, 470 F.3d 992 (10th Cir. 2006) ....................................................................346
United States v. United States Dist. Ct., 407 U.S. 297 (1972) .............................................................. 895, 905
United States v. Wade, 388 U.S. 218 (1967) .................................................................................829, 836, 839
United States v. Waldner, 425 F.3d 514, 517 (8th Cir.2005) ........................................................................346
United States v. Watson, 423 U.S. 411 (1976) ................................................................................................265
United States v. Williams, 359 F.3d 1019 (8th Cir. 2004) ........................................................................... 340
Utah v. Strieff, 136 S.Ct. 2056 (2016) ............................................................................................................. 734
Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) ......................................................................... 376
Virginia v. Moore, 553 U.S. 164 (2008) ......................................................................................................... 435
Warden v. Hayden, 387 U.S. 294 (1967) ........................................................................................................258
Washington v. Chrisman, 455 U.S. 1 (1982). ................................................................................................. 191
Weeks v. United States, 232 U.S. 383 (1914) ................................................................................634, 680, 685
Welsh v. Wisconsin, 466 U.S. 740 (1984) .................................................................................... 269, 280, 298
Whren v. United States, 517 U.S. 806 (1996) ......................................................................................... 138, 148
Wiggins v. Smith, 539 U.S. 510 (2003) .......................................................................................................... 819
Wilkins v. Maryland State Police, No. 93–468 (D.Md. Apr. 22, 2003) ....................................................... 149
Wilson v. Arkansas, 514 U.S. 927 (1995) ............................................................................... 162, 166, 429, 700
Wolf v.Colorado, 338 U.S. 25 (1949) ..................................................................................................... 685, 690
Wong Sun v. United States, 371 U.S. 471 (1963) ............................................................................728, 730, 737
Ybarra v. Illinois, 444 U.S. 85 (1979) ............................................................................................................. 176
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) .................................................................... 912

Preliminary Material – Page 20

INTRODUCTION
Chapter 1
What Is This Book?
This book introduces criminal procedure law in the United States, with a focus on the
“investigation” stage of the criminal justice system. Specifically, the book focuses on legal
constraints placed upon police and prosecutors, constraints largely derived from Supreme Court
interpretations of the Fourth, Fifth, and Sixth Amendments to the Constitution. Major topics
include searches and seizures, warrants and when they are required, interrogations, witness
identifications of suspects, and the right to counsel during various stages of investigation and
prosecution.
At the end of the semester, students should have a solid foundation in the “black-letter law” of
criminal procedure. This material is tested on the bar examination, and it is the sort of
information that friends and family will expect lawyers to know, even lawyers who never practice
criminal law. For example, a lawyer lacking basic familiarity with the Miranda Rule risks looking
foolish at Thanksgiving dinner. In addition, the legal issues covered in this book relate to some
of the most intense ongoing political and social debates in the country. The law governing stopand-frisk procedures, for example, is not merely trivia one should learn for an exam. It affects
the lives of real people. The reliability of eyewitness identifications affects the likelihood of
wrongful convictions, a phenomenon persons of all political persuasions oppose. In short,
policing and prosecution affect everyone in America, and an informed citizen—especially a
lawyer—should understand the primary arguments raised in major controversies in criminal
procedure law.
To be sure, understanding the holdings of major cases is essential to more nuanced participation
in these debates, and this book devotes the bulk of its pages to Supreme Court opinions, which
your authors have edited for length. (To save space, we have omitted internal citations, as well
as portions of court opinions, without using ellipses to indicate our edits.) The book then aims
to go beyond the information available in majority opinions, concurrences, and dissents. To do
so, it includes supplementary material on developments in law and policy. For example,
advances in technology raise questions about precedent concerning what counts as a “search”
under Fourth Amendment law. The book also provides perspectives on the practical implications
of Supreme Court decisions, perspectives often given scant attention by the Justices. For
example, state courts have grappled with scientific evidence about witness reliability that has not
yet been addressed in Supreme Court opinions resolving due process challenges related to
identifications.
Further, in addition to helping students identify situations in which constitutional rights may
have been violated, the book explores what remedies are available for different violations. For a
criminal defendant, the most desirable remedy will normally be exclusion of evidence obtained
though illegal means—for example, drugs found in a defendant’s car or home during an unlawful
search. Contrary to common misconceptions among the general public, however, not all criminal
procedure law violations result in the exclusion of evidence. Students will read the leading cases
Chapter 1 – Page 21

on the exclusionary rule, confronting arguments on when the remedy of exclusion—which quite
often requires that a guilty person avoid conviction—is justified by the need to encourage
adherence by law enforcement to the rules presented in this book concerning searches, seizures,
interrogations, and so on.
Your authors have attempted to create a book that presents material clearly and does not hide
the ball. Students who read assigned material should be well prepared for class, armed with
knowledge of what rules the Supreme Court has announced, along with the main arguments for
and against the Court’s choices.
The remainder of this Introduction consists of further effort by your authors to convince you of
the importance of the material presented later in the book. Many students possess this book
because they are enrolled in a required course or know that this material is tested on the bar
exam. Others of you plan to practice criminal law. Still others study criminal procedure to learn
more about important societal controversies. Regardless, your authors do not take your attention
for granted.
Why Is Criminal Procedure So Important?
In this 1936 unanimous opinion by Chief Justice Charles Evans Hughes, the Supreme Court
reviewed a criminal case from Mississippi. Students will see immediately why the actions of
police, prosecutors, and judges upset the Supreme Court Justices.
Supreme Court of the United States
Ed Brown v. Mississippi
Decided Feb. 17, 1936 — 297 U.S. 278 (1936)
MR. CHIEF JUSTICE HUGHES delivered the [unanimous] opinion of the Court.
The question in this case is whether convictions, which rest solely upon confessions shown to
have been extorted by officers of the state by brutality and violence, are consistent with the due
process of law required by the Fourteenth Amendment of the Constitution of the United States.
Petitioners were indicted for the murder of one Raymond Stewart, whose death occurred on
March 30, 1934. They were indicted on April 4, 1934 and were then arraigned and pleaded not
guilty. Counsel were appointed by the court to defend them. Trial was begun the next morning
and was concluded on the following day, when they were found guilty and sentenced to death.
Aside from the confessions, there was no evidence sufficient to warrant the submission of the
case to the jury. After a preliminary inquiry, testimony as to the confessions was received over
the objection of defendants’ counsel. Defendants then testified that the confessions were false
and had been procured by physical torture. The case went to the jury with instructions, upon the
request of defendants’ counsel, that if the jury had reasonable doubt as to the confessions having
resulted from coercion, and that they were not true, they were not to be considered as evidence.
On their appeal to the Supreme Court of the State, defendants assigned as error the
inadmissibility of the confessions. The judgment was affirmed.

Chapter 1 – Page 22

Defendants then moved in the Supreme Court of the State to arrest the judgment and for a new
trial on the ground that all the evidence against them was obtained by coercion and brutality
known to the court and to the district attorney, and that defendants had been denied the benefit
of counsel or opportunity to confer with counsel in a reasonable manner. The motion was
supported by affidavits. At about the same time, defendants filed in the Supreme Court a
“suggestion of error” explicitly challenging the proceedings of the trial, in the use of the
confessions and with respect to the alleged denial of representation by counsel, as violating the
due process clause of the Fourteenth Amendment of the Constitution of the United States. The
state court entertained the suggestion of error, considered the federal question, and decided it
against defendants’ contentions. Two judges dissented. We granted a writ of certiorari.
The grounds of the decision were (1) that immunity from self-incrimination is not essential to
due process of law; and (2) that the failure of the trial court to exclude the confessions after the
introduction of evidence showing their incompetency, in the absence of a request for such
exclusion, did not deprive the defendants of life or liberty without due process of law; and that
even if the trial court had erroneously overruled a motion to exclude the confessions, the ruling
would have been mere error reversible on appeal, but not a violation of constitutional right.
The opinion of the state court did not set forth the evidence as to the circumstances in which the
confessions were procured. That the evidence established that they were procured by coercion
was not questioned. The state court said: ‘After the state closed its case on the merits, the
appellants, for the first time, introduced evidence from which it appears that the confessions
were not made voluntarily but were coerced.’ There is no dispute as to the facts upon this point,
and as they are clearly and adequately stated in the dissenting opinion of Judge Griffith (with
whom Judge Anderson concurred), showing both the extreme brutality of the measures to extort
the confessions and the participation of the state authorities, we quote this part of his opinion in
full, as follows:
“The crime with which these defendants, all ignorant negroes, are charged, was discovered about
1 o’clock p.m. on Friday, March 30, 1934. On that night one Dial, a deputy sheriff, accompanied
by others, came to the home of Ellington, one of the defendants, and requested him to
accompany them to the house of the deceased, and there a number of white men were gathered,
who began to accuse the defendant of the crime. Upon his denial they seized him, and with the
participation of the deputy they hanged him by a rope to the limb of a tree, and, having let him
down, they hung him again, and when he was let down the second time, and he still protested
his innocence, he was tied to a tree and whipped, and, still declining to accede to the demands
that he confess, he was finally released, and he returned with some difficulty to his home,
suffering intense pain and agony. The record of the testimony shows that the signs of the rope
on his neck were plainly visible during the so-called trial. A day or two thereafter the said deputy,
accompanied by another, returned to the home of the said defendant and arrested him, and
departed with the prisoner towards the jail in an adjoining county, but went by a route which led
into the state of Alabama; and while on the way, in that state, the deputy stopped and again
severely whipped the defendant, declaring that he would continue the whipping until he
confessed, and the defendant then agreed to confess to such a statement as the deputy would
dictate, and he did so, after which he was delivered to jail.
Chapter 1 – Page 23

“The other two defendants, Ed Brown and Henry Shields, were also arrested and taken to the
same jail. On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white
men, one of whom was also an officer, and by the jailer, came to the jail, and the two last named
defendants were made to strip and they were laid over chairs and their backs were cut to pieces
with a leather strap with buckles on it, and they were likewise made by the said deputy definitely
to understand that the whipping would be continued unless and until they confessed, and not
only confessed, but confessed in every matter of detail as demanded by those present; and in this
manner the defendants confessed the crime, and, as the whippings progressed and were
repeated, they changed or adjusted their confession in all particulars of detail so as to conform
to the demands of their torturers. When the confessions had been obtained in the exact form and
contents as desired by the mob, they left with the parting admonition and warning that, if the
defendants changed their story at any time in any respect from that last stated, the perpetrators
of the outrage would administer the same or equally effective treatment.
“Further details of the brutal treatment to which these helpless prisoners were subjected need
not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like
pages torn from some medieval account than a record made within the confines of a modern
civilization which aspires to an enlightened constitutional government.
“All this having been accomplished, on the next day, that is, on Monday, April 2, when the
defendants had been given time to recuperate somewhat from the tortures to which they had
been subjected, the two sheriffs, one of the county where the crime was committed, and the other
of the county of the jail in which the prisoners were confined, came to the jail, accompanied by
eight other persons, some of them deputies, there to hear the free and voluntary confession of
these miserable and abject defendants. The sheriff of the county of the crime admitted that he
had heard of the whipping but averred that he had no personal knowledge of it. He admitted that
one of the defendants, when brought before him to confess, was limping and did not sit down,
and that this particular defendant then and there stated that he had been strapped so severely
that he could not sit down, and, as already stated, the signs of the rope on the neck of another of
the defendants were plainly visible to all. Nevertheless the solemn farce of hearing the free and
voluntary confessions was gone through with, and these two sheriffs and one other person then
present were the three witnesses used in court to establish the so-called confessions, which were
received by the court and admitted in evidence over the objections of the defendants duly entered
of record as each of the said three witnesses delivered their alleged testimony. There was thus
enough before the court when these confessions were first offered to make known to the court
that they were not, beyond all reasonable doubt, free and voluntary; and the failure of the court
then to exclude the confessions is sufficient to reverse the judgment, under every rule of
procedure that has heretofore been prescribed, and hence it was not necessary subsequently to
renew the objections by motion or otherwise.
“The spurious confessions having been obtained—and the farce last mentioned having been gone
through with on Monday, April 2d—the court, then in session, on the following day, Tuesday,
April 3, 1934, ordered the grand jury to reassemble on the succeeding day, April 4, 1934, at 9
o’clock, and on the morning of the day last mentioned the grand jury returned an indictment
against the defendants for murder. Late that afternoon the defendants were brought from the
Chapter 1 – Page 24

jail in the adjoining county and arraigned, when one or more of them offered to plead guilty,
which the court declined to accept, and, upon inquiry whether they had or desired counsel, they
stated that they had none, and did not suppose that counsel could be of any assistance to them.
The court thereupon appointed counsel, and set the case for trial for the following morning at 9
o’clock, and the defendants were returned to the jail in the adjoining county about thirty miles
away.
“The defendants were brought to the courthouse of the county on the following morning, April
5th, and the so-called trial was opened, and was concluded on the next day, April 6, 1934, and
resulted in a pretended conviction with death sentences. The evidence upon which the conviction
was obtained was the so-called confessions. Without this evidence, a peremptory instruction to
find for the defendants would have been inescapable. The defendants were put on the stand, and
by their testimony the facts and the details thereof as to the manner by which the confessions
were extorted from them were fully developed, and it is further disclosed by the record that the
same deputy, Dial, under whose guiding hand and active participation the tortures to coerce the
confessions were administered, was actively in the performance of the supposed duties of a court
deputy in the courthouse and in the presence of the prisoners during what is denominated, in
complimentary terms, the trial of these defendants. This deputy was put on the stand by the state
in rebuttal, and admitted the whippings. It is interesting to note that in his testimony with
reference to the whipping of the defendant Ellington, and in response to the inquiry as to how
severely he was whipped, the deputy stated, ‘Not too much for a negro; not as much as I would
have done if it were left to me.’ Two others who had participated in these whippings were
introduced and admitted it—not a single witness was introduced who denied it. The facts are not
only undisputed, they are admitted, and admitted to have been done by officers of the state, in
conjunction with other participants, and all this was definitely well known to everybody
connected with the trial, and during the trial, including the state’s prosecuting attorney and the
trial judge presiding.”
1. The state stresses the statement in Twining v. New Jersey, 211 U.S. 78 (1908), that “exemption
from compulsory self-incrimination in the courts of the states is not secured by any part of the
Federal Constitution,” and the statement in Snyder v. Massachusetts, 291 U.S. 97 (1934), that
“the privilege against self-incrimination may be withdrawn and the accused put upon the stand
as a witness for the state.” But the question of the right of the state to withdraw the privilege
against self-incrimination is not here involved. The compulsion to which the quoted statements
refer is that of the processes of justice by which the accused may be called as a witness and
required to testify. Compulsion by torture to extort a confession is a different matter.
The state is free to regulate the procedure of its courts in accordance with its own conceptions of
policy, unless in so doing it “offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.” The state may abolish trial by jury.1 It
may dispense with indictment by a grand jury and substitute complaint or information. But the
freedom of the state in establishing its policy is the freedom of constitutional government and is
limited by the requirement of due process of law. Because a state may dispense with a jury trial,
1 [Footnote by editors] This is no longer true. See further discussion following this opinion.

Chapter 1 – Page 25

it does not follow that it may substitute trial by ordeal. The rack and torture chamber may not
be substituted for the witness stand. The state may not permit an accused to be hurried to
conviction under mob domination—where the whole proceeding is but a mask—without
supplying corrective process. The state may not deny to the accused the aid of counsel. Nor may
a state, through the action of its officers, contrive a conviction through the pretense of a trial
which in truth is “but used as a means of depriving a defendant of liberty through a deliberate
deception of court and jury by the presentation of testimony known to be perjured.” And the trial
equally is a mere pretense where the state authorities have contrived a conviction resting solely
upon confessions obtained by violence. The due process clause requires “that state action,
whether through one agency or another, shall be consistent with the fundamental principles of
liberty and justice which lie at the base of all our civil and political institutions.” It would be
difficult to conceive of methods more revolting to the sense of justice than those taken to procure
the confessions of these petitioners, and the use of the confessions thus obtained as the basis for
conviction and sentence was a clear denial of due process.
2. It is in this view that the further contention of the State must be considered. That contention
rests upon the failure of counsel for the accused, who had objected to the admissibility of the
confessions, to move for their exclusion after they had been introduced and the fact of coercion
had been proved. It is a contention which proceeds upon a misconception of the nature of
petitioners’ complaint. That complaint is not of the commission of mere error, but of a wrong so
fundamental that it made the whole proceeding a mere pretense of a trial and rendered the
conviction and sentence wholly void. We are not concerned with a mere question of state
practice, or whether counsel assigned to petitioners were competent or mistakenly assumed that
their first objections were sufficient. In an earlier case the Supreme Court of the State had
recognized the duty of the court to supply corrective process where due process of law had been
denied. In Fisher v. State, 145 Miss. 116 (1926), the court said: “Coercing the supposed state’s
criminals into confessions and using such confessions so coerced from them against them in
trials has been the curse of all countries. It was the chief iniquity, the crowning infamy of the
Star Chamber, and the Inquisition, and other similar institutions. The Constitution recognized
the evils that lay behind these practices and prohibited them in this country. … The duty of
maintaining constitutional rights of a person on trial for his life rises above mere rules of
procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to
sanction such violations and will apply the corrective.”
In the instant case, the trial court was fully advised by the undisputed evidence of the way in
which the confessions had been procured. The trial court knew that there was no other evidence
upon which conviction and sentence could be based. Yet it proceeded to permit conviction and
to pronounce sentence. The conviction and sentence were void for want of the essential elements
of due process, and the proceeding thus vitiated could be challenged in any appropriate manner.
It was challenged before the Supreme Court of the State by the express invocation of the
Fourteenth Amendment. That court entertained the challenge, considered the federal question
thus presented, but declined to enforce petitioners’ constitutional right. The court thus denied a
federal right fully established and specially set up and claimed, and the judgment must be
reversed.
Chapter 1 – Page 26

Notes, Comments, and Questions
As noted in the footnote we added to the Brown opinion, the Court included a statement about
jury trials that is no longer accurate. States are required to provide trial by jury for crimes
punishable by more than six months’ imprisonment. See Duncan v. Louisiana, 391 U.S. 145
(1968). In 1936, the Supreme Court had not yet “incorporated” many provisions from the Bill of
Rights against the states, meaning that the states were free to ignore them. For purposes of this
course, students should presume that constitutional provisions apply with equal force against
the states and the federal government, unless instructed otherwise. One key criminal procedure
provision not incorporated is the right to indictment by a grand jury. See Hurtado v. California,
110 U.S. 516 (1884). In Timbs v. Indiana, 139 S. Ct. 682 (2019), the Court unanimously held that
the Excessive Fines Clause of the Eighth Amendment is incorporated against the states. This
continues the decades-long trend of incorporating the Bill of Rights through the Fourteenth
Amendment.
Students may find one procedural aspect of Brown particularly upsetting, in addition to the
terrible conduct that agents of the state committed against the defendants: After the defendants
were convicted, they appealed to the highest court of their state, and the state court affirmed the
convictions. Two dissenting members of that court set forth at length the terrible conduct—so
carefully that the Supreme Court of the United States would later cut and paste much of the
dissent. Whatever one’s position on theories related to federalism, one cannot avoid the
conclusion that at least in this case, a state’s justice system was sorely in need of federal
supervision. Throughout this course, students will notice an ongoing debate about how much
Supreme Court oversight is necessary to protect Americans from police officers, prosecutors, and
judges behaving badly. The Court’s assessment has changed over time, and justices serving
together often disagree.
What to Look for when Reading Cases
As the semester progresses, students will learn to answer two key questions presented in every
single criminal procedure case: First, were someone’s rights (usually constitutional rights)
violated? Second, if so, so what?
Answering the first question requires knowledge of the Supreme Court’s decisions interpreting
the Fourth, Fifth, and Sixth Amendments to the Constitution, among other provisions. For
example, the Court has considered over several cases—decided over several decades—what
counts as a “search” for purposes of the Fourth Amendment. It has debated what the Due Process
Clauses of the Fifth and Fourteenth Amendments require of police officers conducting
interrogations. And it has weighed how to protect the right to counsel guaranteed by the Sixth
Amendment to all criminal defendants.
Answering the second question— “So what?”—requires knowledge of the remedies the Supreme
Court has provided for violations of the rights of criminal suspects and defendants. For a
defendant, the most desirable remedy is often the exclusion of evidence obtained illegally. When
the “exclusionary rule” applies, evidence gained during an unlawful search or interrogation, for
example, may become unavailable to prosecutors, which may lead to the dismissal of criminal
Chapter 1 – Page 27

charges. The proper scope of the exclusionary rule has been hotly debated for decades, and even
its existence is not taken for granted by everyone on the Supreme Court. When exclusion of
evidence is not available, the best remedy may be money damages, although that remedy has its
own shortcomings. Students will learn the basics of when various remedies are available for
violations of criminal procedure rules.
In a sense, the rules governing searches, seizures, interrogations, and so on can be considered
the “substantive” law of criminal procedure. These rules constitute the bulk of most criminal
procedure courses, and this one is no exception. Questions in this category include: When do
police need a warrant? When must police give “Miranda warnings”? What must states provide
for criminal defendants too poor to hire a lawyer?
The remedies are what one might call the “procedural” aspect of criminal procedure law.
Questions in this category include: If police executing a search warrant break down someone’s
door without justification, can the homeowner exclude evidence found during the ensuing
search? Does the answer change if the warrant was somehow defective? When can prosecutors
use confessions obtained in violation of the Miranda Rule? The portion of assigned readings
explicitly devoted to remedies is far less than that given to “substantive” criminal procedure
rights. Keep in mind, however, that rights without remedies are largely worthless, 2 and those
students who one day prosecute crimes or represent defendants will care deeply about the
practical consequences of Supreme Court doctrine.
The Scope of the Criminal Justice System
Before returning to the meat of criminal procedure law, let us consider for a moment just how
large and important a system is being governed by nine Justices interpreting a handful of ancient
clauses.
Beginning around 1970, the United States began a massive increase in incarceration. Between
1980 and 2010, the incarceration rate more than doubled. Despite a small drop in incarceration
over the past decade, as of early 2018 the United States incarcerated about 2.3 million people,
including inmates at prisons, local jails, and juvenile facilities, among other places. This chart
(released to the public domain via Wikimedia Commons) shows how the incarceration rate
(essentially, the number of inmates per 100,000 U.S. residents) was relatively flat for decades
through the 1960s, began rising after 1970, and then increased rapidly after 1985. The rate has
decreased slightly over the past few years.

2 Don’t take our word for it. Sir John Holt, the Lord Chief Justice of England, wrote in Ashby v. White (1703), “If

the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured
in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right
and want of remedy are reciprocal.” 14 St. Tr. 695, 92 Eng. Rep. 126, 136. Fans of Latin put it this way: “ubi jus ibi
remedium.”
Chapter 1 – Page 28

Missouri’s 2018 incarceration rate (859 per 100,000 residents) is higher than the U.S. as a whole
(698) and is tenth-highest among states. The states with the highest incarceration rates in 2018
were Mississippi (1,039), Louisiana (1,052), and Oklahoma (1,079). The states with the lowest
rates were Rhode Island (361), Vermont (328) and Massachusetts (324). Even these states have
higher incarceration rates than most countries, including Turkey (287), Iran (284), South Africa
(280), Israel (265), New Zealand (220), Singapore (201), Poland (199), Jamaica (138), Iraq
(126), France (102), and Ireland (81).3 The overall U.S. rate exceeds every other country in the
world.

3 See Prison Policy Institute, “States of Incarceration: The Global Context 2018,” at https://www.prisonpolicy.org/global/2018.html

Chapter 1 – Page 29

The next chart (provided courtesy of The Sentencing Project) shows the raw numbers of
prisoners in America. Note that this does not include inmates in jails or juvenile facilities.

In Missouri, about 50,000 people are incarcerated, with 32,000 in state prisons, 11,000 in local
jails, 5,600 in federal prisons, and 1,000 in facilities for youths. 4 Nationwide, the total prison
and jail population as of December 31, 2016 was 2,162,400.5 In addition, 4,537,100 persons were
under supervision—on parole or probation—creating a total correctional system population of
6,613,500. Missouri’s total correctional population was 105,900.
Because states house the overwhelming bulk of U.S. prisoners, state budgets fund the
overwhelming bulk of U.S. correctional expenses. In 1985—just before the American prison
population began its sharp increase—states spent a combined $6.7 billion on corrections. By
1990, the cost had risen to $16.9 billion. It was $36.4 billion in 2000, $51.4 billion in 2010, and
$57.7 billion in 2016.6
The next chart (provided courtesy of the Prison Policy Initiative) shows where incarcerated
women are housed and what offenses led them to confinement.

4 See Prison Policy Initiative, “Missouri Profile.”
5 For national statistics, see Bureau of Justice Statistics, “Correctional Populations in the United States, 2016” (April

2018, NCJ 251211).
6 See Sentencing Project, “Trends in U.S. Corrections.”
Chapter 1 – Page 30

[The PPI also has a chart entitled “The Whole Pie,” which covers all incarcerated persons, male
and female. Although we lack permission to include the chart in this book, students may (and
should) find it online: https://www.prisonpolicy.org/reports/pie2019.html.]
The likelihood of imprisonment is not distributed evenly among different groups of Americans.
Women constitute about half of the total U.S. population but only 7 percent of the total prison
population. Racial disparities are also stark. In 2016, state and federal jails and prisons housed
(out of a total of 1,458,173 inmates) 486,900 black inmates (41 percent of the total), 439,800
white inmates (39 percent of the total), and 339,300 Hispanic inmates (17 percent of the total).7
According to Census data taken around the same time (July 1, 2017), 77 percent of Americans
described themselves as white alone (no other race), 13 percent as black or African American
alone, 3 percent as two or more races, and 18 percent as Hispanic or Latino. 8 Although the
demographic definitions—particularly for deciding who counts as Hispanic—used in various

7 See Bureau of Justice Statistics, “Prisoners in the United States” (January 2018, NCJ 251149).
8 See US Census Bureau, “Quick Facts.”

Chapter 1 – Page 31

surveys are not always identical, the results are clear. Black and Hispanic Americans are
significantly overrepresented among prisoners.
Despite the high U.S. incarceration rate, most Americans will never serve time. Instead, the
majority of Americans encounter the justice system through their interactions with police
officers. U.S. law enforcement agencies employ about 650,000 officers at the local, state, and
federal level. That works out to about one officer for every 500 Americans. In 2014, officers
performed about 11.2 million arrests. As was noted for incarceration, arrest rates exhibit
disparities by race and sex. The 2014 arrests included 7,771,915 arrests of whites and 3,115,383
of blacks. About 3 million of the arrests were of women, compared to 8.2 million arrests of men.
Young men are especially likely to be arrested.9
When suspects are arrested and prosecuted, states often provide legal counsel because the
defendants otherwise could not afford it. In Missouri, the fiscal year 2018 budget allocates $46.3
million for the public defender system, which represents about $7.13 per Missourian. The per
capita expense on indigent defense varies tremendously among states. For example, in 2017
Wisconsin spent $86 million, or $14.83 per resident. That same year Texas spent $37 million,
or $1.31 per resident.
A Few Recent Cases
We will return now to the discussion we set aside after reading Brown v. Mississippi.
“Yes, yes,” one might say, “the criminal justice system is important. As a nation we spend
immense sums on police, prosecution, and prisons. And back in 1934, some goons in Mississippi
abused criminal defendants, which required intervention by the Supreme Court. What about
today?”
This is a fair question; otherwise, we would not have placed it in the mouths of our hypothetical
students. We expect that by the end of the semester, few if any students will question whether
police and prosecutors still require judicial oversight. The amount and proper form of that
oversight will almost surely remain contested—indeed, the Justices themselves contest these
issues every year—but the principle is likely to win near unanimous assent. To assuage
skepticism without delay, however, we will present some evidence now.
In 2013, the State of California freed Kash Delano Register, whom the state had imprisoned for
34 years for a murder he did not commit.10 Mr. Register had been convicted on the basis of false
identification testimony, and the lawyers who won his release produced proof that police and
prosecutors had concealed from Register’s trial defense team evidence of his innocence,
including reports of eyewitnesses who would have contradicted the testimony of prosecution
witnesses, along with evidence of how police had used threats of unrelated criminal prosecution
to pressure the witnesses against Register. Absent the work of students and faculty at Loyola Law
School in Los Angeles, Register might remain incarcerated today. Prosecutors opposed his
release until 2013. In 2016, the Los Angeles City Council approved a $16.7 million settlement
9 For arrest data, see Bureau of Justice Statistics, “Arrest Data Analysis Tool.”

10 See Lara Bazelon, “A Mistake Has Been Made Here, and No One Wants to Correct It,” Slate (Dec. 17, 2013).

Chapter 1 – Page 32

payment to Register.11 The city has paid tens of millions of dollars in other recent settlements
related to police conduct.12
In 2012, the State of Missouri released George Allen, Jr., whom the state had imprisoned for 30
years for a St. Louis rape and murder he did not commit.13 Although prosecutors could not
explain how Allen could have travelled from his University City home to the murder scene—St.
Louis was paralyzed that day by a 20-inch snowstorm—a jury eventually convicted Allen on the
basis of his confession. Decades after his conviction, new lawyers for Allen—from the Bryan Cave
law firm and the Innocence Project—produced evidence that police had elicited a false confession
from Allen, who was mentally ill. Missouri courts found that prosecutors withheld exculpatory
evidence, including lab results, fingerprint records, and information about bizarre interrogation
tactics such as hypnosis of a key witness. Allen died in 2016, and the City of St. Louis and Allen’s
family settled his civil rights lawsuit in 2018 for $14 million.
The National Registry of Exonerations, maintained by the University of Michigan, lists 2,253
exonerations, representing “more than 19,790 years lost.”14 Because it covers only exonerations,
it does not include cases in which misconduct is uncovered in time to prevent a wrongful
conviction.
In 2015, the Wall Street Journal reported that America’s “10 cities with the largest police
departments paid out $248.7 million” in 2014 in settlements and court judgements in police
misconduct cases.15 Students should keep in mind that because so much misconduct cannot be
remedied through monetary damages, numbers likes these understate the problem.
Chicago has settled several multi-million-dollar cases in recent years. Examples include: “A onetime death row inmate brutally beaten by police: $6.1 million. An unarmed man fatally shot by
an officer as he lay on the ground: $4.1 million.”16 Another involved an officer who “posted
messages on his Facebook page falsely calling [a] teen a drug dealer and criminal” and officers
handcuffing this same teen without cause. (Settlement around $500,000.) More recent cases
include “a police officer [who] pointed a gun at [the plaintiff’s] 3-year-old daughter’s chest
during a 2013 raid of the family’s Chicago home” and a man who spent about 20 years in prison
after being framed.17
As the Baltimore Sun noted—in its 2014 report of how the “city has paid about $5.7 million since
2011 over lawsuits claiming that police officers brazenly beat up alleged suspects”—the
11 See National Registry of Exonerations, “Kash Register.”
12 See Richard Winton, “LAPD Settlements Soar as Officials Close the Books on High-Profile Lawsuits against Police

Officers,” L.A. Times (May 9, 2017) (“The Los Angeles Police Department paid nearly $81 million in legal
settlements last fiscal year.”); see also http://spreadsheets.latimes.com/lapd-settlements/ (database of
settlements).
13 See State ex rel. Koster v. Green, 388 S.W.3d 603 (Mo. Ct. App.2012); National Registry of Exonerations, “George
Allen, Jr.”
14 As of July 30, 2018. See https://www.law.umich.edu/special/exoneration/Pages/about.aspx
15 See Zusha Elinson & Dan Frosch, “Cost of Police-Misconduct Cases Soars in Big U.S. Cities,” Wall St. J. (July 15,
2015).
16 See “How Chicago Racked Up a $662 Million Police Misconduct Bill,” Associated Press (Mar. 20, 2016).
17 See John Byrne, “Aldermen to Consider Paying $6 Million to Settle Lawsuits Alleging Chicago Police Misconduct,”
Chi. Tribune (June 22, 2018).
Chapter 1 – Page 33

“perception that officers are violent can poison the relationship between residents and police.”18
The newspaper observed:
“Over … four years, more than 100 people have won court judgments or settlements related to
allegations of brutality and civil rights violations. Victims include a 15-year-old boy riding a dirt
bike, a 26-year-old pregnant accountant who had witnessed a beating, a 50-year-old woman
selling church raffle tickets, a 65-year-old church deacon rolling a cigarette and an 87-year-old
grandmother aiding her wounded grandson.”
In multiple jurisdictions, class action lawsuits about unlawful strip searches have yielded large
payments. In 2010, the Cook County (Illinois) Board of Commissioners agreed to a $55 million
settlement with suspects stripped-searched at Cook County Jail. New York City reached a $50
million settlement in 2001 and another one for $33 million in 2010, both related to searches in
city jails such as Rikers Island. Similar settlements (for smaller amounts) have been reached in
places such as Kern County, California; Burlington County, New Jersey; and Washington, D.C..
Massachusetts officials settled a suit concerning the Western Massachusetts Regional Women’s
Correctional Center, agreeing to prohibit male guards from continuing their practice of
videotaping the strip searches of female inmates.
Less sensational issues (nonetheless important to those involved) include the ongoing debate
over “stop-and-frisk” tactics nationwide, in addition to racial profiling of motorists. These
practices affect persons whose involvement with the criminal justice system might otherwise be
fairly minimal. In New York City, a federal court found that NYPD officers violated the Fourth
Amendment by performing unreasonable searches and seizures and further found that police
violated the Equal Protection Clause of Fourteenth Amendment by stopping and frisking New
Yorkers in a racially discriminatory manner.19 In Missouri, annual reports by the Attorney
General regularly find racial disparities in vehicle stops.20 According to the 2017 report, black
motorists were far more likely to be stopped, despite police finding contraband less often when
stopping black motorists than when stopping white motorists. “African-Americans represent
10.9% of the driving-age population but 18.7% of all traffic stops …. The contraband hit rate for
whites was 35.5%, compared with 32.9% for blacks and 27.9% for Hispanics. This means that,
on average, searches of African-Americans and Hispanics are less likely than searches of whites
to result in the discovery of contraband.”
In sum, the incidence of police and prosecutorial misconduct is not limited to dusty case files
from the old Confederacy.
Meanwhile, crime remains a serious problem, one America has struggled with since colonial
times. Since the 1800s, the United States has had a much higher murder rate than European
countries otherwise similar to us in measures of economic power and educational attainment.

18 See Mark Puente, “Undue Force,” Balt. Sun (Sept. 28, 2014).
19 See Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y 2013).
20 See Missouri Attorney General’s Office, “Vehicle Stops Report.”

Chapter 1 – Page 34

Then, beginning around 1965, the U.S. homicide rate increased dramatically.21 Although the
increase was not uniform (different decades saw different trends, and different locations
experienced trends differently), the United States as a whole suffered a big increase in crime
from the mid-1960s through the early-1990s, with the nationwide homicide rate peaking at
around 10 per 100,000 persons. Since then, crime has dropped significantly, returning over
twenty years to what was observed in the early 1960s.22 By 2000, the homicide rate had dropped
to around 5.5 per 100,000, which is close to the current rate.23 In other words, American crime
rates remain well above those of Western Europe, Canada, and Australia, but they are far better
than American rates of a generation ago. The sharp increase in crime between the 1960s and
1990s may explain in part the rapid increase in American incarceration, as politicians offered
“tough-on-crime” solutions. The causes of the huge increase in crime beginning around 1965, as
well as of the subsequent decrease, are hotly disputed. 24 In any event, crime remains an
important political and social issue in America. Court decisions about how police may behave
will be better understood if given broader social context. For example, judicial decisions that
prevent the convictions of undisputedly guilty defendants may be unpopular among voters, and
voters elect the politicians who appoint and confirm Supreme Court Justices. Further, Justices
may recognize their relative lack of expertise in the fields of policing and criminology, and they
may hesitate to mandate practices (or to prohibit practices) without thoughtfully considering
how their decisions could affect ongoing national efforts to fight crime. The debate over how
much the Court should meddle in the affairs of police departments is a thread that runs through
the course material.
Outline of the Book
After the first chapter, the book will proceed as follows: First, we will examine the Fourth
Amendment, beginning with considering what counts as a “search” in Fourth Amendment cases.
After studying the concepts of probable cause and reasonable suspicion, we will discuss
warrants, including what police must do to obtain them, when they are required, and when the
Supreme Court has said police may conduct searches and seizures without warrants. Having
spent about a third of the book on searches, we will turn to seizures, including arrests and “stop
and frisk.”
Around the halfway point of the book, we will move from the Fourth Amendment and begin our
study of interrogations, examining how the Court has used the Fifth, Sixth, and Fourteenth
Amendments to regulate police questioning of suspects. This portion of the book will cover the
Due Process Clauses, the Miranda Rule, and regulations arising from the right to counsel.

21 Homicide is the best measure of crime rates. The definition has remained fairly constant over time (and from

place to place), and homicide is generally noticed and recorded. Data for crimes such as rape and theft are far less
reliable.
22 See Jeffrey Fagan & Daniel Richman, Understanding Recent Spikes and Longer Trends in American Murders,
117 Colum. L. Rev. 1235, 1260 (2017).
23 See FBI, “Crime in the United States 2016.”
24 See, e.g., Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline
and Six that Do Not, 18 J. Econ. Perspectives 163 (2004); Adam Gopnik, “The Great Crime Decline,” New Yorker
(Feb. 12 & 19, 2018).
Chapter 1 – Page 35

Having studied “substantive” criminal procedure rules at some length—learning what the Court
has told police officers they can and cannot do—we will turn to the remedies available when these
rules are broken. Primarily, we will focus on the exclusionary rule, a judicially-created remedy
that prevents prosecutors from using certain evidence obtained illegally. We will also consider
when money damages are available as a remedy for violations of criminal procedure rules.
Near the end of the book, we will study the criminal defendant’s right to the assistance of counsel,
which is guaranteed by the Sixth Amendment. In particular, we will learn when the state must
provide counsel and how effective counsel must be to satisfy the constitutional guarantee.
Then we will study identification procedures, including how police can avoid mistaken
identifications by victims and other witnesses, along with the limited requirements that have
been imposed by the Supreme Court.
As the book ends, we will consider some new challenges presented by terrorism, such as torture,
and by technological advances, such as electronic surveillance.
A Note on the Text
Universities exist to promote the search for knowledge and to transmit human knowledge to
future generations. Public universities in particular have a tradition of sharing knowledge with
the broader populace, not merely their own students, and they also have a tradition of providing
excellent education at affordable prices. This book exists to further these important missions of
the University of Missouri. Designed by MU professors, it suits the pedagogical preferences of
its authors. Available at no cost, it reduces students’ cost of attendance.
In addition, this book is available under a Creative Commons license, meaning that anyone—
inside or outside the university—can use it to study criminal procedure and can share it at will.
Faculty at other universities are free to adopt it.
The project was inspired, in part, by an article one of your authors published in 2016, calling on
law schools and law faculty to create free casebooks for students.25 It turned out that calling upon
others to create books did not in itself produce these books. Your authors have since become the
change they wished to see in legal education. Because the book is new—and is the first casebook
produced by either of your authors—student feedback is especially welcome. Future students will
benefit from any improvements.
To increase the book’s value as a free resource, the text when possible contains links to sources
at which students can learn more at no cost. For example, Supreme Court cases are freely
available online, and anyone who wishes to read the full unedited version of any case may do so.
(Even when a link has not been provided, when naming cases we usually have included a full
citation, which should allow students easy access to free versions of the text.) Your authors have
edited cases so that reading assignments would be kept reasonable for a one-semester course;
however, there is always more to learn.
25 See Ben Trachtenberg, Choosing a Criminal Procedure Casebook: On Lesser Evils and Free Books, 60 St. Louis

U. L.J. 543, 552 (2016) (“I hope authors and money can be found to create excellent, inexpensive books and thereby
reduce the cost of legal education.”).
Chapter 1 – Page 36

In addition, this book aims to go beyond providing a “nutshell” summary of American criminal
procedure law. From time to time, particularly when assigned cases raise issues about which
there are important ongoing debates in American society, the readings will investigate these
issues in greater depth than might be possible were the text confined to opinions written by
Supreme Court Justices. More than one hundred years ago, Roscoe Pound—then dean of the
University of Nebraska College of Law, later dean at Harvard—published the great legal realist
article “Law in Books and Law in Action.”26 If this book is successful, students will spend time
considering the practical effects—the law in action—of the opinions contained in Supreme Court
reporters.
The Key Constitutional Language
In this course, students will focus on Supreme Court cases arising from a handful of
constitutional provisions. Four Amendments to the Constitution of the United States are
reprinted here (three in full, one in part) for your convenience:
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just
compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Amendment XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce
26 44 Am. L. Rev. 12, 16-17 (1910) (“Here the law in the books is settled and defined. The law administered is very

different.”).

Chapter 1 – Page 37

any law which shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
*

*

*

Savvy students will have noticed that the constitutional provisions reprinted above lack
definitions for terms such as “unreasonable,” “search,” “seizure,” “probable cause,” “put in
jeopardy,” “due process of law,” “confronted with the witnesses against him,” and “Assistance of
Counsel.” The remainder of this book is, essentially, a summary of the Supreme Court’s ongoing
efforts to provide the missing definitions.

Chapter 1 – Page 38

THE FOURTH AMENDMENT
Chapter 2
What Is a Search? The Basics
With the readings for this chapter, we begin our exploration of the Fourth Amendment to the
Constitution of the United States. The Fourth Amendment is short, just 54 words, and it reflects
the desires of those who wrote and ratified it to protect Americans against unreasonable
government intrusion into their lives. The Amendment mentions some of the more important
aspects of a person’s life—her house, her papers, her effects, even her “person,” that is, her body—
and declares that government agents may not unreasonably search or seize those things. Here is
the text:
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
These words have inspired arguments about their meanings. For example, what counts as a
“house” and thereby merits protection from unreasonable searches? Is it limited to physical
buildings in which people live, or is some area outside the structure included? We will see later
that the Court eventually defined the concept of “curtilage,” which is an outdoor area that the
Court treats as part of the “house.”
Over the coming weeks, students will encounter vigorous debate over the meaning of
“reasonable.” When is it reasonable for a police officer to stop and frisk a pedestrian about whom
the officer has suspicion? When is it reasonable for police to search cars without warrants? For
now, we will set aside the concept of reasonableness for one simple reason: Before something
can be an “unreasonable search,” it must first be a “search.” The cases assigned for this chapter
concern the definition of “search” for purposes of Fourth Amendment jurisprudence. (Similarly,
before something can be an “unreasonable seizure,” it must first be a “seizure.” We will consider
the definition of “seizure” later in the semester.)
In the first case, Katz v. United States, the Justices attempt to bring their definition of “search”
into the modern world.
Supreme Court of the United States
Charles Katz v. United States
Decided Dec. 18, 1967 — 389 U.S. 347
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was convicted in the District Court for the Southern District of California under
an eight-count indictment charging him with transmitting wagering information by telephone
from Los Angeles to Miami and Boston in violation of a federal statute. At trial the Government
was permitted, over the petitioner’s objection, to introduce evidence of the petitioner’s end of
Chapter 2 — Page 39

telephone conversations, overheard by FBI agents who had attached an electronic listening and
recording device to the outside of the public telephone booth from which he had placed his calls.
In affirming his conviction, the Court of Appeals rejected the contention that the recordings had
been obtained in violation of the Fourth Amendment, because “[t]here was no physical entrance
into the area occupied by [the petitioner].” We granted certiorari in order to consider the
constitutional questions thus presented.
The petitioner had phrased those questions as follows:
“A. Whether a public telephone booth is a constitutionally protected area so that evidence
obtained by attaching an electronic listening recording device to the top of such a booth is
obtained in violation of the right to privacy of the user of the booth.
“B. Whether physical penetration of a constitutionally protected area is necessary before a search
and seizure can be said to be violative of the Fourth Amendment to the United States
Constitution.”
We decline to adopt this formulation of the issues. In the first place, the correct solution of
Fourth Amendment problems is not necessarily promoted by incantation of the phrase
“constitutionally protected area.” Secondly, the Fourth Amendment cannot be translated into a
general constitutional “right to privacy.” That Amendment protects individual privacy against
certain kinds of governmental intrusion, but its protections go further, and often have nothing
to do with privacy at all. Other provisions of the Constitution protect personal privacy from other
forms of governmental invasion. But the protection of a person’s general right to privacy—his
right to be let alone by other people—is, like the protection of his property and of his very life,
left largely to the law of the individual States.
Because of the misleading way the issues have been formulated, the parties have attached great
significance to the characterization of the telephone booth from which the petitioner placed his
calls. The petitioner has strenuously argued that the booth was a “constitutionally protected
area.” The Government has maintained with equal vigor that it was not. But this effort to decide
whether or not a given “area,” viewed in the abstract, is “constitutionally protected” deflects
attention from the problem presented by this case. For the Fourth Amendment protects people,
not places. What a person knowingly exposes to the public, even in his own home or office, is not
a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an
area accessible to the public, may be constitutionally protected.
The Government stresses the fact that the telephone booth from which the petitioner made his
calls was constructed partly of glass, so that he was as visible after he entered it as he would have
been if he had remained outside. But what he sought to exclude when he entered the booth was
not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because
he made his calls from a place where he might be seen. No less than an individual in a business
office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the
protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays
the toll that permits him to place a call is surely entitled to assume that the words he utters into
the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to
ignore the vital role that the public telephone has come to play in private communication.
Chapter 2 — Page 40

The Government contends, however, that the activities of its agents in this case should not be
tested by Fourth Amendment requirements, for the surveillance technique they employed
involved no physical penetration of the telephone booth from which the petitioner placed his
calls. It is true that the absence of such penetration was at one time thought to foreclose further
Fourth Amendment inquiry, Olmstead v. United States, 277 U.S. 438; Goldman v. United States,
316 U.S. 129, 134—136, for that Amendment was thought to limit only searches and seizures of
tangible property. But “(t)he premise that property interests control the right of the Government
to search and seize has been discredited.” Thus, although a closely divided Court supposed in
Olmstead that surveillance without any trespass and without the seizure of any material object
fell outside the ambit of the Constitution, we have since departed from the narrow view on which
that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not
only the seizure of tangible items, but extends as well to the recording of oral statements
overheard without any “technical trespass under … local property law.” Once this much is
acknowledged, and once it is recognized that the Fourth Amendment protects people—and not
simply “areas”—against unreasonable searches and seizures it becomes clear that the reach of
that Amendment cannot turn upon the presence or absence of a physical intrusion into any given
enclosure.
We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our
subsequent decisions that the “trespass” doctrine there enunciated can no longer be regarded as
controlling. The Government’s activities in electronically listening to and recording the
petitioner’s words violated the privacy upon which he justifiably relied while using the telephone
booth and thus constituted a “search and seizure” within the meaning of the Fourth Amendment.
The fact that the electronic device employed to achieve that end did not happen to penetrate the
wall of the booth can have no constitutional significance.
Wherever a man may be, he is entitled to know that he will remain free from unreasonable
searches and seizures. The government agents here ignored “the procedure of antecedent
justification … that is central to the Fourth Amendment,” a procedure that we hold to be a
constitutional precondition of the kind of electronic surveillance involved in this case. Because
the surveillance here failed to meet that condition, and because it led to the petitioner’s
conviction, the judgment must be reversed.
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
Mr. Justice HARLAN, concurring.
I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is
an area where, like a home, a person has a constitutionally protected reasonable expectation of
privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private
may constitute a violation of the Fourth Amendment; and (c) that the invasion of a
constitutionally protected area by federal authorities is, as the Court has long held,
presumptively unreasonable in the absence of a search warrant.
As the Court’s opinion states, “the Fourth Amendment protects people, not places.” The
question, however, is what protection it affords to those people. Generally, as here, the answer
to that question requires reference to a “place.” My understanding of the rule that has emerged
Chapter 2 — Page 41

from prior decisions is that there is a twofold requirement, first that a person have exhibited an
actual (subjective) expectation of privacy and, second, that the expectation be one that society is
prepared to recognize as “reasonable.” Thus a man’s home is, for most purposes, a place where
he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of
outsiders are not “protected” because no intention to keep them to himself has been exhibited.
On the other hand, conversations in the open would not be protected against being overheard,
for the expectation of privacy under the circumstances would be unreasonable.
The critical fact in this case is that “(o)ne who occupies it, (a telephone booth) shuts the door
behind him, and pays the toll that permits him to place a call is surely entitled to assume” that
his conversation is not being intercepted. The point is not that the booth is “accessible to the
public” at other times, but that it is a temporarily private place whose momentary occupants’
expectations of freedom from intrusion are recognized as reasonable.
Finally, I do not read the Court’s opinion to declare that no interception of a conversation onehalf of which occurs in a public telephone booth can be reasonable in the absence of a warrant.
As elsewhere under the Fourth Amendment, warrants are the general rule, to which the
legitimate needs of law enforcement may demand specific exceptions. It will be time enough to
consider any such exceptions when an appropriate occasion presents itself, and I agree with the
Court that this is not one.
Mr. Justice BLACK, dissenting.
If I could agree with the Court that eavesdropping carried on by electronic means (equivalent to
wiretapping) constitutes a “search” or “seizure,” I would be happy to join the Court’s opinion.
My basic objection is twofold: (1) I do not believe that the words of the Amendment will bear the
meaning given them by today’s decision, and (2) I do not believe that it is the proper role of this
Court to rewrite the Amendment in order “to bring it into harmony with the times” and thus
reach a result that many people believe to be desirable.
While I realize that an argument based on the meaning of words lacks the scope, and no doubt
the appeal, of broad policy discussions and philosophical discourses on such nebulous subjects
as privacy, for me the language of the Amendment is the crucial place to look in construing a
written document such as our Constitution. The Fourth Amendment says that
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
The first clause protects “persons, houses, papers, and effects, against unreasonable searches
and seizures … .” These words connote the idea of tangible things with size, form, and weight,
things capable of being searched, seized, or both. The second clause of the Amendment still
further establishes its Framers’ purpose to limit its protection to tangible things by providing
that no warrants shall issue but those “particularly describing the place to be searched, and the
persons or things to be seized.” A conversation overheard by eavesdropping, whether by plain
snooping or wiretapping, is not tangible and, under the normally accepted meanings of the
words, can neither be searched nor seized. In addition, the language of the second clause
Chapter 2 — Page 42

indicates that the Amendment refers not only to something tangible so it can be seized but to
something already in existence so it can be described. Yet the Court’s interpretation would have
the Amendment apply to overhearing future conversations which by their very nature are
nonexistent until they take place. How can one “describe” a future conversation, and, if one
cannot, how can a magistrate issue a warrant to eavesdrop one in the future? It is argued that
information showing what is expected to be said is sufficient to limit the boundaries of what later
can be admitted into evidence; but does such general information really meet the specific
language of the Amendment which says “particularly describing”? Rather than using language
in a completely artificial way, I must conclude that the Fourth Amendment simply does not apply
to eavesdropping.
Tapping telephone wires, of course, was an unknown possibility at the time the Fourth
Amendment was adopted. But eavesdropping (and wiretapping is nothing more than
eavesdropping by telephone) was, as even the majority opinion in Berger, supra, recognized, “an
ancient practice which at common law was condemned as a nuisance. In those days the
eavesdropper listened by naked ear under the eaves of houses or their windows, or beyond their
walls seeking out private discourse.” There can be no doubt that the Framers were aware of this
practice, and if they had desired to outlaw or restrict the use of evidence obtained by
eavesdropping, I believe that they would have used the appropriate language to do so in the
Fourth Amendment. They certainly would not have left such a task to the ingenuity of languagestretching judges. No one, it seems to me, can read the debates on the Bill of Rights without
reaching the conclusion that its Framers and critics well knew the meaning of the words they
used, what they would be understood to mean by others, their scope and their limitations. Under
these circumstances it strikes me as a charge against their scholarship, their common sense and
their candor to give to the Fourth Amendment’s language the eavesdropping meaning the Court
imputes to it today.
I do not deny that common sense requires and that this Court often has said that the Bill of
Rights’ safeguards should be given a liberal construction. This principle, however, does not
justify construing the search and seizure amendment as applying to eavesdropping or the
“seizure” of conversations. The Fourth Amendment was aimed directly at the abhorred practice
of breaking in, ransacking and searching homes and other buildings and seizing people’s
personal belongings without warrants issued by magistrates. The Amendment deserves, and this
Court has given it, a liberal construction in order to protect against warrantless searches of
buildings and seizures of tangible personal effects. But until today this Court has refused to say
that eavesdropping comes within the ambit of Fourth Amendment restrictions.
Since I see no way in which the words of the Fourth Amendment can be construed to apply to
eavesdropping, that closes the matter for me. In interpreting the Bill of Rights, I willingly go as
far as a liberal construction of the language takes me, but I simply cannot in good conscience
give a meaning to words which they have never before been thought to have and which they
certainly do not have in common ordinary usage. I will not distort the words of the Amendment
in order to “keep the Constitution up to date” or “to bring it into harmony with the times.” It was
never meant that this Court have such power, which in effect would make us a continuously
functioning constitutional convention.
With this decision the Court has completed, I hope, its rewriting of the Fourth Amendment,
which started only recently when the Court began referring incessantly to the Fourth
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Amendment not so much as a law against unreasonable searches and seizures as one to protect
an individual’s privacy. By clever word juggling the Court finds it plausible to argue that language
aimed specifically at searches and seizures of things that can be searched and seized may, to
protect privacy, be applied to eavesdropped evidence of conversations that can neither be
searched nor seized. Few things happen to an individual that do not affect his privacy in one way
or another. Thus, by arbitrarily substituting the Court’s language, designed to protect privacy,
for the Constitution’s language, designed to protect against unreasonable searches and seizures,
the Court has made the Fourth Amendment its vehicle for holding all laws violative of the
Constitution which offend the Court’s broadest concept of privacy.
The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable
searches and seizures of “persons, houses, papers, and effects.” No general right is created by the
Amendment so as to give this Court the unlimited power to hold unconstitutional everything
which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of
governmental power, did not intend to grant this Court such omnipotent lawmaking authority
as that. The history of governments proves that it is dangerous to freedom to repose such powers
in courts.
For these reasons I respectfully dissent.
Notes, Comments, and Questions
In Katz, the Court made clear that a physical trespass is not essential to a Fourth Amendment
search. In subsequent chapters, students will explore the Court’s efforts to flesh out this ruling,
applying it to contexts such as police officers flying over houses, police officers using thermal
imaging devices to examine a home, and police searching garbage left outside for collection.
In our next case, however, the Court reminds readers that although trespass is not necessary to
a Fourth Amendment search, it can be sufficient. That is, although the line of cases following
Katz remains essential reading for a student of criminal procedure, not every Fourth
Amendment search necessarily invades a person’s reasonable expectation of privacy. Forty-five
years after the Court decided Katz, the Justices handed down United States v. Jones, reiterating
the importance of the law of trespass to the Court’s vision of the Fourth Amendment.
Supreme Court of the United States
United States v. Antoine Jones
Decided Jan. 23, 2012 — 565 U.S. 400
Justice SCALIA delivered the opinion of the Court.
We decide whether the attachment of a Global-Positioning-System (GPS) tracking device to an
individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on
public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

Chapter 2 — Page 44

I
In 2004 respondent Antoine Jones, owner and operator of a nightclub in the District of
Columbia, came under suspicion of trafficking in narcotics and was made the target of an
investigation by a joint FBI and Metropolitan Police Department task force.
[A]gents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in
a public parking lot. Over the next 28 days, the Government used the device to track the vehicle’s
movements, and once had to replace the device’s battery. By means of signals from multiple
satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated
that location by cellular phone to a Government computer. It relayed more than 2,000 pages of
data over the 4-week period.
The Government ultimately obtained a multiple-count indictment charging Jones with
conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine
and 50 grams or more of cocaine base. Before trial, Jones filed a motion to suppress evidence
obtained through the GPS device. The District Court granted the motion only in part,
suppressing the data obtained while the vehicle was parked in the garage adjoining Jones’s
residence. It held the remaining data admissible, because “‘[a] person traveling in an automobile
on public thoroughfares has no reasonable expectation of privacy in his movements from one
place to another.’”
The Government introduced at trial the GPS-derived locational data, which connected Jones to
the alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of cocaine,
and 1 kilogram of cocaine base. The jury returned a guilty verdict, and the District Court
sentenced Jones to life imprisonment.
The United States Court of Appeals for the District of Columbia Circuit reversed the conviction
because of admission of the evidence obtained by warrantless use of the GPS device which, it
said, violated the Fourth Amendment. The D.C. Circuit denied the Government’s petition for
rehearing en banc, with four judges dissenting. We granted certiorari.
II
A
The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the
Amendment. We hold that the Government’s installation of a GPS device on a target’s vehicle,
and its use of that device to monitor the vehicle’s movements, constitutes a “search.”
It is important to be clear about what occurred in this case: The Government physically occupied
private property for the purpose of obtaining information. We have no doubt that such a physical
intrusion would have been considered a “search” within the meaning of the Fourth Amendment
when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765), is a “case we have
described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American
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statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate
expression of constitutional law’ ” with regard to search and seizure. In that case, Lord Camden
expressed in plain terms the significance of property rights in search-and-seizure analysis:
“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his
neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at
all; if he will tread upon his neighbour’s ground, he must justify it by law.”
The text of the Fourth Amendment reflects its close connection to property, since otherwise it
would have referred simply to “the right of the people to be secure against unreasonable searches
and seizures”; the phrase “in their persons, houses, papers, and effects” would have been
superfluous.
Consistent with this understanding, our Fourth Amendment jurisprudence was tied to commonlaw trespass, at least until the latter half of the 20th century. Thus, in Olmstead v. United States,
277 U.S. 438, we held that wiretaps attached to telephone wires on the public streets did not
constitute a Fourth Amendment search because “[t]here was no entry of the houses or offices of
the defendants.”
Our later cases, of course, have deviated from that exclusively property-based approach. In Katz
v. United States, we said that “the Fourth Amendment protects people, not places,” and found a
violation in attachment of an eavesdropping device to a public telephone booth. Our later cases
have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation
occurs when government officers violate a person’s “reasonable expectation of privacy.”
The Government contends that the Harlan standard shows that no search occurred here, since
Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government
agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to
all. But we need not address the Government’s contentions, because Jones’s Fourth Amendment
rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of
that degree of privacy against government that existed when the Fourth Amendment was
adopted.” As explained, for most of our history the Fourth Amendment was understood to
embody a particular concern for government trespass upon the areas (“persons, houses, papers,
and effects”) it enumerates. Katz did not repudiate that understanding. Less than two years later
the Court upheld defendants’ contention that the Government could not introduce against them
conversations between other people obtained by warrantless placement of electronic
surveillance devices in their homes. The opinion rejected the dissent’s contention that there was
no Fourth Amendment violation “unless the conversational privacy of the homeowner himself is
invaded.” Alderman v. United States, 394 U.S. 165, 176 (1969). “[W]e [do not] believe that Katz,
by holding that the Fourth Amendment protects persons and their private conversations, was
intended to withdraw any of the protection which the Amendment extends to the home....” Id.,
at 180.
More recently, in Soldal v. Cook County, 506 U.S. 56 (1992), the Court unanimously rejected the
argument that although a “seizure” had occurred “in a ‘technical’ sense” when a trailer home was
forcibly removed, no Fourth Amendment violation occurred because law enforcement had not
“invade[d] the [individuals’] privacy.” Katz, the Court explained, established that “property
rights are not the sole measure of Fourth Amendment violations,” but did not “snuf[f] out the
Chapter 2 — Page 46

previously recognized protection for property.” As Justice Brennan explained in his concurrence
in Knotts, Katz did not erode the principle “that, when the Government does engage in physical
intrusion of a constitutionally protected area in order to obtain information, that intrusion may
constitute a violation of the Fourth Amendment.” We have embodied that preservation of past
rights in our very definition of “reasonable expectation of privacy” which we have said to be an
expectation “that has a source outside of the Fourth Amendment, either by reference to concepts
of real or personal property law or to understandings that are recognized and permitted by
society.” Katz did not narrow the Fourth Amendment’s scope.
The Government contends that several of our post-Katz cases foreclose the conclusion that what
occurred here constituted a search. It relies principally on two cases in which we rejected Fourth
Amendment challenges to “beepers,” electronic tracking devices that represent another form of
electronic monitoring. The first case, Knotts, upheld against Fourth Amendment challenge the
use of a “beeper” that had been placed in a container of chloroform, allowing law enforcement
to monitor the location of the container. We said that there had been no infringement of Knotts’
reasonable expectation of privacy since the information obtained—the location of the automobile
carrying the container on public roads, and the location of the off-loaded container in open fields
near Knotts’ cabin—had been voluntarily conveyed to the public. But as we have discussed, the
Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the
common-law trespassory test. The holding in Knotts addressed only the former, since the latter
was not at issue. The beeper had been placed in the container before it came into Knotts’
possession, with the consent of the then-owner. Knotts did not challenge that installation, and
we specifically declined to consider its effect on the Fourth Amendment analysis. Knotts would
be relevant, perhaps, if the Government were making the argument that what would otherwise
be an unconstitutional search is not such where it produces only public information. The
Government does not make that argument, and we know of no case that would support it.
The second “beeper” case, United States v. Karo, 468 U.S. 705 (1984), does not suggest a
different conclusion. There we addressed the question left open by Knotts, whether the
installation of a beeper in a container amounted to a search or seizure. As in Knotts, at the time
the beeper was installed the container belonged to a third party, and it did not come into
possession of the defendant until later. Thus, the specific question we considered was whether
the installation “with the consent of the original owner constitute[d] a search or seizure ... when
the container is delivered to a buyer having no knowledge of the presence of the beeper.” We
held not. The Government, we said, came into physical contact with the container only before it
belonged to the defendant Karo; and the transfer of the container with the unmonitored beeper
inside did not convey any information and thus did not invade Karo’s privacy. That conclusion
is perfectly consistent with the one we reach here. Karo accepted the container as it came to him,
beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it
was used to monitor the container’s location. Cf. On Lee v. United States, 343 U.S. 747 (1952)
(no search or seizure where an informant, who was wearing a concealed microphone, was invited
into the defendant’s business). Jones, who possessed the Jeep at the time the Government
trespassorily inserted the information-gathering device, is on much different footing.
The Government also points to our exposition in New York v. Class, 475 U.S. 106 (1986), that
“[t]he exterior of a car ... is thrust into the public eye, and thus to examine it does not constitute
a ‘search.’” That statement is of marginal relevance here since, as the Government acknowledges,
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“the officers in this case did more than conduct a visual inspection of respondent’s vehicle.” By
attaching the device to the Jeep, officers encroached on a protected area. In Class itself we
suggested that this would make a difference, for we concluded that an officer’s momentary
reaching into the interior of a vehicle did constitute a search.
Finally, the Government’s position gains little support from our conclusion in Oliver v. United
States, 466 U.S. 170 (1984), that officers’ information-gathering intrusion on an “open field” did
not constitute a Fourth Amendment search even though it was a trespass at common law. Quite
simply, an open field, unlike the curtilage of a home, is not one of those protected areas
enumerated in the Fourth Amendment. The Government’s physical intrusion on such an area—
unlike its intrusion on the “effect” at issue here—is of no Fourth Amendment significance.
B
The concurrence begins by accusing us of applying “18th-century tort law.” That is a distortion.
What we apply is an 18th-century guarantee against unreasonable searches, which we believe
must provide at a minimum the degree of protection it afforded when it was adopted. The
concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectationof-privacy test, even when that eliminates rights that previously existed.
The concurrence [by Justice Alito] faults our approach for “present[ing] particularly vexing
problems” in cases that do not involve physical contact, such as those that involve the
transmission of electronic signals. We entirely fail to understand that point. For unlike the
concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive
test. Situations involving merely the transmission of electronic signals without trespass would
remain subject to Katz analysis.
In fact, it is the concurrence’s insistence on the exclusivity of the Katz test that needlessly leads
us into “particularly vexing problems” in the present case. This Court has to date not deviated
from the understanding that mere visual observation does not constitute a search. We
accordingly held in Knotts that “[a] person traveling in an automobile on public thoroughfares
has no reasonable expectation of privacy in his movements from one place to another.” Thus,
even assuming that the concurrence is correct to say that “[t]raditional surveillance” of Jones for
a 4–week period “would have required a large team of agents, multiple vehicles, and perhaps
aerial assistance,” our cases suggest that such visual observation is constitutionally permissible.
It may be that achieving the same result through electronic means, without an accompanying
trespass, is an unconstitutional invasion of privacy, but the present case does not require us to
answer that question.
And answering it affirmatively leads us needlessly into additional thorny problems. The
concurrence posits that “relatively short-term monitoring of a person’s movements on public
streets” is okay, but that “the use of longer term GPS monitoring in investigations of most
offenses” is no good. That introduces yet another novelty into our jurisprudence. There is no
precedent for the proposition that whether a search has occurred depends on the nature of the
crime being investigated. And even accepting that novelty, it remains unexplained why a 4–week
investigation is “surely” too long and why a drug-trafficking conspiracy involving substantial
amounts of cash and narcotics is not an “extraordinary offens[e]” which may permit longer
Chapter 2 — Page 48

observation. What of a 2–day monitoring of a suspected purveyor of stolen electronics? Or of a
6–month monitoring of a suspected terrorist? We may have to grapple with these “vexing
problems” in some future case where a classic trespassory search is not involved and resort must
be had to Katz analysis; but there is no reason for rushing forward to resolve them here.
The judgment of the Court of Appeals for the D.C. Circuit is affirmed.
Justice SOTOMAYOR, concurring.
I join the Court’s opinion because I agree that a search within the meaning of the Fourth
Amendment occurs, at a minimum, “[w]here, as here, the Government obtains information by
physically intruding on a constitutionally protected area.” “[W]hen the Government does engage
in physical intrusion of a constitutionally protected area in order to obtain information, that
intrusion may constitute a violation of the Fourth Amendment.”
Nonetheless, as Justice ALITO notes, physical intrusion is now unnecessary to many forms of
surveillance. With increasing regularity, the Government will be capable of duplicating the
monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking
devices or GPS-enabled smartphones. In cases of electronic or other novel modes of surveillance
that do not depend upon a physical invasion on property, the majority opinion’s trespassory test
may provide little guidance. But “[s]ituations involving merely the transmission of electronic
signals without trespass would remain subject to Katz analysis.” As Justice ALITO incisively
observes, the same technological advances that have made possible nontrespassory surveillance
techniques will also affect the Katz test by shaping the evolution of societal privacy expectations.
Under that rubric, I agree with Justice ALITO that, at the very least, “longer term GPS
monitoring in investigations of most offenses impinges on expectations of privacy.”
In cases involving even short-term monitoring, some unique attributes of GPS surveillance
relevant to the Katz analysis will require particular attention. GPS monitoring generates a
precise, comprehensive record of a person’s public movements that reflects a wealth of detail
about her familial, political, professional, religious, and sexual associations. The Government
can store such records and efficiently mine them for information years into the future. And
because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by
design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law
enforcement practices: “limited police resources and community hostility.”
Awareness that the Government may be watching chills associational and expressive freedoms.
And the Government’s unrestrained power to assemble data that reveal private aspects of
identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a
relatively low cost such a substantial quantum of intimate information about any person whom
the Government, in its unfettered discretion, chooses to track—may “alter the relationship
between citizen and government in a way that is inimical to democratic society.”
I would take these attributes of GPS monitoring into account when considering the existence of
a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask
whether people reasonably expect that their movements will be recorded and aggregated in a
manner that enables the Government to ascertain, more or less at will, their political and
Chapter 2 — Page 49

religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the
Government might obtain the fruits of GPS monitoring through lawful conventional surveillance
techniques. I would also consider the appropriateness of entrusting to the Executive, in the
absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in
light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent
“a too permeating police surveillance.”
More fundamentally, it may be necessary to reconsider the premise that an individual has no
reasonable expectation of privacy in information voluntarily disclosed to third parties. This
approach is ill suited to the digital age, in which people reveal a great deal of information about
themselves to third parties in the course of carrying out mundane tasks. People disclose the
phone numbers that they dial or text to their cellular providers; the URLs that they visit and the
e-mail addresses with which they correspond to their Internet service providers; and the books,
groceries, and medications they purchase to online retailers. Perhaps, as Justice ALITO notes,
some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept
this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would
accept without complaint the warrantless disclosure to the Government of a list of every Web
site they had visited in the last week, or month, or year. But whatever the societal expectations,
they can attain constitutionally protected status only if our Fourth Amendment jurisprudence
ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information
voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone,
disentitled to Fourth Amendment protection.
Resolution of these difficult questions in this case is unnecessary, however, because the
Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision. I
therefore join the majority’s opinion.
Justice ALITO, with whom Justice GINSBURG, Justice BREYER, and Justice KAGAN join,
concurring in the judgment.
This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches
and seizures to a 21st-century surveillance technique, the use of a Global Positioning System
(GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the
Court has chosen to decide this case based on 18th-century tort law.
This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it
has little if any support in current Fourth Amendment case law; and it is highly artificial.
I would analyze the question presented in this case by asking whether respondent’s reasonable
expectations of privacy were violated by the long-term monitoring of the movements of the
vehicle he drove.
I
A
The Fourth Amendment prohibits “unreasonable searches and seizures,” and the Court makes
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very little effort to explain how the attachment or use of the GPS device fits within these terms.
The Court does not contend that there was a seizure … and here there was none.
The Court does claim that the installation and use of the GPS constituted a search, but this
conclusion is dependent on the questionable proposition that these two procedures cannot be
separated for purposes of Fourth Amendment analysis. If these two procedures are analyzed
separately, it is not at all clear from the Court’s opinion why either should be regarded as a
search. It is clear that the attachment of the GPS device was not itself a search; if the device had
not functioned or if the officers had not used it, no information would have been obtained. And
the Court does not contend that the use of the device constituted a search either. On the contrary,
the Court accepts the holding in United States v. Knotts, 460 U.S. 276, that the use of a
surreptitiously planted electronic device to monitor a vehicle’s movements on public roads did
not amount to a search.
The Court argues—and I agree—that “we must ‘assur[e] preservation of that degree of privacy
against government that existed when the Fourth Amendment was adopted.’” But it is almost
impossible to think of late–18th-century situations that are analogous to what took place in this
case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach
and remained there for a period of time in order to monitor the movements of the coach’s owner?
1) The Court’s theory seems to be that the concept of a search, as originally understood,
comprehended any technical trespass that led to the gathering of evidence, but we know that this
is incorrect. At common law, any unauthorized intrusion on private property was actionable but
a trespass on open fields, as opposed to the “curtilage” of a home, does not fall within the scope
of the Fourth Amendment because private property outside the curtilage is not part of a
“hous[e]” within the meaning of the Fourth Amendment.
B
The Court’s reasoning in this case is very similar to that in the Court’s early decisions involving
wiretapping and electronic eavesdropping, namely, that a technical trespass followed by the
gathering of evidence constitutes a search. In the early electronic surveillance cases, the Court
concluded that a Fourth Amendment search occurred when private conversations were
monitored as a result of an “unauthorized physical penetration into the premises occupied” by
the defendant. Silverman v. United States, 365 U.S. 505, 509 (1961). In Silverman, police
officers listened to conversations in an attached home by inserting a “spike mike” through the
wall that this house shared with the vacant house next door. This procedure was held to be a
search because the mike made contact with a heating duct on the other side of the wall and thus
“usurp[ed] ... an integral part of the premises.”

1 [Court’s footnote 3 in concurrence] The Court suggests that something like this might have

occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or
both—not to mention a constable with incredible fortitude and patience.
Chapter 2 — Page 51

By contrast, in cases in which there was no trespass, it was held that there was no search. Thus,
in Olmstead v. United States, 277 U.S. 438 (1928), the Court found that the Fourth Amendment
did not apply because “[t]he taps from house lines were made in the streets near the houses.”
Similarly, the Court concluded that no search occurred in Goldman v. United States, 316 U.S.
129 (1942), where a “detectaphone” was placed on the outer wall of defendant’s office for the
purpose of overhearing conversations held within the room.
This trespass-based rule was repeatedly criticized. In Olmstead, Justice Brandeis wrote that it
was “immaterial where the physical connection with the telephone wires was made.”
Katz v. United States, 389 U.S. 347 (1967), finally did away with the old approach, holding that
a trespass was not required for a Fourth Amendment violation. [T]he Katz Court,
“repudiate[ed]” the old doctrine and held that “[t]he fact that the electronic device employed ...
did not happen to penetrate the wall of the booth can have no constitutional significance.” What
mattered, the Court held, was whether the conduct at issue “violated the privacy upon which [the
defendant] justifiably relied while using the telephone booth.”
Under this approach, as the Court later put it when addressing the relevance of a technical
trespass, “an actual trespass is neither necessary nor sufficient to establish a constitutional
violation.”
[T]he majority is hard pressed to find support in post-Katz cases for its trespass-based theory.
III
Disharmony with a substantial body of existing case law is only one of the problems with the
Court’s approach in this case.
I will briefly note four others. First, the Court’s reasoning largely disregards what is really
important (the use of a GPS for the purpose of long-term tracking) and instead attaches great
significance to something that most would view as relatively minor (attaching to the bottom of a
car a small, light object that does not interfere in any way with the car’s operation). Attaching
such an object is generally regarded as so trivial that it does not provide a basis for recovery
under modern tort law. But under the Court’s reasoning, this conduct may violate the Fourth
Amendment. By contrast, if long-term monitoring can be accomplished without committing a
technical trespass—suppose, for example, that the Federal Government required or persuaded
auto manufacturers to include a GPS tracking device in every car—the Court’s theory would
provide no protection.
Second, the Court’s approach leads to incongruous results. If the police attach a GPS device to a
car and use the device to follow the car for even a brief time, under the Court’s theory, the Fourth
Amendment applies. But if the police follow the same car for a much longer period using
unmarked cars and aerial assistance, this tracking is not subject to any Fourth Amendment
constraints.
In the present case, the Fourth Amendment applies, the Court concludes, because the officers
installed the GPS device after respondent’s wife, to whom the car was registered, turned it over
Chapter 2 — Page 52

to respondent for his exclusive use. But if the GPS had been attached prior to that time, the
Court’s theory would lead to a different result. The Court proceeds on the assumption that
respondent “had at least the property rights of a bailee,” but a bailee may sue for a trespass to
chattel only if the injury occurs during the term of the bailment. So if the GPS device had been
installed before respondent’s wife gave him the keys, respondent would have no claim for
trespass—and, presumably, no Fourth Amendment claim either.
Third, under the Court’s theory, the coverage of the Fourth Amendment may vary from State to
State. If the events at issue here had occurred in a community property State or a State that has
adopted the Uniform Marital Property Act, respondent would likely be an owner of the vehicle,
and it would not matter whether the GPS was installed before or after his wife turned over the
keys. In non-community-property States, on the other hand, the registration of the vehicle in the
name of respondent’s wife would generally be regarded as presumptive evidence that she was
the sole owner.
Fourth, the Court’s reliance on the law of trespass will present particularly vexing problems in
cases involving surveillance that is carried out by making electronic, as opposed to physical,
contact with the item to be tracked. For example, suppose that the officers in the present case
had followed respondent by surreptitiously activating a stolen vehicle detection system that
came with the car when it was purchased. Would the sending of a radio signal to activate this
system constitute a trespass to chattels? Trespass to chattels has traditionally required a physical
touching of the property. In recent years, courts have wrestled with the application of this old
tort in cases involving unwanted electronic contact with computer systems, and some have held
that even the transmission of electrons that occurs when a communication is sent from one
computer to another is enough. But may such decisions be followed in applying the Court’s
trespass theory? Assuming that what matters under the Court’s theory is the law of trespass as it
existed at the time of the adoption of the Fourth Amendment, do these recent decisions represent
a change in the law or simply the application of the old tort to new situations?
IV
A
The Katz expectation-of-privacy test avoids the problems and complications noted above, but it
is not without its own difficulties. It involves a degree of circularity, and judges are apt to confuse
their own expectations of privacy with those of the hypothetical reasonable person to which the
Katz test looks. In addition, the Katz test rests on the assumption that this hypothetical
reasonable person has a well-developed and stable set of privacy expectations. But technology
can change those expectations. Dramatic technological change may lead to periods in which
popular expectations are in flux and may ultimately produce significant changes in popular
attitudes. New technology may provide increased convenience or security at the expense of
privacy, and many people may find the tradeoff worthwhile. And even if the public does not
welcome the diminution of privacy that new technology entails, they may eventually reconcile
themselves to this development as inevitable.

Chapter 2 — Page 53

On the other hand, concern about new intrusions on privacy may spur the enactment of
legislation to protect against these intrusions. This is what ultimately happened with respect to
wiretapping. After Katz, Congress did not leave it to the courts to develop a body of Fourth
Amendment case law governing that complex subject. Instead, Congress promptly enacted a
comprehensive statute and since that time, the regulation of wiretapping has been governed
primarily by statute and not by case law.
B
Recent years have seen the emergence of many new devices that permit the monitoring of a
person’s movements. In some locales, closed-circuit television video monitoring is becoming
ubiquitous. On toll roads, automatic toll collection systems create a precise record of the
movements of motorists who choose to make use of that convenience. Many motorists purchase
cars that are equipped with devices that permit a central station to ascertain the car’s location at
any time so that roadside assistance may be provided if needed and the car may be found if it is
stolen.
Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to
track and record the location of users—and as of June 2011, it has been reported, there were
more than 322 million wireless devices in use in the United States. For older phones, the
accuracy of the location information depends on the density of the tower network, but new
“smart phones,” which are equipped with a GPS device, permit more precise tracking. For
example, when a user activates the GPS on such a phone, a provider is able to monitor the
phone’s location and speed of movement and can then report back real-time traffic conditions
after combining (“crowdsourcing”) the speed of all such phones on any particular road. Similarly,
phone-location-tracking services are offered as “social” tools, allowing consumers to find (or to
avoid) others who enroll in these services. The availability and use of these and other new devices
will continue to shape the average person’s expectations about the privacy of his or her daily
movements.
V
In the pre-computer age, the greatest protections of privacy were neither constitutional nor
statutory, but practical. Traditional surveillance for any extended period of time was difficult and
costly and therefore rarely undertaken. The surveillance at issue in this case—constant
monitoring of the location of a vehicle for four weeks—would have required a large team of
agents, multiple vehicles, and perhaps aerial assistance. Only an investigation of unusual
importance could have justified such an expenditure of law enforcement resources. Devices like
the one used in the present case, however, make long-term monitoring relatively easy and cheap.
In circumstances involving dramatic technological change, the best solution to privacy concerns
may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw
detailed lines, and to balance privacy and public safety in a comprehensive way.
To date, however, Congress and most States have not enacted statutes regulating the use of GPS
tracking technology for law enforcement purposes. The best that we can do in this case is to apply
existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular
case involved a degree of intrusion that a reasonable person would not have anticipated.
Chapter 2 — Page 54

Under this approach, relatively short-term monitoring of a person’s movements on public
streets accords with expectations of privacy that our society has recognized as reasonable. But
the use of longer term GPS monitoring in investigations of most offenses impinges on
expectations of privacy. For such offenses, society’s expectation has been that law enforcement
agents and others would not—and indeed, in the main, simply could not—secretly monitor and
catalogue every single movement of an individual’s car for a very long period. In this case, for
four weeks, law enforcement agents tracked every movement that respondent made in the
vehicle he was driving. We need not identify with precision the point at which the tracking of
this vehicle became a search, for the line was surely crossed before the 4–week mark. Other cases
may present more difficult questions. But where uncertainty exists with respect to whether a
certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the
police may always seek a warrant. We also need not consider whether prolonged GPS monitoring
in the context of investigations involving extraordinary offenses would similarly intrude on a
constitutionally protected sphere of privacy. In such cases, long-term tracking might have been
mounted using previously available techniques.
For these reasons, I conclude that the lengthy monitoring that occurred in this case constituted
a search under the Fourth Amendment. I therefore agree with the majority that the decision of
the Court of Appeals must be affirmed.
Notes, Comments, and Questions
Although the Jones Court held that Katz is not the sole touchstone of Fourth Amendment
“search” analysis, it also made clear that Katz has not in any way been overruled. When
considering whether certain state action constitutes a “search,” students should consider both
whether it satisfies the criteria set forth in Katz and whether it satisfies the more recent standard
articulated in Jones. A person complaining about state action need not satisfy both standards;
either one will do.
As Justice Alito noted in his concurrence, “the regulation of wiretapping has been governed
primarily by statute and not by case law.” This is the first example of what will become a common
theme in the course. Put simply, much of criminal procedure—like criminal law more generally—
is not regulated by constitutional law. Witness identification procedures, for example, are largely
left to the discretion of police departments, with minimal oversight by courts. Once states meet
bare minimum standards for providing the assistance of counsel for indigent defendants, they
decide how much additional money to devote to the effort. States decide how many police officers
they want to patrol various neighborhoods, how strictly to enforce various criminal laws, and
how much to punish convicted defendants. As the semester progresses, students should pay
careful attention to the policy decisions not dictated by Supreme Court doctrine. Those are
decisions that, after students become lawyers, they may have the opportunity to guide.
The majority in Jones relies on the trespassory nature of the police contact with the jeep to find
a search rather than a Katz-style “reasonable expectation of privacy” analysis. As Justice
Sotomayor predicted, though, police surveillance of GPS-enabled smartphones without
trespassory invasion has quickly become a reality, and police can now access this data without a
physical trespass. Moreover, police can obtain GPS information about all cell phone users in a
Chapter 2 — Page 55

particular area. Consider the “reverse location search warrant.” This warrant allows police,
without touching anyone’s phone, to gather cell phone GPS data on all phones within the vicinity
of a crime. Is this tactic a search under Jones? Under Katz? Why or why not? Consider the
reasonable expectations of privacy for private individuals who are in the general locality of a
crime by happenstance.
What result if the police do not trespass to place the GPS, but instead local ordinances or state
legislation requires vehicles to be outfitted with GPS? Consider a Chicago ordinance that
requires all food trucks to be outfitted with GPS and allows the city to access that GPS data for
six months without a warrant.
One final note: In 2018, the Supreme Court decided Carpenter v. United States, 138 S. Ct. 2206
(2018), a case concerning “whether the Government conducts a search under the Fourth
Amendment when it accesses historical cell phone records that provide a comprehensive
chronicle of the user’s past movements.” Students should consider now (and perhaps write
down) how they would answer this question, using the reasoning set forth in Katz and Jones. In
the next few chapters, students will read several cases in which the Court applies the doctrines
of Katz and Jones to different scenarios. Then, in Chapter 5, the Court’s decision in Carpenter is
presented. Will the Court’s reasoning match yours?

Chapter 2 — Page 56

THE FOURTH AMENDMENT
Chapter 3
What Is a Search? Some Specifics
In the material assigned for this chapter, we begin applying the rules set forth in Katz and Jones
to specific activities. As the cases make clear, the word “search” for purposes of the Fourth
Amendment does not have its normal English meaning, that is, something to the effect of “try to
find something” or “look for something.” Instead, the Supreme Court has created a legal term of
art. Some activities that one might normally describe with the word “search” (such as looking
through someone’s garbage in the hope of finding something interesting) turn out not to count
as “searches” in Fourth Amendment jurisprudence. Students should consider when reading
these cases whether the Court’s reasoning is persuasive. Further, they should consider whether
a unifying set of principles can be found that (at least most of the time) allows one to predict
whether a given activity will count as a “search.” Absent such a set of principles, it may appear
that the Court’s doctrine in this area is somewhat arbitrary.
Supreme Court of the United States
California v. Billy Greenwood
Decided May 16, 1988 — 486 U.S. 35
Justice WHITE delivered the opinion of the Court.
The issue here is whether the Fourth Amendment prohibits the warrantless search and seizure
of garbage left for collection outside the curtilage of a home. We conclude, in accordance with
the vast majority of lower courts that have addressed the issue, that it does not.
I
In early 1984, Investigator Jenny Stracner of the Laguna Beach Police Department received
information indicating that respondent Greenwood might be engaged in narcotics trafficking.
Stracner sought to investigate this information by conducting a surveillance of Greenwood’s
home.
On April 6, 1984, Stracner asked the neighborhood’s regular trash collector to pick up the plastic
garbage bags that Greenwood had left on the curb in front of his house and to turn the bags over
to her without mixing their contents with garbage from other houses. The trash collector cleaned
his truck bin of other refuse, collected the garbage bags from the street in front of Greenwood’s
house, and turned the bags over to Stracner. The officer searched through the rubbish and found
items indicative of narcotics use. She recited the information that she had gleaned from the trash
search in an affidavit in support of a warrant to search Greenwood’s home.
Police officers encountered both respondents at the house later that day when they arrived to
execute the warrant. The police discovered quantities of cocaine and hashish during their search
of the house. Respondents were arrested on felony narcotics charges. They subsequently posted
bail.
Chapter 3 – Page 57

The police continued to receive reports of many late-night visitors to the Greenwood house. On
May 4, Investigator Robert Rahaeuser obtained Greenwood’s garbage from the regular trash
collector in the same manner as had Stracner. The garbage again contained evidence of narcotics
use.
Rahaeuser secured another search warrant for Greenwood’s home based on the information
from the second trash search. The police found more narcotics and evidence of narcotics
trafficking when they executed the warrant. Greenwood was again arrested.
II
The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood
house would violate the Fourth Amendment only if respondents manifested a subjective
expectation of privacy in their garbage that society accepts as objectively reasonable.
Respondents do not disagree with this standard.
They assert, however, that they had, and exhibited, an expectation of privacy with respect to the
trash that was searched by the police: The trash, which was placed on the street for collection at
a fixed time, was contained in opaque plastic bags, which the garbage collector was expected to
pick up, mingle with the trash of others, and deposit at the garbage dump. The trash was only
temporarily on the street, and there was little likelihood that it would be inspected by anyone.
It may well be that respondents did not expect that the contents of their garbage bags would
become known to the police or other members of the public. An expectation of privacy does not
give rise to Fourth Amendment protection, however, unless society is prepared to accept that
expectation as objectively reasonable.
Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat
their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags
left on or at the side of a public street are readily accessible to animals, children, scavengers,
snoops, and other members of the public. Moreover, respondents placed their refuse at the curb
for the express purpose of conveying it to a third party, the trash collector, who might himself
have sorted through respondents’ trash or permitted others, such as the police, to do so.
Accordingly, having deposited their garbage “in an area particularly suited for public inspection
and, in a manner of speaking, public consumption, for the express purpose of having strangers
take it,” respondents could have had no reasonable expectation of privacy in the inculpatory
items that they discarded.
Furthermore, as we have held, the police cannot reasonably be expected to avert their eyes from
evidence of criminal activity that could have been observed by any member of the public. Hence,
“[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject
of Fourth Amendment protection.”
The judgment of the California Court of Appeal is therefore reversed, and this case is remanded
for further proceedings not inconsistent with this opinion.
Chapter 3 – Page 58

Justice KENNEDY took no part in the consideration or decision of this case.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
Every week for two months, and at least once more a month later, the Laguna Beach police
clawed through the trash that respondent Greenwood left in opaque, sealed bags on the curb
outside his home. Complete strangers minutely scrutinized their bounty, undoubtedly dredging
up intimate details of Greenwood’s private life and habits. The intrusions proceeded without a
warrant, and no court before or since has concluded that the police acted on probable cause to
believe Greenwood was engaged in any criminal activity.
Scrutiny of another’s trash is contrary to commonly accepted notions of civilized behavior. I
suspect, therefore, that members of our society will be shocked to learn that the Court, the
ultimate guarantor of liberty, deems unreasonable our expectation that the aspects of our private
lives that are concealed safely in a trash bag will not become public.
I
“A container which can support a reasonable expectation of privacy may not be searched, even
on probable cause, without a warrant.” Thus, as the Court observes, if Greenwood had a
reasonable expectation that the contents of the bags that he placed on the curb would remain
private, the warrantless search of those bags violated the Fourth Amendment.
The Framers of the Fourth Amendment understood that “unreasonable searches” of “paper[s]
and effects”—no less than “unreasonable searches” of “person[s] and houses”—infringe privacy.
As early as 1878, this Court acknowledged that the contents of “[l]etters and sealed packages ...
in the mail are as fully guarded from examination and inspection ... as if they were retained by
the parties forwarding them in their own domiciles.” In short, so long as a package is “closed
against inspection,” the Fourth Amendment protects its contents, “wherever they may be,” and
the police must obtain a warrant to search it just “as is required when papers are subjected to
search in one’s own household.”
With the emergence of the reasonable-expectation-of-privacy analysis, see Katz v. United States,
we have reaffirmed this fundamental principle. Accordingly, we have found a reasonable
expectation of privacy in the contents of a 200–pound “double-locked footlocker,” a
“comparatively small, unlocked suitcase,” a “totebag,” and “packages wrapped in green opaque
plastic,”
Our precedent, therefore, leaves no room to doubt that had respondents been carrying their
personal effects in opaque, sealed plastic bags—identical to the ones they placed on the curb—
their privacy would have been protected from warrantless police intrusion. So far as Fourth
Amendment protection is concerned, opaque plastic bags are every bit as worthy as “packages
wrapped in green opaque plastic” and “double-locked footlocker[s].”

Chapter 3 – Page 59

II
Respondents deserve no less protection just because Greenwood used the bags to discard rather
than to transport his personal effects. Their contents are not inherently any less private, and
Greenwood’s decision to discard them, at least in the manner in which he did, does not diminish
his expectation of privacy.
A trash bag, like any of the above-mentioned containers, “is a common repository for one’s
personal effects” and, even more than many of them, is “therefore ... inevitably associated with
the expectation of privacy.” A single bag of trash testifies eloquently to the eating, reading, and
recreational habits of the person who produced it. A search of trash, like a search of the bedroom,
can relate intimate details about sexual practices, health, and personal hygiene. Like rifling
through desk drawers or intercepting phone calls, rummaging through trash can divulge the
target’s financial and professional status, political affiliations and inclinations, private thoughts,
personal relationships, and romantic interests. It cannot be doubted that a sealed trash bag
harbors telling evidence of the “intimate activity associated with the ‘sanctity of a man’s home
and the privacies of life,’” which the Fourth Amendment is designed to protect.
In evaluating the reasonableness of Greenwood’s expectation that his sealed trash bags would
not be invaded, the Court has held that we must look to “understandings that are recognized and
permitted by society.” Most of us, I believe, would be incensed to discover a meddler—whether
a neighbor, a reporter, or a detective—scrutinizing our sealed trash containers to discover some
detail of our personal lives. That was, quite naturally, the reaction to the sole incident on which
the Court bases its conclusion that “snoops” and the like defeat the expectation of privacy in
trash. When a tabloid reporter examined then-Secretary of State Henry Kissinger’s trash and
published his findings, Kissinger was “really revolted” by the intrusion and his wife suffered
“grave anguish.” The public response roundly condemning the reporter demonstrates that
society not only recognized those reactions as reasonable, but shared them as well.
Commentators variously characterized his conduct as “a disgusting invasion of personal
privacy,” and contrary to “the way decent people behave in relation to each other.”
Had Greenwood flaunted his intimate activity by strewing his trash all over the curb for all to
see, or had some nongovernmental intruder invaded his privacy and done the same, I could
accept the Court’s conclusion that an expectation of privacy would have been unreasonable.
Similarly, had police searching the city dump run across incriminating evidence that, despite
commingling with the trash of others, still retained its identity as Greenwood’s, we would have
a different case. But all that Greenwood “exposed ... to the public,” were the exteriors of several
opaque, sealed containers. Until the bags were opened by police, they hid their contents from
the public’s view every bit as much as did Chadwick’s double-locked footlocker and Robbins’
green, plastic wrapping. Faithful application of the warrant requirement does not require police
to “avert their eyes from evidence of criminal activity that could have been observed by any
member of the public.” Rather, it only requires them to adhere to norms of privacy that members
of the public plainly acknowledge.
The mere possibility that unwelcome meddlers might open and rummage through the
containers does not negate the expectation of privacy in their contents any more than the
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possibility of a burglary negates an expectation of privacy in the home; or the possibility of a
private intrusion negates an expectation of privacy in an unopened package; or the possibility
that an operator will listen in on a telephone conversation negates an expectation of privacy in
the words spoken on the telephone. “What a person ... seeks to preserve as private, even in an
area accessible to the public, may be constitutionally protected.” We have therefore repeatedly
rejected attempts to justify a State’s invasion of privacy on the ground that the privacy is not
absolute.
Nor is it dispositive that “respondents placed their refuse at the curb for the express purpose of
conveying it to a third party, ... who might himself have sorted through respondents’ trash or
permitted others, such as the police, to do so.” In the first place, Greenwood can hardly be faulted
for leaving trash on his curb when a county ordinance commanded him to do so and prohibited
him from disposing of it in any other way. Unlike in other circumstances where privacy is
compromised, Greenwood could not “avoid exposing personal belongings ... by simply leaving
them at home.” More importantly, even the voluntary relinquishment of possession or control
over an effect does not necessarily amount to a relinquishment of a privacy expectation in it.
Were it otherwise, a letter or package would lose all Fourth Amendment protection when placed
in a mailbox or other depository with the “express purpose” of entrusting it to the postal officer
or a private carrier; those bailees are just as likely as trash collectors (and certainly have greater
incentive) to “sor[t] through” the personal effects entrusted to them, “or permi[t] others, such as
police to do so.” Yet, it has been clear for at least 110 years that the possibility of such an intrusion
does not justify a warrantless search by police in the first instance.
III
In holding that the warrantless search of Greenwood’s trash was consistent with the Fourth
Amendment, the Court paints a grim picture of our society. It depicts a society in which local
authorities may command their citizens to dispose of their personal effects in the manner least
protective of the “sanctity of [the] home and the privacies of life,” and then monitor them
arbitrarily and without judicial oversight—a society that is not prepared to recognize as
reasonable an individual’s expectation of privacy in the most private of personal effects sealed in
an opaque container and disposed of in a manner designed to commingle it imminently and
inextricably with the trash of others. The American society with which I am familiar “chooses to
dwell in reasonable security and freedom from surveillance,” and is more dedicated to individual
liberty and more sensitive to intrusions on the sanctity of the home than the Court is willing to
acknowledge.
I dissent.
Notes, Comments, and Questions
The Greenwood Court determined there was no search because there was no objective
expectation of privacy in trash placed by the curb; the narcotics evidence in that trash was readily
accessible to the public, placed at the curb for conveyance to a third party, and police are not
expected to “avert their eyes” from publicly observable criminal behavior. Should there be a
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different outcome if the illegality of the contents is not so readily observable?
Consider the case of a tax preparer suspected of defrauding the government. The IRS agents
collect his curbside trash for weeks only to discover the trash bags are filled with documents
shredded into 5/32 inch strips. After reconstructing the documents (take a moment to consider
the time and effort necessary to do so), the IRS has sufficient probable cause for a search warrant.
Search or no search? Why or why not?
Consider police who extract DNA evidence from curbside trash. Does a defendant have a
reasonable expectation of privacy in his DNA evidence on cups, bottles, or condoms placed in
the trash on the curb? Several recent murders have been solved using a combination genetic
ancestry research (to narrow the suspect pool) and DNA from trash to zero in on the defendant.
https://abcnews.go.com/US/dna-tissue-alleged-golden-state-killers-trashled/story?id=55602892
When interpreting its own law (such as a state constitution), a state court can recognize a
“search” where courts applying the federal constitution would not. What are some arguments
for and against states using different definitions of “search” than the Supreme Court has used
when interpreting the Fourth Amendment? See State v. Morris, 680 A.2d 90, 92–93 (Vt 1996)
(“One may accept the possibility that one's garbage is susceptible to invasion by raccoons or
other scavengers, and yet at the same time reasonably expect that the government will not
systematically examine one's trash bags in the hopes of finding evidence of criminal conduct.”).
*

*

*

In Katz, the Court decided that not all Fourth Amendment “searches” involve physical intrusion
into an area in which someone enjoys a reasonable expectation of privacy. In the next case, the
Court applies this principle to the use of thermal imaging technology.
Supreme Court of the United States
Danny Lee Kyllo v. United States
Decided June 11, 2001 — 533 U.S. 27
Justice SCALIA delivered the opinion of the Court.
This case presents the question whether the use of a thermal-imaging device aimed at a private
home from a public street to detect relative amounts of heat within the home constitutes a
“search” within the meaning of the Fourth Amendment.
I
In 1991 Agent William Elliott of the United States Department of the Interior came to suspect
that marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a
triplex on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires
Chapter 3 – Page 62

high-intensity lamps. In order to determine whether an amount of heat was emanating from
petitioner’s home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent
Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex.
Thermal imagers detect infrared radiation, which virtually all objects emit but which is not
visible to the naked eye. The imager converts radiation into images based on relative warmth—
black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates
somewhat like a video camera showing heat images. The scan of Kyllo’s home took only a few
minutes and was performed from the passenger seat of Agent Elliott’s vehicle across the street
from the front of the house and also from the street in back of the house. The scan showed that
the roof over the garage and a side wall of petitioner’s home were relatively hot compared to the
rest of the home and substantially warmer than neighboring homes in the triplex. Agent Elliott
concluded that petitioner was using halide lights to grow marijuana in his house, which indeed
he was. Based on tips from informants, utility bills, and the thermal imaging, a Federal
Magistrate Judge issued a warrant authorizing a search of petitioner’s home, and the agents
found an indoor growing operation involving more than 100 plants. Petitioner was indicted on
one count of manufacturing marijuana. He unsuccessfully moved to suppress the evidence seized
from his home and then entered a conditional guilty plea.
The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing
regarding the intrusiveness of thermal imaging. On remand the District Court found that the
Agema 210 “is a non-intrusive device which emits no rays or beams and shows a crude visual
image of the heat being radiated from the outside of the house”; it “did not show any people or
activity within the walls of the structure”; “[t]he device used cannot penetrate walls or windows
to reveal conversations or human activities”; and “[n]o intimate details of the home were
observed.” Based on these findings, the District Court upheld the validity of the warrant that
relied in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress. A
divided Court of Appeals initially reversed, but that opinion was withdrawn and the panel (after
a change in composition) affirmed, with Judge Noonan dissenting. The court held that petitioner
had shown no subjective expectation of privacy because he had made no attempt to conceal the
heat escaping from his home and even if he had, there was no objectively reasonable expectation
of privacy because the imager “did not expose any intimate details of Kyllo’s life,” only
“amorphous ‘hot spots’ on the roof and exterior wall.” We granted certiorari.
II
“At the very core” of the Fourth Amendment “stands the right of a man to retreat into his own
home and there be free from unreasonable governmental intrusion.” With few exceptions, the
question whether a warrantless search of a home is reasonable and hence constitutional must be
answered no.
On the other hand, the antecedent question whether or not a Fourth Amendment “search” has
occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance
of a home used to be clear because, well into the 20th century, our Fourth Amendment
jurisprudence was tied to common-law trespass. Visual surveillance was unquestionably lawful
because “‘the eye cannot by the laws of England be guilty of a trespass.’” We have since decoupled
Chapter 3 – Page 63

violation of a person’s Fourth Amendment rights from trespassory violation of his property, but
the lawfulness of warrantless visual surveillance of a home has still been preserved. As we
observed in California v. Ciraolo, 476 U.S. 207 (1986), “[t]he Fourth Amendment protection of
the home has never been extended to require law enforcement officers to shield their eyes when
passing by a home on public thoroughfares.”
One might think that the new validating rationale would be that examining the portion of a house
that is in plain public view, while it is a “search” despite the absence of trespass, is not an
“unreasonable” one under the Fourth Amendment. But in fact we have held that visual
observation is no “search” at all—perhaps in order to preserve somewhat more intact our
doctrine that warrantless searches are presumptively unconstitutional. In assessing when a
search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz
v. United States. As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment
search occurs when the government violates a subjective expectation of privacy that society
recognizes as reasonable. We have subsequently applied this principle to hold that a Fourth
Amendment search does not occur—even when the explicitly protected location of a house is
concerned—unless “the individual manifested a subjective expectation of privacy in the object of
the challenged search,” and “society [is] willing to recognize that expectation as reasonable.” We
have applied this test in holding that it is not a search for the police to use a pen register at the
phone company to determine what numbers were dialed in a private home, and we have applied
the test on two different occasions in holding that aerial surveillance of private homes and
surrounding areas does not constitute a search.
The present case involves officers on a public street engaged in more than naked-eye surveillance
of a home. We have previously reserved judgment as to how much technological enhancement
of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced
aerial photography of an industrial complex in Dow Chemical, we noted that we found “it
important that this is not an area immediately adjacent to a private home, where privacy
expectations are most heightened.” 476 U.S. 227 (1986).
III
It would be foolish to contend that the degree of privacy secured to citizens by the Fourth
Amendment has been entirely unaffected by the advance of technology. The question we
confront today is what limits there are upon this power of technology to shrink the realm of
guaranteed privacy.
The Katz test—whether the individual has an expectation of privacy that society is prepared to
recognize as reasonable—has often been criticized as circular, and hence subjective and
unpredictable. While it may be difficult to refine Katz when the search of areas such as telephone
booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in
the case of the search of the interior of homes—the prototypical and hence most commonly
litigated area of protected privacy—there is a ready criterion, with roots deep in the common law,
of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To
withdraw protection of this minimum expectation would be to permit police technology to erode
the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing
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technology any information regarding the interior of the home that could not otherwise have
been obtained without physical “intrusion into a constitutionally protected area” constitutes a
search—at least where (as here) the technology in question is not in general public use. This
assures preservation of that degree of privacy against government that existed when the Fourth
Amendment was adopted. On the basis of this criterion, the information obtained by the thermal
imager in this case was the product of a search.
The Government maintains, however, that the thermal imaging must be upheld because it
detected “only heat radiating from the external surface of the house.” But just as a thermal
imager captures only heat emanating from a house, so also a powerful directional microphone
picks up only sound emanating from a house—and a satellite capable of scanning from many
miles away would pick up only visible light emanating from a house. We rejected such a
mechanical interpretation of the Fourth Amendment in Katz, where the eavesdropping device
picked up only sound waves that reached the exterior of the phone booth. Reversing that
approach would leave the homeowner at the mercy of advancing technology—including imaging
technology that could discern all human activity in the home. While the technology used in the
present case was relatively crude, the rule we adopt must take account of more sophisticated
systems that are already in use or in development.
The Government also contends that the thermal imaging was constitutional because it did not
“detect private activities occurring in private areas.” The Fourth Amendment’s protection of the
home has never been tied to measurement of the quality or quantity of information obtained. In
the home, our cases show, all details are intimate details, because the entire area is held safe
from prying government eyes.
Limiting the prohibition of thermal imaging to “intimate details” would not only be wrong in
principle; it would be impractical in application, failing to provide “a workable accommodation
between the needs of law enforcement and the interests protected by the Fourth Amendment.”
To begin with, there is no necessary connection between the sophistication of the surveillance
equipment and the “intimacy” of the details that it observes—which means that one cannot say
(and the police cannot be assured) that use of the relatively crude equipment at issue here will
always be lawful. The Agema Thermovision 210 might disclose, for example, at what hour each
night the lady of the house takes her daily sauna and bath—a detail that many would consider
“intimate”; and a much more sophisticated system might detect nothing more intimate than the
fact that someone left a closet light on. We could not, in other words, develop a rule approving
only that through-the-wall surveillance which identifies objects no smaller than 36 by 36 inches,
but would have to develop a jurisprudence specifying which home activities are “intimate” and
which are not. And even when (if ever) that jurisprudence were fully developed, no police officer
would be able to know in advance whether his through-the-wall surveillance picks up “intimate”
details—and thus would be unable to know in advance whether it is constitutional.
We have said that the Fourth Amendment draws “a firm line at the entrance to the house.” That
line, we think, must be not only firm but also bright—which requires clear specification of those
methods of surveillance that require a warrant. While it is certainly possible to conclude from
the videotape of the thermal imaging that occurred in this case that no “significant” compromise
of the homeowner’s privacy has occurred, we must take the long view, from the original meaning
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of the Fourth Amendment forward.
Where, as here, the Government uses a device that is not in general public use, to explore details
of the home that would previously have been unknowable without physical intrusion, the
surveillance is a “search” and is presumptively unreasonable without a warrant.
Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the
District Court to determine whether, without the evidence it provided, the search warrant issued
in this case was supported by probable cause—and if not, whether there is any other basis for
supporting admission of the evidence that the search pursuant to the warrant produced.
The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings
consistent with this opinion.
Justice STEVENS, with whom THE CHIEF JUSTICE, Justice O’CONNOR, and Justice
KENNEDY join, dissenting.
There is, in my judgment, a distinction of constitutional magnitude between “through-the-wall
surveillance” that gives the observer or listener direct access to information in a private area, on
the one hand, and the thought processes used to draw inferences from information in the public
domain, on the other hand. The Court has crafted a rule that purports to deal with direct
observations of the inside of the home, but the case before us merely involves indirect deductions
from “off-the-wall” surveillance, that is, observations of the exterior of the home. Those
observations were made with a fairly primitive thermal imager that gathered data exposed on
the outside of petitioner’s home but did not invade any constitutionally protected interest in
privacy. Moreover, I believe that the supposedly “bright-line” rule the Court has created in
response to its concerns about future technological developments is unnecessary, unwise, and
inconsistent with the Fourth Amendment.
I
There is no need for the Court to craft a new rule to decide this case, as it is controlled by
established principles from our Fourth Amendment jurisprudence. One of those core principles,
of course, is that “searches and seizures inside a home without a warrant are presumptively
unreasonable.” But it is equally well settled that searches and seizures of property in plain view
are presumptively reasonable. “‘What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection.’” That is the principle
implicated here.
While the Court “take[s] the long view” and decides this case based largely on the potential of
yet-to-be-developed technology that might allow “through-the-wall surveillance,” this case
involves nothing more than off-the-wall surveillance by law enforcement officers to gather
information exposed to the general public from the outside of petitioner’s home. All that the
infrared camera did in this case was passively measure heat emitted from the exterior surfaces
of petitioner’s home; all that those measurements showed were relative differences in emission
levels, vaguely indicating that some areas of the roof and outside walls were warmer than others.
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As still images from the infrared scans show, no details regarding the interior of petitioner’s
home were revealed. Unlike an x-ray scan, or other possible “through-the-wall” techniques, the
detection of infrared radiation emanating from the home did not accomplish “an unauthorized
physical penetration into the premises,” nor did it “obtain information that it could not have
obtained by observation from outside the curtilage of the house.”
Indeed, the ordinary use of the senses might enable a neighbor or passerby to notice the heat
emanating from a building, particularly if it is vented, as was the case here. Additionally, any
member of the public might notice that one part of a house is warmer than another part or a
nearby building if, for example, rainwater evaporates or snow melts at different rates across its
surfaces. Such use of the senses would not convert into an unreasonable search if, instead, an
adjoining neighbor allowed an officer onto her property to verify her perceptions with a sensitive
thermometer. Nor, in my view, does such observation become an unreasonable search if made
from a distance with the aid of a device that merely discloses that the exterior of one house, or
one area of the house, is much warmer than another. Nothing more occurred in this case.
Thus, the notion that heat emissions from the outside of a dwelling are a private matter
implicating the protections of the Fourth Amendment (the text of which guarantees the right of
people “to be secure in their ... houses” against unreasonable searches and seizures (emphasis
added)) is not only unprecedented but also quite difficult to take seriously. Heat waves, like
aromas that are generated in a kitchen, or in a laboratory or opium den, enter the public domain
if and when they leave a building. A subjective expectation that they would remain private is not
only implausible but also surely not “one that society is prepared to recognize as ‘reasonable.’”
To be sure, the homeowner has a reasonable expectation of privacy concerning what takes place
within the home, and the Fourth Amendment’s protection against physical invasions of the home
should apply to their functional equivalent. But the equipment in this case did not penetrate the
walls of petitioner’s home, and while it did pick up “details of the home” that were exposed to
the public, it did not obtain “any information regarding the interior of the home.” In the Court’s
own words, based on what the thermal imager “showed” regarding the outside of petitioner’s
home, the officers “concluded” that petitioner was engaging in illegal activity inside the home. It
would be quite absurd to characterize their thought processes as “searches,” regardless of
whether they inferred (rightly) that petitioner was growing marijuana in his house, or (wrongly)
that “the lady of the house [was taking] her daily sauna and bath.” In either case, the only
conclusions the officers reached concerning the interior of the home were at least as indirect as
those that might have been inferred from the contents of discarded garbage, or, as in this case,
subpoenaed utility records. For the first time in its history, the Court assumes that an inference
can amount to a Fourth Amendment violation.
Notwithstanding the implications of today’s decision, there is a strong public interest in avoiding
constitutional litigation over the monitoring of emissions from homes, and over the inferences
drawn from such monitoring. Just as “the police cannot reasonably be expected to avert their
eyes from evidence of criminal activity that could have been observed by any member of the
public,” so too public officials should not have to avert their senses or their equipment from
detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious
odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify
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hazards to the community. In my judgment, monitoring such emissions with “sense-enhancing
technology,” and drawing useful conclusions from such monitoring, is an entirely reasonable
public service.
On the other hand, the countervailing privacy interest is at best trivial. After all, homes generally
are insulated to keep heat in, rather than to prevent the detection of heat going out, and it does
not seem to me that society will suffer from a rule requiring the rare homeowner who both
intends to engage in uncommon activities that produce extraordinary amounts of heat, and
wishes to conceal that production from outsiders, to make sure that the surrounding area is well
insulated. The interest in concealing the heat escaping from one’s house pales in significance to
“the chief evil against which the wording of the Fourth Amendment is directed,” the “physical
entry of the home.”
Since what was involved in this case was nothing more than drawing inferences from off-thewall surveillance, rather than any “through-the-wall” surveillance, the officers’ conduct did not
amount to a search and was perfectly reasonable.
II
Instead of trying to answer the question whether the use of the thermal imager in this case was
even arguably unreasonable, the Court has fashioned a rule that is intended to provide essential
guidance for the day when “more sophisticated systems” gain the “ability to ‘see’ through walls
and other opaque barriers.” The newly minted rule encompasses “obtaining [1] by senseenhancing technology [2] any information regarding the interior of the home [3] that could not
otherwise have been obtained without physical intrusion into a constitutionally protected area
... [4] at least where (as here) the technology in question is not in general public use.” In my
judgment, the Court’s new rule is at once too broad and too narrow, and is not justified by the
Court’s explanation for its adoption. As I have suggested, I would not erect a constitutional
impediment to the use of sense-enhancing technology unless it provides its user with the
functional equivalent of actual presence in the area being searched.
Despite the Court’s attempt to draw a line that is “not only firm but also bright,” the contours of
its new rule are uncertain because its protection apparently dissipates as soon as the relevant
technology is “in general public use.” Yet how much use is general public use is not even hinted
at by the Court’s opinion, which makes the somewhat doubtful assumption that the thermal
imager used in this case does not satisfy that criterion. In any event, putting aside its lack of
clarity, this criterion is somewhat perverse because it seems likely that the threat to privacy will
grow, rather than recede, as the use of intrusive equipment becomes more readily available.
The application of the Court’s new rule to “any information regarding the interior of the home,”
is unnecessarily broad. If it takes sensitive equipment to detect an odor that identifies criminal
conduct and nothing else, the fact that the odor emanates from the interior of a home should not
provide it with constitutional protection. The criterion, moreover, is too sweeping in that
information “regarding” the interior of a home apparently is not just information obtained
through its walls, but also information concerning the outside of the building that could lead to
(however many) inferences “regarding” what might be inside. Under that expansive view, I
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suppose, an officer using an infrared camera to observe a man silently entering the side door of
a house at night carrying a pizza might conclude that its interior is now occupied by someone
who likes pizza, and by doing so the officer would be guilty of conducting an unconstitutional
“search” of the home.
Because the new rule applies to information regarding the “interior” of the home, it is too narrow
as well as too broad. Clearly, a rule that is designed to protect individuals from the overly
intrusive use of sense-enhancing equipment should not be limited to a home. If such equipment
did provide its user with the functional equivalent of access to a private place—such as, for
example, the telephone booth involved in Katz, or an office building—then the rule should apply
to such an area as well as to a home.
The final requirement of the Court’s new rule, that the information “could not otherwise have
been obtained without physical intrusion into a constitutionally protected area,” also extends too
far as the Court applies it. As noted, the Court effectively treats the mental process of analyzing
data obtained from external sources as the equivalent of a physical intrusion into the home. As I
have explained, however, the process of drawing inferences from data in the public domain
should not be characterized as a search.
III
Although the Court is properly and commendably concerned about the threats to privacy that
may flow from advances in the technology available to the law enforcement profession, it has
unfortunately failed to heed the tried and true counsel of judicial restraint. Instead of
concentrating on the rather mundane issue that is actually presented by the case before it, the
Court has endeavored to craft an all-encompassing rule for the future. It would be far wiser to
give legislators an unimpeded opportunity to grapple with these emerging issues rather than to
shackle them with prematurely devised constitutional constraints.
I respectfully dissent.
Notes, Comments, and Questions
The Kyllo majority reasoned in 2001 (in a case about police conduct that occurred in 1991) that
the use of thermal imaging constituted a search because the technology was “not in general
public use.”
Today, however, the general public has many uses for thermal imaging, from HVAC performance
testing to hunting to wildlife rescue to evaluating the performance of kitchen devices.
Agema Infrared Systems, the Swedish corporation that manufactured the “Agema Thermovision
210” at issue in Kyllo, was acquired by FLIR Systems Inc. in 1998. Headquartered in Oregon,
FLIR now sells a $200 thermal imaging camera (the “FLIR ONE”) that can attach to a
smartphone, with fancier versions available for higher prices. According to the FLIR product
page, one can use the FLIR ONE to “[f]ind problems around the home fast, like where you’re
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losing heat, how your insulation’s holding up, electrical problems, and water damage – all of
which are point-and-shoot easy to find.” It also suggests, “See in the dark and explore the natural
world safely with the FLIR ONE. Watch animals in their natural habitat and even use it to find
your lost pet ... or what they might have left behind in the yard.” Another suggested use from the
advertisement: “Detecting tiny variations in heat means that you can see in total darkness, create
new kinds of art, and discover new things about your world every day... or help your child with
their science fair experiment.”
Consider a police officer who uses such a device to investigate a suspected drug-grower’s home.
He sees images consistent with growing drugs. He shows the images to a judge, who grants a
search warrant. Officers find drugs in the house, and prosecutors have charged the owner with
drug crimes. Search or no search? Why or why not?
In January 2020, the City Counsel of Bessemer, Michigan voted to purchase “an odor-detecting
device as a means of addressing growing complaints about marijuana odor.” The device is called
a “Nasal Ranger,” and the company that sells it describes it as “the ‘state-of-the-art’ in field
olfactometry for confidently measuring and quantifying odor strength in the ambient air.”
According to St. Croix Sensory, Inc., “The portable Nasal Ranger Field Olfactometer determines
ambient odor Dilution-to-Threshold (D/T) concentration objectively with your trained nose.” If
a Bessmer police officer stands on a public sidewalk and uses the Nasal Ranger to detect
marijuana odors emanating from a house, is that a search? Why or why not?
*

*

*

In his majority opinion in United States v. Jones, Justice Scalia distinguished the facts before
the Court in that case from those of a previous case—involving a “beeper”—upon which the
government attempted to rely in its effort to justify placing a GPS device on a vehicle. Here is the
“beeper” case.
Supreme Court of the United States
United States v. Leroy Carlton Knotts
Decided March 2, 1983 — 460 U.S. 276
REHNQUIST, Justice.
A beeper is a radio transmitter, usually battery operated, which emits periodic signals that can
be picked up by a radio receiver. In this case, a beeper was placed in a five gallon drum containing
chloroform purchased by one of respondent’s codefendants. By monitoring the progress of a car
carrying the chloroform Minnesota law enforcement agents were able to trace the can of
chloroform from its place of purchase in Minneapolis, Minnesota to respondent’s secluded cabin
near Shell Lake, Wisconsin. The issue presented by the case is whether such use of a beeper
violated respondent’s rights secured by the Fourth Amendment to the United States
Constitution.

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I
Respondent and two codefendants were charged in the United States District Court for the
District of Minnesota with conspiracy to manufacture controlled substances, including but not
limited to methamphetamine.
Suspicion attached to this trio when the 3M Company, which manufactures chemicals in St. Paul,
notified a narcotics investigator for the Minnesota Bureau of Criminal Apprehension that
Armstrong, a former 3M employee, had been stealing chemicals which could be used in
manufacturing illicit drugs. Visual surveillance of Armstrong revealed that after leaving the
employ of 3M Company, he had been purchasing similar chemicals from the Hawkins Chemical
Company in Minneapolis. The Minnesota narcotics officers observed that after Armstrong had
made a purchase, he would deliver the chemicals to codefendant Petschen.
With the consent of the Hawkins Chemical Company, officers installed a beeper inside a five
gallon container of chloroform, one of the so-called “precursor” chemicals used to manufacture
illicit drugs. Hawkins agreed that when Armstrong next purchased chloroform, the chloroform
would be placed in this particular container. When Armstrong made the purchase, officers
followed the car in which the chloroform had been placed, maintaining contact by using both
visual surveillance and a monitor which received the signals sent from the beeper.
Armstrong proceeded to Petschen’s house, where the container was transferred to Petschen’s
automobile. Officers then followed that vehicle eastward towards the state line, across the St.
Croix River, and into Wisconsin. During the latter part of this journey, Petschen began making
evasive maneuvers, and the pursuing agents ended their visual surveillance. At about the same
time officers lost the signal from the beeper, but with the assistance of a monitoring device
located in a helicopter the approximate location of the signal was picked up again about one hour
later. The signal now was stationary and the location identified was a cabin occupied by
respondent near Shell Lake, Wisconsin. The record before us does not reveal that the beeper was
used after the location in the area of the cabin had been initially determined.
Relying on the location of the chloroform derived through the use of the beeper and additional
information obtained during three days of intermittent visual surveillance of respondent’s cabin,
officers secured a search warrant. During execution of the warrant, officers discovered a fully
operable, clandestine drug laboratory in the cabin. In the laboratory area officers found formulas
for amphetamine and methamphetamine, over $10,000 worth of laboratory equipment, and
chemicals in quantities sufficient to produce 14 pounds of pure amphetamine. Under a barrel
outside the cabin, officers located the five gallon container of chloroform.

Chapter 3 – Page 71

After his motion to suppress evidence based on the warrantless monitoring of the beeper was
denied, respondent was convicted for conspiring to manufacture controlled substances. He was
sentenced to five years imprisonment. A divided panel of the United States Court of Appeals for
the Eighth Circuit reversed the conviction, finding that the monitoring of the beeper was
prohibited by the Fourth Amendment because its use had violated respondent’s reasonable
expectation of privacy, and that all information derived after the location of the cabin was a fruit
of the illegal beeper monitoring. We granted certiorari, and we now reverse the judgment of the
Court of Appeals.
II
The governmental surveillance conducted by means of the beeper in this case amounted
principally to the following of an automobile on public streets and highways. We have
commented more than once on the diminished expectation of privacy in an automobile:
“One has a lesser expectation of privacy in a motor vehicle because its function is transportation
and it seldom serves as one’s residence or as the repository of personal effects. A car has little
capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants
and its contents are in plain view.”
A person travelling in an automobile on public thoroughfares has no reasonable expectation of
privacy in his movements from one place to another. When Petschen travelled over the public
streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over
particular roads in a particular direction, the fact of whatever stops he made, and the fact of his
final destination when he exited from public roads onto private property.
Respondent Knotts, as the owner of the cabin and surrounding premises to which Petschen
drove, undoubtedly had the traditional expectation of privacy within a dwelling place insofar as
the cabin was concerned:
“Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and
the law allows such crime to be reached on proper showing. The right of officers to thrust
themselves into a home is also of grave concern, not only to the individual, but to a society which
chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy
must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by
a policeman or government enforcement agent.”
But no such expectation of privacy extended to the visual observation of Petschen’s automobile
arriving on his premises after leaving a public highway, nor to movements of objects such as the
drum of chloroform outside the cabin in the “open fields.”

Chapter 3 – Page 72

Visual surveillance from public places along Petschen’s route or adjoining Knotts’ premises
would have sufficed to reveal all of these facts to the police. The fact that the officers in this case
relied not only on visual surveillance, but on the use of the beeper to signal the presence of
Petschen’s automobile to the police receiver, does not alter the situation. Nothing in the Fourth
Amendment prohibited the police from augmenting the sensory faculties bestowed upon them
at birth with such enhancement as science and technology afforded them in this case.
Respondent specifically attacks the use of the beeper insofar as it was used to determine that
the can of chloroform had come to rest on his property at Shell Lake, Wisconsin. He repeatedly
challenges the “use of the beeper to determine the location of the chemical drum at Respondent’s
premises[;]” he states that “[t]he government thus overlooks the fact that this case involves the
sanctity of Respondent’s residence, which is accorded the greatest protection available under the
Fourth Amendment.”
We think that respondent’s contentions to some extent lose sight of the limited use which the
government made of the signals from this particular beeper. As we have noted, nothing in this
record indicates that the beeper signal was received or relied upon after it had indicated that the
drum containing the chloroform had ended its automotive journey at rest on respondent’s
premises in rural Wisconsin. Admittedly, because of the failure of the visual surveillance, the
beeper enabled the law enforcement officials in this case to ascertain the ultimate resting place
of the chloroform when they would not have been able to do so had they relied solely on their
naked eyes. But scientific enhancement of this sort raises no constitutional issues which visual
surveillance would not also raise. A police car following Petschen at a distance throughout his
journey could have observed him leaving the public highway and arriving at the cabin owned by
respondent, with the drum of chloroform still in the car. This fact, along with others, was used
by the government in obtaining a search warrant which led to the discovery of the clandestine
drug laboratory. But there is no indication that the beeper was used in any way to reveal
information as to the movement of the drum within the cabin, or in any way that would not have
been visible to the naked eye from outside the cabin.
We thus return to the question posed at the beginning of our inquiry in discussing Katz, supra;
did monitoring the beeper signals complained of by respondent invade any legitimate
expectation of privacy on his part? For the reasons previously stated, we hold they did not. Since
they did not, there was neither a “search” nor a “seizure” within the contemplation of the Fourth
Amendment. The judgment of the Court of Appeals is therefore
Reversed.

Chapter 3 – Page 73

Justice STEVENS, with whom Justice BRENNAN, and Justice MARSHALL join, concurring in
the judgment.
Since the respondent in this case has never questioned the installation of the radio transmitter
in the chloroform drum, I agree that it was entirely reasonable for the police officers to make use
of the information received over the airwaves when they were trying to ascertain the ultimate
destination of the chloroform. I do not join the Court’s opinion, however, because it contains two
unnecessarily broad dicta: one distorts the record in this case, and both may prove confusing to
courts that must apply this decision in the future.
First, the Court implies that the chloroform drum was parading in “open fields” outside of the
cabin, in a manner tantamount to its public display on the highways. The record does not support
that implication.
Second, the Court suggests that the Fourth Amendment does not inhibit “the police from
augmenting the sensory facilities bestowed upon them at birth with such enhancement as
science and technology afforded them.” But the Court held to the contrary in Katz v. United
States. Although the augmentation in this case was unobjectionable, it by no means follows that
the use of electronic detection techniques does not implicate especially sensitive concerns.
Accordingly, I concur in the judgment.
*

*

*

The ubiquitous use of mobile phones, by which users not only have conversations but also
transmit all sorts of sensitive data, has raised important questions about when the government
may intercept information transmitted by phone users. This is not, however, a new issue. More
than four decades ago, police obtained certain information from a suspect’s telephone company,
and prosecutors used that information against the defendant at trial. Here is the resulting Fourth
Amendment case.
Supreme Court of the United States
Michael Lee Smith v. Maryland
Decided June 20, 1979 — 442 U.S. 735
Mr. Justice BLACKMUN delivered the opinion of the Court.
This case presents the question whether the installation and use of a pen register1 constitutes a
“search” within the meaning of the Fourth Amendment.

1 [Footnote 1 by the Court] “A pen register is a mechanical device that records the numbers dialed on a telephone by

monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral
communications and does not indicate whether calls are actually completed.” A pen register is “usually installed at
a central telephone facility [and] records on a paper tape all numbers dialed from [the] line” to which it is attached.
Chapter 3 – Page 74

I
On March 5, 1976, in Baltimore, Md., Patricia McDonough was robbed. She gave the police a
description of the robber and of a 1975 Monte Carlo automobile she had observed near the scene
of the crime. After the robbery, McDonough began receiving threatening and obscene phone calls
from a man identifying himself as the robber. On one occasion, the caller asked that she step out
on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police
moving slowly past her home. On March 16, police spotted a man who met McDonough’s
description driving a 1975 Monte Carlo in her neighborhood. By tracing the license plate number,
police learned that the car was registered in the name of petitioner, Michael Lee Smith.
The next day, the telephone company, at police request, installed a pen register at its central
offices to record the numbers dialed from the telephone at petitioner’s home. The police did not
get a warrant or court order before having the pen register installed. The register revealed that
on March 17 a call was placed from petitioner’s home to McDonough’s phone. On the basis of
this and other evidence, the police obtained a warrant to search petitioner’s residence. The
search revealed that a page in petitioner’s phone book was turned down to the name and number
of Patricia McDonough; the phone book was seized. Petitioner was arrested, and a six-man
lineup was held on March 19. McDonough identified petitioner as the man who had robbed her.
Petitioner was indicted in the Criminal Court of Baltimore for robbery. By pretrial motion, he
sought to suppress “all fruits derived from the pen register” on the ground that the police had
failed to secure a warrant prior to its installation. The trial court denied the suppression motion,
holding that the warrantless installation of the pen register did not violate the Fourth
Amendment. Petitioner then waived a jury, and the case was submitted to the court on an agreed
statement of facts. The pen register tape (evidencing the fact that a phone call had been made
from petitioner’s phone to McDonough’s phone) and the phone book seized in the search of
petitioner’s residence were admitted into evidence against him. Petitioner was convicted, and
was sentenced to six years. He appealed to the Maryland Court of Special Appeals, but the Court
of Appeals of Maryland issued a writ of certiorari to the intermediate court in advance of its
decision in order to consider whether the pen register evidence had been properly admitted at
petitioner’s trial.
The Court of Appeals affirmed the judgment of conviction, holding that “there is no
constitutionally protected reasonable expectation of privacy in the numbers dialed into a
telephone system and hence no search within the fourth amendment is implicated by the use of
a pen register installed at the central offices of the telephone company.” Because there was no
“search,” the court concluded, no warrant was needed. Certiorari was granted.
II
A
In determining whether a particular form of government-initiated electronic surveillance is a
“search” within the meaning of the Fourth Amendment, our lodestar is Katz v. United States,
389 U.S. 347 (1967).
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Consistently with Katz, this Court uniformly has held that the application of the Fourth
Amendment depends on whether the person invoking its protection can claim a “justifiable,” a
“reasonable,” or a “legitimate expectation of privacy” that has been invaded by government
action. This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally
embraces two discrete questions. The first is whether the individual, by his conduct, has
“exhibited an actual (subjective) expectation of privacy”—whether, in the words of the Katz
majority, the individual has shown that “he seeks to preserve [something] as private.” The
second question is whether the individual’s subjective expectation of privacy is “one that society
is prepared to recognize as ‘reasonable’”—whether, in the words of the Katz majority, the
individual’s expectation, viewed objectively, is “justifiable” under the circumstances.
B
In applying the Katz analysis to this case, it is important to begin by specifying precisely the
nature of the state activity that is challenged. The activity here took the form of installing and
using a pen register. Since the pen register was installed on telephone company property at the
telephone company’s central offices, petitioner obviously cannot claim that his “property” was
invaded or that police intruded into a “constitutionally protected area.” Petitioner’s claim,
rather, is that, notwithstanding the absence of a trespass, the State, as did the Government in
Katz, infringed a “legitimate expectation of privacy” that petitioner held. Yet a pen register
differs significantly from the listening device employed in Katz, for pen registers do not acquire
the contents of communications. This Court recently noted:
“Indeed, a law enforcement official could not even determine from the use of a pen register
whether a communication existed. These devices do not hear sound. They disclose only the
telephone numbers that have been dialed—a means of establishing communication. Neither the
purport of any communication between the caller and the recipient of the call, their identities,
nor whether the call was even completed is disclosed by pen registers.”
Given a pen register’s limited capabilities, therefore, petitioner’s argument that its installation
and use constituted a “search” necessarily rests upon a claim that he had a “legitimate
expectation of privacy” regarding the numbers he dialed on his phone.
This claim must be rejected. First, we doubt that people in general entertain any actual
expectation of privacy in the numbers they dial. All telephone users realize that they must
“convey” phone numbers to the telephone company, since it is through telephone company
switching equipment that their calls are completed. All subscribers realize, moreover, that the
phone company has facilities for making permanent records of the numbers they dial, for they
see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar
devices are routinely used by telephone companies “for the purposes of checking billing
operations, detecting fraud and preventing violations of law.” Electronic equipment is used not
only to keep billing records of toll calls, but also “to keep a record of all calls dialed from a
telephone which is subject to a special rate structure.” Pen registers are regularly employed “to
determine whether a home phone is being used to conduct a business, to check for a defective
dial, or to check for overbilling.” Although most people may be oblivious to a pen register’s
esoteric functions, they presumably have some awareness of one common use: to aid in the
identification of persons making annoying or obscene calls. Most phone books tell subscribers,
Chapter 3 – Page 76

on a page entitled “Consumer Information,” that the company “can frequently help in identifying
to the authorities the origin of unwelcome and troublesome calls.” Telephone users, in sum,
typically know that they must convey numerical information to the phone company; that the
phone company has facilities for recording this information; and that the phone company does
in fact record this information for a variety of legitimate business purposes. Although subjective
expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers,
under these circumstances, harbor any general expectation that the numbers they dial will
remain secret.
Petitioner argues, however, that, whatever the expectations of telephone users in general, he
demonstrated an expectation of privacy by his own conduct here, since he “us[ed] the telephone
in his house to the exclusion of all others.” But the site of the call is immaterial for purposes of
analysis in this case. Although petitioner’s conduct may have been calculated to keep the
contents of his conversation private, his conduct was not and could not have been calculated to
preserve the privacy of the number he dialed. Regardless of his location, petitioner had to convey
that number to the telephone company in precisely the same way if he wished to complete his
call. The fact that he dialed the number on his home phone rather than on some other phone
could make no conceivable difference, nor could any subscriber rationally think that it would.
Second, even if petitioner did harbor some subjective expectation that the phone numbers he
dialed would remain private, this expectation is not “one that society is prepared to recognize as
‘reasonable.’” This Court consistently has held that a person has no legitimate expectation of
privacy in information he voluntarily turns over to third parties.
This analysis dictates that petitioner can claim no legitimate expectation of privacy here. When
he used his phone, petitioner voluntarily conveyed numerical information to the telephone
company and “exposed” that information to its equipment in the ordinary course of business. In
so doing, petitioner assumed the risk that the company would reveal to police the numbers he
dialed. The switching equipment that processed those numbers is merely the modern
counterpart of the operator who, in an earlier day, personally completed calls for the subscriber.
Petitioner concedes that if he had placed his calls through an operator, he could claim no
legitimate expectation of privacy. We are not inclined to hold that a different constitutional result
is required because the telephone company has decided to automate.
We therefore conclude that petitioner in all probability entertained no actual expectation of
privacy in the phone numbers he dialed, and that, even if he did, his expectation was not
“legitimate.” The installation and use of a pen register, consequently, was not a “search,” and no
warrant was required. The judgment of the Maryland Court of Appeals is affirmed.
Mr. Justice POWELL took no part in the consideration or decision of this case.
Mr. Justice STEWART, with whom Mr. Justice BRENNAN joins, dissenting.
I am not persuaded that the numbers dialed from a private telephone fall outside the
constitutional protection of the Fourth and Fourteenth Amendments.
In Katz v. United States, the Court acknowledged the “vital role that the public telephone has
come to play in private communication[s].” The role played by a private telephone is even more
Chapter 3 – Page 77

vital, and since Katz it has been abundantly clear that telephone conversations carried on by
people in their homes or offices are fully protected.
Nevertheless, the Court today says that those safeguards do not extend to the numbers dialed
from a private telephone, apparently because when a caller dials a number the digits may be
recorded by the telephone company for billing purposes. But that observation no more than
describes the basic nature of telephone calls. A telephone call simply cannot be made without
the use of telephone company property and without payment to the company for the service. The
telephone conversation itself must be electronically transmitted by telephone company
equipment, and may be recorded or overheard by the use of other company equipment. Yet we
have squarely held that the user of even a public telephone is entitled “to assume that the words
he utters into the mouthpiece will not be broadcast to the world.”
The central question in this case is whether a person who makes telephone calls from his home
is entitled to make a similar assumption about the numbers he dials. What the telephone
company does or might do with those numbers is no more relevant to this inquiry than it would
be in a case involving the conversation itself. It is simply not enough to say, after Katz, that there
is no legitimate expectation of privacy in the numbers dialed because the caller assumes the risk
that the telephone company will disclose them to the police.
I think that the numbers dialed from a private telephone—like the conversations that occur
during a call—are within the constitutional protection recognized in Katz. It seems clear to me
that information obtained by pen register surveillance of a private telephone is information in
which the telephone subscriber has a legitimate expectation of privacy. The information
captured by such surveillance emanates from private conduct within a person’s home or office—
locations that without question are entitled to Fourth and Fourteenth Amendment protection.
Further, that information is an integral part of the telephonic communication that under Katz is
entitled to constitutional protection, whether or not it is captured by a trespass into such an area.
The numbers dialed from a private telephone—although certainly more prosaic than the
conversation itself—are not without “content.” Most private telephone subscribers may have
their own numbers listed in a publicly distributed directory, but I doubt there are any who would
be happy to have broadcast to the world a list of the local or long distance numbers they have
called. This is not because such a list might in some sense be incriminating, but because it easily
could reveal the identities of the persons and the places called, and thus reveal the most intimate
details of a person’s life.
I respectfully dissent.
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
The Court concludes that because individuals have no actual or legitimate expectation of privacy
in information they voluntarily relinquish to telephone companies, the use of pen registers by
government agents is immune from Fourth Amendment scrutiny. I respectfully dissent.
Applying the standards set forth in Katz v. United States, the Court first determines that
telephone subscribers have no subjective expectations of privacy concerning the numbers they
dial. To reach this conclusion, the Court posits that individuals somehow infer from the longChapter 3 – Page 78

distance listings on their phone bills, and from the cryptic assurances of “help” in tracing obscene
calls included in “most” phone books, that pen registers are regularly used for recording local
calls. But even assuming, as I do not, that individuals “typically know” that a phone company
monitors calls for internal reasons, it does not follow that they expect this information to be
made available to the public in general or the government in particular. Privacy is not a discrete
commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or
phone company for a limited business purpose need not assume that this information will be
released to other persons for other purposes.
The crux of the Court’s holding, however, is that whatever expectation of privacy petitioner may
in fact have entertained regarding his calls, it is not one “society is prepared to recognize as
‘reasonable’.” In so ruling, the Court determines that individuals who convey information to
third parties have “assumed the risk” of disclosure to the government. This analysis is
misconceived in two critical respects.
Implicit in the concept of assumption of risk is some notion of choice. At least in the third-party
consensual surveillance cases, which first incorporated risk analysis into Fourth Amendment
doctrine, the defendant presumably had exercised some discretion in deciding who should enjoy
his confidential communications. By contrast here, unless a person is prepared to forgo use of
what for many has become a personal or professional necessity, he cannot help but accept the
risk of surveillance. It is idle to speak of “assuming” risks in contexts where, as a practical matter,
individuals have no realistic alternative.
More fundamentally, to make risk analysis dispositive in assessing the reasonableness of privacy
expectations would allow the government to define the scope of Fourth Amendment protections.
For example, law enforcement officials, simply by announcing their intent to monitor the content
of random samples of first-class mail or private phone conversations, could put the public on
notice of the risks they would thereafter assume in such communications. Yet, although
acknowledging this implication of its analysis, the Court is willing to concede only that, in some
circumstances, a further “normative inquiry would be proper.” No meaningful effort is made to
explain what those circumstances might be, or why this case is not among them.
In my view, whether privacy expectations are legitimate within the meaning of Katz depends not
on the risks an individual can be presumed to accept when imparting information to third
parties, but on the risks he should be forced to assume in a free and open society. By its terms,
the constitutional prohibition of unreasonable searches and seizures assigns to the judiciary
some prescriptive responsibility. As Mr. Justice Harlan, who formulated the standard the Court
applies today, himself recognized: “[s]ince it is the task of the law to form and project, as well as
mirror and reflect, we should not ... merely recite ... risks without examining the desirability of
saddling them upon society.” In making this assessment, courts must evaluate the “intrinsic
character” of investigative practices with reference to the basic values underlying the Fourth
Amendment. And for those “extensive intrusions that significantly jeopardize [individuals’]
sense of security ... more than self-restraint by law enforcement officials is required.”
The use of pen registers, I believe, constitutes such an extensive intrusion. To hold otherwise
ignores the vital role telephonic communication plays in our personal and professional
relationships, as well as the First and Fourth Amendment interests implicated by unfettered
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official surveillance. Privacy in placing calls is of value not only to those engaged in criminal
activity. The prospect of unregulated governmental monitoring will undoubtedly prove
disturbing even to those with nothing illicit to hide. Many individuals, including members of
unpopular political organizations or journalists with confidential sources, may legitimately wish
to avoid disclosure of their personal contacts. Permitting governmental access to telephone
records on less than probable cause may thus impede certain forms of political affiliation and
journalistic endeavor that are the hallmark of a truly free society. Particularly given the
Government’s previous reliance on warrantless telephonic surveillance to trace reporters’
sources and monitor protected political activity, I am unwilling to insulate use of pen registers
from independent judicial review.
Just as one who enters a public telephone booth is “entitled to assume that the words he utters
into the mouthpiece will not be broadcast to the world,” so too, he should be entitled to assume
that the numbers he dials in the privacy of his home will be recorded, if at all, solely for the phone
company’s business purposes. Accordingly, I would require law enforcement officials to obtain
a warrant before they enlist telephone companies to secure information otherwise beyond the
government’s reach.
Notes, Comments, and Questions
For nearly forty years, the third-party disclosure doctrine stood as a broad general rule. The
advance of technology, however, has raised questions about the doctrine. Consider, for example,
the sort of data commonly transmitted by mobile phones. A person using GPS mapping on a
phone is transmitting her location to a third party. Consider too the use of email, whether on a
phone or on a computer. When someone sends email, the sender knows (at least at some basic
level) that the contents of the message are transmitted to a third party before reaching the
intended recipient. (Indeed, many third parties are likely involved.)
Does a person who sends email despite knowing that messages travel via third-party servers (for
example, on Gmail) forfeit any reasonable expectation of privacy with respect to the content of
the messages?
Imagine that a phone company routinely retains data concerning the locations of customers’
mobile phones. If police contact a phone company and obtain the location data for a particular
customer’s phone from the previous month, is that a “search” or not? (We will confront this issue
again in Chapter 5. Jot down your answer now, along with your reasoning, so that you can
compare it with the reasoning used by the Court.)
*

*

*

In the next chapter, we will study the concept of “open fields,” to which the majority and dissent
referred in Knotts. We will also consider police use of aerial surveillance, which required further
elaboration of the Court’s definition of “search.”

Chapter 3 – Page 80

Then, in Chapter 5, during which we will wrap up our discussion of “what is a search,” we will
consider (1) more recent judicial analysis inspired by modern phone technology and (2) police
use of dogs.

Chapter 3 – Page 81

THE FOURTH AMENDMENT
Chapter 4
What Is a Search?: More Specifics
The Fourth Amendment protects the people’s “persons, houses, papers, and effects.” While this
language is quite broad, it does not include everything someone might possess or wish to protect
from intrusion. For example, if one owns agricultural land far from any “house,” that land is not
a person, a house, a paper, or an effect. Police searches of such land, therefore, are not “searches”
regulated by the Fourth Amendment. In the next two cases, the Court attempts to define the
barrier separating the “curtilage” (an area near a house that is treated as a “house” for Fourth
Amendment purposes) from the “open fields” (which enjoy no Fourth Amendment protection).
Supreme Court of the United States
Ray Oliver v. United States
Decided April 17, 1984 – 466 U.S. 170
Justice POWELL delivered the opinion of the Court.
The “open fields” doctrine, first enunciated by this Court in Hester v. United States, 265 U.S. 57
(1924), permits police officers to enter and search a field without a warrant. We granted
certiorari to clarify confusion that has arisen as to the continued vitality of the doctrine.
I
Acting on reports that marihuana was being raised on the farm of petitioner Oliver, two narcotics
agents of the Kentucky State Police went to the farm to investigate. Arriving at the farm, they
drove past petitioner’s house to a locked gate with a “No Trespassing” sign. A footpath led around
one side of the gate. The agents walked around the gate and along the road for several hundred
yards, passing a barn and a parked camper. At that point, someone standing in front of the
camper shouted: “No hunting is allowed, come back up here.” The officers shouted back that
they were Kentucky State Police officers, but found no one when they returned to the camper.
The officers resumed their investigation of the farm and found a field of marihuana over a mile
from petitioner’s home.
Petitioner was arrested and indicted for “manufactur[ing]” a “controlled substance.” After a
pretrial hearing, the District Court suppressed evidence of the discovery of the marihuana field.
Applying Katz v. United States, the court found that petitioner had a reasonable expectation that
the field would remain private because petitioner “had done all that could be expected of him to
assert his privacy in the area of farm that was searched.” He had posted “No Trespassing” signs
at regular intervals and had locked the gate at the entrance to the center of the farm. Further,
the court noted that the field itself is highly secluded: it is bounded on all sides by woods, fences,
and embankments and cannot be seen from any point of public access. The court concluded that
this was not an “open” field that invited casual intrusion.

Chapter 4 – Page 82

The Court of Appeals for the Sixth Circuit, sitting en banc, reversed the District Court. The court
concluded that Katz, upon which the District Court relied, had not impaired the vitality of the
open fields doctrine of Hester. Rather, the open fields doctrine was entirely compatible with
Katz’ emphasis on privacy. The court reasoned that the “human relations that create the need
for privacy do not ordinarily take place” in open fields, and that the property owner’s commonlaw right to exclude trespassers is insufficiently linked to privacy to warrant the Fourth
Amendment’s protection. We granted certiorari.
II
The rule announced in Hester v. United States was founded upon the explicit language of the
Fourth Amendment. That Amendment indicates with some precision the places and things
encompassed by its protections. As Justice Holmes explained for the Court in his
characteristically laconic style: “[T]he special protection accorded by the Fourth Amendment to
the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields. The
distinction between the latter and the house is as old as the common law.”
Nor are the open fields “effects” within the meaning of the Fourth Amendment. In this respect,
it is suggestive that James Madison’s proposed draft of what became the Fourth Amendment
preserves “[t]he rights of the people to be secured in their persons, their houses, their papers,
and their other property, from all unreasonable searches and seizures....” Although Congress’
revisions of Madison’s proposal broadened the scope of the Amendment in some respects, the
term “effects” is less inclusive than “property” and cannot be said to encompass open fields. We
conclude, as did the Court in deciding Hester v. United States, that the government’s intrusion
upon the open fields is not one of those “unreasonable searches” proscribed by the text of the
Fourth Amendment.
III
This interpretation of the Fourth Amendment’s language is consistent with the understanding
of the right to privacy expressed in our Fourth Amendment jurisprudence. Since Katz v. United
States, the touchstone of [Fourth] Amendment analysis has been the question whether a person
has a “constitutionally protected reasonable expectation of privacy.” The Amendment does not
protect the merely subjective expectation of privacy, but only those “expectation[s] that society
is prepared to recognize as ‘reasonable.’”

Chapter 4 – Page 83

A
No single factor determines whether an individual legitimately may claim under the Fourth
Amendment that a place should be free of government intrusion not authorized by warrant. In
assessing the degree to which a search infringes upon individual privacy, the Court has given
weight to such factors as the intention of the Framers of the Fourth Amendment, the uses to
which the individual has put a location, and our societal understanding that certain areas deserve
the most scrupulous protection from government invasion. These factors are equally relevant to
determining whether the government’s intrusion upon open fields without a warrant or probable
cause violates reasonable expectations of privacy and is therefore a search proscribed by the
Amendment.
In this light, the rule of Hester v. United States that we reaffirm today may be understood as
providing that an individual may not legitimately demand privacy for activities conducted out of
doors in fields, except in the area immediately surrounding the home. This rule is true to the
conception of the right to privacy embodied in the Fourth Amendment. The Amendment reflects
the recognition of the Framers that certain enclaves should be free from arbitrary government
interference. For example, the Court since the enactment of the Fourth Amendment has stressed
“the overriding respect for the sanctity of the home that has been embedded in our traditions
since the origins of the Republic.”
In contrast, open fields do not provide the setting for those intimate activities that the
Amendment is intended to shelter from government interference or surveillance. There is no
societal interest in protecting the privacy of those activities, such as the cultivation of crops, that
occur in open fields. Moreover, as a practical matter these lands usually are accessible to the
public and the police in ways that a home, an office, or commercial structure would not be. It is
not generally true that fences or “No Trespassing” signs effectively bar the public from viewing
open fields in rural areas. [P]etitioner Oliver concede[s] that the public and police lawfully may
survey lands from the air. For these reasons, the asserted expectation of privacy in open fields is
not an expectation that “society recognizes as reasonable.”
The historical underpinnings of the open fields doctrine also demonstrate that the doctrine is
consistent with respect for “reasonable expectations of privacy.” As Justice Holmes observed in
Hester, the common law distinguished “open fields” from the “curtilage,” the land immediately
surrounding and associated with the home. The distinction implies that only the curtilage, not
the neighboring open fields, warrants the Fourth Amendment protections that attach to the
home. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have
defined the curtilage, as did the common law, by reference to the factors that determine whether
an individual reasonably may expect that an area immediately adjacent to the home will remain
private. Conversely, the common law implies, as we reaffirm today, that no expectation of privacy
legitimately attaches to open fields.
We conclude, from the text of the Fourth Amendment and from the historical and contemporary
understanding of its purposes, that an individual has no legitimate expectation that open fields
will remain free from warrantless intrusion by government officers.

Chapter 4 – Page 84

B
Nor would a case-by-case approach provide a workable accommodation between the needs of
law enforcement and the interests protected by the Fourth Amendment. Under this approach,
police officers would have to guess before every search whether landowners had erected fences
sufficiently high, posted a sufficient number of warning signs, or located contraband in an area
sufficiently secluded to establish a right of privacy. The lawfulness of a search would turn on “‘[a]
highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the
drawing of subtle nuances and hairline distinctions ....’” This Court repeatedly has acknowledged
the difficulties created for courts, police, and citizens by an ad hoc, case-by-case definition of
Fourth Amendment standards to be applied in differing factual circumstances.
IV
Nor is the government’s intrusion upon an open field a “search” in the constitutional sense
because that intrusion is a trespass at common law. The existence of a property right is but one
element in determining whether expectations of privacy are legitimate. “‘The premise that
property interests control the right of the Government to search and seize has been discredited.’”
“[E]ven a property interest in premises may not be sufficient to establish a legitimate expectation
of privacy with respect to particular items located on the premises or activity conducted
thereon.”
The common law may guide consideration of what areas are protected by the Fourth Amendment
by defining areas whose invasion by others is wrongful. The law of trespass, however, forbids
intrusions upon land that the Fourth Amendment would not proscribe. For trespass law extends
to instances where the exercise of the right to exclude vindicates no legitimate privacy interest.
Thus, in the case of open fields, the general rights of property protected by the common law of
trespass have little or no relevance to the applicability of the Fourth Amendment.
V
We conclude that the open fields doctrine, as enunciated in Hester, is consistent with the plain
language of the Fourth Amendment and its historical purposes. Moreover, Justice Holmes’
interpretation of the Amendment in Hester accords with the “reasonable expectation of privacy”
analysis developed in subsequent decisions of this Court. We therefore affirm Oliver v. United
States.
Justice MARSHALL, with whom Justice BRENNAN and Justice STEVENS join, dissenting.
[P]olice officers, ignoring clearly visible “No Trespassing” signs, entered upon private land in
search of evidence of a crime. At a spot that could not be seen from any vantage point accessible
to the public, the police discovered contraband, which was subsequently used to incriminate the
owner of the land. [P]olice [did not] have a warrant authorizing their activities.
The Court holds that police conduct of this sort does not constitute an “unreasonable search”
within the meaning of the Fourth Amendment. The Court reaches that startling conclusion by
two independent analytical routes. First, the Court argues that, because the Fourth Amendment
Chapter 4 – Page 85

by its terms renders people secure in their “persons, houses, papers, and effects,” it is
inapplicable to trespasses upon land not lying within the curtilage of a dwelling. Second, the
Court contends that “an individual may not legitimately demand privacy for activities conducted
out of doors in fields, except in the area immediately surrounding the home.” Because I cannot
agree with either of these propositions, I dissent.
I
The first ground on which the Court rests its decision is that the Fourth Amendment “indicates
with some precision the places and things encompassed by its protections,” and that real
property is not included in the list of protected spaces and possessions. This line of argument
has several flaws. Most obviously, it is inconsistent with the results of many of our previous
decisions, none of which the Court purports to overrule. For example, neither a public telephone
booth nor a conversation conducted therein can fairly be described as a person, house, paper, or
effect; yet we have held that the Fourth Amendment forbids the police without a warrant to
eavesdrop on such a conversation. Nor can it plausibly be argued that an office or commercial
establishment is covered by the plain language of the Amendment; yet we have held that such
premises are entitled to constitutional protection if they are marked in a fashion that alerts the
public to the fact that they are private.
Indeed, the Court’s reading of the plain language of the Fourth Amendment is incapable of
explaining even its own holding in this case. The Court rules that the curtilage, a zone of real
property surrounding a dwelling, is entitled to constitutional protection. We are not told,
however, whether the curtilage is a “house” or an “effect”—or why, if the curtilage can be
incorporated into the list of things and spaces shielded by the Amendment, a field cannot.
II
The second ground for the Court’s decision is its contention that any interest a landowner might
have in the privacy of his woods and fields is not one that “society is prepared to recognize as
‘reasonable.’” The mode of analysis that underlies this assertion is certainly more consistent with
our prior decisions than that discussed above. But the Court’s conclusion cannot withstand
scrutiny.
A
We have frequently acknowledged that privacy interests are not coterminous with property
rights. However, because “property rights reflect society’s explicit recognition of a person’s
authority to act as he wishes in certain areas, [they] should be considered in determining whether
an individual’s expectations of privacy are reasonable.” Indeed, the Court has suggested that,
insofar as “[o]ne of the main rights attaching to property is the right to exclude others, ... one
who owns or lawfully possesses or controls property will in all likelihood have a legitimate
expectation of privacy by virtue of this right to exclude.”
It is undisputed that Oliver owned the land into which the police intruded. That fact alone
provides considerable support for their assertion of legitimate privacy interests in their woods
and fields. But even more telling is the nature of the sanctions that Oliver could invoke, under
Chapter 4 – Page 86

local law, for violation of their property rights. In Kentucky, a knowing entry upon fenced or
otherwise enclosed land, or upon unenclosed land conspicuously posted with signs excluding the
public, constitutes criminal trespass. Thus, positive law not only recognizes the legitimacy of
Oliver’s insistence that strangers keep off [his] land, but subjects those who refuse to respect
[his] wishes to the most severe of penalties—criminal liability. Under these circumstances, it is
hard to credit the Court’s assertion that Oliver’s expectations of privacy were not of a sort that
society is prepared to recognize as reasonable.
*

*

*

In United States v. Dunn, decided three years after Oliver v. United States, the Court applied the
principles set forth in Oliver to new facts.
Supreme Court of the United States
United States v. Ronald Dunn
Decided March 3, 1987 – 480 U.S. 294
Justice WHITE delivered the opinion of the Court.
We granted the Government’s petition for certiorari to decide whether the area near a barn,
located approximately 50 yards from a fence surrounding a ranch house, is, for Fourth
Amendment purposes, within the curtilage of the house. The Court of Appeals for the Fifth
Circuit held that the barn lay within the house’s curtilage, and that the District Court should have
suppressed certain evidence obtained as a result of law enforcement officials’ intrusion onto the
area immediately surrounding the barn. We conclude that the barn and the area around it lay
outside the curtilage of the house, and accordingly reverse the judgment of the Court of Appeals.
I
Respondent Ronald Dale Dunn and a codefendant, Robert Lyle Carpenter, were convicted by a
jury of conspiring to manufacture phenylacetone and amphetamine, and to possess
amphetamine with intent to distribute. Respondent was also convicted of manufacturing these
two controlled substances and possessing amphetamine with intent to distribute. The events
giving rise to respondent’s apprehension and conviction began in 1980 when agents from the
Drug Enforcement Administration (DEA) discovered that Carpenter had purchased large
quantities of chemicals and equipment used in the manufacture of amphetamine and
phenylacetone. DEA agents obtained warrants from a Texas state judge authorizing installation
of miniature electronic transmitter tracking devices, or “beepers,” in an electric hot plate stirrer,
a drum of acetic anhydride, and a container holding phenylacetic acid, a precursor to
phenylacetone. All of these items had been ordered by Carpenter. On September 3, 1980,
Carpenter took possession of the electric hot plate stirrer, but the agents lost the signal from the
“beeper” a few days later. The agents were able to track the “beeper” in the container of
chemicals, however, from October 27, 1980, until November 5, 1980, on which date Carpenter’s
pickup truck, which was carrying the container, arrived at respondent’s ranch. Aerial
Chapter 4 – Page 87

photographs of the ranch property showed Carpenter’s truck backed up to a barn behind the
ranch house. The agents also began receiving transmission signals from the “beeper” in the hot
plate stirrer that they had lost in early September and determined that the stirrer was on
respondent’s ranch property.
Respondent’s ranch comprised approximately 198 acres and was completely encircled by a
perimeter fence. The property also contained several interior fences, constructed mainly of posts
and multiple strands of barbed wire. The ranch residence was situated ½ mile from a public
road. A fence encircled the residence and a nearby small greenhouse. Two barns were located
approximately 50 yards from this fence. The front of the larger of the two barns was enclosed by
a wooden fence and had an open overhang. Locked, waist-high gates barred entry into the barn
proper, and netting material stretched from the ceiling to the top of the wooden gates.
On the evening of November 5, 1980, law enforcement officials made a warrantless entry onto
respondent’s ranch property. A DEA agent accompanied by an officer from the Houston Police
Department crossed over the perimeter fence and one interior fence. Standing approximately
midway between the residence and the barns, the DEA agent smelled what he believed to be
phenylacetic acid, the odor coming from the direction of the barns. The officers approached the
smaller of the barns—crossing over a barbed wire fence—and, looking into the barn, observed
only empty boxes. The officers then proceeded to the larger barn, crossing another barbed wire
fence as well as a wooden fence that enclosed the front portion of the barn. The officers walked
under the barn’s overhang to the locked wooden gates and, shining a flashlight through the
netting on top of the gates, peered into the barn. They observed what the DEA agent thought to
be a phenylacetone laboratory. The officers did not enter the barn. At this point the officers
departed from respondent’s property, but entered it twice more on November 6 to confirm the
presence of the phenylacetone laboratory.
On November 6, 1980, at 8:30 p.m., a Federal Magistrate issued a warrant authorizing a search
of respondent’s ranch. DEA agents and state law enforcement officials executed the warrant on
November 8, 1980. The officers arrested respondent and seized chemicals and equipment, as
well as bags of amphetamines they discovered in a closet in the ranch house.
The District Court denied respondent’s motion to suppress all evidence seized pursuant to the
warrant and respondent [was] convicted. [T]he Court of Appeals reversed respondent’s
conviction. The court concluded that the search warrant had been issued based on information
obtained during the officers’ unlawful warrantless entry onto respondent’s ranch property and,
therefore, all evidence seized pursuant to the warrant should have been suppressed.
Underpinning this conclusion was the court’s reasoning that “the barn in question was within
the curtilage of the residence and was within the protective ambit of the fourth amendment.”
The Government thereupon submitted a petition for certiorari [questioning] whether the barn
lay within the curtilage of the house. We granted the petition and now reverse.
II
The curtilage concept originated at common law to extend to the area immediately surrounding
a dwelling house the same protection under the law of burglary as was afforded the house itself.
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The concept plays a part, however, in interpreting the reach of the Fourth Amendment.
Drawing upon the Court’s own cases and the cumulative experience of the lower courts that have
grappled with the task of defining the extent of a home’s curtilage, we believe that curtilage
questions should be resolved with particular reference to four factors: the proximity of the area
claimed to be curtilage to the home, whether the area is included within an enclosure
surrounding the home, the nature of the uses to which the area is put, and the steps taken by the
resident to protect the area from observation by people passing by. We do not suggest that
combining these factors produces a finely tuned formula that, when mechanically applied, yields
a “correct” answer to all extent-of-curtilage questions. Rather, these factors are useful analytical
tools only to the degree that, in any given case, they bear upon the centrally relevant
consideration—whether the area in question is so intimately tied to the home itself that it should
be placed under the home’s “umbrella” of Fourth Amendment protection. Applying these factors
to respondent’s barn and to the area immediately surrounding it, we have little difficulty in
concluding that this area lay outside the curtilage of the ranch house.
First. The record discloses that the barn was located 50 yards from the fence surrounding the
house and 60 yards from the house itself. Standing in isolation, this substantial distance
supports no inference that the barn should be treated as an adjunct of the house.
Second. It is also significant that respondent’s barn did not lie within the area surrounding the
house that was enclosed by a fence. Viewing the physical layout of respondent’s ranch in its
entirety, it is plain that the fence surrounding the residence serves to demark a specific area of
land immediately adjacent to the house that is readily identifiable as part and parcel of the house.
Conversely, the barn—the front portion itself enclosed by a fence—and the area immediately
surrounding it, stands out as a distinct portion of respondent’s ranch, quite separate from the
residence.
Third. It is especially significant that the law enforcement officials possessed objective data
indicating that the barn was not being used for intimate activities of the home. The aerial
photographs showed that the truck Carpenter had been driving that contained the container of
phenylacetic acid was backed up to the barn, “apparently,” in the words of the Court of Appeals,
“for the unloading of its contents.” When on respondent’s property, the officers’ suspicion was
further directed toward the barn because of “a very strong odor” of phenylacetic acid. As the DEA
agent approached the barn, he “could hear a motor running, like a pump motor of some sort ....”
Furthermore, the officers detected an “extremely strong” odor of phenylacetic acid coming from
a small crack in the wall of the barn. Finally, as the officers were standing in front of the barn,
immediately prior to looking into its interior through the netting material, “the smell was very,
very strong ... [and the officers] could hear the motor running very loudly.” When considered
together, the above facts indicated to the officers that the use to which the barn was being put
could not fairly be characterized as so associated with the activities and privacies of domestic life
that the officers should have deemed the barn as part of respondent’s home.

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Fourth. Respondent did little to protect the barn area from observation by those standing in the
open fields. Nothing in the record suggests that the various interior fences on respondent’s
property had any function other than that of the typical ranch fence; the fences were designed
and constructed to corral livestock, not to prevent persons from observing what lay inside the
enclosed areas.
III
Respondent submits an alternative basis for affirming the judgment below, one that was
presented to but ultimately not relied upon by the Court of Appeals. Respondent asserts that he
possessed an expectation of privacy, independent from his home’s curtilage, in the barn and its
contents, because the barn is an essential part of his business.
We may accept, for the sake of argument, respondent’s submission that his barn enjoyed Fourth
Amendment protection and could not be entered and its contents seized without a warrant. But
it does not follow on the record before us that the officers’ conduct and the ensuing search and
seizure violated the Constitution. It follows that no constitutional violation occurred here when
the officers crossed over respondent’s ranch-style perimeter fence, and over several similarly
constructed interior fences, prior to stopping at the locked front gate of the barn. As previously
mentioned, the officers never entered the barn, nor did they enter any other structure on
respondent’s premises. Once at their vantage point, they merely stood, outside the curtilage of
the house and in the open fields upon which the barn was constructed, and peered into the barn’s
open front. And, standing as they were in the open fields, the Constitution did not forbid them
to observe the phenylacetone laboratory located in respondent’s barn.
Under Oliver and Hester, there is no constitutional difference between police observations
conducted while in a public place and while standing in the open fields. Similarly, the fact that
the objects observed by the officers lay within an area that we have assumed, but not decided,
was protected by the Fourth Amendment does not affect our conclusion. The Fourth Amendment
“has never been extended to require law enforcement officers to shield their eyes when passing
by a home on public thoroughfares.” Here, the officers’ use of the beam of a flashlight, directed
through the essentially open front of respondent’s barn, did not transform their observations
into an unreasonable search within the meaning of the Fourth Amendment.
The officers lawfully viewed the interior of respondent’s barn, and their observations were
properly considered by the Magistrate in issuing a search warrant for respondent’s premises.
Accordingly, the judgment of the Court of Appeals is reversed.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
The Government agents’ intrusions upon Ronald Dunn’s privacy and property violated the
Fourth Amendment for two reasons. First, the barnyard invaded by the agents lay within the
protected curtilage of Dunn’s farmhouse. Second, the agents infringed upon Dunn’s reasonable
expectation of privacy in the barn and its contents. Our society is not so exclusively urban that it
is unable to perceive or unwilling to preserve the expectation of farmers and ranchers that barns
and their contents are protected from (literally) unwarranted government intrusion.
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The Court states that curtilage questions are often resolved through evaluation of four factors.
The Court applies this test and concludes that Dunn’s barn and barnyard were not within the
curtilage of his dwelling. This conclusion overlooks the role a barn plays in rural life and ignores
extensive authority holding that a barn, when clustered with other outbuildings near the
residence, is part of the curtilage.
State and federal courts have long recognized that a barn, like many other outbuildings, is “a
domestic building constituting an integral part of that group of structures making up the farm
home.” Consequently, the general rule is that the “[c]urtilage includes all outbuildings used in
connection with a residence, such as garages, sheds, [and] barns ... connected with and in close
vicinity of the residence.”
The overwhelming majority of state courts have consistently held that barns are included within
the curtilage of a farmhouse. Federal courts, too, have held that barns, like other rural
outbuildings, lie within the curtilage of the farmhouse. Thus, case law demonstrates that a barn
is an integral part of a farm home and therefore lies within the curtilage. The Court’s opinion
provides no justification for its indifference to the weight of state and federal precedent.
The Fourth Amendment prohibits police activity which, if left unrestricted, would jeopardize
individuals’ sense of security or would too heavily burden those who wished to guard their
privacy. In this case, in order to look inside respondent’s barn, the DEA agents traveled a onehalf mile off a public road over respondent’s fenced-in property, crossed over three additional
wooden and barbed wire fences, stepped under the eaves of the barn, and then used a flashlight
to peer through otherwise opaque fishnetting. For the police habitually to engage in such
surveillance—without a warrant—is constitutionally intolerable. Because I believe that farmers’
and ranchers’ expectations of privacy in their barns and other outbuildings are expectations
society would regard as reasonable, and because I believe that sanctioning the police behavior at
issue here does violence to the purpose and promise of the Fourth Amendment, I dissent.
Notes, Comments, and Questions
In both Oliver and Dunn, police walked onto someone’s land without permission. In describing
the “open fields doctrine,” the Oliver Court stated: “The “open fields” doctrine, first enunciated
by this Court in Hester v. United States, 265 U.S. 57 (1924), permits police officers to enter and
search a field without a warrant.”
Consider whether that statement is truly accurate. Is it truly lawful for police to wander uninvited
on the open fields of suspects? Perhaps it would be more accurate to state: “Police should not do
this, but if they do, the Fourth Amendment has nothing to say about it.” The Hester case cited
by the Court in Oliver may provide a clue. In the syllabus, the Court describes police witnesses
who “held no warrant and were trespassers on the land.” By definition, trespassers are violating
the law. We do not call it a “trespass” when someone walks on the property of another to visit as
an invited guest, or to knock on the door and leave literature about religion or politics, or to
execute a valid search warrant.

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If officers who find useful (and admissible) evidence while trespassing in the open fields of
suspects are breaking the law, should they be punished? Is it plausible to believe that they will
be? If, as seems more likely, police departments would laud such behavior rather than
condemning it, does that raise questions about the sensibility of the open fields doctrine?
At common law, the crimes of arson and burglary (which are both crimes against the dwelling),
defined “house” as both a dwelling house and buildings located within the curtilage. Fourth
Amendment law essentially imports this principle.
So what is curtilage? Curtilage is: “The land or yard adjoining a house, usually within an
enclosure. Under the Fourth Amendment, the curtilage is an area usually protected from
warrantless searches.” Black’s Law Dictionary (11th ed. 2019).
Some students may wonder if United States v. Jones, 565 U.S. 400 (2012), which was decided
well after Dunn and Oliver, invalidates the open fields doctrine. The answer is no. Yes, Jones
does reiterate the importance of trespass to Fourth Amendment law. And yes, officers who
wander uninvited on the “open fields” of suspects likely commit trespass as defined by state law.
Nonetheless, according to cases like Dunn and Oliver, the open fields are not among the
“persons, houses, papers, and effects” protected by the Fourth Amendment. While Jones affects
how courts will decide whether police have acted improperly with respect to someone’s “house,”
the case does not affect how “house” is defined. The “open fields” remain excluded from Fourth
Amendment protection.
Because the Court treats the curtilage surrounding a home as part of a “house” for Fourth
Amendment purposes, police officers normally cannot walk on to curtilage and look around with
neither permission nor a warrant. In response to this restriction, police have flown over houses
and curtilage, using their eyes and cameras to gain information relevant to criminal
investigations.
The next two cases consider whether the Fourth Amendment applies when police observe the
curtilage from the air.
Supreme Court of the United States
California v. Ciraolo
Decided May 19, 1986 – 476 U.S. 207
Chief Justice BURGER delivered the opinion of the Court.
We granted certiorari to determine whether the Fourth Amendment is violated by aerial
observation without a warrant from an altitude of 1,000 feet of a fenced-in backyard within the
curtilage of a home.

Chapter 4 – Page 92

I
On September 2, 1982, Santa Clara Police received an anonymous telephone tip that marijuana
was growing in respondent’s backyard. Police were unable to observe the contents of
respondent’s yard from ground level because of a 6-foot outer fence and a 10-foot inner fence
completely enclosing the yard. Later that day, Officer Shutz, who was assigned to investigate,
secured a private plane and flew over respondent’s house at an altitude of 1,000 feet, within
navigable airspace; he was accompanied by Officer Rodriguez. Both officers were trained in
marijuana identification. From the overflight, the officers readily identified marijuana plants 8
feet to 10 feet in height growing in a 15- by 25-foot plot in respondent’s yard; they photographed
the area with a standard 35mm camera.
On September 8, 1982, Officer Shutz obtained a search warrant on the basis of an affidavit
describing the anonymous tip and their observations; a photograph depicting respondent’s
house, the backyard, and neighboring homes was attached to the affidavit as an exhibit. The
warrant was executed the next day and 73 plants were seized; it is not disputed that these were
marijuana.
After the trial court denied respondent’s motion to suppress the evidence of the search,
respondent pleaded guilty to a charge of cultivation of marijuana. The California Court of Appeal
reversed, however, on the ground that the warrantless aerial observation of respondent’s yard
which led to the issuance of the warrant violated the Fourth Amendment. That court held first
that respondent’s backyard marijuana garden was within the “curtilage” of his home, under
Oliver v. United States. The court emphasized that the height and existence of the two fences
constituted “objective criteria from which we may conclude he manifested a reasonable
expectation of privacy by any standard.”
Examining the particular method of surveillance undertaken, the court then found it
“significant” that the flyover “was not the result of a routine patrol conducted for any other
legitimate law enforcement or public safety objective, but was undertaken for the specific
purpose of observing this particular enclosure within [respondent’s] curtilage.” It held this
focused observation was “a direct and unauthorized intrusion into the sanctity of the home”
which violated respondent’s reasonable expectation of privacy. The California Supreme Court
denied the State’s petition for review.
We granted the State’s petition for certiorari. We reverse.
The State argues that respondent has “knowingly exposed” his backyard to aerial observation,
because all that was seen was visible to the naked eye from any aircraft flying overhead. The State
analogizes its mode of observation to a knothole or opening in a fence: if there is an opening, the
police may look.
The California Court of Appeal accepted the analysis that unlike the casual observation of a
private person flying overhead, this flight was focused specifically on a small suburban yard, and
was not the result of any routine patrol overflight. Respondent contends he has done all that can
reasonably be expected to tell the world he wishes to maintain the privacy of his garden within
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the curtilage without covering his yard. Such covering, he argues, would defeat its purpose as an
outside living area; he asserts he has not “knowingly” exposed himself to aerial views.
II
The touchstone of Fourth Amendment analysis is whether a person has a “constitutionally
protected reasonable expectation of privacy.” Katz posits a two-part inquiry: first, has the
individual manifested a subjective expectation of privacy in the object of the challenged search?
Second, is society willing to recognize that expectation as reasonable?
Clearly—and understandably—respondent has met the test of manifesting his own subjective
intent and desire to maintain privacy as to his unlawful agricultural pursuits. It can reasonably
be assumed that the 10-foot fence was placed to conceal the marijuana crop from at least streetlevel views. So far as the normal sidewalk traffic was concerned, this fence served that purpose,
because respondent “took normal precautions to maintain his privacy.”
Yet a 10-foot fence might not shield these plants from the eyes of a citizen or a policeman perched
on the top of a truck or a two-level bus. Whether respondent therefore manifested a subjective
expectation of privacy from all observations of his backyard, or whether instead he manifested
merely a hope that no one would observe his unlawful gardening pursuits, is not entirely clear in
these circumstances. Respondent appears to challenge the authority of government to observe
his activity from any vantage point or place if the viewing is motivated by a law enforcement
purpose, and not the result of a casual, accidental observation.
We turn, therefore, to the second inquiry under Katz, i.e., whether that expectation is reasonable.
In pursuing this inquiry, we must keep in mind that “[t]he test of legitimacy is not whether the
individual chooses to conceal assertedly ‘private’ activity,” but instead “whether the
government’s intrusion infringes upon the personal and societal values protected by the Fourth
Amendment.”
Respondent argues that because his yard was in the curtilage of his home, no governmental aerial
observation is permissible under the Fourth Amendment without a warrant. At common law, the
curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a man’s
home and the privacies of life.’” The protection afforded the curtilage is essentially a protection
of families and personal privacy in an area intimately linked to the home, both physically and
psychologically, where privacy expectations are most heightened. The claimed area here was
immediately adjacent to a suburban home, surrounded by high double fences. This close nexus
to the home would appear to encompass this small area within the curtilage. Accepting, as the
State does, that this yard and its crop fall within the curtilage, the question remains whether
naked-eye observation of the curtilage by police from an aircraft lawfully operating at an altitude
of 1,000 feet violates an expectation of privacy that is reasonable.
That the area is within the curtilage does not itself bar all police observation. The Fourth
Amendment protection of the home has never been extended to require law enforcement officers
to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that
an individual has taken measures to restrict some views of his activities preclude an officer’s
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observations from a public vantage point where he has a right to be and which renders the
activities clearly visible.
The observations by Officers Shutz and Rodriguez in this case took place within public navigable
airspace in a physically nonintrusive manner; from this point they were able to observe plants
readily discernible to the naked eye as marijuana. That the observation from aircraft was directed
at identifying the plants and the officers were trained to recognize marijuana is irrelevant. Such
observation is precisely what a judicial officer needs to provide a basis for a warrant. Any
member of the public flying in this airspace who glanced down could have seen everything that
these officers observed. On this record, we readily conclude that respondent’s expectation that
his garden was protected from such observation is unreasonable and is not an expectation that
society is prepared to honor.
Reversed.
Justice POWELL, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN
join, dissenting.
Concurring in Katz v. United States, Justice Harlan warned that any decision to construe the
Fourth Amendment as proscribing only physical intrusions by police onto private property “is,
in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be
defeated by electronic as well as physical invasion.” Because the Court today ignores that
warning in an opinion that departs significantly from the standard developed in Katz for
deciding when a Fourth Amendment violation has occurred, I dissent.
The Court [holds] that respondent’s expectation of privacy in the curtilage of his home, although
reasonable as to intrusions on the ground, was unreasonable as to surveillance from the
navigable airspace. In my view, the Court’s holding rests on only one obvious fact, namely, that
the airspace generally is open to all persons for travel in airplanes. The Court does not explain
why this single fact deprives citizens of their privacy interest in outdoor activities in an enclosed
curtilage.
The Court’s holding must rest solely on the fact that members of the public fly in planes and may
look down at homes as they fly over them. The Court does not explain why it finds this fact to be
significant. One may assume that the Court believes that citizens bear the risk that air travelers
will observe activities occurring within backyards that are open to the sun and air. This risk, the
Court appears to hold, nullifies expectations of privacy in those yards even as to purposeful police
surveillance from the air.
This line of reasoning is flawed. First, the actual risk to privacy from commercial or pleasure
aircraft is virtually nonexistent. Travelers on commercial flights, as well as private planes used
for business or personal reasons, normally obtain at most a fleeting, anonymous, and
nondiscriminating glimpse of the landscape and buildings over which they pass. The risk that a
passenger on such a plane might observe private activities, and might connect those activities
with particular people, is simply too trivial to protect against. It is no accident that, as a matter
of common experience, many people build fences around their residential areas, but few build
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roofs over their backyards. Therefore, contrary to the Court’s suggestion, people do not
“‘knowingly expos[e]’” their residential yards “‘to the public’” merely by failing to build barriers
that prevent aerial surveillance.
Since respondent had a reasonable expectation of privacy in his yard, aerial surveillance
undertaken by the police for the purpose of discovering evidence of crime constituted a “search”
within the meaning of the Fourth Amendment. The indiscriminate nature of aerial surveillance,
illustrated by Officer Shutz’ photograph of respondent’s home and enclosed yard as well as those
of his neighbors, poses “far too serious a threat to privacy interests in the home to escape entirely
some sort of Fourth Amendment oversight.” Therefore, I would affirm the judgment of the
California Court of Appeal ordering suppression of the marijuana plants. I dissent.
*

*

*

In the next case, the Court applies the rule set forth in Ciraolo, which concerned fixed-wing
aircraft, to police use of helicopters.
Supreme Court of the United States
Florida v. Michael Riley
Decided Jan. 23, 1989 – 488 U.S. 445
Justice WHITE announced the judgment of the Court and delivered an opinion, in which THE
CHIEF JUSTICE, Justice SCALIA, and Justice KENNEDY join.
On certification to it by a lower state court, the Florida Supreme Court addressed the following
question: “Whether surveillance of the interior of a partially covered greenhouse in a residential
backyard from the vantage point of a helicopter located 400 feet above the greenhouse
constitutes a ‘search’ for which a warrant is required under the Fourth Amendment.” The court
answered the question in the affirmative, and we granted the State’s petition for certiorari
challenging that conclusion.
Respondent Riley lived in a mobile home located on five acres of rural property. A greenhouse
was located 10 to 20 feet behind the mobile home. Two sides of the greenhouse were enclosed.
The other two sides were not enclosed but the contents of the greenhouse were obscured from
view from surrounding property by trees, shrubs, and the mobile home. The greenhouse was
covered by corrugated roofing panels, some translucent and some opaque. At the time relevant
to this case, two of the panels, amounting to approximately 10% of the roof area, were missing.
A wire fence surrounded the mobile home and the greenhouse, and the property was posted with
a “DO NOT ENTER” sign.
This case originated with an anonymous tip to the Pasco County Sheriff’s office that marijuana
was being grown on respondent’s property. When an investigating officer discovered that he
could not see the contents of the greenhouse from the road, he circled twice over respondent’s
property in a helicopter at the height of 400 feet. With his naked eye, he was able to see through
the openings in the roof and one or more of the open sides of the greenhouse and to identify what
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he thought was marijuana growing in the structure. A warrant was obtained based on these
observations, and the ensuing search revealed marijuana growing in the greenhouse.
Respondent was charged with possession of marijuana under Florida law. The trial court granted
his motion to suppress; the Florida Court of Appeals reversed but certified the case to the Florida
Supreme Court, which quashed the decision of the Court of Appeals and reinstated the trial
court’s suppression order.
We agree with the State’s submission that our decision in California v. Ciraolo controls this case.
In this case, as in Ciraolo, the property surveyed was within the curtilage of respondent’s home.
Riley no doubt intended and expected that his greenhouse would not be open to public
inspection, and the precautions he took protected against ground-level observation. Because the
sides and roof of his greenhouse were left partially open, however, what was growing in the
greenhouse was subject to viewing from the air. Under the holding in Ciraolo, Riley could not
reasonably have expected the contents of his greenhouse to be immune from examination by an
officer seated in a fixed-wing aircraft flying in navigable airspace at an altitude of 1,000 feet or,
as the Florida Supreme Court seemed to recognize, at an altitude of 500 feet, the lower limit of
the navigable airspace for such an aircraft. Here, the inspection was made from a helicopter, but
as is the case with fixed-wing planes, “private and commercial flight [by helicopter] in the public
airways is routine” in this country, and there is no indication that such flights are unheard of in
Pasco County, Florida. Riley could not reasonably have expected that his greenhouse was
protected from public or official observation from a helicopter had it been flying within the
navigable airspace for fixed-wing aircraft.
Nor on the facts before us, does it make a difference for Fourth Amendment purposes that the
helicopter was flying at 400 feet when the officer saw what was growing in the greenhouse
through the partially open roof and sides of the structure. We would have a different case if flying
at that altitude had been contrary to law or regulation. But helicopters are not bound by the lower
limits of the navigable airspace allowed to other aircraft. Any member of the public could legally
have been flying over Riley’s property in a helicopter at the altitude of 400 feet and could have
observed Riley’s greenhouse. The police officer did no more. This is not to say that an inspection
of the curtilage of a house from an aircraft will always pass muster under the Fourth Amendment
simply because the plane is within the navigable airspace specified by law. But it is of obvious
importance that the helicopter in this case was not violating the law, and there is nothing in the
record or before us to suggest that helicopters flying at 400 feet are sufficiently rare in this
country to lend substance to respondent’s claim that he reasonably anticipated that his
greenhouse would not be subject to observation from that altitude. Neither is there any
intimation here that the helicopter interfered with respondent’s normal use of the greenhouse
or of other parts of the curtilage. As far as this record reveals, no intimate details connected with
the use of the home or curtilage were observed, and there was no undue noise, and no wind, dust,
or threat of injury. In these circumstances, there was no violation of the Fourth Amendment.
Justice O’CONNOR, concurring in the judgment.
I concur in the judgment reversing the Supreme Court of Florida because I agree that police
observation of the greenhouse in Riley’s curtilage from a helicopter passing at an altitude of 400
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feet did not violate an expectation of privacy “that society is prepared to recognize as
‘reasonable.’” I write separately, however, to clarify the standard I believe follows from
California v. Ciraolo. In my view, the plurality’s approach rests the scope of Fourth Amendment
protection too heavily on compliance with FAA regulations whose purpose is to promote air
safety, not to protect “[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.”
Ciraolo’s expectation of privacy was unreasonable not because the airplane was operating where
it had a “right to be,” but because public air travel at 1,000 feet is a sufficiently routine part of
modern life that it is unreasonable for persons on the ground to expect that their curtilage will
not be observed from the air at that altitude. Although “helicopters are not bound by the lower
limits of the navigable airspace allowed to other aircraft,” there is no reason to assume that
compliance with FAA regulations alone determines “‘whether the government’s intrusion
infringes upon the personal and societal values protected by the Fourth Amendment.’” Because
the FAA has decided that helicopters can lawfully operate at virtually any altitude so long as they
pose no safety hazard, it does not follow that the expectations of privacy “society is prepared to
recognize as ‘reasonable’” simply mirror the FAA’s safety concerns.
In determining whether Riley had a reasonable expectation of privacy from aerial observation,
the relevant inquiry after Ciraolo is not whether the helicopter was where it had a right to be
under FAA regulations. Rather, consistent with Katz, we must ask whether the helicopter was in
the public airways at an altitude at which members of the public travel with sufficient regularity
that Riley’s expectation of privacy from aerial observation was not “one that society is prepared
to recognize as ‘reasonable.’” Thus, in determining “‘whether the government’s intrusion
infringes upon the personal and societal values protected by the Fourth Amendment,’” it is not
conclusive to observe, as the plurality does, that “[a]ny member of the public could legally have
been flying over Riley’s property in a helicopter at the altitude of 400 feet and could have
observed Riley’s greenhouse.” Nor is it conclusive that police helicopters may often fly at 400
feet. If the public rarely, if ever, travels overhead at such altitudes, the observation cannot be
said to be from a vantage point generally used by the public and Riley cannot be said to have
“knowingly expose[d]” his greenhouse to public view. However, if the public can generally be
expected to travel over residential backyards at an altitude of 400 feet, Riley cannot reasonably
expect his curtilage to be free from such aerial observation.
Because there is reason to believe that there is considerable public use of airspace at altitudes of
400 feet and above, and because Riley introduced no evidence to the contrary before the Florida
courts, I conclude that Riley’s expectation that his curtilage was protected from naked-eye aerial
observation from that altitude was not a reasonable one. However, public use of altitudes lower
than that—particularly public observations from helicopters circling over the curtilage of a
home—may be sufficiently rare that police surveillance from such altitudes would violate
reasonable expectations of privacy, despite compliance with FAA air safety regulations.
Justice BRENNAN, with whom Justice MARSHALL and Justice STEVENS, join, dissenting.
The Court holds today that police officers need not obtain a warrant based on probable cause
before circling in a helicopter 400 feet above a home in order to investigate what is taking place
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behind the walls of the curtilage. I cannot agree that the Fourth Amendment to the Constitution
tolerates such an intrusion on privacy and personal security.
The opinion for a plurality of the Court reads almost as if Katz v. United States had never been
decided. Notwithstanding the disclaimers of its final paragraph, the opinion relies almost
exclusively on the fact that the police officer conducted his surveillance from a vantage point
where, under applicable Federal Aviation Administration regulations, he had a legal right to be.
The plurality undertakes no inquiry into whether low-level helicopter surveillance by the police
of activities in an enclosed backyard is consistent with the “aims of a free and open society.”
Instead, it summarily concludes that Riley’s expectation of privacy was unreasonable because
“[a]ny member of the public could legally have been flying over Riley’s property in a helicopter
at the altitude of 400 feet and could have observed Riley’s greenhouse.” This observation is, in
turn, based solely on the fact that the police helicopter was within the airspace within which such
craft are allowed by federal safety regulations to fly. It is a curious notion that the reach of the
Fourth Amendment can be so largely defined by administrative regulations issued for purposes
of flight safety.1
The question before us must be not whether the police were where they had a right to be, but
whether public observation of Riley’s curtilage was so commonplace that Riley’s expectation of
privacy in his backyard could not be considered reasonable. To say that an invasion of Riley’s
privacy from the skies was not impossible is most emphatically not the same as saying that his
expectation of privacy within his enclosed curtilage was not “one that society is prepared to
recognize as ‘reasonable.’”
Perhaps the most remarkable passage in the plurality opinion is its suggestion that the case
might be a different one had any “intimate details connected with the use of the home or curtilage
[been] observed.” What, one wonders, is meant by “intimate details”? If the police had observed
Riley embracing his wife in the backyard greenhouse, would we then say that his reasonable
expectation of privacy had been infringed? Where in the Fourth Amendment or in our cases is
there any warrant for imposing a requirement that the activity observed must be “intimate” in
order to be protected by the Constitution?
It is difficult to avoid the conclusion that the plurality has allowed its analysis of Riley’s
expectation of privacy to be colored by its distaste for the activity in which he was engaged. It is
indeed easy to forget, especially in view of current concern over drug trafficking, that the scope
of the Fourth Amendment’s protection does not turn on whether the activity disclosed by a
search is illegal or innocuous. But we dismiss this as a “drug case” only at the peril of our own
liberties. Justice Frankfurter once noted that “[i]t is a fair summary of history to say that the
safeguards of liberty have frequently been forged in controversies involving not very nice
1 [Footnote 2 by the Court] The plurality’s use of the FAA regulations as a means for determining whether Riley

enjoyed a reasonable expectation of privacy produces an incredible result. Fixed-wing aircraft may not be operated
below 500 feet (1,000 feet over congested areas), while helicopters may be operated below those levels. Therefore,
whether Riley’s expectation of privacy is reasonable turns on whether the police officer at 400 feet above his
curtilage is seated in an airplane or a helicopter. This cannot be the law.
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people,” United States v. Rabinowitz, 339 U.S. 56 (1950) (dissenting opinion), and nowhere is
this observation more apt than in the area of the Fourth Amendment, whose words have
necessarily been given meaning largely through decisions suppressing evidence of criminal
activity. The principle enunciated in this case determines what limits the Fourth Amendment
imposes on aerial surveillance of any person, for any reason. If the Constitution does not protect
Riley’s marijuana garden against such surveillance, it is hard to see how it will prohibit the
government from aerial spying on the activities of a law-abiding citizen on her fully enclosed
outdoor patio. As Professor Amsterdam has eloquently written: “The question is not whether
you or I must draw the blinds before we commit a crime. It is whether you and I must discipline
ourselves to draw the blinds every time we enter a room, under pain of surveillance if we do not.”
58 Minn. L. Rev. 349, 403.
The issue in this case is, ultimately, “how tightly the Fourth Amendment permits people to be
driven back into the recesses of their lives by the risk of surveillance.” The Court today approves
warrantless helicopter surveillance from an altitude of 400 feet. The Fourth Amendment
demands that we temper our efforts to apprehend criminals with a concern for the impact on
our fundamental liberties of the methods we use. I hope it will be a matter of concern to my
colleagues that the police surveillance methods they would sanction were among those described
40 years ago in George Orwell’s dread vision of life in the 1980’s:
“The black-mustachio’d face gazed down from every commanding corner. There was one on the
house front immediately opposite. BIG BROTHER IS WATCHING YOU, the caption said. ... In
the far distance a helicopter skimmed down between the roofs, hovered for an instant like a
bluebottle, and darted away again with a curving flight. It was the Police Patrol, snooping into
people’s windows.” Nineteen Eighty-Four (1949).
Who can read this passage without a shudder, and without the instinctive reaction that it depicts
life in some country other than ours? I respectfully dissent.
Notes, Comments, and Questions
Supreme Court precedent strongly suggests that as long as police pilots obey the law (such as
FAA regulations on minimum altitudes), the “reasonable expectation of privacy test” will not
prevent police from flying over a home. Justice O’Connor’s concurrence argues that legality is
not everything, and her vote was necessary to assemble a majority of votes to affirm the
conviction in Riley. Nonetheless, it is difficult to see how a lower court could hold that flights
similar to those in Ciraolo and Riley—which the Supreme Court deemed not to be “searches”—
have somehow violated the Fourth Amendment, at least under Katz. (Because Ciraolo and Riley
were decided before the Court reinvigorated trespass-based Fourth Amendment analysis in
Jones, new arguments may be available under that case’s reasoning.)
Diligent defense counsel may wish to examine whether state or local laws restrict overflights
more strictly than FAA regulations. Especially as remote-controlled helicopters (a.k.a. “drones”)
become widely available at low prices, police can easily fly camera-toting aircraft over the homes
of suspects. If a municipality prohibits such conduct by the general public, then perhaps police
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who violate local ordinances will also violate reasonable expectations of privacy.
What are the limits for observations from the air? Consider an officer who uses a drone equipped
with a video camera to monitor a suspect through his bedroom window. There is nothing to
suggest that drones flying in neighborhoods are sufficiently rare; a drone with streaming video
can be purchased for about $60 at Target. Search or no search? Why or why not? Does the
outcome change if there is a local ordinance limiting the public’s use of drones to public spaces?
Students interested in the law regulating drones (also known as “unmanned aircraft”) can find
information on the website of Jonathan Rupprecht, a Florida lawyer specializing in drones. He
has collected various sources of drone law, including federal statutes, federal regulations (issued
by several agencies, not solely by the Federal Aviation Administration), and state laws. As
Rupprecht observes, it remains undecided how much of state drone law will be preempted by
federal law.
Additionally, students can look at CALI’s lesson Drones: Unmanned Aircraft Systems, to learn
more about the legal aspects of drones in both military and civilian settings.

Chapter 4 – Page 101

THE FOURTH AMENDMENT
Chapter 5
What Is a Search?: Wrapping Up
For Chapter 3, we read Smith v. Maryland, in which the Court decided in 1979 that installation
and use of a “pen register” to learn what numbers a suspect called from his home telephone was
not a Fourth Amendment “search.” Nearly 40 years later, the Court considered whether the
holding of Smith allowed the government to gather a suspect’s cell phone records to learn where
that suspect has been. The question sharply divided the Court. Chief Justice Roberts wrote for a
five-Justice majority. Each Justice who dissented wrote his own dissenting opinion. The dissents
and the majority opinion combined to fill 119 pages in the Court’s slip opinion.
Supreme Court of the United States
Timothy Carpenter v. United States
Decided June 22, 2018 – 138 S. Ct. 2206
Chief Justice ROBERTS delivered the opinion of the Court.
This case presents the question whether the Government conducts a search under the Fourth
Amendment when it accesses historical cell phone records that provide a comprehensive
chronicle of the user’s past movements.
I
A
There are 396 million cell phone service accounts in the United States—for a Nation of 326
million people. Cell phones perform their wide and growing variety of functions by connecting
to a set of radio antennas called “cell sites.” Although cell sites are usually mounted on a tower,
they can also be found on light posts, flagpoles, church steeples, or the sides of buildings. Cell
sites typically have several directional antennas that divide the covered area into sectors.
Cell phones continuously scan their environment looking for the best signal, which generally
comes from the closest cell site. Most modern devices, such as smartphones, tap into the wireless
network several times a minute whenever their signal is on, even if the owner is not using one of
the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped
record known as cell-site location information (CSLI). The precision of this information depends
on the size of the geographic area covered by the cell site. The greater the concentration of cell
sites, the smaller the coverage area. As data usage from cell phones has increased, wireless
carriers have installed more cell sites to handle the traffic. That has led to increasingly compact
coverage areas, especially in urban areas.
Wireless carriers collect and store CSLI for their own business purposes, including finding weak
spots in their network and applying “roaming” charges when another carrier routes data through
their cell sites. In addition, wireless carriers often sell aggregated location records to data
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brokers, without individual identifying information of the sort at issue here. While carriers have
long retained CSLI for the start and end of incoming calls, in recent years phone companies have
also collected location information from the transmission of text messages and routine data
connections. Accordingly, modern cell phones generate increasingly vast amounts of
increasingly precise CSLI.
B
In 2011, police officers arrested four men suspected of robbing a series of Radio Shack and
(ironically enough) T–Mobile stores in Detroit. One of the men confessed that, over the previous
four months, the group (along with a rotating cast of getaway drivers and lookouts) had robbed
nine different stores in Michigan and Ohio. The suspect identified 15 accomplices who had
participated in the heists and gave the FBI some of their cell phone numbers; the FBI then
reviewed his call records to identify additional numbers that he had called around the time of
the robberies.
Based on that information, the prosecutors applied for court orders under the Stored
Communications Act to obtain cell phone records for petitioner Timothy Carpenter and several
other suspects. That statute, as amended in 1994, permits the Government to compel the
disclosure of certain telecommunications records when it “offers specific and articulable facts
showing that there are reasonable grounds to believe” that the records sought “are relevant and
material to an ongoing criminal investigation.” Federal Magistrate Judges issued two orders
directing Carpenter’s wireless carriers—MetroPCS and Sprint—to disclose “cell/site sector
[information] for [Carpenter’s] telephone[ ] at call origination and at call termination for
incoming and outgoing calls” during the four-month period when the string of robberies
occurred. The first order sought 152 days of cell-site records from MetroPCS, which produced
records spanning 127 days. The second order requested seven days of CSLI from Sprint, which
produced two days of records covering the period when Carpenter’s phone was “roaming” in
northeastern Ohio. Altogether the Government obtained 12,898 location points cataloging
Carpenter’s movements—an average of 101 data points per day.
Carpenter was charged with six counts of robbery and an additional six counts of carrying a
firearm during a federal crime of violence. Prior to trial, Carpenter moved to suppress the cellsite data provided by the wireless carriers. He argued that the Government’s seizure of the
records violated the Fourth Amendment because they had been obtained without a warrant
supported by probable cause. The District Court denied the motion.
At trial, seven of Carpenter’s confederates pegged him as the leader of the operation. In addition,
FBI agent Christopher Hess offered expert testimony about the cell-site data. Hess explained
that each time a cell phone taps into the wireless network, the carrier logs a time-stamped record
of the cell site and particular sector that were used. With this information, Hess produced maps
that placed Carpenter’s phone near four of the charged robberies. In the Government’s view, the
location records clinched the case: They confirmed that Carpenter was “right where the ...
robbery was at the exact time of the robbery.” Carpenter was convicted on all but one of the
firearm counts and sentenced to more than 100 years in prison.

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The Court of Appeals for the Sixth Circuit affirmed. The court held that Carpenter lacked a
reasonable expectation of privacy in the location information collected by the FBI because he
had shared that information with his wireless carriers. Given that cell phone users voluntarily
convey cell-site data to their carriers as “a means of establishing communication,” the court
concluded that the resulting business records are not entitled to Fourth Amendment protection.
We granted certiorari.
II
A
The Founding generation crafted the Fourth Amendment as a “response to the reviled ‘general
warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage
through homes in an unrestrained search for evidence of criminal activity.” In fact, as John
Adams recalled, the patriot James Otis’s 1761 speech condemning writs of assistance was “the
first act of opposition to the arbitrary claims of Great Britain” and helped spark the Revolution
itself.
For much of our history, Fourth Amendment search doctrine was “tied to common-law trespass”
and focused on whether the Government “obtains information by physically intruding on a
constitutionally protected area.” More recently, the Court has recognized that “property rights
are not the sole measure of Fourth Amendment violations.” In Katz v. United States, we
established that “the Fourth Amendment protects people, not places,” and expanded our
conception of the Amendment to protect certain expectations of privacy as well.
Although no single rubric definitively resolves which expectations of privacy are entitled to
protection, the analysis is informed by historical understandings “of what was deemed an
unreasonable search and seizure when [the Fourth Amendment] was adopted.” On this score,
our cases have recognized some basic guideposts. First, that the Amendment seeks to secure “the
privacies of life” against “arbitrary power.” Second, and relatedly, that a central aim of the
Framers was “to place obstacles in the way of a too permeating police surveillance.”
We have kept this attention to Founding-era understandings in mind when applying the Fourth
Amendment to innovations in surveillance tools. As technology has enhanced the Government’s
capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought
to “assure[ ] preservation of that degree of privacy against government that existed when the
Fourth Amendment was adopted.”
B
The case before us involves the Government’s acquisition of wireless carrier cell-site records
revealing the location of Carpenter’s cell phone whenever it made or received calls. This sort of
digital data—personal location information maintained by a third party—does not fit neatly
under existing precedents. Instead, requests for cell-site records lie at the intersection of two
lines of cases, both of which inform our understanding of the privacy interests at stake.
The first set of cases addresses a person’s expectation of privacy in his physical location and
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movements. The Court [has] concluded that “augment[ed]” visual surveillance [does] not
constitute a search because “[a] person traveling in an automobile on public thoroughfares has
no reasonable expectation of privacy in his movements from one place to another.” Since the
movements of the vehicle and its final destination [are] “voluntarily conveyed to anyone who
wanted to look,” [defendant] could not assert a privacy interest in the information obtained.
In a second set of decisions, the Court has drawn a line between what a person keeps to himself
and what he shares with others. We have previously held that “a person has no legitimate
expectation of privacy in information he voluntarily turns over to third parties.” That remains
true “even if the information is revealed on the assumption that it will be used only for a limited
purpose.” As a result, the Government is typically free to obtain such information from the
recipient without triggering Fourth Amendment protections.
III
The question we confront today is how to apply the Fourth Amendment to a new phenomenon:
the ability to chronicle a person’s past movements through the record of his cell phone signals.
Such tracking partakes of many of the qualities of the GPS monitoring we considered in Jones.
Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic,
and effortlessly compiled.
At the same time, the fact that the individual continuously reveals his location to his wireless
carrier implicates the third-party principle. But while the third-party doctrine applies to
telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively
different category of cell-site records. After all, when Smith was decided in 1979, few could have
imagined a society in which a phone goes wherever its owner goes, conveying to the wireless
carrier not just dialed digits, but a detailed and comprehensive record of the person’s
movements.
We decline to extend [the third-party principle] to cover these novel circumstances. Given the
unique nature of cell phone location records, the fact that the information is held by a third party
does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the
Government employs its own surveillance technology or leverages the technology of a wireless
carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of
his physical movements as captured through CSLI. The location information obtained from
Carpenter’s wireless carriers was the product of a search.
A
A person does not surrender all Fourth Amendment protection by venturing into the public
sphere. To the contrary, “what [one] seeks to preserve as private, even in an area accessible to
the public, may be constitutionally protected.” Prior to the digital age, law enforcement might
have pursued a suspect for a brief stretch, but doing so “for any extended period of time was
difficult and costly and therefore rarely undertaken.” For that reason, “society’s expectation has
been that law enforcement agents and others would not—and indeed, in the main, simply could
not—secretly monitor and catalogue every single movement of an individual’s car for a very long
period.”
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Allowing government access to cell-site records contravenes that expectation. Although such
records are generated for commercial purposes, that distinction does not negate Carpenter’s
anticipation of privacy in his physical location. Mapping a cell phone’s location over the course
of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS
information, the time-stamped data provides an intimate window into a person’s life, revealing
not only his particular movements, but through them his “familial, political, professional,
religious, and sexual associations.” These location records “hold for many Americans the
‘privacies of life.’” And like GPS monitoring, cell phone tracking is remarkably easy, cheap, and
efficient compared to traditional investigative tools. With just the click of a button, the
Government can access each carrier’s deep repository of historical location information at
practically no expense.
In fact, historical cell-site records present even greater privacy concerns than the GPS
monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car
in Jones, a cell phone—almost a “feature of human anatomy,”—tracks nearly exactly the
movements of its owner. While individuals regularly leave their vehicles, they compulsively carry
cell phones with them all the time. A cell phone faithfully follows its owner beyond public
thoroughfares and into private residences, doctor’s offices, political headquarters, and other
potentially revealing locales. Accordingly, when the Government tracks the location of a cell
phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s
user.
Moreover, the retrospective quality of the data here gives police access to a category of
information otherwise unknowable. In the past, attempts to reconstruct a person’s movements
were limited by a dearth of records and the frailties of recollection. With access to CSLI, the
Government can now travel back in time to retrace a person’s whereabouts, subject only to the
retention [policies] of the wireless carriers, which currently maintain records for up to five years.
Critically, because location information is continually logged for all of the 400 million devices in
the United States—not just those belonging to persons who might happen to come under
investigation—this newfound tracking capacity runs against everyone. Unlike with the GPS
device in Jones, police need not even know in advance whether they want to follow a particular
individual, or when.
Whoever the suspect turns out to be, he has effectively been tailed every moment of every day
for five years, and the police may—in the Government’s view—call upon the results of that
surveillance without regard to the constraints of the Fourth Amendment. Only the few without
cell phones could escape this tireless and absolute surveillance.
Accordingly, when the Government accessed CSLI from the wireless carriers, it invaded
Carpenter’s reasonable expectation of privacy in the whole of his physical movements.
B
The Government’s primary contention to the contrary is that the third-party doctrine governs
this case. In its view, cell-site records are fair game because they are “business records” created
and maintained by the wireless carriers. The Government recognizes that this case features new
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technology, but asserts that the legal question nonetheless turns on a garden-variety request for
information from a third-party witness.
The Government’s position fails to contend with the seismic shifts in digital technology that
made possible the tracking of not only Carpenter’s location but also everyone else’s, not for a
short period but for years and years. Sprint Corporation and its competitors are not your typical
witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert,
and their memory is nearly infallible. There is a world of difference between limited types of
personal information and the exhaustive chronicle of location information casually collected by
wireless carriers today. The Government thus is not asking for a straightforward application of
the third-party doctrine, but instead a significant extension of it to a distinct category of
information.
The third-party doctrine partly stems from the notion that an individual has a reduced
expectation of privacy in information knowingly shared with another. But the fact of “diminished
privacy interests does not mean that the Fourth Amendment falls out of the picture entirely.”
Neither does the second rationale underlying the third-party doctrine—voluntary exposure—
hold up when it comes to CSLI. Cell phone location information is not truly “shared” as one
normally understands the term. In the first place, cell phones and the services they provide are
“such a pervasive and insistent part of daily life” that carrying one is indispensable to
participation in modern society. Second, a cell phone logs a cell-site record by dint of its
operation, without any affirmative act on the part of the user beyond powering up. Virtually any
activity on the phone generates CSLI, including incoming calls, texts, or e-mails and countless
other data connections that a phone automatically makes when checking for news, weather, or
social media updates. Apart from disconnecting the phone from the network, there is no way to
avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user
voluntarily “assume[ ] the risk” of turning over a comprehensive dossier of his physical
movements.
Given the unique nature of cell phone location information, the fact that the Government
obtained the information from a third party does not overcome Carpenter’s claim to Fourth
Amendment protection. The Government’s acquisition of the cell-site records was a search
within the meaning of the Fourth Amendment.
Our decision today is a narrow one. We do not express a view on matters not before us: real-time
CSLI or “tower dumps” (a download of information on all the devices that connected to a
particular cell site during a particular interval). We do not call into question conventional
surveillance techniques and tools, such as security cameras. Nor do we address other business
records that might incidentally reveal location information. Further, our opinion does not
consider other collection techniques involving foreign affairs or national security. As Justice
Frankfurter noted when considering new innovations in airplanes and radios, the Court must
tread carefully in such cases, to ensure that we do not “embarrass the future.”
We decline to grant the state unrestricted access to a wireless carrier’s database of physical
location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and
comprehensive reach, and the inescapable and automatic nature of its collection, the fact that
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such information is gathered by a third party does not make it any less deserving of Fourth
Amendment protection. The Government’s acquisition of the cell-site records here was a search
under that Amendment.
The judgment of the Court of Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
Justice KENNEDY, with whom Justice THOMAS and Justice ALITO join, dissenting.
This case involves new technology, but the Court’s stark departure from relevant Fourth
Amendment precedents and principles is, in my submission, unnecessary and incorrect,
requiring this respectful dissent.
The new rule the Court seems to formulate puts needed, reasonable, accepted, lawful, and
congressionally authorized criminal investigations at serious risk in serious cases, often when
law enforcement seeks to prevent the threat of violent crimes. And it places undue restrictions
on the lawful and necessary enforcement powers exercised not only by the Federal Government,
but also by law enforcement in every State and locality throughout the Nation. Adherence to this
Court’s longstanding precedents and analytic framework would have been the proper and
prudent way to resolve this case.
The Court has twice held that individuals have no Fourth Amendment interests in business
records which are possessed, owned, and controlled by a third party. This is true even when the
records contain personal and sensitive information. So when the Government uses a subpoena
to obtain, for example, bank records, telephone records, and credit card statements from the
businesses that create and keep these records, the Government does not engage in a search of
the business’s customers within the meaning of the Fourth Amendment.
In this case petitioner challenges the Government’s right to use compulsory process to obtain a
now-common kind of business record: cell-site records held by cell phone service providers. The
Government acquired the records through an investigative process enacted by Congress. Upon
approval by a neutral magistrate, and based on the Government’s duty to show reasonable
necessity, it authorizes the disclosure of records and information that are under the control and
ownership of the cell phone service provider, not its customer.
Cell-site records are no different from the many other kinds of business records the Government
has a lawful right to obtain by compulsory process. Customers like petitioner do not own,
possess, control, or use the records, and for that reason have no reasonable expectation that they
cannot be disclosed pursuant to lawful compulsory process.
In concluding that the Government engaged in a search, the Court unhinges Fourth Amendment
doctrine from the property-based concepts that have long grounded the analytic framework that
pertains in these cases. In doing so it draws an unprincipled and unworkable line between cellsite records on the one hand and financial and telephonic records on the other. According to
today’s majority opinion, the Government can acquire a record of every credit card purchase and
phone call a person makes over months or years without upsetting a legitimate expectation of
privacy. But, in the Court’s view, the Government crosses a constitutional line when it obtains a
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court’s approval to issue a subpoena for more than six days of cell-site records in order to
determine whether a person was within several hundred city blocks of a crime scene. That
distinction is illogical and will frustrate principled application of the Fourth Amendment in
many routine yet vital law enforcement operations.
Justice THOMAS, dissenting.
[Justice Thomas raised two primary arguments in his dissent. First, he noted that the “property”
at issue belonged to MetroPCS and Sprint, and that Carpenter accordingly had no ground upon
which to object to a search of the property. Second, he argued that the Court should reject
entirely the “reasonable expectation of privacy” test, which Justice Thomas wrote has served “to
distort Fourth Amendment jurisprudence.”]
Justice ALITO, with whom Justice THOMAS joins, dissenting.
I share the Court’s concern about the effect of new technology on personal privacy, but I fear that
today’s decision will do far more harm than good. The Court’s reasoning fractures two
fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of
litigation while threatening many legitimate and valuable investigative practices upon which law
enforcement has rightfully come to rely.
First, the Court ignores the basic distinction between an actual search (dispatching law
enforcement officers to enter private premises and root through private papers and effects) and
an order merely requiring a party to look through its own records and produce specified
documents. The former, which intrudes on personal privacy far more deeply, requires probable
cause; the latter does not. Treating an order to produce like an actual search, as today’s decision
does, is revolutionary. It violates both the original understanding of the Fourth Amendment and
more than a century of Supreme Court precedent. Unless it is somehow restricted to the
particular situation in the present case, the Court’s move will cause upheaval. Must every grand
jury subpoena duces tecum be supported by probable cause? If so, investigations of terrorism,
political corruption, white-collar crime, and many other offenses will be stymied. And what
about subpoenas and other document-production orders issued by administrative agencies?
Second, the Court allows a defendant to object to the search of a third party’s property. This also
is revolutionary. The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects” (emphasis added), not the persons, houses, papers, and
effects of others. Until today, we have been careful to heed this fundamental feature of the
Amendment’s text.
By departing dramatically from these fundamental principles, the Court destabilizes longestablished Fourth Amendment doctrine. We will be making repairs—or picking up the pieces—
for a long time to come.
Although the majority professes a desire not to “‘embarrass the future,’” we can guess where
today’s decision will lead.

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One possibility is that the broad principles that the Court seems to embrace will be applied across
the board. All subpoenas duces tecum and all other orders compelling the production of
documents will require a demonstration of probable cause, and individuals will be able to claim
a protected Fourth Amendment interest in any sensitive personal information about them that
is collected and owned by third parties. Those would be revolutionary developments indeed.
The other possibility is that this Court will face the embarrassment of explaining in case after
case that the principles on which today’s decision rests are subject to all sorts of qualifications
and limitations that have not yet been discovered. If we take this latter course, we will inevitably
end up “mak[ing] a crazy quilt of the Fourth Amendment.”
The desire to make a statement about privacy in the digital age does not justify the consequences
that today’s decision is likely to produce.
Justice GORSUCH, dissenting.
[Justice Gorsuch echoed some of the arguments raised by Justice Thomas concerning the
wisdom of the “reasonable expectation of privacy” test. He then suggested that Carpenter might
have prevailed on a different theory, based on the trespass test reinvigorated by United States v.
Jones (2012) and Florida v. Jardines, 133 S. Ct. 1409 (2013) (part of the reading for our next
chapter). Under this theory, perhaps Carpenter had standing to object to a search of property
held by MetroPCS and Sprint. One often retains rights to property deposited with a third party;
recall the concept of a “bailment.” Because Justice Gorsuch “reluctantly” concluded that
Carpenter “forfeited perhaps his most promising line of argument” by not raising it, Justice
Gorsuch could not concur in the judgment (in favor of Carpenter) and instead dissented.]
Notes, Comments, and Questions
In Chapter 2, students were encouraged to consider how the doctrines set forth in Katz and Jones
would resolve the question presented in Carpenter. Now, having read Carpenter, students
should review their analysis. Did the Court reach the result you expected? If not, why do you
think the Court’s reasoning differed from yours?
As Justice Sotomayor noted in her concurrence in United States v. Jones (Chapter 2),
technological advances will demand continued attention from the Court. Students should also
consider when and how the legislative and executive branches of the federal government (as well
as the states) should regulate privacy related to smart phones and other technological marvels.
In many cities, drivers can use an app called “ParkMobile” to pay for parking, saving them the
trouble of finding change for parking meters. The app allows users to look up their parking
“history,” which is a list of times and places of prior transactions. Imagine that after a bank
robbery, police contact ParkMobile corporate headquarters and obtain a list of all users who
parked within a mile of the bank within an hour of the robbery. Search or no search? Why or why
not? Now, imagine instead that police suspect a particular person of robbing the bank, and police
contact ParkMobile to obtain that single person’s parking history for the day of the robbery.
Search or no search? Why or why not?
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Consider this commentary by Evan Caminker, a professor at and former dean of the University
of Michigan Law School. Caminker briefed and argued Carpenter on behalf of the United States
when the case was at the Sixth Circuit; he was on academic leave and was working with the
federal prosecutors in Michigan. After Caminker was back in academia—and the Supreme Court
had decided the case—he published these reflections:
How should courts square Katz in the future? The Court in Carpenter said there
are two separate rationales underlying the third-party doctrine—lack of special
sensitivity and voluntary exposure—and that CSLI triggers neither. As with its
involuntary arguments, however, the Court does not explain how the two
rationales relate as part of the overall doctrine.
The Court might mean that the third-party doctrine applies when either of the two
rationales is present. In other words, if highly sensitive information was
voluntarily conveyed (think Fitbit health data), or if nonsensitive information was
involuntarily shared (perhaps computer internet protocol addresses?), then
the privacy interest dissipates. This reading fits with the Court's decision to
address both variables, rather than to end its analysis after finding no voluntary
sharing.
Or, the Court might mean that privacy dissipates only if both rationales apply, and
the information is both voluntarily shared and nonsensitive. That seems perfectly
logical too, though it seems less likely because it would mean that the third-party
doctrine can never apply to sensitive information, no matter how clearly it was
voluntarily shared (think of Carpenter posting his own location history on
Facebook, or celebrities publishing tell-all memoirs).
And then there is a third possibility, raised and criticized by the dissents: an openended multifactor test. Justice Gorsuch, for example, lamented a “second Katz-like
balancing inquiry, asking whether the fact of disclosure ... outweighs privacy interests
in the ‘category of information’ so disclosed.” Justice Kennedy also viewed the
Court as announcing a balancing test that encompassed both privacy interests and
CSLI tracking properties by “considering intimacy, comprehensiveness, expense,
retrospectivity, and voluntariness.” Of course, the Court often articulates doctrine
through multifactor tests, but Justice Kennedy feared that this one would
particularly put “the law on a new and unstable foundation” as lower courts would
be left to figure out for themselves how the doctrinal variables relate when they
address other surveillance technologies and types of digital data.
Evan Caminker, Location Tracking and Digital Data: Can Carpenter Build A Stable Privacy
Doctrine?, 2018 S. Ct. Rev. 411, 450–51 (2018).
Less than two years after Carpenter was decided, reporters revealed that federal agents had
“bought access to a commercial database that maps the movements of millions of cellphones in
America” and were “using it for immigration and border enforcement.” See Bryan Tau & Michelle
Hackman, Federal Agencies Use Cellphone Location Data for Immigration Enforcement, Wall
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St. J. (Feb. 7, 2020). Asked about whether Fourth Amendment law might regulate this tactic, a
former Homeland Security official said, “In this case, the government is a commercial purchaser
like anybody else. Carpenter is not relevant.” He added, “The government is just buying a
widget.”
*

*

*

In our remaining material for this chapter, we will see how the Court has applied its Fourth
Amendment principles to a more old-fashioned investigatory tool: the use of dogs by police.
Depending on the context—a dog sniffing bags at an airport, a dog sniffing a car during a traffic
stop, a dog sniffing someone’s porch—the Court has reached different conclusions on whether
using a dog is a “search.”
Supreme Court of the United States
United States v. Raymond J. Place
Decided June 20, 1983 – 462 U.S. 696
Justice O’CONNOR delivered the opinion of the Court.
Respondent Raymond J. Place’s behavior aroused the suspicions of law enforcement officers as
he waited in line at the Miami International Airport to purchase a ticket to New York’s LaGuardia
Airport. As Place proceeded to the gate for his flight, the agents approached him and requested
his airline ticket and some identification. Place complied with the request and consented to a
search of the two suitcases he had checked. Because his flight was about to depart, however, the
agents decided not to search the luggage.
Prompted by Place’s parting remark that he had recognized that they were police, the agents
inspected the address tags on the checked luggage and noted discrepancies in the two street
addresses. Further investigation revealed that neither address existed and that the telephone
number Place had given the airline belonged to a third address on the same street. On the basis
of their encounter with Place and this information, the Miami agents called Drug Enforcement
Administration (DEA) authorities in New York to relay their information about Place.
Two DEA agents waited for Place at the arrival gate at LaGuardia Airport in New York. There
again, his behavior aroused the suspicion of the agents. After he had claimed his two bags and
called a limousine, the agents decided to approach him. They identified themselves as federal
narcotics agents, to which Place responded that he knew they were “cops” and had spotted them
as soon as he had deplaned. One of the agents informed Place that, based on their own
observations and information obtained from the Miami authorities, they believed that he might
be carrying narcotics. After identifying the bags as belonging to him, Place stated that a number
of police at the Miami Airport had surrounded him and searched his baggage. The agents
responded that their information was to the contrary. The agents requested and received
identification from Place—a New Jersey driver’s license, on which the agents later ran a
computer check that disclosed no offenses, and his airline ticket receipt. When Place refused to
consent to a search of his luggage, one of the agents told him that they were going to take the
luggage to a federal judge to try to obtain a search warrant and that Place was free to accompany
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them. Place declined, but obtained from one of the agents telephone numbers at which the agents
could be reached.
The agents then took the bags to Kennedy Airport, where they subjected the bags to a “sniff test”
by a trained narcotics detection dog. The dog reacted positively to the smaller of the two bags
but ambiguously to the larger bag. Because it was late on a Friday afternoon, the agents retained
the luggage until Monday morning, when they secured a search warrant from a magistrate for
the smaller bag. Upon opening that bag, the agents discovered 1,125 grams of cocaine.
Place was indicted for possession of cocaine with intent to distribute. In the District Court, Place
moved to suppress the contents of the luggage seized from him at LaGuardia Airport, claiming
that the warrantless seizure of the luggage violated his Fourth Amendment rights. The District
Court denied the motion.
On appeal of the conviction, the United States Court of Appeals for the Second Circuit reversed.
We granted certiorari and now affirm.
The purpose for which respondent’s luggage was seized was to arrange its exposure to a narcotics
detection dog. Obviously, if this investigative procedure is itself a search requiring probable
cause, the initial seizure of respondent’s luggage for the purpose of subjecting it to the sniff test—
no matter how brief—could not be justified on less than probable cause.
The Fourth Amendment “protects people from unreasonable government intrusions into their
legitimate expectations of privacy.” We have affirmed that a person possesses a privacy interest
in the contents of personal luggage that is protected by the Fourth Amendment. A “canine sniff”
by a well-trained narcotics detection dog, however, does not require opening the luggage. It does
not expose noncontraband items that otherwise would remain hidden from public view, as does,
for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in
which information is obtained through this investigative technique is much less intrusive than a
typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a
contraband item. Thus, despite the fact that the sniff tells the authorities something about the
contents of the luggage, the information obtained is limited. This limited disclosure also ensures
that the owner of the property is not subjected to the embarrassment and inconvenience entailed
in less discriminate and more intrusive investigative methods.
In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure
that is so limited both in the manner in which the information is obtained and in the content of
the information revealed by the procedure. Therefore, we conclude that the particular course of
investigation that the agents intended to pursue here—exposure of respondent’s luggage, which
was located in a public place, to a trained canine—did not constitute a “search” within the
meaning of the Fourth Amendment.
[Although the Court found that the dog sniff was not a “search,” Place prevailed because the
Court held that police committed an unlawful seizure of Place’s property by detaining his luggage
for 90 minutes and not informing him of their plans for the luggage. The concurring opinion
below disagrees with the majority’s conclusion about the dog sniff.]
Chapter 5 — Page 113

Justice BRENNAN, with whom Justice MARSHALL joins, concurring in the result.
The Court suggests today that exposure of respondent’s luggage to a narcotics detection dog “did
not constitute a ‘search’ within the meaning of the Fourth Amendment.”
[T]he issue is more complex than the Court’s discussion would lead one to believe. As Justice
STEVENS suggested in objecting to “unnecessarily broad dicta” in United States v. Knotts, the
use of electronic detection techniques that enhance human perception implicates “especially
sensitive concerns.” Obviously, a narcotics detection dog is not an electronic detection device.
Unlike the electronic “beeper” in Knotts, however, a dog does more than merely allow the police
to do more efficiently what they could do using only their own senses. A dog adds a new and
previously unobtainable dimension to human perception. The use of dogs, therefore, represents
a greater intrusion into an individual’s privacy. Such use implicates concerns that are at least as
sensitive as those implicated by the use of certain electronic detection devices.
I have expressed the view that dog sniffs of people constitute searches. In any event, I would
leave the determination of whether dog sniffs of luggage amount to searches, and the subsidiary
question of what standards should govern such intrusions, to a future case providing an
appropriate, and more informed, basis for deciding these questions.
*

*

*

In Place, the Court focused on the use of dogs in an airport, which is a public place that persons
visit by choice. In the next case, the Court turned its attention to the use of dogs during traffic
stops, in which motorists are detained involuntarily.
Supreme Court of the United States
Illinois v. Roy I. Caballes
Decided Jan. 24, 2005 – 543 U.S. 405
Justice STEVENS delivered the opinion of the Court.
Illinois State Trooper Daniel Gillette stopped respondent for speeding on an interstate highway.
When Gillette radioed the police dispatcher to report the stop, a second trooper, Craig Graham,
a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and
immediately headed for the scene with his narcotics-detection dog. When they arrived,
respondent’s car was on the shoulder of the road and respondent was in Gillette’s vehicle. While
Gillette was in the process of writing a warning ticket, Graham walked his dog around
respondent’s car. The dog alerted at the trunk. Based on that alert, the officers searched the
trunk, found marijuana, and arrested respondent. The entire incident lasted less than 10
minutes.
Respondent was convicted of a narcotics offense and sentenced to 12 years’ imprisonment and a
$256,136 fine. The trial judge denied his motion to suppress the seized evidence and to quash
his arrest. He held that the officers had not unnecessarily prolonged the stop and that the dog
alert was sufficiently reliable to provide probable cause to conduct the search. Although the
Appellate Court affirmed, the Illinois Supreme Court reversed, concluding that because the
Chapter 5 — Page 114

canine sniff was performed without any “‘specific and articulable facts’” to suggest drug activity,
the use of the dog “unjustifiably enlarg[ed] the scope of a routine traffic stop into a drug
investigation.”
The question on which we granted certiorari is narrow: “Whether the Fourth Amendment
requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle
during a legitimate traffic stop.” Thus, we proceed on the assumption that the officer conducting
the dog sniff had no information about respondent except that he had been stopped for speeding;
accordingly, we have omitted any reference to facts about respondent that might have triggered
a modicum of suspicion.
[T]he Illinois Supreme Court held that the initially lawful traffic stop became an unlawful seizure
solely as a result of the canine sniff that occurred outside respondent’s stopped car. That is, the
court characterized the dog sniff as the cause rather than the consequence of a constitutional
violation. In its view, the use of the dog converted the citizen-police encounter from a lawful
traffic stop into a drug investigation, and because the shift in purpose was not supported by any
reasonable suspicion that respondent possessed narcotics, it was unlawful. In our view,
conducting a dog sniff would not change the character of a traffic stop that is lawful at its
inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed
respondent’s constitutionally protected interest in privacy. Our cases hold that it did not.
Official conduct that does not “compromise any legitimate interest in privacy” is not a search
subject to the Fourth Amendment. We have held that any interest in possessing contraband
cannot be deemed “legitimate,” and thus, governmental conduct that only reveals the possession
of contraband “compromises no legitimate privacy interest.” This is because the expectation
“that certain facts will not come to the attention of the authorities” is not the same as an interest
in “privacy that society is prepared to consider reasonable.” Respondent concedes that “drug
sniffs are designed, and if properly conducted are generally likely, to reveal only the presence of
contraband.” Although respondent argues that the error rates, particularly the existence of false
positives, call into question the premise that drug-detection dogs alert only to contraband, the
record contains no evidence or findings that support his argument. Moreover, respondent does
not suggest that an erroneous alert, in and of itself, reveals any legitimate private information,
and, in this case, the trial judge found that the dog sniff was sufficiently reliable to establish
probable cause to conduct a full-blown search of the trunk.
Accordingly, the use of a well-trained narcotics-detection dog—one that “does not expose
noncontraband items that otherwise would remain hidden from public view,” during a lawful
traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff
was performed on the exterior of respondent’s car while he was lawfully seized for a traffic
violation. Any intrusion on respondent’s privacy expectations does not rise to the level of a
constitutionally cognizable infringement.
This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging
device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v.
United States, 533 U.S. 27 (2001). Critical to that decision was the fact that the device was
capable of detecting lawful activity—in that case, intimate details in a home, such as “at what
hour each night the lady of the house takes her daily sauna and bath.” The legitimate expectation
Chapter 5 — Page 115

that information about perfectly lawful activity will remain private is categorically
distinguishable from respondent’s hopes or expectations concerning the nondetection of
contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop
that reveals no information other than the location of a substance that no individual has any
right to possess does not violate the Fourth Amendment.
The judgment of the Illinois Supreme Court is vacated, and the case is remanded for further
proceedings not inconsistent with this opinion.
Justice SOUTER, dissenting.
I would hold that using the dog for the purposes of determining the presence of marijuana in the
car’s trunk was a search unauthorized as an incident of the speeding stop and unjustified on any
other ground. I would accordingly affirm the judgment of the Supreme Court of Illinois, and I
respectfully dissent.
At the heart both of Place and the Court’s opinion today is the proposition that sniffs by a trained
dog are sui generis because a reaction by the dog in going alert is a response to nothing but the
presence of contraband. Hence, the argument goes, because the sniff can only reveal the presence
of items devoid of any legal use, the sniff “does not implicate legitimate privacy interests” and is
not to be treated as a search.
The infallible dog, however, is a creature of legal fiction. Although the Supreme Court of Illinois
did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial
opinions describing well-trained animals sniffing and alerting with less than perfect accuracy,
whether owing to errors by their handlers, the limitations of the dogs themselves, or even the
pervasive contamination of currency by cocaine. Indeed, a study cited by Illinois in this case for
the proposition that dog sniffs are “generally reliable” shows that dogs in artificial testing
situations return false positives anywhere from 12.5% to 60% of the time, depending on the
length of the search. In practical terms, the evidence is clear that the dog that alerts hundreds of
times will be wrong dozens of times.
Once the dog’s fallibility is recognized, however, that ends the justification claimed in Place for
treating the sniff as sui generis under the Fourth Amendment: the sniff alert does not necessarily
signal hidden contraband, and opening the container or enclosed space whose emanations the
dog has sensed will not necessarily reveal contraband or any other evidence of crime. This is not,
of course, to deny that a dog’s reaction may provide reasonable suspicion, or probable cause, to
search the container or enclosure; the Fourth Amendment does not demand certainty of success
to justify a search for evidence or contraband. The point is simply that the sniff and alert cannot
claim the certainty that Place assumed, both in treating the deliberate use of sniffing dogs as sui
generis and then taking that characterization as a reason to say they are not searches subject to
Fourth Amendment scrutiny. And when that aura of uniqueness disappears, there is no basis in
Place’s reasoning, and no good reason otherwise, to ignore the actual function that dog sniffs
perform. They are conducted to obtain information about the contents of private spaces beyond
anything that human senses could perceive, even when conventionally enhanced. The
information is not provided by independent third parties beyond the reach of constitutional
limitations, but gathered by the government’s own officers in order to justify searches of the
Chapter 5 — Page 116

traditional sort, which may or may not reveal evidence of crime but will disclose anything meant
to be kept private in the area searched. Thus in practice the government’s use of a trained
narcotics dog functions as a limited search to reveal undisclosed facts about private enclosures,
to be used to justify a further and complete search of the enclosed area. And given the fallibility
of the dog, the sniff is the first step in a process that may disclose “intimate details” without
revealing contraband, just as a thermal-imaging device might do, as described in Kyllo v. United
States.
It makes sense, then, to treat a sniff as the search that it amounts to in practice, and to rely on
the body of our Fourth Amendment cases, including Kyllo, in deciding whether such a search is
reasonable. As a general proposition, using a dog to sniff for drugs is subject to the rule that the
object of enforcing criminal laws does not, without more, justify suspicionless Fourth
Amendment intrusions. Since the police claim to have had no particular suspicion that Caballes
was violating any drug law, this sniff search must stand or fall on its being ancillary to the traffic
stop that led up to it.
For the sake of providing a workable framework to analyze cases on facts like these, which are
certain to come along, I would treat the dog sniff as the familiar search it is in fact, subject to
scrutiny under the Fourth Amendment.1
Justice GINSBURG, with whom Justice SOUTER joins, dissenting.
The Court has never removed police action from Fourth Amendment control on the ground that
the action is well calculated to apprehend the guilty. Under today’s decision, every traffic stop
could become an occasion to call in the dogs, to the distress and embarrassment of the lawabiding population.
The Illinois Supreme Court, it seems to me, correctly apprehended the danger in allowing the
police to search for contraband despite the absence of cause to suspect its presence. Today’s
decision, in contrast, clears the way for suspicionless, dog-accompanied drug sweeps of parked
cars along sidewalks and in parking lots. Nor would motorists have constitutional grounds for
complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red
signal to turn green.
Today’s decision also undermines this Court’s situation-sensitive balancing of Fourth
Amendment interests in other contexts. For example, in Bond v. United States, 529 U.S. 334
(2000), the Court held that a bus passenger had an expectation of privacy in a bag placed in an
overhead bin and that a police officer’s physical manipulation of the bag constituted an illegal
search. If canine drug sniffs are entirely exempt from Fourth Amendment inspection, a sniff
could substitute for an officer’s request to a bus passenger for permission to search his bag, with
1 [Footnote 7 by the Court] I should take care myself to reserve judgment about a possible case significantly unlike

this one. All of us are concerned not to prejudge a claim of authority to detect explosives and dangerous chemical
or biological weapons that might be carried by a terrorist who prompts no individualized suspicion. Suffice it to say
here that what is a reasonable search depends in part on demonstrated risk. Unreasonable sniff searches for
marijuana are not necessarily unreasonable sniff searches for destructive or deadly material if suicide bombs are a
societal risk.
Chapter 5 — Page 117

this significant difference: The passenger would not have the option to say “No.”
The dog sniff in this case, it bears emphasis, was for drug detection only. A dog sniff for
explosives, involving security interests not presented here, would be an entirely different matter.
For the reasons stated, I would hold that the police violated Caballes’ Fourth Amendment rights
when, without cause to suspect wrongdoing, they conducted a dog sniff of his vehicle. I would
therefore affirm the judgment of the Illinois Supreme Court.
*

*

*

The previous two cases analyzed the use of dogs under the “reasonable expectation of privacy”
test derived from Katz. In the next case, which came one year after United States v. Jones, the
Court considered the use of dogs under the law of trespass.
Supreme Court of the United States
Florida v. Joelis Jardines
Decided March 26, 2013 – 569 U.S. 1
Justice SCALIA delivered the opinion of the Court.
We consider whether using a drug-sniffing dog on a homeowner’s porch to investigate the
contents of the home is a “search” within the meaning of the Fourth Amendment.
I
In 2006, Detective William Pedraja of the Miami-Dade Police Department received an unverified
tip that marijuana was being grown in the home of respondent Joelis Jardines. One month later,
the Department and the Drug Enforcement Administration sent a joint surveillance team to
Jardines’ home. Detective Pedraja was part of that team. He watched the home for fifteen
minutes and saw no vehicles in the driveway or activity around the home, and could not see
inside because the blinds were drawn. Detective Pedraja then approached Jardines’ home
accompanied by Detective Douglas Bartelt, a trained canine handler who had just arrived at the
scene with his drug-sniffing dog. The dog was trained to detect the scent of marijuana, cocaine,
heroin, and several other drugs, indicating the presence of any of these substances through
particular behavioral changes recognizable by his handler.
Detective Bartelt had the dog on a six-foot leash, owing in part to the dog’s “wild” nature and
tendency to dart around erratically while searching. As the dog approached Jardines’ front
porch, he apparently sensed one of the odors he had been trained to detect, and began
energetically exploring the area for the strongest point source of that odor. As Detective Bartelt
explained, the dog “began tracking that airborne odor by ... tracking back and forth,” engaging
in what is called “bracketing,” “back and forth, back and forth.” Detective Bartelt gave the dog
“the full six feet of the leash plus whatever safe distance [he could] give him” to do this—he
testified that he needed to give the dog “as much distance as I can.” And Detective Pedraja stood
back while this was occurring, so that he would not “get knocked over” when the dog was
“spinning around trying to find” the source.
Chapter 5 — Page 118

After sniffing the base of the front door, the dog sat, which is the trained behavior upon
discovering the odor’s strongest point. Detective Bartelt then pulled the dog away from the door
and returned to his vehicle. He left the scene after informing Detective Pedraja that there had
been a positive alert for narcotics.
On the basis of what he had learned at the home, Detective Pedraja applied for and received a
warrant to search the residence. When the warrant was executed later that day, Jardines
attempted to flee and was arrested; the search revealed marijuana plants, and he was charged
with trafficking in cannabis.
At trial, Jardines moved to suppress the marijuana plants on the ground that the canine
investigation was an unreasonable search. The trial court granted the motion, and the Florida
Third District Court of Appeal reversed. On a petition for discretionary review, the Florida
Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial
court’s decision to suppress, holding (as relevant here) that the use of the trained narcotics dog
to investigate Jardines’ home was a Fourth Amendment search unsupported by probable cause,
rendering invalid the warrant based upon information gathered in that search.
We granted certiorari, limited to the question of whether the officers’ behavior was a search
within the meaning of the Fourth Amendment.
II
[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s
“very core” stands “the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.” This right would be of little practical value if the State’s
agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the
right to retreat would be significantly diminished if the police could enter a man’s property to
observe his repose from just outside the front window.
We therefore regard the area “immediately surrounding and associated with the home”—what
our cases call the curtilage—as “part of the home itself for Fourth Amendment purposes.” Here
there is no doubt that the officers entered it: The front porch is the classic exemplar of an area
adjacent to the home and “to which the activity of home life extends.”
Since the officers’ investigation took place in a constitutionally protected area, we turn to the
question of whether it was accomplished through an unlicensed physical intrusion. While law
enforcement officers need not “shield their eyes” when passing by the home “on public
thoroughfares,” an officer’s leave to gather information is sharply circumscribed when he steps
off those thoroughfares and enters the Fourth Amendment’s protected areas. As it is undisputed
that the detectives had all four of their feet and all four of their companion’s firmly planted on
the constitutionally protected extension of Jardines’ home, the only question is whether he had
given his leave (even implicitly) for them to do so. He had not.
We have recognized that “the knocker on the front door is treated as an invitation or license to
attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.”
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This implicit license typically permits the visitor to approach the home by the front path, knock
promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.
Complying with the terms of that traditional invitation does not require fine-grained legal
knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-ortreaters. Thus, a police officer not armed with a warrant may approach a home and knock,
precisely because that is “no more than any private citizen might do.”
But introducing a trained police dog to explore the area around the home in hopes of discovering
incriminating evidence is something else. There is no customary invitation to do that. An
invitation to engage in canine forensic investigation assuredly does not inhere in the very act of
hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes
unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching
his bloodhound into the garden before saying hello and asking permission, would inspire most
of us to—well, call the police. The scope of a license—express or implied—is limited not only to a
particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out
an anonymous tip that there is a body in the trunk does not permit the officer to rummage
through the trunk for narcotics. Here, the background social norms that invite a visitor to the
front door do not invite him there to conduct a search.
The government’s use of trained police dogs to investigate the home and its immediate
surroundings is a “search” within the meaning of the Fourth Amendment. The judgment of the
Supreme Court of Florida is therefore affirmed.
Notes, Comments, and Questions
Does the outcome change if the dog is sniffing the door of an apartment instead of a home?
Consider a police officer who is investigating an individual for methamphetamine production.
The individual lives on the third floor of an apartment building. The police officer leads a dog to
the third-floor hallway; the dog sniffs several doors in the hallway without alerting. While
sniffing the suspect’s door, the dog alerts to the presence of drugs. Search or no search? Why or
why not? See State v. Edstrom, 916 N.W.2d 512, 515 (Minn. 2018), cert. denied, 139 S. Ct. 1262
(2019).
This chapter’s final dog case differs somewhat from the previous cases. Instead of considering
what activity by dogs counts as a “search,” the Court considers how well trained a police dog
must be for its “alert” to count toward the probable cause needed to justify a vehicle search. The
more reliable a dog is, the more reasonable it is for police to search an area to which the dog has
alerted. The less reliable the dog, the less reasonable police reliance becomes.

Chapter 5 — Page 120

Supreme Court of the United States
Florida v. Clayton Harris
Decided Feb. 19, 2013 – 568 U.S. 237
Justice KAGAN delivered the opinion of the [unanimous] Court.
In this case, we consider how a court should determine if the “alert” of a drug-detection dog
during a traffic stop provides probable cause to search a vehicle. The Florida Supreme Court held
that the State must in every case present an exhaustive set of records, including a log of the dog’s
performance in the field, to establish the dog’s reliability. We think that demand inconsistent
with the “flexible, common-sense standard” of probable cause.
I
William Wheetley is a K–9 Officer in the Liberty County, Florida Sheriff’s Office. On June 24,
2006, he was on a routine patrol with Aldo, a German shepherd trained to detect certain
narcotics (methamphetamine, marijuana, cocaine, heroin, and ecstasy). Wheetley pulled over
respondent Clayton Harris’s truck because it had an expired license plate. On approaching the
driver’s-side door, Wheetley saw that Harris was “visibly nervous,” unable to sit still, shaking,
and breathing rapidly. Wheetley also noticed an open can of beer in the truck’s cup holder.
Wheetley asked Harris for consent to search the truck, but Harris refused. At that point,
Wheetley retrieved Aldo from the patrol car and walked him around Harris’s truck for a “free air
sniff.” Aldo alerted at the driver’s-side door handle—signaling, through a distinctive set of
behaviors, that he smelled drugs there.
Wheetley concluded, based principally on Aldo’s alert, that he had probable cause to search the
truck. His search did not turn up any of the drugs Aldo was trained to detect. But it did reveal
200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two containers
of antifreeze, and a coffee filter full of iodine crystals—all ingredients for making
methamphetamine. Wheetley accordingly arrested Harris, who admitted after proper Miranda
warnings that he routinely “cooked” methamphetamine at his house and could not go “more than
a few days without using” it. The State charged Harris with possessing pseudoephedrine for use
in manufacturing methamphetamine.
While out on bail, Harris had another run-in with Wheetley and Aldo. This time, Wheetley pulled
Harris over for a broken brake light. Aldo again sniffed the truck’s exterior, and again alerted at
the driver’s-side door handle. Wheetley once more searched the truck, but on this occasion
discovered nothing of interest.
Harris moved to suppress the evidence found in his truck on the ground that Aldo’s alert had not
given Wheetley probable cause for a search. At the hearing on that motion, Wheetley testified
about both his and Aldo’s training in drug detection. Wheetley (and a different dog) completed
a 160-hour course in narcotics detection offered by the Dothan, Alabama Police Department,
while Aldo (and a different handler) completed a similar, 120-hour course given by the Apopka,
Florida Police Department. That same year, Aldo received a one-year certification from Drug
Beat, a private company that specializes in testing and certifying K-9 dogs. Wheetley and Aldo
Chapter 5 — Page 121

teamed up in 2005 and went through another, 40-hour refresher course in Dothan together.
They also did four hours of training exercises each week to maintain their skills. Wheetley would
hide drugs in certain vehicles or buildings while leaving others “blank” to determine whether
Aldo alerted at the right places. According to Wheetley, Aldo’s performance in those exercises
was “really good.” The State introduced “Monthly Canine Detection Training Logs” consistent
with that testimony: They showed that Aldo always found hidden drugs and that he performed
“satisfactorily” (the higher of two possible assessments) on each day of training.
On cross-examination, Harris’s attorney chose not to contest the quality of Aldo’s or Wheetley’s
training. She focused instead on Aldo’s certification and his performance in the field, particularly
the two stops of Harris’s truck. Wheetley conceded that the certification (which, he noted,
Florida law did not require) had expired the year before he pulled Harris over. Wheetley also
acknowledged that he did not keep complete records of Aldo’s performance in traffic stops or
other field work; instead, he maintained records only of alerts resulting in arrests. But Wheetley
defended Aldo’s two alerts to Harris’s seemingly narcotics-free truck: According to Wheetley,
Harris probably transferred the odor of methamphetamine to the door handle, and Aldo
responded to that “residual odor.”
The trial court concluded that Wheetley had probable cause to search Harris’s truck and so
denied the motion to suppress. Harris then entered a no-contest plea while reserving the right
to appeal the trial court’s ruling. An intermediate state court summarily affirmed.
The Florida Supreme Court reversed, holding that Wheetley lacked probable cause to search
Harris’s vehicle under the Fourth Amendment. “[W]hen a dog alerts,” the court wrote, “the fact
that the dog has been trained and certified is simply not enough to establish probable cause.” To
demonstrate a dog’s reliability, the State needed to produce a wider array of evidence:
“[T]he State must present ... the dog’s training and certification records, an explanation of the
meaning of the particular training and certification, field performance records (including any
unverified alerts), and evidence concerning the experience and training of the officer handling
the dog, as well as any other objective evidence known to the officer about the dog’s reliability.”
The court particularly stressed the need for “evidence of the dog’s performance history,”
including records showing “how often the dog has alerted in the field without illegal contraband
having been found.” That data, the court stated, could help to expose such problems as a
handler’s tendency (conscious or not) to “cue [a] dog to alert” and “a dog’s inability to distinguish
between residual odors and actual drugs.” Accordingly, an officer like Wheetley who did not keep
full records of his dog’s field performance could never have the requisite cause to think “that the
dog is a reliable indicator of drugs.”
We granted certiorari and now reverse.
II
A police officer has probable cause to conduct a search when “the facts available to [him] would
‘warrant a [person] of reasonable caution in the belief’” that contraband or evidence of a crime
is present. The test for probable cause is not reducible to “precise definition or quantification.”
Chapter 5 — Page 122

“Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the
evidence ... have no place in the [probable-cause] decision.” All we have required is the kind of
“fair probability” on which “reasonable and prudent [people,] not legal technicians, act.”
In evaluating whether the State has met this practical and common-sensical standard, we have
consistently looked to the totality of the circumstances. We have rejected rigid rules, bright-line
tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach.
Probable cause, is “a fluid concept—turning on the assessment of probabilities in particular
factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”
The Florida Supreme Court flouted this established approach to determining probable cause. To
assess the reliability of a drug-detection dog, the court created a strict evidentiary checklist,
whose every item the State must tick off. Most prominently, an alert cannot establish probable
cause under the Florida court’s decision unless the State introduces comprehensive
documentation of the dog’s prior “hits” and “misses” in the field. (One wonders how the court
would apply its test to a rookie dog.) No matter how much other proof the State offers of the
dog’s reliability, the absent field performance records will preclude a finding of probable cause.
That is the antithesis of a totality-of-the-circumstances analysis. [A] finding of a drug-detection
dog’s reliability cannot depend on the State’s satisfaction of multiple, independent evidentiary
requirements. No more for dogs than for human informants is such an inflexible checklist the
way to prove reliability, and thus establish probable cause.
Making matters worse, the decision below treats records of a dog’s field performance as the gold
standard in evidence, when in most cases they have relatively limited import. Errors may abound
in such records. If a dog on patrol fails to alert to a car containing drugs, the mistake usually will
go undetected because the officer will not initiate a search. Field data thus may not capture a
dog’s false negatives. Conversely (and more relevant here), if the dog alerts to a car in which the
officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected
substances that were too well hidden or present in quantities too small for the officer to locate.
Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s
person. Field data thus may markedly overstate a dog’s real false positives. By contrast, those
inaccuracies—in either direction—do not taint records of a dog’s performance in standard
training and certification settings. There, the designers of an assessment know where drugs are
hidden and where they are not—and so where a dog should alert and where he should not. The
better measure of a dog’s reliability thus comes away from the field, in controlled testing
environments.
For that reason, evidence of a dog’s satisfactory performance in a certification or training
program can itself provide sufficient reason to trust his alert. If a bona fide organization has
certified a dog after testing his reliability in a controlled setting, a court can presume (subject to
any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same
is true, even in the absence of formal certification, if the dog has recently and successfully
completed a training program that evaluated his proficiency in locating drugs. After all, law
enforcement units have their own strong incentive to use effective training and certification
programs, because only accurate drug-detection dogs enable officers to locate contraband
without incurring unnecessary risks or wasting limited time and resources.
Chapter 5 — Page 123

A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability,
whether by cross-examining the testifying officer or by introducing his own fact or expert
witnesses. The defendant, for example, may contest the adequacy of a certification or training
program, perhaps asserting that its standards are too lax or its methods faulty. So too, the
defendant may examine how the dog (or handler) performed in the assessments made in those
settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to
the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor
General acknowledged at oral argument. And even assuming a dog is generally reliable,
circumstances surrounding a particular alert may undermine the case for probable cause—if,
say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar
conditions.
In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other.
The court should allow the parties to make their best case, consistent with the usual rules of
criminal procedure. And the court should then evaluate the proffered evidence to decide what
all the circumstances demonstrate. If the State has produced proof from controlled settings that
a dog performs reliably in detecting drugs, and the defendant has not contested that showing,
then the court should find probable cause. If, in contrast, the defendant has challenged the
State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court
should weigh the competing evidence. In all events, the court should not prescribe, as the Florida
Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every
inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through
the lens of common sense, would make a reasonably prudent person think that a search would
reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.
III
And here, Aldo’s did. The record in this case amply supported the trial court’s determination that
Aldo’s alert gave Wheetley probable cause to search Harris’s truck.
Because training records established Aldo’s reliability in detecting drugs and Harris failed to
undermine that showing, we agree with the trial court that Wheetley had probable cause to
search Harris’s truck. We accordingly reverse the judgment of the Florida Supreme Court.
Notes, Comments, and Questions
In Harris, the Court held that Aldo (the police dog) was reliable enough that his “alert” provided
sufficient evidence of crime that officers had “probable cause” to search a vehicle. The term
“probable cause” appears in the text of the Fourth Amendment, and its definition is essential to
understanding when police may obtain warrants, when they may search cars, and many other
important questions. We examine the concept of probable cause in some detail in the next
chapter.
When studying dog alerts, students should remember that lawyers have many opportunities to
object to what they consider unreliable dog-alert evidence. In Harris, defense counsel’s goal was
to exclude the evidence police found while searching a truck. A different Florida case, State v.
Chapter 5 — Page 124

Merrit Alonzo Sims (Fla. 2007), the Supreme Court of Florida considered a lawyer’s failure to
object to dog-alert evidence for a different reason. In that case, a police dog handler testified at
a murder trial “that his dog alerted him to the presence of narcotics in the passenger side of the
car that Sims was driving.” Sims had admitted to killing a police officer with the officer’s police
pistol; the issue at trial was whether the killing was murder or self-defense. Sims claimed the
officer “had choked him, used racial epithets, and repeatedly threatened to kill him.”
The state, by contrast, argued that because Sims had drugs in his car, he had a motive to kill the
officer to avoid being returned to prison (drug possession was against the terms of Sims’s parole).
One difficulty for the state was that drugs were not found when the car was searched sometime
after the killing. The state argued “that the dog would alert to the scent of narcotics after the
drugs had been removed, and … used this to develop its theory of Sims’ motive.” After Sims had
spent more than a decade on death row, the Florida Supreme Court considered whether his trial
counsel provided ineffective assistance of counsel by failing to object to the dog-alert evidence
(that is, to the testimony by the dog handler). The court held that the evidence was so unreliable
that it would have been excluded had counsel properly objected, that counsel had no good
justification for that failure, and that Sims’s conviction must be set aside. Sims would later plead
guilty, taking a deal that included a sentence of 25 years’ imprisonment—and no death penalty.
This is but one example of a reason one might object to unreliable evidence (of all kinds).
Further, even if a lawyer cannot win the exclusion of unreliable evidence, she can still argue to
the jury that the evidence is lousy and should be disregarded. When studying legal doctrines
related to the exclusion of evidence, students should not forget that the most common ways to
attack “bad” evidence involve a combination of argument and contrary evidence.

Chapter 5 — Page 125

Search Review
Fourth Amendment: What Is a Search?
Before moving to the next chapter, students may wish to review the definition of “search” by
considering these examples. Instructions: Write “is,” “is not,” or “may be” in each blank. If your
answer is “may be,” jot down in the margin why you are unsure. Each problem is independent of
all other ones.
1)
If a police officer uses a car to follow a suspect who is driving from home to work, that
_________________ a search.
2)
If a police officer flies a helicopter fifty feet above the ground and uses binoculars to look
into a house window, that _________________ a search.
3)
If a police officer rifles through a suspect’s paper recycling before the sanitation
department collects it (and removes an itemized credit card bill), that _________________
a search.
4)
If a police officer borrows a rare super-sensitive microphone from the CIA and points it
at a living room window from across the street, thereby capturing the window vibrations and
listening to the conversations of people inside, that _________________ a search.
5)
If a police department deploys officers in shifts 24/7 to watch a house, writing down the
description of everyone who comes and goes, that _________________ a search.
6)
If a police officer chases a robbery suspect from the scene of a bank robbery, and the
officer follows the sprinting subject into a nearby house, that _________________ a search.

“Search” Review — Page 126

THE FOURTH AMENDMENT
Chapter 6
Probable Cause and Reasonable Suspicion
The Fourth Amendment provides that “no warrants shall issue, but upon probable cause.”
Accordingly, warrants (and the searches that followed in the wake of their issuance) have been
challenged on the ground that police did not provide sufficient evidence when obtaining the
warrants from judges. In addition, the Court has held that in several common situations, police
may conduct searches and seizures without a warrant, but only with probable cause. For
example, the vehicle searches described in Florida v. Harris (Chapter 5) were permissible under
the “automobile exception” to the warrant requirement, about which we will learn more later. In
Illinois v. Gates, the Court set forth a new standard for when an informant’s tip provides
probable cause to justify a search or arrest.
Supreme Court of the United States
Illinois v. Lance Gates
Decided June 8, 1983 – 462 U.S. 213
Justice REHNQUIST delivered the opinion of the Court.
Respondents Lance and Susan Gates were indicted for violation of state drug laws after police
officers, executing a search warrant, discovered marijuana and other contraband in their
automobile and home. Prior to trial the Gateses moved to suppress evidence seized during this
search. The Illinois Supreme Court affirmed the decisions of lower state courts, granting the
motion. It held that the affidavit submitted in support of the State’s application for a warrant to
search the Gateses’ property was inadequate under this Court’s decisions in Aguilar v. Texas,
378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969).
We granted certiorari to consider the application of the Fourth Amendment to a magistrate’s
issuance of a search warrant on the basis of a partially corroborated anonymous informant’s tip.
We conclude that the Illinois Supreme Court read the requirements of our Fourth Amendment
decisions too restrictively.
II
We now decide whether respondents’ rights under the Fourth and Fourteenth Amendments were
violated by the search of their car and house. A chronological statement of events usefully
introduces the issues at stake. Bloomingdale, Ill., is a suburb of Chicago located in DuPage
County. On May 3, 1978, the Bloomingdale Police Department received by mail an anonymous
handwritten letter which read as follows:
“This letter is to inform you that you have a couple in your town who strictly make their living
on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in
the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida,
Chapter 6 — Page 127

where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys
back after she drops the car off in Florida. May 3 she is driving down there again and Lance will
be flying down in a few days to drive it back. At the time Lance drives the car back he has the
trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of
drugs in their basement.
“They brag about the fact they never have to work, and make their entire living on pushers.”
“I guarantee if you watch them carefully you will make a big catch. They are friends with some
big drugs dealers, who visit their house often.”
The letter was referred by the Chief of Police of the Bloomingdale Police Department to Detective
Mader, who decided to pursue the tip. Mader learned, from the office of the Illinois Secretary of
State, that an Illinois driver’s license had been issued to one Lance Gates, residing at a stated
address in Bloomingdale. He contacted a confidential informant, whose examination of certain
financial records revealed a more recent address for the Gates, and he also learned from a police
officer assigned to O’Hare Airport that “L. Gates” had made a reservation on Eastern Airlines
flight 245 to West Palm Beach, Fla., scheduled to depart from Chicago on May 5 at 4:15 p.m.
Mader then made arrangements with an agent of the Drug Enforcement Administration for
surveillance of the May 5 Eastern Airlines flight. The agent later reported to Mader that Gates
had boarded the flight, and that federal agents in Florida had observed him arrive in West Palm
Beach and take a taxi to the nearby Holiday Inn. They also reported that Gates went to a room
registered to one Susan Gates and that, at 7:00 a.m. the next morning, Gates and an unidentified
woman left the motel in a Mercury bearing Illinois license plates and drove northbound on an
interstate frequently used by travelers to the Chicago area. In addition, the DEA agent informed
Mader that the license plate number on the Mercury registered to a Hornet station wagon owned
by Gates. The agent also advised Mader that the driving time between West Palm Beach and
Bloomingdale was approximately 22 to 24 hours.
Mader signed an affidavit setting forth the foregoing facts, and submitted it to a judge of the
Circuit Court of DuPage County, together with a copy of the anonymous letter. The judge of that
court thereupon issued a search warrant for the Gateses’ residence and for their automobile. The
judge, in deciding to issue the warrant, could have determined that the modus operandi of the
Gates had been substantially corroborated. As the anonymous letter predicted, Lance Gates had
flown from Chicago to West Palm Beach late in the afternoon of May 5th, had checked into a
hotel room registered in the name of his wife, and, at 7:00 a.m. the following morning, had
headed north, accompanied by an unidentified woman, out of West Palm Beach on an interstate
highway used by travelers from South Florida to Chicago in an automobile bearing a license plate
issued to him.
At 5:15 a.m. on March 7th, only 36 hours after he had flown out of Chicago, Lance Gates, and his
wife, returned to their home in Bloomingdale, driving the car in which they had left West Palm
Beach some 22 hours earlier. The Bloomingdale police were awaiting them, searched the trunk
of the Mercury, and uncovered approximately 350 pounds of marijuana. A search of the Gateses’
home revealed marijuana, weapons, and other contraband. The Illinois Circuit Court ordered
suppression of all these items, on the ground that the affidavit submitted to the Circuit Judge
Chapter 6 — Page 128

failed to support the necessary determination of probable cause to believe that the Gateses’
automobile and home contained the contraband in question. This decision was affirmed in turn
by the Illinois Appellate Court and by a divided vote of the Supreme Court of Illinois.
The Illinois Supreme Court concluded—and we are inclined to agree—that, standing alone, the
anonymous letter sent to the Bloomingdale Police Department would not provide the basis for a
magistrate’s determination that there was probable cause to believe contraband would be found
in the Gateses’ car and home. The letter provides virtually nothing from which one might
conclude that its author is either honest or his information reliable; likewise, the letter gives
absolutely no indication of the basis for the writer’s predictions regarding the Gateses’ criminal
activities. Something more was required, then, before a magistrate could conclude that there was
probable cause to believe that contraband would be found in the Gateses’ home and car.
The Illinois Supreme Court also properly recognized that Detective Mader’s affidavit might be
capable of supplementing the anonymous letter with information sufficient to permit a
determination of probable cause. In holding that the affidavit in fact did not contain sufficient
additional information to sustain a determination of probable cause, the Illinois court applied a
“two-pronged test,” derived from our decision in Spinelli v. United States, 393 U.S. 410 (1969).
The Illinois Supreme Court, like some others, apparently understood Spinelli as requiring that
the anonymous letter satisfy each of two independent requirements before it could be relied on.
According to this view, the letter, as supplemented by Mader’s affidavit, first had to adequately
reveal the “basis of knowledge” of the letter writer—the particular means by which he came by
the information given in his report. Second, it had to provide facts sufficiently establishing either
the “veracity” of the affiant’s informant, or, alternatively, the “reliability” of the informant’s
report in this particular case.
The Illinois court, alluding to an elaborate set of legal rules that have developed among various
lower courts to enforce the “two-pronged test,” found that the test had not been satisfied. First,
the “veracity” prong was not satisfied because, “there was simply no basis [for] ... conclud[ing]
that the anonymous person [who wrote the letter to the Bloomingdale Police Department] was
credible.” The court indicated that corroboration by police of details contained in the letter might
never satisfy the “veracity” prong, and in any event, could not do so if, as in the present case,
only “innocent” details are corroborated. In addition, the letter gave no indication of the basis of
its writer’s knowledge of the Gateses’ activities. The Illinois court understood Spinelli as
permitting the detail contained in a tip to be used to infer that the informant had a reliable basis
for his statements, but it thought that the anonymous letter failed to provide sufficient detail to
permit such an inference. Thus, it concluded that no showing of probable cause had been made.
We agree with the Illinois Supreme Court that an informant’s “veracity,” “reliability” and “basis
of knowledge” are all highly relevant in determining the value of his report. We do not agree,
however, that these elements should be understood as entirely separate and independent
requirements to be rigidly exacted in every case, which the opinion of the Supreme Court of
Illinois would imply. Rather, as detailed below, they should be understood simply as closely
intertwined issues that may usefully illuminate the commonsense, practical question whether
there is “probable cause” to believe that contraband or evidence is located in a particular place.

Chapter 6 — Page 129

III
This totality-of-the-circumstances approach is far more consistent with our prior treatment of
probable cause than is any rigid demand that specific “tests” be satisfied by every informant’s
tip. Perhaps the central teaching of our decisions bearing on the probable cause standard is that
it is a “practical, nontechnical conception.” “In dealing with probable cause, ... as the very name
implies, we deal with probabilities. These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”
Our observation in United States v. Cortez, 449 U.S. 411, 418 (1981) regarding “particularized
suspicion,” is also applicable to the probable cause standard:
“The process does not deal with hard certainties, but with probabilities. Long before the law of
probabilities was articulated as such, practical people formulated certain common-sense
conclusions about human behavior; jurors as factfinders are permitted to do the same—and so
are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not
in terms of library analysis by scholars, but as understood by those versed in the field of law
enforcement.”
As these comments illustrate, probable cause is a fluid concept—turning on the assessment of
probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of
legal rules. Informants’ tips doubtless come in many shapes and sizes from many different types
of persons.
Moreover, the “two-pronged test” directs analysis into two largely independent channels—the
informant’s “veracity” or “reliability” and his “basis of knowledge.” There are persuasive
arguments against according these two elements such independent status. Instead, they are
better understood as relevant considerations in the totality-of-the-circumstances analysis that
traditionally has guided probable cause determinations: a deficiency in one may be compensated
for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some
other indicia of reliability.
If, for example, a particular informant is known for the unusual reliability of his predictions of
certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set
forth the basis of his knowledge surely should not serve as an absolute bar to a finding of
probable cause based on his tip. Likewise, if an unquestionably honest citizen comes forward
with a report of criminal activity—which if fabricated would subject him to criminal liability—we
have found rigorous scrutiny of the basis of his knowledge unnecessary. Conversely, even if we
entertain some doubt as to an informant’s motives, his explicit and detailed description of
alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his
tip to greater weight than might otherwise be the case. Unlike a totality-of-the-circumstances
analysis, which permits a balanced assessment of the relative weights of all the various indicia
of reliability (and unreliability) attending an informant’s tip, the “two-pronged test” has
encouraged an excessively technical dissection of informants’ tips, with undue attention being
focused on isolated issues that cannot sensibly be divorced from the other facts presented to the
magistrate.

Chapter 6 — Page 130

Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the
evidence, useful in formal trials, have no place in the magistrate’s decision. While an effort to fix
some general, numerically precise degree of certainty corresponding to “probable cause” may
not be helpful, it is clear that “only the probability, and not a prima facie showing, of criminal
activity is the standard of probable cause.”
We also have recognized that affidavits “are normally drafted by nonlawyers in the midst and
haste of a criminal investigation. Technical requirements of elaborate specificity once exacted
under common law pleading have no proper place in this area.” Likewise, search and arrest
warrants long have been issued by persons who are neither lawyers nor judges, and who certainly
do not remain abreast of each judicial refinement of the nature of “probable cause.” The rigorous
inquiry into the Spinelli prongs and the complex superstructure of evidentiary and analytical
rules that some have seen implicit in our Spinelli decision, cannot be reconciled with the fact
that many warrants are—quite properly—issued on the basis of nontechnical, common-sense
judgments of laymen applying a standard less demanding than those used in more formal legal
proceedings.
Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an
affidavit should not take the form of de novo review. A magistrate’s “determination of probable
cause should be paid great deference by reviewing courts.”
If the affidavits submitted by police officers are subjected to the type of scrutiny some courts
have deemed appropriate, police might well resort to warrantless searches, with the hope of
relying on consent or some other exception to the warrant clause that might develop at the time
of the search. In addition, the possession of a warrant by officers conducting an arrest or search
greatly reduces the perception of unlawful or intrusive police conduct, by assuring “the
individual whose property is searched or seized of the lawful authority of the executing officer,
his need to search, and the limits of his power to search.”
Finally, the direction taken by decisions following Spinelli poorly serves “the most basic function
of any government”: “to provide for the security of the individual and of his property.” The
strictures that inevitably accompany the “two-pronged test” cannot avoid seriously impeding the
task of law enforcement. If, as the Illinois Supreme Court apparently thought, that test must be
rigorously applied in every case, anonymous tips would be of greatly diminished value in police
work. Ordinary citizens, like ordinary witnesses, generally do not provide extensive recitations
of the basis of their everyday observations. Likewise, as the Illinois Supreme Court observed in
this case, the veracity of persons supplying anonymous tips is by hypothesis largely unknown,
and unknowable. As a result, anonymous tips seldom could survive a rigorous application of
either of the Spinelli prongs. Yet, such tips, particularly when supplemented by independent
police investigation, frequently contribute to the solution of otherwise “perfect crimes.” While a
conscientious assessment of the basis for crediting such tips is required by the Fourth
Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.
For all these reasons, we conclude that it is wiser to abandon the “two-pronged test” established
by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-thecircumstances analysis that traditionally has informed probable cause determinations. The task
of the issuing magistrate is simply to make a practical, common-sense decision whether, given
Chapter 6 — Page 131

all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of
knowledge” of persons supplying hearsay information, there is a fair probability that contraband
or evidence of a crime will be found in a particular place. And the duty of a reviewing court is
simply to ensure that the magistrate had a “substantial basis for ... conclud[ing]” that probable
cause existed. We are convinced that this flexible, easily applied standard will better achieve the
accommodation of public and private interests that the Fourth Amendment requires than does
the approach that has developed from Aguilar and Spinelli.
Our earlier cases illustrate the limits beyond which a magistrate may not venture in issuing a
warrant. A sworn statement of an affiant that “he has cause to suspect and does believe that”
liquor illegally brought into the United States is located on certain premises will not do. An
affidavit must provide the magistrate with a substantial basis for determining the existence of
probable cause, and [a] wholly conclusory statement fail[s] to meet this requirement. An officer’s
statement that “affiants have received reliable information from a credible person and believe”
that heroin is stored in a home, is likewise inadequate. [T]his is a mere conclusory statement
that gives the magistrate virtually no basis at all for making a judgment regarding probable
cause. Sufficient information must be presented to the magistrate to allow that official to
determine probable cause; his action cannot be a mere ratification of the bare conclusions of
others. In order to ensure that such an abdication of the magistrate’s duty does not occur, courts
must continue to conscientiously review the sufficiency of affidavits on which warrants are
issued. But when we move beyond the “bare bones” affidavits this area simply does not lend itself
to a prescribed set of rules, like that which had developed from Spinelli. Instead, the flexible,
common-sense standard better serves the purposes of the Fourth Amendment’s probable cause
requirement.
IV
Our decisions applying the totality-of-the-circumstances analysis outlined above have
consistently recognized the value of corroboration of details of an informant’s tip by independent
police work. Likewise, we recognized the probative value of corroborative efforts of police
officials in Aguilar —the source of the “two-pronged test”—by observing that if the police had
made some effort to corroborate the informant’s report at issue, “an entirely different case”
would have been presented.
The showing of probable cause in the present case was fully compelling. Even standing alone,
the facts obtained through the independent investigation of Mader and the DEA at least
suggested that the Gateses were involved in drug trafficking. In addition to being a popular
vacation site, Florida is well-known as a source of narcotics and other illegal drugs. Lance Gates’
flight to Palm Beach, his brief, overnight stay in a motel, and apparent immediate return north
to Chicago in the family car, conveniently awaiting him in West Palm Beach, is as suggestive of
a pre-arranged drug run, as it is of an ordinary vacation trip.
In addition, the judge could rely on the anonymous letter, which had been corroborated in major
part by Mader’s efforts. The corroboration of the letter’s predictions that the Gateses’ car would
be in Florida, that Lance Gates would fly to Florida in the next day or so, and that he would drive
the car north toward Bloomingdale all indicated, albeit not with certainty, that the informant’s
other assertions also were true. “Because an informant is right about some things, he is more
Chapter 6 — Page 132

probably right about other facts” including the claim regarding the Gateses’ illegal activity. This
may well not be the type of “reliability” or “veracity” necessary to satisfy some views of the
“veracity prong” of Spinelli, but we think it suffices for the practical, common-sense judgment
called for in making a probable cause determination. It is enough, for purposes of assessing
probable cause, that “corroboration through other sources of information reduced the chances
of a reckless or prevaricating tale,” thus providing “a substantial basis for crediting the hearsay.”
Finally, the anonymous letter contained a range of details relating not just to easily obtained
facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily
not easily predicted. The letter writer’s accurate information as to the travel plans of each of the
Gateses was of a character likely obtained only from the Gateses themselves, or from someone
familiar with their not entirely ordinary travel plans. If the informant had access to accurate
information of this type a magistrate could properly conclude that it was not unlikely that he also
had access to reliable information of the Gateses’ alleged illegal activities. Of course, the Gateses’
travel plans might have been learned from a talkative neighbor or travel agent; under the “twopronged test” developed from Spinelli, the character of the details in the anonymous letter might
well not permit a sufficiently clear inference regarding the letter writer’s “basis of knowledge.”
But, as discussed previously, probable cause does not demand the certainty we associate with
formal trials. It is enough that there was a fair probability that the writer of the anonymous letter
had obtained his entire story either from the Gateses or someone they trusted. And corroboration
of major portions of the letter’s predictions provides just this probability. It is apparent,
therefore, that the judge issuing the warrant had a “substantial basis for ... conclud[ing]” that
probable cause to search the Gateses’ home and car existed. The judgment of the Supreme Court
of Illinois therefore must be
Reversed.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
I write to dissent from the Court’s unjustified and ill-advised rejection of the two-prong test for
evaluating the validity of a warrant based on hearsay announced in Aguilar v. Texas, 378 U.S.
108 (1964), and refined in Spinelli v. United States, 393 U.S. 410 (1969).
I
In recognition of the judiciary’s role as the only effective guardian of Fourth Amendment rights,
this Court has developed over the last half century a set of coherent rules governing a
magistrate’s consideration of a warrant application and the showings that are necessary to
support a finding of probable cause. We start with the proposition that a neutral and detached
magistrate, and not the police, should determine whether there is probable cause to support the
issuance of a warrant.
In order to emphasize the magistrate’s role as an independent arbiter of probable cause and to
insure that searches or seizures are not effected on less than probable cause, the Court has
insisted that police officers provide magistrates with the underlying facts and circumstances that
support the officers’ conclusions. The Court stated that “[u]nder the Fourth Amendment, an
officer may not properly issue a warrant to search a private dwelling unless he can find probable
Chapter 6 — Page 133

cause therefor from facts or circumstances presented to him under oath or affirmation. Mere
affirmance of belief or suspicion is not enough.”
[Our previous cases] advance an important [ ] substantive value: Findings of probable cause, and
attendant intrusions, should not be authorized unless there is some assurance that the
information on which they are based has been obtained in a reliable way by an honest or credible
person. As applied to police officers, the rules focus on the way in which the information was
acquired. As applied to informants, the rules focus both on the honesty or credibility of the
informant and on the reliability of the way in which the information was acquired. Insofar as it
is more complicated, an evaluation of affidavits based on hearsay involves a more difficult
inquiry. This suggests a need to structure the inquiry in an effort to insure greater accuracy. The
standards announced in Aguilar, as refined by Spinelli, fulfill that need. The standards inform
the police of what information they have to provide and magistrates of what information they
should demand. The standards also inform magistrates of the subsidiary findings they must
make in order to arrive at an ultimate finding of probable cause. By requiring police to provide
certain crucial information to magistrates and by structuring magistrates’ probable cause
inquiries, Aguilar and Spinelli assure the magistrate’s role as an independent arbiter of probable
cause, insure greater accuracy in probable cause determinations, and advance the substantive
value identified above.
Until today the Court has never squarely addressed the application of the Aguilar and Spinelli
standards to tips from anonymous informants. By definition nothing is known about an
anonymous informant’s identity, honesty, or reliability. One commentator has suggested that
anonymous informants should be treated as presumptively unreliable. In any event, there
certainly is no basis for treating anonymous informants as presumptively reliable. Nor is there
any basis for assuming that the information provided by an anonymous informant has been
obtained in a reliable way. If we are unwilling to accept conclusory allegations from the police,
who are presumptively reliable, or from informants who are known, at least to the police, there
cannot possibly be any rational basis for accepting conclusory allegations from anonymous
informants.
II
In rejecting the Aguilar-Spinelli standards, the Court suggests that a “totality-of-thecircumstances approach is far more consistent with our prior treatment of probable cause than
is any rigid demand that specific ‘tests’ be satisfied by every informant’s tip.” In support of this
proposition the Court relies on the “practical, nontechnical” nature of probable cause.
[O]ne can concede that probable cause is a “practical, nontechnical” concept without betraying
the values that Aguilar and Spinelli reflect. As noted, Aguilar and Spinelli require the police to
provide magistrates with certain crucial information. They also provide structure for
magistrates’ probable cause inquiries. In so doing, Aguilar and Spinelli preserve the role of
magistrates as independent arbiters of probable cause, insure greater accuracy in probable cause
determinations, and advance the substantive value of precluding findings of probable cause, and
attendant intrusions, based on anything less than information from an honest or credible person
who has acquired his information in a reliable way. Neither the standards nor their effects are
inconsistent with a “practical, nontechnical” conception of probable cause. Once a magistrate
Chapter 6 — Page 134

has determined that he has information before him that he can reasonably say has been obtained
in a reliable way by a credible person, he has ample room to use his common sense and to apply
a practical, nontechnical conception of probable cause.
At the heart of the Court’s decision to abandon Aguilar and Spinelli appears to be its belief that
“the direction taken by decisions following Spinelli poorly serves ‘the most basic function of any
government: to provide for the security of the individual and of his property.’” This conclusion
rests on the judgment that Aguilar and Spinelli “seriously imped[e] the task of law enforcement,”
and render anonymous tips valueless in police work. Surely, the Court overstates its case. But of
particular concern to all Americans must be that the Court gives virtually no consideration to the
value of insuring that findings of probable cause are based on information that a magistrate can
reasonably say has been obtained in a reliable way by an honest or credible person.
III
The Court’s complete failure to provide any persuasive reason for rejecting Aguilar and Spinelli
doubtlessly reflects impatience with what it perceives to be “overly technical” rules governing
searches and seizures under the Fourth Amendment. Words such as “practical,” “nontechnical,”
and “commonsense,” as used in the Court’s opinion, are but code words for an overly permissive
attitude towards police practices in derogation of the rights secured by the Fourth Amendment.
Everyone shares the Court’s concern over the horrors of drug trafficking, but under our
Constitution only measures consistent with the Fourth Amendment may be employed by
government to cure this evil. We must be ever mindful of Justice Stewart’s admonition in
Coolidge v. New Hampshire, 403 U.S. 443 (1971), that “[i]n times of unrest, whether caused by
crime or racial conflict or fear of internal subversion, this basic law and the values that it
represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the
authors of our fundamental constitutional concepts.” In the same vein, Glasser v. United States,
315 U.S. 60 (1942), warned that “[s]teps innocently taken may, one by one, lead to the
irretrievable impairment of substantial liberties.”
Rights secured by the Fourth Amendment are particularly difficult to protect because their
“advocates are usually criminals.” But the rules “we fashion [are] for the innocent and guilty
alike.” By replacing Aguilar and Spinelli with a test that provides no assurance that magistrates,
rather than the police, or informants, will make determinations of probable cause; imposes no
structure on magistrates’ probable cause inquiries; and invites the possibility that intrusions
may be justified on less than reliable information from an honest or credible person, today’s
decision threatens to “obliterate one of the most fundamental distinctions between our form of
government, where officers are under the law, and the police-state where they are the law.”
Notes, Comments, and Questions
The Gates Court rejects the Aguilar-Spinelli test’s insistence on using two specific measures to
compose a (somewhat) mathematical formula for probable cause. As the Court explains, the
existence of probable cause will not be found by entering “veracity” and “basis of knowledge”
into a formula which yields the total weight of evidence presented to a magistrate. (The graph
below exemplifies how such a formula might work.)
Chapter 6 — Page 135

The A-S Test as Formula: Weight of Evidence = V*BK
12

Veracity of Witness (V)

10
8
6
4
2
0
0

2

4

6

8

10

12

Witness' Basis of Knowledge (BK)
As the Court puts it:
“This totality-of-the-circumstances approach is far more consistent with our prior treatment of
probable cause than is any rigid demand that specific ‘tests’ be satisfied by every informant’s tip.
Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is
a ‘practical, nontechnical conception.’”
When police have probable cause to believe either (1) that evidence of crime will be found in a
particular place or (2) that a certain person has committed a crime, important police action
becomes lawful that would have remained unlawful absent probable cause. One important
example involves vehicle stops; police may stop a car based on probable cause to believe that its
driver has committed a traffic law violation. It is widely believed that many officers use this
power for reasons other than traffic enforcement—for example, stopping drivers who violate
trivial traffic rules in the hope of discovering evidence of more serious lawbreaking. In addition,
some critics of police allege that at least some officers use their traffic-stop authority in ways that
constitute unlawful discrimination, such as on the basis of race. Based on these beliefs and
allegations, motorists have sought review of vehicle stops, justified by probable cause, on the
basis of police officers’ “real” or “true” reasons for conducting the stops. The Court has resisted
engaging in such review.

Chapter 6 — Page 136

Supreme Court of the United States
Michael A. Whren v. United States
Decided June 10, 1996 – 517 U.S. 806
Justice SCALIA delivered the opinion of the [unanimous] Court.
In this case we decide whether the temporary detention of a motorist who the police have
probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth
Amendment’s prohibition against unreasonable seizures unless a reasonable officer would have
been motivated to stop the car by a desire to enforce the traffic laws.
I
On the evening of June 10, 1993, plainclothes vice-squad officers of the District of Columbia
Metropolitan Police Department were patrolling a “high drug area” of the city in an unmarked
car. Their suspicions were aroused when they passed a dark Pathfinder truck with temporary
license plates and youthful occupants waiting at a stop sign, the driver looking down into the lap
of the passenger at his right. The truck remained stopped at the intersection for what seemed an
unusually long time—more than 20 seconds. When the police car executed a U-turn in order to
head back toward the truck, the Pathfinder turned suddenly to its right, without signaling, and
sped off at an “unreasonable” speed. The policemen followed, and in a short while overtook the
Pathfinder when it stopped behind other traffic at a red light. They pulled up alongside, and
Officer Ephraim Soto stepped out and approached the driver’s door, identifying himself as a
police officer and directing the driver, petitioner Brown, to put the vehicle in park. When Soto
drew up to the driver’s window, he immediately observed two large plastic bags of what appeared
to be crack cocaine in petitioner Whren’s hands. Petitioners were arrested, and quantities of
several types of illegal drugs were retrieved from the vehicle.
Petitioners were charged in a four-count indictment with violating various federal drug laws. At
a pretrial suppression hearing, they challenged the legality of the stop and the resulting seizure
of the drugs. They argued that the stop had not been justified by probable cause to believe, or
even reasonable suspicion, that petitioners were engaged in illegal drug-dealing activity; and
that Officer Soto’s asserted ground for approaching the vehicle—to give the driver a warning
concerning traffic violations—was pretextual. The District Court denied the suppression motion,
concluding that “the facts of the stop were not controverted,” and “[t]here was nothing to really
demonstrate that the actions of the officers were contrary to a normal traffic stop.”
Petitioners were convicted of the counts at issue here. The Court of Appeals affirmed the
convictions, holding with respect to the suppression issue that, “regardless of whether a police
officer subjectively believes that the occupants of an automobile may be engaging in some other
illegal behavior, a traffic stop is permissible as long as a reasonable officer in the same
circumstances could have stopped the car for the suspected traffic violation.” We granted
certiorari.

Chapter 6 — Page 137

II
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” Temporary detention
of individuals during the stop of an automobile by the police, even if only for a brief period and
for a limited purpose, constitutes a “seizure” of “persons” within the meaning of this provision.
An automobile stop is thus subject to the constitutional imperative that it not be “unreasonable”
under the circumstances. As 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.
Petitioners accept that Officer Soto had probable cause to believe that various provisions of the
District of Columbia traffic code had been violated. They argue, however, that “in the unique
context of civil traffic regulations” probable cause is not enough. Since, they contend, the use of
automobiles is so heavily and minutely regulated that total compliance with traffic and safety
rules is nearly impossible, a police officer will almost invariably be able to catch any given
motorist in a technical violation. This creates the temptation to use traffic stops as a means of
investigating other law violations, as to which no probable cause or even articulable suspicion
exists. Petitioners, who are both black, further contend that police officers might decide which
motorists to stop based on decidedly impermissible factors, such as the race of the car’s
occupants. To avoid this danger, they say, the Fourth Amendment test for traffic stops should
be, not the normal one (applied by the Court of Appeals) of whether probable cause existed to
justify the stop; but rather, whether a police officer, acting reasonably, would have made the stop
for the reason given.
A
Petitioners contend that the standard they propose is consistent with our past cases’ disapproval
of police attempts to use valid bases of action against citizens as pretexts for pursuing other
investigatory agendas. We are reminded that [in previous cases] we stated that “an inventory
search” must not be a ruse for a general rummaging in order to discover incriminating evidence”;
that in approving an inventory search, we apparently thought it significant that there had been
“no showing that the police, who were following standardized procedures, acted in bad faith or
for the sole purpose of investigation”; and that we observed, in upholding the constitutionality
of a warrantless administrative inspection, that the search did not appear to be “a ‘pretext’ for
obtaining evidence of ... violation of ... penal laws.” But only an undiscerning reader would regard
these cases as endorsing the principle that ulterior motives can invalidate police conduct that is
justifiable on the basis of probable cause to believe that a violation of law has occurred. In each
case we were addressing the validity of a search conducted in the absence of probable cause. Our
statements simply explain that the exemption from the need for probable cause (and warrant),
which is accorded to searches made for the purpose of inventory or administrative regulation, is
not accorded to searches that are not made for those purposes.

Chapter 6 — Page 138

We think [our prior decisions] foreclose any argument that the constitutional reasonableness of
traffic stops depends on the actual motivations of the individual officers involved. We of course
agree with petitioners that the Constitution prohibits selective enforcement of the law based on
considerations such as race. But the constitutional basis for objecting to intentionally
discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.
Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.
B
Recognizing that we have been unwilling to entertain Fourth Amendment challenges based on
the actual motivations of individual officers, petitioners disavow any intention to make the
individual officer’s subjective good faith the touchstone of “reasonableness.” They insist that the
standard they have put forward—whether the officer’s conduct deviated materially from usual
police practices, so that a reasonable officer in the same circumstances would not have made the
stop for the reasons given—is an “objective” one.
But although framed in empirical terms, this approach is plainly and indisputably driven by
subjective considerations. Its whole purpose is to prevent the police from doing under the guise
of enforcing the traffic code what they would like to do for different reasons. Petitioners’
proposed standard may not use the word “pretext,” but it is designed to combat nothing other
than the perceived “danger” of the pretextual stop, albeit only indirectly and over the run of
cases. Instead of asking whether the individual officer had the proper state of mind, the
petitioners would have us ask, in effect, whether (based on general police practices) it is plausible
to believe that the officer had the proper state of mind.
Why one would frame a test designed to combat pretext in such fashion that the court cannot
take into account actual and admitted pretext is a curiosity that can only be explained by the
fact that our cases have foreclosed the more sensible option. If those cases were based only upon
the evidentiary difficulty of establishing subjective intent, petitioners’ attempt to root out
subjective vices through objective means might make sense. But they were not based only upon
that, or indeed even principally upon that. Their principal basis—which applies equally to
attempts to reach subjective intent through ostensibly objective means—is simply that the
Fourth Amendment’s concern with “reasonableness” allows certain actions to be taken in certain
circumstances, whatever the subjective intent. But even if our concern had been only an
evidentiary one, petitioners’ proposal would by no means assuage it. Indeed, it seems to us
somewhat easier to figure out the intent of an individual officer than to plumb the collective
consciousness of law enforcement in order to determine whether a “reasonable officer” would
have been moved to act upon the traffic violation. While police manuals and standard procedures
may sometimes provide objective assistance, ordinarily one would be reduced to speculating
about the hypothetical reaction of a hypothetical constable—an exercise that might be called
virtual subjectivity.
Moreover, police enforcement practices, even if they could be practicably assessed by a judge,
vary from place to place and from time to time. We cannot accept that the search and seizure
protections of the Fourth Amendment are so variable and can be made to turn upon such
trivialities. The difficulty is illustrated by petitioners’ arguments in this case. Their claim that a
reasonable officer would not have made this stop is based largely on District of Columbia police
Chapter 6 — Page 139

regulations which permit plainclothes officers in unmarked vehicles to enforce traffic laws “only
in the case of a violation that is so grave as to pose an immediate threat to the safety of others.”
This basis of invalidation would not apply in jurisdictions that had a different practice. And it
would not have applied even in the District of Columbia, if Officer Soto had been wearing a
uniform or patrolling in a marked police cruiser.
III
In what would appear to be an elaboration on the “reasonable officer” test, petitioners argue that
the balancing inherent in any Fourth Amendment inquiry requires us to weigh the governmental
and individual interests implicated in a traffic stop such as we have here. That balancing,
petitioners claim, does not support investigation of minor traffic infractions by plainclothes
police in unmarked vehicles; such investigation only minimally advances the government’s
interest in traffic safety, and may indeed retard it by producing motorist confusion and alarm—
a view said to be supported by the Metropolitan Police Department’s own regulations generally
prohibiting this practice. And as for the Fourth Amendment interests of the individuals
concerned, petitioners point out that our cases acknowledge that even ordinary traffic stops
entail “a possibly unsettling show of authority”; that they at best “interfere with freedom of
movement, are inconvenient, and consume time” and at worst “may create substantial anxiety.”
That anxiety is likely to be even more pronounced when the stop is conducted by plainclothes
officers in unmarked cars.
It is of course true that in principle every Fourth Amendment case, since it turns upon a
“reasonableness” determination, involves a balancing of all relevant factors. With rare
exceptions not applicable here, however, the result of that balancing is not in doubt where the
search or seizure is based upon probable cause.
Where probable cause has existed, the only cases in which we have found it necessary actually to
perform the “balancing” analysis involved searches or seizures conducted in an extraordinary
manner, unusually harmful to an individual’s privacy or even physical interests—such as, for
example, seizure by means of deadly force, unannounced entry into a home, entry into a home
without a warrant, or physical penetration of the body. The making of a traffic stop out of
uniform does not remotely qualify as such an extreme practice, and so is governed by the usual
rule that probable cause to believe the law has been broken “outbalances” private interest in
avoiding police contact.
Petitioners urge as an extraordinary factor in this case that the “multitude of applicable traffic
and equipment regulations” is so large and so difficult to obey perfectly that virtually everyone
is guilty of violation, permitting the police to single out almost whomever they wish for a stop.
But we are aware of no principle that would allow us to decide at what point a code of law
becomes so expansive and so commonly violated that infraction itself can no longer be the
ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant
codes, we do not know by what standard (or what right) we would decide, as petitioners would
have us do, which particular provisions are sufficiently important to merit enforcement.
For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the
traditional common-law rule that probable cause justifies a search and seizure.
Chapter 6 — Page 140

Here the District Court found that the officers had probable cause to believe that petitioners had
violated the traffic code. That rendered the stop reasonable under the Fourth Amendment, the
evidence thereby discovered admissible, and the upholding of the convictions by the Court of
Appeals for the District of Columbia Circuit correct. The judgment is
Affirmed.
Notes, Comments, and Questions
The unanimous decision by the Court illustrates how important it is to the Justices to avoid
creating legal rules and tests that require judges to guess what officers were thinking when
performing certain actions. If the admissibility of evidence depends upon the mental state of a
police officer during a stressful moment months or even years before a resulting evidentiary
hearing, multiple problems are created. First, as a practical matter, determining what the officer
was thinking when (for example) stopping a car will not be easy. Second, the officer may be
tempted to commit perjury if her mental state was not the “correct” one under the relevant test.
In addition, the result in Whren exemplifies the Court’s apparent desire to avoid becoming in
charge of day-to-day management of police departments. If the Court finds a constitutional
requirement for departments to adopt certain best practices, then the Justices must (1) learn
enough about policing to decide what practices should be required and (2) eventually hear more
cases on whether departments are sufficiently obedient to the Court’s command. These
prospects seem unappealing to the Justices. (Similar feelings may inform the Court’s decisions
in education law cases. The Court has retreated from supervising school districts despite
evidence that school segregation remains a serious problem.)
The Whren majority noted that if police indeed performed traffic stops on the basis of
impermissible reasons related to the race of motorists, the stops might violate the Equal
Protection Clause of the Fourteenth Amendment. The savvy reader might ask whether the
Fourteenth Amendment applies at all. The traffic stop was in Washington, D.C. If the District of
Columbia is not a “state,” and accordingly is not covered by the Fourteenth Amendment, then is
racial discrimination allowed (or, to be more precise, is there no constitutional remedy)? The
Court decided that there is a remedy. See Bolling v. Sharpe, 347 U.S. 497, 500 (1954), supplemented
sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955) (establishing “reverse
incorporation” of equal protection against the federal government) (“In view of our decision that
the Constitution prohibits the states from maintaining racially segregated public schools, it
would be unthinkable that the same Constitution would impose a lesser duty on the Federal
Government.”).
Unfortunately for Whren, the Court has not allowed evidence to be excluded from criminal trials
on the basis of Equal Protection violations; the legal remedy for such violations would come from
civil lawsuits.

Chapter 6 — Page 141

The Court’s holding in Whren illustrates the power of probable cause. Because the Court is so
resistant to examining the motives of officers who take investigatory steps on the basis of
probable cause, the term’s definition is of exceptional importance. In a 2018 case, the Court
applied the standard set forth in Illinois v. Gates to new facts.
Supreme Court of the United States
District of Columbia v. Theodore Wesby
Decided Jan. 22, 2018 – 138 S. Ct. 577
Justice THOMAS delivered the opinion of the Court.
This case involves a civil suit against the District of Columbia and five of its police officers,
brought by 16 individuals who were arrested for holding a raucous, late-night party in a house
they did not have permission to enter. The United States Court of Appeals for the District of
Columbia Circuit held that there was no probable cause to arrest the partygoers, and that the
officers were not entitled to qualified immunity. We reverse on both grounds.
I
Around 1 a.m. on March 16, 2008, the District’s Metropolitan Police Department received a
complaint about loud music and illegal activities at a house in Northeast D.C. The caller, a former
neighborhood commissioner, told police that the house had been vacant for several months.
When officers arrived at the scene, several neighbors confirmed that the house should have been
empty. The officers approached the house and, consistent with the complaint, heard loud music
playing inside.
After the officers knocked on the front door, they saw a man look out the window and then run
upstairs. One of the partygoers opened the door, and the officers entered. They immediately
observed that the inside of the house “‘was in disarray’” and looked like “‘a vacant property.’”
The officers smelled marijuana and saw beer bottles and cups of liquor on the floor. In fact, the
floor was so dirty that one of the partygoers refused to sit on it while being questioned. Although
the house had working electricity and plumbing, it had no furniture downstairs other than a few
padded metal chairs. The only other signs of habitation were blinds on the windows, food in the
refrigerator, and toiletries in the bathroom.
In the living room, the officers found a makeshift strip club. Several women were wearing only
bras and thongs, with cash tucked into their garter belts. The women were giving lap dances
while other partygoers watched. Most of the onlookers were holding cash and cups of alcohol.
After seeing the uniformed officers, many partygoers scattered into other parts of the house.
The officers found more debauchery upstairs. A naked woman and several men were in the
bedroom. A bare mattress—the only one in the house—was on the floor, along with some lit
candles and multiple open condom wrappers. A used condom was on the windowsill. The officers
found one partygoer hiding in an upstairs closet, and another who had shut himself in the
bathroom and refused to come out.

Chapter 6 — Page 142

The officers found a total of 21 people in the house. After interviewing all 21, the officers did not
get a clear or consistent story. Many partygoers said they were there for a bachelor party, but no
one could identify the bachelor. Each of the partygoers claimed that someone had invited them
to the house, but no one could say who. Two of the women working the party said that a woman
named “Peaches” or “Tasty” was renting the house and had given them permission to be there.
One of the women explained that the previous owner had recently passed away, and Peaches had
just started renting the house from the grandson who inherited it. But the house had no boxes
or moving supplies. She did not know Peaches’ real name. And Peaches was not there.
An officer asked the woman to call Peaches on her phone so he could talk to her. Peaches
answered and explained that she had just left the party to go to the store. When the officer asked
her to return, Peaches refused because she was afraid of being arrested. The sergeant supervising
the investigation also spoke with Peaches. At first, Peaches claimed to be renting the house from
the owner, who was fixing it up for her. She also said that she had given the attendees permission
to have the party. When the sergeant again asked her who had given her permission to use the
house, Peaches became evasive and hung up. The sergeant called her back, and she began yelling
and insisting that she had permission before hanging up a second time. The officers eventually
got Peaches on the phone again, and she admitted that she did not have permission to use the
house.
The officers then contacted the owner. He told them that he had been trying to negotiate a lease
with Peaches, but they had not reached an agreement. He confirmed that he had not given
Peaches (or anyone else) permission to be in the house—let alone permission to use it for a
bachelor party. At that point, the officers arrested the 21 partygoers for unlawful entry. The police
transported the partygoers to the police station, where the lieutenant decided to charge them
with disorderly conduct. The partygoers were released, and the charges were eventually dropped.
II
Respondents, 16 of the 21 partygoers, sued the District and five of the arresting officers. They
sued the officers for false arrest under the Fourth Amendment. The partygoers’ claims were all
“predicated upon the allegation that [they] were arrested without probable cause.”
On cross-motions for summary judgment, the District Court awarded partial summary judgment
to the partygoers. It concluded that the officers lacked probable cause to arrest the partygoers
for unlawful entry.1 The officers were told that Peaches had invited the partygoers to the house,
the District Court reasoned, and nothing the officers learned in their investigation suggested the
partygoers “‘knew or should have known that [they were] entering against the [owner’s] will.’”
The District Court also concluded that the officers were not entitled to qualified immunity under
§ 1983. It noted that, under District case law, “probable cause to arrest for unlawful entry
requires evidence that the alleged intruder knew or should have known, upon entry, that such
entry was against the will of the owner.” And in its view, the officers had no such evidence.
1 [Footnote 2 by the Court] Because probable cause is an objective standard, an arrest is lawful if the officer had

probable cause to arrest for any offense, not just the offense cited at the time of arrest or booking. Because unlawful
entry is the only offense that the District and its officers discuss in their briefs to this Court, we likewise limit our
analysis to that offense.
Chapter 6 — Page 143

With liability resolved, the case proceeded to trial on damages. The jury awarded the partygoers
a total of $680,000 in compensatory damages. After the District Court awarded attorney’s fees,
the total award was nearly $1 million.
On appeal, a divided panel of the D.C. Circuit affirmed. [T]he panel majority made Peaches’
invitation “central” to its determination that the officers lacked probable cause to arrest the
partygoers for unlawful entry. The panel majority asserted that, “in the absence of any conflicting
information, Peaches’ invitation vitiates the necessary element of [the partygoers’] intent to
enter against the will of the lawful owner.” And the panel majority determined that “there is
simply no evidence in the record that [the partygoers] had any reason to think the invitation was
invalid.”
We granted certiorari to resolve [] whether the officers had probable cause to arrest the
partygoers.
III
To determine whether an officer had probable cause for an arrest, “we examine the events
leading up to the arrest, and then decide ‘whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount to’ probable cause.” Because
probable cause “deals with probabilities and depends on the totality of the circumstances,” it is
“a fluid concept” that is “not readily, or even usefully, reduced to a neat set of legal rules.” It
“requires only a probability or substantial chance of criminal activity, not an actual showing of
such activity.” Probable cause “is not a high bar.”
A
There is no dispute that the partygoers entered the house against the will of the owner.
Nonetheless, the partygoers contend that the officers lacked probable cause to arrest them
because the officers had no reason to believe that they “knew or should have known” their “entry
was unwanted.” We disagree. Considering the totality of the circumstances, the officers made an
“entirely reasonable inference” that the partygoers were knowingly taking advantage of a vacant
house as a venue for their late-night party.
Consider first the condition of the house. Multiple neighbors, including a former neighborhood
official, informed the officers that the house had been vacant for several months. The house had
no furniture, except for a few padded metal chairs and a bare mattress. The rest of the house was
empty, save for some fixtures and large appliances. The house had a few signs of inhabitance—
working electricity and plumbing, blinds on the windows, toiletries in the bathroom, and food in
the refrigerator. But those facts are not necessarily inconsistent with the house being
unoccupied. The owner could have paid the utilities and kept the blinds while he looked for a
new tenant, and the partygoers could have brought the food and toiletries. Although one woman
told the officers that Peaches had recently moved in, the officers had reason to doubt that was
true. There were no boxes or other moving supplies in the house; nor were there other
possessions, such as clothes in the closet, suggesting someone lived there.
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In addition to the condition of the house, consider the partygoers’ conduct. The party was still
going strong when the officers arrived after 1 a.m., with music so loud that it could be heard from
outside. Upon entering the house, multiple officers smelled marijuana. The partygoers left beer
bottles and cups of liquor on the floor, and they left the floor so dirty that one of them refused to
sit on it. The living room had been converted into a makeshift strip club. Strippers in bras and
thongs, with cash stuffed in their garter belts, were giving lap dances. Upstairs, the officers found
a group of men with a single, naked woman on a bare mattress—the only bed in the house—along
with multiple open condom wrappers and a used condom.
Taken together, the condition of the house and the conduct of the partygoers allowed the officers
to make several “‘common-sense conclusions about human behavior.’” Most homeowners do not
live in near-barren houses. And most homeowners do not invite people over to use their living
room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their
floors filthy. The officers could thus infer that the partygoers knew their party was not
authorized.
The partygoers’ reaction to the officers gave them further reason to believe that the partygoers
knew they lacked permission to be in the house. Many scattered at the sight of the uniformed
officers. Two hid themselves, one in a closet and the other in a bathroom. “[U]nprovoked flight
upon noticing the police,” we have explained, “is certainly suggestive” of wrongdoing and can be
treated as “suspicious behavior” that factors into the totality of the circumstances. In fact,
“deliberately furtive actions and flight at the approach of ... law officers are strong indicia of
mens rea.” A reasonable officer could infer that the partygoers’ scattering and hiding was an
indication that they knew they were not supposed to be there.
The partygoers’ answers to the officers’ questions also suggested their guilty state of mind. When
the officers asked who had given them permission to be there, the partygoers gave vague and
implausible responses. They could not say who had invited them. Only two people claimed that
Peaches had invited them, and they were working the party instead of attending it. If Peaches
was the hostess, it was odd that none of the partygoers mentioned her name. Additionally, some
of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor.
The officers could have disbelieved them, since people normally do not throw a bachelor party
without a bachelor. Based on the vagueness and implausibility of the partygoers’ stories, the
officers could have reasonably inferred that they were lying and that their lies suggested a guilty
mind.
The panel majority relied heavily on the fact that Peaches said she had invited the partygoers to
the house. But when the officers spoke with Peaches, she was nervous, agitated, and evasive.
After initially insisting that she had permission to use the house, she ultimately confessed that
this was a lie—a fact that the owner confirmed. Peaches’ lying and evasive behavior gave the
officers reason to discredit everything she had told them. For example, the officers could have
inferred that Peaches lied to them when she said she had invited the others to the house, which
was consistent with the fact that hardly anyone at the party knew her name. Or the officers could
have inferred that Peaches told the partygoers (like she eventually told the police) that she was
not actually renting the house, which was consistent with how the partygoers were treating it.

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Viewing these circumstances as a whole, a reasonable officer could conclude that there was
probable cause to believe the partygoers knew they did not have permission to be in the house.
B
In concluding otherwise, the panel majority engaged in an “excessively technical dissection” of
the factors supporting probable cause. Indeed, the panel majority failed to follow two basic and
well-established principles of law.
First, the panel majority viewed each fact “in isolation, rather than as a factor in the totality of
the circumstances.” This was “mistaken in light of our precedents.” The “totality of the
circumstances” requires courts to consider “the whole picture.” Our precedents recognize that
the whole is often greater than the sum of its parts—especially when the parts are viewed in
isolation. Instead of considering the facts as a whole, the panel majority took them one by one.
For example, it dismissed the fact that the partygoers “scattered or hid when the police entered
the house” because that fact was “not sufficient standing alone to create probable cause.”
Similarly, it found “nothing in the record suggesting that the condition of the house, on its own,
should have alerted the [partygoers] that they were unwelcome.” The totality-of-thecircumstances test “precludes this sort of divide-and-conquer analysis.”
Second, the panel majority mistakenly believed that it could dismiss outright any circumstances
that were “susceptible of innocent explanation.” For example, the panel majority brushed aside
the drinking and the lap dances as “consistent with” the partygoers’ explanation that they were
having a bachelor party. And it similarly dismissed the condition of the house as “entirely
consistent with” Peaches being a “new tenant.” But probable cause does not require officers to
rule out [sic] a suspect’s innocent explanation for suspicious facts. As we have explained, “the
relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of
suspicion that attaches to particular types of noncriminal acts.” Thus, the panel majority should
have asked whether a reasonable officer could conclude—considering all of the surrounding
circumstances, including the plausibility of the explanation itself—that there was a “substantial
chance of criminal activity.”
For all of these reasons, we reverse the D.C. Circuit’s holding that the officers lacked probable
cause to arrest. Accordingly, the District and its officers are entitled to summary judgment on all
of the partygoers’ claims.
The judgment of the D.C. Circuit is therefore reversed, and the case is remanded for further
proceedings consistent with this opinion.
Justice GINSBURG, concurring in the judgment in part.
This case, well described in the opinion of the Court of Appeals, leads me to question whether
this Court, in assessing probable cause, should continue to ignore why police in fact acted. No
arrests of plaintiffs-respondents were made until Sergeant Suber so instructed. His instruction,
when conveyed to the officers he superintended, was based on an error of law. Sergeant Suber
believed that the absence of the premises owner’s consent, an uncontested fact in this case,
sufficed to justify arrest of the partygoers for unlawful entry. An essential element of unlawful
Chapter 6 — Page 146

entry in the District of Columbia is that the defendant “knew or should have known that his entry
was unwanted.” But under Sergeant Suber’s view of the law, what the arrestees knew or should
have known was irrelevant. They could be arrested, as he comprehended the law, even if they
believed their entry was invited by a lawful occupant.
Ultimately, plaintiffs-respondents were not booked for unlawful entry. Instead, they were
charged at the police station with disorderly conduct. Yet no police officers at the site testified to
having observed any activities warranting a disorderly conduct charge. Quite the opposite. The
officers at the scene of the arrest uniformly testified that they had neither seen nor heard
anything that would justify such a charge, and Sergeant Suber specifically advised his superiors
that the charge was unwarranted.
The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police
unaccountability to the detriment of Fourth Amendment protection. A number of commentators
have criticized the path we charted in Whren v. United States, 517 U.S. 806 (1996), and followon opinions, holding that “an arresting officer’s state of mind ... is irrelevant to the existence of
probable cause.” I would leave open, for reexamination in a future case, whether a police officer’s
reason for acting, in at least some circumstances, should factor into the Fourth Amendment
inquiry. Given the current state of the Court’s precedent, however, I agree that the disposition
gained by plaintiffs-respondents [i.e., a ruling that officers violated their rights] was not
warranted by “settled law.” The defendants-petitioners are therefore sheltered by qualified
immunity.
Notes, Comments, and Questions
Does the procedural posture of this case change your view on the outcome? This is not a criminal
prosecution, in which the defendants are arguing about probable cause to get their charges
dismissed. This is a lawsuit by the people at the party, alleging that police violated their clearly
established constitutional rights when arresting them.
The standard for probable cause is not especially high. It’s nothing like proof beyond a
reasonable doubt or even preponderance of the evidence. In addition to “probable cause,” the
Court has used several cases to define “reasonable suspicion,” which is more than a mere hunch
but requires less evidence than probable cause. Certain police conduct—most importantly “stop
and frisk”—is permissible on the basis of reasonable suspicion even if officers lack probable
cause. We will review reasonable suspicion at length when studying stop and frisk.
As the semester progresses, students should make a point of noting (1) which police tactics are
permissible with no evidence or suspicion whatsoever (for example, investigatory tactics that are
not “searches,” such as opening a bag of trash left out for collection), (2) which tactics may not
be conducted with no suspicion but are allowed with “reasonable suspicion,” and (3) which police
tactics require probable cause. Among those police tactics requiring probable cause, students
should note which require warrants.

Chapter 6 — Page 147

The Phenomenon of “Driving While Black” or “Driving While Brown”
For decades, observers have documented that black and brown drivers are more likely than white
drivers to be stopped by police, a phenomenon sometimes described as “Driving While
[Black/Brown]” or “DWB.” (Similar observations have been made about which pedestrians
police choose to stop and frisk, a topic to which we will return.) U.S. Senator Tim Scott (R-S.C.)
described in a 2016 speech his experiences as a black motorist, along with incidents in which
Capitol police questioned whether he really was a member of the Senate.2 Reporting that he had
been stopped by police while driving seven times over the prior year, he asked colleagues to
“imagine the frustration, the irritation the sense of a loss of dignity that accompanies each of
those stops.”
Noting that in most of the incidents, “[He] was doing nothing more than driving a new car, in
the wrong neighborhood, or some other reason just as trivial,” he said, “I have felt the anger, the
frustration, the sadness and the humiliation that comes with feeling that you’re being targeted
for nothing more than just being yourself.”
After being stopped by Capitol police, Sen. Scott received apologies on multiple occasions from
police leadership. Most Americans, however, lack the social capital possessed by Senators and
cannot expect that sort of response to complaints.
Although the cause of “DWB” stops is disputed, the existence of the phenomenon is welldocumented,3 as are its effects on relations between police departments and minority
communities. For example, one of your authors once attended an event in St. Louis at which a
leader of the St. Louis City police said that certain St. Louis County police departments treat
minority residents so badly, City police have trouble getting cooperation from potential
witnesses, impeding the City department’s ability to solve serious crimes.
Robert Wilkins, now a federal appellate judge, was a plaintiff in 1990s litigation related to DWB
stops in Maryland. A 2016 CBS News interview in which he describes his experiences is available
here: https://www.youtube.com/watch?v=pYsl6AQBZn4
In the spring and summer of 2020, police treatment of members of minority communities—
especially African Americans—once again received a national spotlight. The May 2020 killing of
George Floyd by police in Minneapolis and the March 2020 killing of Breonna Taylor by police
in Louisville aroused particular indignation, inspiring protests across the country. Police
response to protests in some cities, including violence captured on video, inspired further calls
for reform, along with more radical proposals.
As you read subsequent chapters, consider how Supreme Court criminal procedure decisions
affect how police departments interact with communities they exist to serve. For example, does
the Court’s Fourth Amendment doctrine encourage police officers to act in ways that build
2 See Eric Black, “Driving while black: GOP Sen. Tim Scott Tells of His Experiences,” Minn. Post (July 14, 2016);

Conor Friedersdorf, “The Senate's Only Black Republican Opens Up About Being Mistreated by Cops,” Atlantic
(July 15, 2016).
3 See, e.g., David A. Harris, “The Stories, the Statistics, and the Law: Why ‘Driving While Black’ Matters,” 84 Minn.
L. Rev. 265 (1999); State v. Soto, 734 A.2d 350 (N.J. Super. 1996); Consent Decree, Wilkins v. Maryland State
Police, No. 93–468 (D.Md. Apr. 22, 2003).
Chapter 6 — Page 148

confidence among community members? When police officers violate rules set forth by the
Court, do existing legal remedies encourage better future behavior? If you are unhappy with the
state of policing, how might things be improved? If instead you think policing is going fairly well,
to what do you attribute the discontent exhibited during the 2020 protests?
One purpose of this book is to help you consider questions like these. Recall, however, that most
Americans will never attend law school. Knowledge of criminal procedure doctrine among the
public is sketchy at best. If Americans better understood Supreme Court doctrine related to the
Fourth, Fifth, and Sixth Amendments, do you think they would have more or less faith in the
criminal justice system? Why? After finishing this book, answer these questions again and
examine whether your own opinions have changed.
A recent study of policing in Ohio strongly suggests that the disparities demonstrated during
Wilkins’s lawsuit exist today, at least in some American jurisdictions.
The extreme racial disparities found in nonmoving traffic violations
(i.e., driving under suspension and without a seatbelt) among blacks in Cleveland
and Shaker, offenses that are generally detected either through electronic
surveillance or once a traffic stop has been made, are consistent with Meehan and
Ponder’s conclusion that, “officers must be ‘hunting’ for, or clearly noticing,
African American drivers,” in these jurisdictions. This practice among law
enforcement officers creates a “self-fulfilling prophecy,” in that if black motorists
are disproportionately surveilled, stopped, and cited for traffic offenses by police,
its cumulative effect can help explain the disproportionate number of blacks that
ultimately have their driver’s licenses suspended. And given the strong
inducements to drive noted earlier, a considerable segment of these motorists
continue to drive, are eventually caught again, and this cycle only repeats itself,
with escalating legal and financial consequences accruing to the motorist.
Ronnie A. Dunn, Racial Profiling: A Persistent Civil Rights Challenge Even in the Twenty-First
Century, 66 Case W. Res. L. Rev. 957, 991 (2016) (quoting Albert J. Meehan & Michael C.
Ponder, Race and Place: The Ecology of Racial Profiling of African American Motorists,
19 Just. Q. 399, 399-400 (2002).
What other constitutional provisions might be violated by pretextual stops? For example, what
if police stop only Catholics, or only Hispanics, or only vehicles with bumper stickers supporting
political candidates or causes offensive to the officer making the stop?

Chapter 6 — Page 149

THE FOURTH AMENDMENT
Chapter 7
Warrants
The Court has stated repeatedly that searches conducted without a warrant are presumptively
“unreasonable” and, accordingly, are presumptive violations of the Fourth Amendment.
Although one can argue whether the Court truly enforces a “warrant requirement”—see Justice
Thomas’s dissent in Groh v. Ramirez below—one cannot deny the importance of valid warrants
to a huge range of police conduct. For example, absent exceptional circumstances (such as
officers chasing a fleeing felon), police normally must have a valid warrant to search a residence
without the occupant’s permission.
To be valid, a warrant must obey the Fourth Amendment’s command that “no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.” This portion of the Amendment
is known as the “Warrant Clause.” It requires: (1) that the evidence presented to the issuing judge
or magistrate be sufficient to qualify as “probable cause,” (2) that the officers bringing the
evidence to the judge or magistrate swear or affirm that the evidence is true to the best of their
knowledge, (3) that the warrant specify where officers can search, and (4) that the warrant
specify what things or persons officers may look for and may seize if found.
In addition, the Court has held that only a “neutral and detached magistrate” may issue a
warrant. See Coolidge v. New Hampshire, 403 U.S. 443 (1971). That means the judge or
magistrate must be independent of law enforcement; a state attorney general cannot issue
warrants. In Connally v. Georgia, 429 U.S. 245 (1977), the Court held that a justice of the peace
who received payment upon issuing a warrant, but no fee upon denying a warrant application,
was not “neutral and detached.”
We have already studied the Court’s definition of “probable cause.” In the next cases, we examine
the particularity requirement—the Fourth Amendment’s requirement that warrants specify in
some detail where officers may search and what they may seize.
Supreme Court of the United States
Peter C. Andresen v. Maryland
Decided June 29, 1976 – 427 U.S. 463
Mr. Justice BLACKMUN delivered the opinion of the Court.
This case presents the issue whether the introduction into evidence of a person’s business
records, seized during a search of his offices, violates the Fifth Amendment’s command that
“[n]o person ... shall be compelled in any criminal case to be a witness against himself.”1 We also
must determine whether the particular searches and seizures here were “unreasonable” and thus
violated the Fourth Amendment.
1 [Footnote by editors] We have removed the Court’s Fifth Amendment analysis.

Chapter 7 — Page 150

I
In early 1972, a Bi-County Fraud Unit, acting under the joint auspices of the State’s Attorneys’
Offices of Montgomery and Prince George’s Counties, Md., began an investigation of real estate
settlement activities in the Washington, D.C., area. At the time, petitioner Andresen was an
attorney who, as a sole practitioner, specialized in real estate settlements in Montgomery
County. During the Fraud Unit’s investigation, his activities came under scrutiny, particularly in
connection with a transaction involving Lot 13T in the Potomac Woods subdivision of
Montgomery County. The investigation, which included interviews with the purchaser, the
mortgage holder, and other lienholders of Lot 13T, as well as an examination of county land
records, disclosed that petitioner, acting as settlement attorney, had defrauded Standard-Young
Associates, the purchaser of Lot 13T. Petitioner had represented that the property was free of
liens and that, accordingly, no title insurance was necessary, when in fact, he knew that there
were two outstanding liens on the property. In addition, investigators learned that the
lienholders, by threatening to foreclose their liens, had forced a halt to the purchaser’s
construction on the property. When Standard-Young had confronted petitioner with this
information, he responded by issuing, as an agent of a title insurance company, a title policy
guaranteeing clear title to the property. By this action, petitioner also defrauded that insurance
company by requiring it to pay the outstanding liens.
The investigators, concluding that there was probable cause to believe that petitioner had
committed the state crime of false pretenses against Standard-Young, applied for warrants to
search petitioner’s law office and the separate office of Mount Vernon Development Corporation,
of which petitioner was incorporator, sole shareholder, resident agent, and director. The
application sought permission to search for specified documents pertaining to the sale and
conveyance of Lot 13T. A judge of the Sixth Judicial Circuit of Montgomery County concluded
that there was probable cause and issued the warrants.
Petitioner eventually was charged, partly by information and partly by indictment, with the
crime of false pretenses, based on his misrepresentation to Standard-Young concerning Lot 13T,
and with fraudulent misappropriation by a fiduciary, based on similar false claims made to three
home purchasers. Before trial began, petitioner moved to suppress the seized documents. The
trial court held a full suppression hearing. [T]he only item seized from the corporation’s offices
that was not returned by the State or suppressed was a single file labeled “Potomac Woods
General.”
With respect to all the items not suppressed or returned, the trial court ruled that admitting them
into evidence would not violate the Fourth Amendment[ ]. [T]he search warrants were based on
probable cause, and the documents not returned or suppressed were either directly related to
Lot 13T, and therefore within the express language of the warrants, or properly seized and
otherwise admissible to show a pattern of criminal conduct relevant to the charge concerning
Lot 13T.
At trial, the State proved its case primarily by public land records and by records provided by the
complaining purchasers, lienholders, and the title insurance company. It did introduce into
evidence, however, a number of the seized items. Three documents from the “Potomac Woods
General” file, seized during the search of petitioner’s corporation, were admitted. These were
notes in the handwriting of an employee who used them to prepare abstracts in the course of his
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duties as a title searcher and law clerk. The notes concerned deeds of trust affecting the Potomac
Woods subdivision and related to the transaction involving Lot 13T. Five items seized from
petitioner’s law office were also admitted. One contained information relating to the transactions
with one of the defrauded home buyers. The second was a file partially devoted to the Lot 13T
transaction; among the documents were settlement statements, the deed conveying the property
to Standard-Young Associates, and the original and a copy of a notice to the buyer about releases
of liens. The third item was a file devoted exclusively to Lot 13T. The fourth item consisted of a
copy of a deed of trust, dated March 27, 1972, from the seller of certain lots in the Potomac Woods
subdivision to a lienholder. The fifth item contained drafts of documents and memoranda
written in petitioner’s handwriting.
After a trial by jury, petitioner was found guilty upon five counts of false pretenses and three
counts of fraudulent misappropriation by a fiduciary. He was sentenced to eight concurrent twoyear prison terms. [T]he Court of Special Appeals rejected petitioner’s Fourth and Fifth
Amendment Claims. Specifically, it held that the warrants were supported by probable cause,
that they did not authorize a general search in violation of the Fourth Amendment, and that the
items admitted into evidence against petitioner at trial were within the scope of the warrants or
were otherwise properly seized. We granted certiorari limited to the Fourth and Fifth
Amendment issues.
III
We turn [] to petitioner’s contention that rights guaranteed him by the Fourth Amendment were
violated because the descriptive terms of the search warrants were so broad as to make them
impermissible “general” warrants.
The specificity of the search warrants. Although petitioner concedes that the warrants for the
most part were models of particularity, he contends that they were rendered fatally “general” by
the addition, in each warrant, to the exhaustive list of particularly described documents, of the
phrase “together with other fruits, instrumentalities and evidence of crime at this [time]
unknown.” The quoted language, it is argued, must be read in isolation and without reference to
the rest of the long sentence at the end of which it appears. When read “properly,” petitioner
contends, it permits the search for and seizure of any evidence of any crime.
General warrants of course, are prohibited by the Fourth Amendment. “[T]he problem [posed
by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging
in a person’s belongings. … [The Fourth Amendment addresses the problem] by requiring a
‘particular description’ of the things to be seized.” This requirement “‘makes general searches …
impossible and prevents the seizure of one thing under a warrant describing another. As to what
is to be taken, nothing is left to the discretion of the officer executing the warrant.’”
In this case we agree with the determination of the Court of Special Appeals of Maryland that
the challenged phrase must be read as authorizing only the search for and seizure of evidence
relating to “the crime of false pretenses with respect to Lot 13T.” The challenged phrase is not a
separate sentence. Instead, it appears in each warrant at the end of a sentence containing a

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lengthy list of specified and particular items to be seized, all pertaining to Lot 13T. 2 We think it
clear from the context that the term “crime” in the warrants refers only to the crime of false
pretenses with respect to the sale of Lot 13T. The “other fruits” clause is one of a series that
follows the colon after the word “Maryland.” All clauses in the series are limited by what precedes
that colon, namely, “items pertaining to … lot 13, block T.” The warrants, accordingly, did not
authorize the executing officers to conduct a search for evidence of other crimes but only to
search for and seize evidence relevant to the crime of false pretenses and Lot 13T. 3
The judgment of the Court of Special Appeals of Maryland is affirmed.
Mr. Justice BRENNAN, dissenting.
I believe that the warrants under which petitioner’s papers were seized were impermissibly
general. I therefore dissent.
[T]he warrants under which those papers were seized were impermissibly general. General
warrants are specially prohibited by the Fourth Amendment. The problem to be avoided is “not
that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings.” Thus
the requirement plainly appearing on the face of the Fourth Amendment that a warrant specify
with particularity the place to be searched and the things to be seized is imposed to the end that
“unauthorized invasions of ‘the sanctity of a man’s home and the privacies of life’” be prevented.
“‘As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.’”
The Court recites these requirements, but their application in this case renders their limitation
on unlawful governmental conduct an empty promise. After a lengthy and admittedly detailed
listing of items to be seized, the warrants in this case further authorized the seizure of “other
fruits, instrumentalities and evidence of crime at this [time] unknown.” The Court construes this
sweeping authorization to be limited to evidence pertaining to the crime of false pretenses with
respect to the sale of Lot 13T. However, neither this Court’s construction of the warrants nor the
similar construction by the Court of Special Appeals of Maryland was available to the
investigators at the time they executed the warrants. The question is not how those warrants are
to be viewed in hindsight, but how they were in fact viewed by those executing them. The
overwhelming quantity of seized material that was either suppressed or returned to petitioner is
irrefutable testimony to the unlawful generality of the warrants. The Court’s attempt to cure this
2 [Footnote 10 by the Court] Petitioner also suggests that the specific list of the documents to be seized constitutes

a “general” warrant. We disagree. Under investigation was a complex real estate scheme whose existence could be
proved only by piecing together many bits of evidence. Like a jigsaw puzzle, the whole “picture” of petitioner’s falsepretense scheme with respect to Lot 13T could be shown only by placing in the proper place the many pieces of
evidence that, taken singly, would show comparatively little. The complexity of an illegal scheme may not be used
as a shield to avoid detection when the State has demonstrated probable cause to believe that a crime has been
committed and probable cause to believe that evidence of this crime is in the suspect’s possession.
3 [Footnote 11 by the Court] We recognize that there are grave dangers inherent in executing a warrant authorizing

a search and seizure of a person’s papers that are not necessarily present in executing a warrant to search for physical
objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous
documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers
authorized to be seized. Similar dangers, of course, are present in executing a warrant for the “seizure” of telephone
conversations. In both kinds of searches, responsible officials, including judicial officials, must take care to assure
that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.
Chapter 7 — Page 153

defect by post hoc judicial construction evades principles settled in this Court’s Fourth
Amendment decisions. “The scheme of the Fourth Amendment becomes meaningful only when
it is assured that at some point the conduct of those charged with enforcing the laws can be
subjected to the more detached, neutral scrutiny of a judge ….” It is not the function of a detached
and neutral review to give effect to warrants whose terms unassailably authorize the far-reaching
search and seizure of a person’s papers especially where that has in fact been the result of
executing those warrants.
Notes, Comments, and Questions
In Andresen, the long list of items (even with the “other fruits, instrumentalities and evidence”
language does not constitute a “general warrant.” What if instead the list of items subject to
seizure had read (in its entirety), “Evidence of real estate fraud”? Would that be sufficient?
Should it be?
Or, to move away from the complicated context of searching a lawyer’s office, consider a case in
which police lawfully arrest someone for marijuana possession. The suspect tells police that he
purchased the marijuana at a certain house and provides the address. If police obtain a warrant
to search the house, is it sufficient for the warrant to list the items subject to seizure as
“marijuana and other evidence of marijuana possession and sale”?
Students may wonder why the inclusion of “the persons or things to be seized” in a warrant will
matter in practice. The following scenarios may help explain:
Imagine that police have probable cause to believe that a stolen piano is located in a suspect’s
house. If the warrant authorizes police to search the house for “a black Steinway Model B grand
piano,” the police may search any location in the house at which the piano might reasonably be
found. That means police likely can enter any room. But unless the house contains unusually
massive medicine cabinets, police likely cannot open a medicine cabinet. Therefore, drugs found
in a medicine cabinet would be the fruits of an unlawful search.
By contrast, if police seek stolen earrings, and the warrant authorizes police to search the house
for “two diamond stud earrings, with platinum settings,” then police can open medicine cabinets,
drawers, and all sorts of places in which earrings can be hidden but pianos cannot.
In addition, imagine that police are searching for both the piano and the earrings. If the warrant
lists only the piano, then police should end their search promptly if they find the piano just inside
the front door; they have no other items listed in the warrant to find. If instead the warrant lists
both the piano and the earrings, then police may continue their search after finding the piano—
examining every crevice in which earrings might be found.

Chapter 7 — Page 154

In the next case, the Court considered a warrant that failed entirely to state what items officers
were permitted to seize when searching a certain house.
Supreme Court of the United States
Jeff Groh v. Joseph R. Ramirez
Decided Feb. 24, 2004 – 540 U.S. 551
Justice STEVENS delivered the opinion of the Court.
Petitioner conducted a search of respondents’ home pursuant to a warrant that failed to describe
the “persons or things to be seized.” The question[] presented [is] whether the search violated
the Fourth Amendment.
I
Respondents, Joseph Ramirez and members of his family, live on a large ranch in Butte-Silver
Bow County, Montana. Petitioner, Jeff Groh, has been a Special Agent for the Bureau of Alcohol,
Tobacco and Firearms (ATF) since 1989. In February 1997, a concerned citizen informed
petitioner that on a number of visits to respondents’ ranch the visitor had seen a large stock of
weaponry, including an automatic rifle, grenades, a grenade launcher, and a rocket launcher.
Based on that information, petitioner prepared and signed an application for a warrant to search
the ranch. The application stated that the search was for “any automatic firearms or parts to
automatic weapons, destructive devices to include but not limited to grenades, grenade
launchers, rocket launchers, and any and all receipts pertaining to the purchase or manufacture
of automatic weapons or explosive devices or launchers.” Petitioner supported the application
with a detailed affidavit, which he also prepared and executed, that set forth the basis for his
belief that the listed items were concealed on the ranch. Petitioner then presented these
documents to a Magistrate, along with a warrant form that petitioner also had completed. The
Magistrate signed the warrant form.
Although the application particularly described the place to be searched and the contraband
petitioner expected to find, the warrant itself was less specific; it failed to identify any of the
items that petitioner intended to seize. In the portion of the form that called for a description of
the “person or property” to be seized, petitioner typed a description of respondents’ two-story
blue house rather than the alleged stockpile of firearms. The warrant did not incorporate by
reference the itemized list contained in the application. It did, however, recite that the Magistrate
was satisfied the affidavit established probable cause to believe that contraband was concealed
on the premises, and that sufficient grounds existed for the warrant’s issuance.
The day after the Magistrate issued the warrant, petitioner led a team of law enforcement
officers, including both federal agents and members of the local sheriff’s department, in the
search of respondents’ premises. Although respondent Joseph Ramirez was not home, his wife
and children were. Petitioner states that he orally described the objects of the search to Mrs.
Ramirez in person and to Mr. Ramirez by telephone. According to Mrs. Ramirez, however,
petitioner explained only that he was searching for “‘an explosive device in a box.’” At any rate,
the officers’ search uncovered no illegal weapons or explosives. When the officers left, petitioner
Chapter 7 — Page 155

gave Mrs. Ramirez a copy of the search warrant, but not a copy of the application, which had
been sealed. The following day, in response to a request from respondents’ attorney, petitioner
faxed the attorney a copy of the page of the application that listed the items to be seized. No
charges were filed against the Ramirezes.
Respondents sued petitioner and the other officers, raising eight claims, including violation of
the Fourth Amendment. The District Court entered summary judgment for all defendants. The
court found no Fourth Amendment violation, because it considered the case comparable to one
in which the warrant contained an inaccurate address, and in such a case, the court reasoned,
the warrant is sufficiently detailed if the executing officers can locate the correct house.
The Court of Appeals affirmed the judgment with respect to all defendants and all claims, with
the exception of respondents’ Fourth Amendment claim against petitioner. On that claim, the
court held that the warrant was invalid because it did not “describe with particularity the place
to be searched and the items to be seized,” and that oral statements by petitioner during or after
the search could not cure the omission. The court observed that the warrant’s facial defect
“increased the likelihood and degree of confrontation between the Ramirezes and the police” and
deprived respondents of the means “to challenge officers who might have exceeded the limits
imposed by the magistrate.” The court also expressed concern that “permitting officers to expand
the scope of the warrant by oral statements would broaden the area of dispute between the
parties in subsequent litigation.”
II
The warrant was plainly invalid. The Fourth Amendment states unambiguously that “no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”
(Emphasis added.) The warrant in this case complied with the first three of these requirements:
It was based on probable cause and supported by a sworn affidavit, and it described particularly
the place of the search. On the fourth requirement, however, the warrant failed altogether.
Indeed, petitioner concedes that “the warrant ... was deficient in particularity because it provided
no description of the type of evidence sought.”
The fact that the application adequately described the “things to be seized” does not save the
warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in
the warrant, not in the supporting documents. And for good reason: “The presence of a search
warrant serves a high function,” and that high function is not necessarily vindicated when some
other document, somewhere, says something about the objects of the search, but the contents of
that document are neither known to the person whose home is being searched nor available for
her inspection. We do not say that the Fourth Amendment prohibits a warrant from crossreferencing other documents. Indeed, most Courts of Appeals have held that a court may
construe a warrant with reference to a supporting application or affidavit if the warrant uses
appropriate words of incorporation, and if the supporting document accompanies the warrant.
But in this case the warrant did not incorporate other documents by reference, nor did either the
affidavit or the application (which had been placed under seal) accompany the warrant. Hence,
we need not further explore the matter of incorporation.
Chapter 7 — Page 156

Petitioner argues that even though the warrant was invalid, the search nevertheless was
“reasonable” within the meaning of the Fourth Amendment. He notes that a Magistrate
authorized the search on the basis of adequate evidence of probable cause, that petitioner orally
described to respondents the items to be seized, and that the search did not exceed the limits
intended by the Magistrate and described by petitioner. Thus, petitioner maintains, his search
of respondents’ ranch was functionally equivalent to a search authorized by a valid warrant.
We disagree. This warrant did not simply omit a few items from a list of many to be seized, or
misdescribe a few of several items. Nor did it make what fairly could be characterized as a mere
technical mistake or typographical error. Rather, in the space set aside for a description of the
items to be seized, the warrant stated that the items consisted of a “single dwelling residence ...
blue in color.” In other words, the warrant did not describe the items to be seized at all. In this
respect the warrant was so obviously deficient that we must regard the search as “warrantless”
within the meaning of our case law. “We are not dealing with formalities.” Because “‘the right of
a man to retreat into his own home and there be free from unreasonable governmental
intrusion’” stands “‘[a]t the very core’ of the Fourth Amendment,” our cases have firmly
established the “‘basic principle of Fourth Amendment law’ that searches and seizures inside a
home without a warrant are presumptively unreasonable,” Thus, “absent exigent circumstances,
a warrantless entry to search for weapons or contraband is unconstitutional even when a felony
has been committed and there is probable cause to believe that incriminating evidence will be
found within.”
We have clearly stated that the presumptive rule against warrantless searches applies with equal
force to searches whose only defect is a lack of particularity in the warrant.
Petitioner asks us to hold that a search conducted pursuant to a warrant lacking particularity
should be exempt from the presumption of unreasonableness if the goals served by the
particularity requirement are otherwise satisfied. He maintains that the search in this case
satisfied those goals—which he says are “to prevent general searches, to prevent the seizure of
one thing under a warrant describing another, and to prevent warrants from being issued on
vague or dubious information” because the scope of the search did not exceed the limits set forth
in the application. But unless the particular items described in the affidavit are also set forth in
the warrant itself (or at least incorporated by reference, and the affidavit present at the search),
there can be no written assurance that the Magistrate actually found probable cause to search
for, and to seize, every item mentioned in the affidavit. In this case, for example, it is at least
theoretically possible that the Magistrate was satisfied that the search for weapons and
explosives was justified by the showing in the affidavit, but not convinced that any evidentiary
basis existed for rummaging through respondents’ files and papers for receipts pertaining to the
purchase or manufacture of such items. Or, conceivably, the Magistrate might have believed that
some of the weapons mentioned in the affidavit could have been lawfully possessed and therefore
should not be seized. The mere fact that the Magistrate issued a warrant does not necessarily
establish that he agreed that the scope of the search should be as broad as the affiant’s request.
Even though petitioner acted with restraint in conducting the search, “the inescapable fact is that
this restraint was imposed by the agents themselves, not by a judicial officer.”

Chapter 7 — Page 157

We have long held, moreover, that the purpose of the particularity requirement is not limited to
the prevention of general searches. A particular warrant also “assures the individual whose
property is searched or seized of the lawful authority of the executing officer, his need to search,
and the limits of his power to search.”
Petitioner argues that even if the goals of the particularity requirement are broader than he
acknowledges, those goals nevertheless were served because he orally described to respondents
the items for which he was searching. Thus, he submits, respondents had all of the notice that a
proper warrant would have accorded. But this case presents no occasion even to reach this
argument, since respondents, as noted above, dispute petitioner’s account. According to Mrs.
Ramirez, petitioner stated only that he was looking for an “‘explosive device in a box.’” Because
this dispute is before us on petitioner’s motion for summary judgment, “[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” The
posture of the case therefore obliges us to credit Mrs. Ramirez’s account, and we find that
petitioner’s description of “‘an explosive device in a box’” was little better than no guidance at
all.
It is incumbent on the officer executing a search warrant to ensure the search is lawfully
authorized and lawfully conducted. Because petitioner did not have in his possession a warrant
particularly describing the things he intended to seize, proceeding with the search was clearly
“unreasonable” under the Fourth Amendment. The Court of Appeals correctly held that the
search was unconstitutional.
Justice THOMAS, with whom Justice SCALIA joins, dissenting.
The Fourth Amendment provides: “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.” The
precise relationship between the Amendment’s Warrant Clause and Unreasonableness Clause is
unclear. But neither Clause explicitly requires a warrant. While “it is of course textually possible
to consider [a warrant requirement] implicit within the requirement of reasonableness,” the text
of the Fourth Amendment certainly does not mandate this result. Nor does the Amendment’s
history, which is clear as to the Amendment’s principal target (general warrants), but not as clear
with respect to when warrants were required, if ever. Indeed, because of the very different nature
and scope of federal authority and ability to conduct searches and arrests at the founding, it is
possible that neither the history of the Fourth Amendment nor the common law provides much
guidance.
As a result, the Court has vacillated between imposing a categorical warrant requirement and
applying a general reasonableness standard. Today the Court holds that the warrant in this case
was “so obviously deficient” that the ensuing search must be regarded as a warrantless search
and thus presumptively unreasonable. However, the text of the Fourth Amendment, its history,
and the sheer number of exceptions to the Court’s categorical warrant requirement seriously
undermine the bases upon which the Court today rests its holding. Instead of adding to this
confusing jurisprudence, as the Court has done, I would turn to first principles in order to
determine the relationship between the Warrant Clause and the Unreasonableness Clause. But
Chapter 7 — Page 158

even within the Court’s current framework, a search conducted pursuant to a defective warrant
is constitutionally different from a “warrantless search.” Consequently, despite the defective
warrant, I would still ask whether this search was unreasonable and would conclude that it was
not. For these reasons, I respectfully dissent.
I
“[A]ny Fourth Amendment case may present two separate questions: whether the search was
conducted pursuant to a warrant issued in accordance with the second Clause, and, if not,
whether it was nevertheless ‘reasonable’ within the meaning of the first.” By categorizing the
search here to be a “warrantless” one, the Court declines to perform a reasonableness inquiry
and ignores the fact that this search is quite different from searches that the Court has considered
to be “warrantless” in the past. Our cases involving “warrantless” searches do not generally
involve situations in which an officer has obtained a warrant that is later determined to be
facially defective, but rather involve situations in which the officers neither sought nor obtained
a warrant. By simply treating this case as if no warrant had even been sought or issued, the Court
glosses over what should be the key inquiry: whether it is always appropriate to treat a search
made pursuant to a warrant that fails to describe particularly the things to be seized as
presumptively unreasonable.
The Court also rejects the argument that the details of the warrant application and affidavit save
the warrant, because “‘[t]he presence of a search warrant serves a high function.’” But it is not
only the physical existence of the warrant and its typewritten contents that serve this high
function. The Warrant Clause’s principal protection lies in the fact that the “‘Fourth Amendment
has interposed a magistrate between the citizen and the police ... so that an objective mind might
weigh the need to invade [the searchee’s] privacy in order to enforce the law.’” The Court has
further explained:
“The point of the Fourth Amendment ... is not that it denies law enforcement the support of the
usual inferences which reasonable men draw from evidence. Its protection consists in requiring
that those inferences be drawn by a neutral and detached magistrate instead of being judged by
the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption
that evidence sufficient to support a magistrate’s disinterested determination to issue a search
warrant will justify the officers in making a search without a warrant would reduce the
Amendment to a nullity and leave the people’s homes secure only in the discretion of police
officers .... When the right of privacy must reasonably yield to the right of search is, as a rule, to
be decided by a judicial officer, not by a policeman or government enforcement agent.”
But the actual contents of the warrant are simply manifestations of this protection. Hence, in
contrast to the case of a truly warrantless search, where a warrant (due to a mistake) does not
specify on its face the particular items to be seized but the warrant application passed on by the
magistrate judge contains such details, a searchee still has the benefit of a determination by a
neutral magistrate that there is probable cause to search a particular place and to seize particular
items. In such a circumstance, the principal justification for applying a rule of presumptive
unreasonableness falls away.

Chapter 7 — Page 159

In the instant case, the items to be seized were clearly specified in the warrant application and
set forth in the affidavit, both of which were given to the Judge (Magistrate). The Magistrate
reviewed all of the documents and signed the warrant application and made no adjustment or
correction to this application. It is clear that respondents here received the protection of the
Warrant Clause. Under these circumstances, I would not hold that any ensuing search
constitutes a presumptively unreasonable warrantless search. Instead, I would determine
whether, despite the invalid warrant, the resulting search was reasonable and hence
constitutional.
II
Because the search was not unreasonable, I would conclude that it was constitutional. Prior to
execution of the warrant, petitioner briefed the search team and provided a copy of the search
warrant application, the supporting affidavit, and the warrant for the officers to review.
Petitioner orally reviewed the terms of the warrant with the officers, including the specific items
for which the officers were authorized to search. Petitioner and his search team then conducted
the search entirely within the scope of the warrant application and warrant; that is, within the
scope of what the Magistrate had authorized. Finding no illegal weapons or explosives, the search
team seized nothing. When petitioner left, he gave respondents a copy of the search warrant.
Upon request the next day, petitioner faxed respondents a copy of the more detailed warrant
application. Indeed, putting aside the technical defect in the warrant, it is hard to imagine how
the actual search could have been carried out any more reasonably.
The Court argues that this eminently reasonable search is nonetheless unreasonable because
“there can be no written assurance that the Magistrate actually found probable cause to search
for, and to seize, every item mentioned in the affidavit” “unless the particular items described in
the affidavit are also set forth in the warrant itself.” The Court argues that it was at least possible
that the Magistrate intended to authorize a much more limited search than the one petitioner
requested. As a theoretical matter, this may be true. But the more reasonable inference is that
the Magistrate intended to authorize everything in the warrant application, as he signed the
application and did not make any written adjustments to the application or the warrant itself.
The Court also attempts to bolster its focus on the faulty warrant by arguing that the purpose of
the particularity requirement is not only to prevent general searches, but also to assure the
searchee of the lawful authority for the search. But as the Court recognizes, neither the Fourth
Amendment nor Federal Rule of Criminal Procedure 41 requires an officer to serve the warrant
on the searchee before the search. Thus, a search should not be considered per se unreasonable
for failing to apprise the searchee of the lawful authority prior to the search, especially where, as
here, the officer promptly provides the requisite information when the defect in the papers is
detected. Additionally, unless the Court adopts the Court of Appeals’ view that the Constitution
protects a searchee’s ability to “be on the lookout and to challenge officers,” while the officers
are actually carrying out the search, petitioner’s provision of the requisite information the
following day is sufficient to satisfy this interest.
For the foregoing reasons, I respectfully dissent.
*

*

*

Chapter 7 — Page 160

In the next two cases, the Court considers a recurring question related to how officers may
execute a valid warrant. Specifically, the question is whether officers must “knock and announce”
before breaking in someone’s door to conduct a search pursuant to a warrant. Even more
specifically, the question is whether the Fourth Amendment generally requires the knocking and
announcing and, if so, what exceptions limit the general rule.
Supreme Court of the United States
Sharlene Wilson v. Arkansas
Decided May 22, 1995 – 514 U.S. 927
Justice THOMAS delivered the opinion of the [unanimous] Court.
At the time of the framing, the common law of search and seizure recognized a law enforcement
officer’s authority to break open the doors of a dwelling, but generally indicated that he first
ought to announce his presence and authority. In this case, we hold that this common-law “knock
and announce” principle forms a part of the reasonableness inquiry under the Fourth
Amendment.
I
During November and December 1992, petitioner Sharlene Wilson made a series of narcotics
sales to an informant acting at the direction of the Arkansas State Police. In late November, the
informant purchased marijuana and methamphetamine at the home that petitioner shared with
Bryson Jacobs. On December 30, the informant telephoned petitioner at her home and arranged
to meet her at a local store to buy some marijuana. According to testimony presented below,
petitioner produced a semiautomatic pistol at this meeting and waved it in the informant’s face,
threatening to kill her if she turned out to be working for the police. Petitioner then sold the
informant a bag of marijuana.
The next day, police officers applied for and obtained warrants to search petitioner’s home and
to arrest both petitioner and Jacobs. Affidavits filed in support of the warrants set forth the
details of the narcotics transactions and stated that Jacobs had previously been convicted of
arson and firebombing. The search was conducted later that afternoon. Police officers found the
main door to petitioner’s home open. While opening an unlocked screen door and entering the
residence, they identified themselves as police officers and stated that they had a warrant. Once
inside the home, the officers seized marijuana, methamphetamine, valium, narcotics
paraphernalia, a gun, and ammunition. They also found petitioner in the bathroom, flushing
marijuana down the toilet. Petitioner and Jacobs were arrested and charged with delivery of
marijuana, delivery of methamphetamine, possession of drug paraphernalia, and possession of
marijuana.
Before trial, petitioner filed a motion to suppress the evidence seized during the search.
Petitioner asserted that the search was invalid on various grounds, including that the officers
had failed to “knock and announce” before entering her home. The trial court summarily denied
the suppression motion. After a jury trial, petitioner was convicted of all charges and sentenced
to 32 years in prison.
Chapter 7 — Page 161

The Arkansas Supreme Court affirmed petitioner’s conviction on appeal. The court noted that
“the officers entered the home while they were identifying themselves,” but it rejected
petitioner’s argument that “the Fourth Amendment requires officers to knock and announce
prior to entering the residence.” Finding “no authority for [petitioner’s] theory that the knock
and announce principle is required by the Fourth Amendment,” the court concluded that neither
Arkansas law nor the Fourth Amendment required suppression of the evidence.
We granted certiorari to resolve the conflict among the lower courts as to whether the commonlaw knock and announce principle forms a part of the Fourth Amendment reasonableness
inquiry. We hold that it does, and accordingly reverse and remand.
II
The Fourth Amendment to the Constitution protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures.” In
evaluating the scope of this right, we have looked to the traditional protections against
unreasonable searches and seizures afforded by the common law at the time of the framing.
“Although the underlying command of the Fourth Amendment is always that searches and
seizures be reasonable,” our effort to give content to this term may be guided by the meaning
ascribed to it by the Framers of the Amendment. An examination of the common law of search
and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part
on whether law enforcement officers announced their presence and authority prior to entering.
Although the common law generally protected a man’s house as “his castle of defense and
asylum,” common-law courts long have held that “when the King is party, the sheriff (if the doors
be not open) may break the party’s house, either to arrest him, or to do other execution of the
K[ing]’s process, if otherwise he cannot enter.” To this rule, however, common-law courts
appended an important qualification:
“But before he breaks it, he ought to signify the cause of his coming, and to make request to open
doors ..., for the law without a default in the owner abhors the destruction or breaking of any
house (which is for the habitation and safety of man) by which great damage and inconvenience
might ensue to the party, when no default is in him; for perhaps he did not know of the process,
of which, if he had notice, it is to be presumed that he would obey it....”
Several prominent founding-era commentators agreed on this basic principle. According to Sir
Matthew Hale, the “constant practice” at common law was that “the officer may break open the
door, if he be sure the offender is there, if after acquainting them of the business, and demanding
the prisoner, he refuses to open the door.” William Hawkins propounded a similar principle:
“the law doth never allow” an officer to break open the door of a dwelling “but in cases of
necessity,” that is, unless he “first signify to those in the house the cause of his coming, and
request them to give him admittance.” Sir William Blackstone stated simply that the sheriff may
“justify breaking open doors, if the possession be not quietly delivered.”

Chapter 7 — Page 162

The common-law knock and announce principle was woven quickly into the fabric of early
American law. Most of the States that ratified the Fourth Amendment had enacted constitutional
provisions or statutes generally incorporating English common law, and a few States had enacted
statutes specifically embracing the common-law view that the breaking of the door of a dwelling
was permitted once admittance was refused.
Our own cases have acknowledged that the common law principle of announcement is
“embedded in Anglo-American law,” but we have never squarely held that this principle is an
element of the reasonableness inquiry under the Fourth Amendment. We now so hold. Given the
longstanding common-law endorsement of the practice of announcement, we have little doubt
that the Framers of the Fourth Amendment thought that the method of an officer’s entry into a
dwelling was among the factors to be considered in assessing the reasonableness of a search or
seizure. Contrary to the decision below, we hold that in some circumstances an officer’s
unannounced entry into a home might be unreasonable under the Fourth Amendment.
This is not to say, of course, that every entry must be preceded by an announcement. The Fourth
Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule
of announcement that ignores countervailing law enforcement interests. As even petitioner
concedes, the common-law principle of announcement was never stated as an inflexible rule
requiring announcement under all circumstances.
Indeed, at the time of the framing, the common-law admonition that an officer “ought to signify
the cause of his coming” had not been extended conclusively to the context of felony arrests. The
common-law principle gradually was applied to cases involving felonies, but at the same time
the courts continued to recognize that under certain circumstances the presumption in favor of
announcement necessarily would give way to contrary considerations.
Thus, because the common-law rule was justified in part by the belief that announcement
generally would avoid “the destruction or breaking of any house ... by which great damage and
inconvenience might ensue,” courts acknowledged that the presumption in favor of
announcement would yield under circumstances presenting a threat of physical violence.
Similarly, courts held that an officer may dispense with announcement in cases where a prisoner
escapes from him and retreats to his dwelling. Proof of “demand and refusal” was deemed
unnecessary in such cases because it would be a “senseless ceremony” to require an officer in
pursuit of a recently escaped arrestee to make an announcement prior to breaking the door to
retake him. Finally, courts have indicated that unannounced entry may be justified where police
officers have reason to believe that evidence would likely be destroyed if advance notice were
given.
We need not attempt a comprehensive catalog of the relevant countervailing factors here. For
now, we leave to the lower courts the task of determining the circumstances under which an
unannounced entry is reasonable under the Fourth Amendment. We simply hold that although
a search or seizure of a dwelling might be constitutionally defective if police officers enter
without prior announcement, law enforcement interests may also establish the reasonableness
of an unannounced entry.

Chapter 7 — Page 163

III
Respondent contends that the judgment below should be affirmed because the unannounced
entry in this case was justified for two reasons. First, respondent argues that police officers
reasonably believed that a prior announcement would have placed them in peril, given their
knowledge that petitioner had threatened a government informant with a semiautomatic
weapon and that Mr. Jacobs had previously been convicted of arson and firebombing. Second,
respondent suggests that prior announcement would have produced an unreasonable risk that
petitioner would destroy easily disposable narcotics evidence.
These considerations may well provide the necessary justification for the unannounced entry in
this case. Because the Arkansas Supreme Court did not address their sufficiency, however, we
remand to allow the state courts to make any necessary findings of fact and to make the
determination of reasonableness in the first instance. The judgment of the Arkansas Supreme
Court is reversed, and the case is remanded for further proceedings not inconsistent with this
opinion.
Notes, Comments, and Questions
In Wilson, the Court stated that obeying the “knock and announce” rule was part of conducting
a “reasonable” search under the Fourth Amendment. The Court also stated, however, that certain
searches may be conducted without knocking and announcing. Indeed, after the Court remanded
Sharlene Wilson’s case to the Arkansas court system, she was not released. It seems that
Arkansas courts determined that under the facts presented, it was reasonable for officers to enter
Wilson’s home without knocking and announcing.
Although best known to today’s students for her role in knock-and-announce doctrine, Sharlene
Wilson was briefly famous two decades ago—at least among followers of certain conspiracy
theories—for other reasons. During her imprisonment, it was reported that Wilson claimed to
have seen then-Arkansas Governor Bill Clinton using cocaine and attending “cocaine parties.” It
was also suggested that Wilson had been sent to prison in an effort to prevent her from harming
Clinton’s political ambitions. Her case was celebrated by certain activists who sought her release,
and Governor Mike Huckabee (father of future White House press secretary Sarah Sanders)
reduced her sentence in 1999, making Wilson eligible for parole. Then, after marrying Bryson
Jacobs—the boyfriend mentioned in the Wilson opinion—she began a ministry tour.
In the next case, the Court attempted to provide more guidance about when knocking and
announcing is not required.

Chapter 7 — Page 164

Supreme Court of the United States
Steiney Richards v. Wisconsin
Decided April 28, 1997 – 520 U.S. 385
Justice STEVENS delivered the opinion of the [unanimous] Court.
In Wilson v. Arkansas, we held that the Fourth Amendment incorporates the common law
requirement that police officers entering a dwelling must knock on the door and announce their
identity and purpose before attempting forcible entry. At the same time, we recognized that the
“flexible requirement of reasonableness should not be read to mandate a rigid rule of
announcement that ignores countervailing law enforcement interests,” and left “to the lower
courts the task of determining the circumstances under which an unannounced entry is
reasonable under the Fourth Amendment.”
In this case, the Wisconsin Supreme Court concluded that police officers are never required to
knock and announce their presence when executing a search warrant in a felony drug
investigation. In so doing, it reaffirmed a pre-Wilson holding and concluded that Wilson did not
preclude this per se rule. We disagree with the court’s conclusion that the Fourth Amendment
permits a blanket exception to the knock-and-announce requirement for this entire category of
criminal activity. But because the evidence presented to support the officers’ actions in this case
establishes that the decision not to knock and announce was a reasonable one under the
circumstances, we affirm the judgment of the Wisconsin court.
I
On December 31, 1991, police officers in Madison, Wisconsin, obtained a warrant to search
Steiney Richards’ motel room for drugs and related paraphernalia. The search warrant was the
culmination of an investigation that had uncovered substantial evidence that Richards was one
of several individuals dealing drugs out of motel rooms in Madison. The police requested a
warrant that would have given advance authorization for a “no-knock” entry into the motel room,
but the Magistrate explicitly deleted those portions of the warrant.
The officers arrived at the motel room at 3:40 a.m. Officer Pharo, dressed as a maintenance man,
led the team. With him were several plainclothes officers and at least one man in uniform. Officer
Pharo knocked on Richards’ door and, responding to the query from inside the room, stated that
he was a maintenance man. With the chain still on the door, Richards cracked it open. Although
there is some dispute as to what occurred next, Richards acknowledges that when he opened the
door he saw the man in uniform standing behind Officer Pharo. He quickly slammed the door
closed and, after waiting two or three seconds, the officers began kicking and ramming the door
to gain entry to the locked room. At trial, the officers testified that they identified themselves as
police while they were kicking the door in. When they finally did break into the room, the officers
caught Richards trying to escape through the window. They also found cash and cocaine hidden
in plastic bags above the bathroom ceiling tiles.
Richards sought to have the evidence from his motel room suppressed on the ground that the
officers had failed to knock and announce their presence prior to forcing entry into the room.
Chapter 7 — Page 165

The trial court denied the motion, concluding that the officers could gather from Richards’
strange behavior when they first sought entry that he knew they were police officers and that he
might try to destroy evidence or to escape. The judge emphasized that the easily disposable
nature of the drugs the police were searching for further justified their decision to identify
themselves as they crossed the threshold instead of announcing their presence before seeking
entry. Richards appealed the decision to the Wisconsin Supreme Court and that court affirmed.
The Wisconsin Supreme Court did not delve into the events underlying Richards’ arrest in any
detail, but accepted the following facts: “[O]n December 31, 1991, police executed a search
warrant for the motel room of the defendant seeking evidence of the felonious crime of
Possession with Intent to Deliver a Controlled Substance in violation of Wis. Stat. § 161.41(1m)
(1991-92). They did not knock and announce prior to their entry. Drugs were seized.”
II
We recognized in Wilson that the knock-and-announce requirement could give way “under
circumstances presenting a threat of physical violence,” or “where police officers have reason to
believe that evidence would likely be destroyed if advance notice were given.” It is indisputable
that felony drug investigations may frequently involve both of these circumstances. The question
we must resolve is whether this fact justifies dispensing with case-by-case evaluation of the
manner in which a search was executed.
The Wisconsin court explained its blanket exception as necessitated by the special circumstances
of today’s drug culture, and the State asserted at oral argument that the blanket exception was
reasonable in “felony drug cases because of the convergence in a violent and dangerous form of
commerce of weapons and the destruction of drugs.” But creating exceptions to the knock-andannounce rule based on the “culture” surrounding a general category of criminal behavior
presents at least two serious concerns.
First, the exception contains considerable overgeneralization. For example, while drug
investigation frequently does pose special risks to officer safety and the preservation of evidence,
not every drug investigation will pose these risks to a substantial degree. For example, a search
could be conducted at a time when the only individuals present in a residence have no connection
with the drug activity and thus will be unlikely to threaten officers or destroy evidence. Or the
police could know that the drugs being searched for were of a type or in a location that made
them impossible to destroy quickly. In those situations, the asserted governmental interests in
preserving evidence and maintaining safety may not outweigh the individual privacy interests
intruded upon by a no-knock entry. Wisconsin’s blanket rule impermissibly insulates these cases
from judicial review.
A second difficulty with permitting a criminal-category exception to the knock-and-announce
requirement is that the reasons for creating an exception in one category can, relatively easily,
be applied to others. Armed bank robbers, for example, are, by definition, likely to have weapons,
and the fruits of their crime may be destroyed without too much difficulty. If a per se exception
were allowed for each category of criminal investigation that included a considerable—albeit
hypothetical—risk of danger to officers or destruction of evidence, the knock-and-announce
element of the Fourth Amendment’s reasonableness requirement would be meaningless.
Chapter 7 — Page 166

Thus, the fact that felony drug investigations may frequently present circumstances warranting
a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the
reasonableness of the police decision not to knock and announce in a particular case. Instead, in
each case, it is the duty of a court confronted with the question to determine whether the facts
and circumstances of the particular entry justified dispensing with the knock-and-announce
requirement.
In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking
and announcing their presence, under the particular circumstances, would be dangerous or
futile, or that it would inhibit the effective investigation of the crime by, for example, allowing
the destruction of evidence. This standard—as opposed to a probable-cause requirement—
strikes the appropriate balance between the legitimate law enforcement concerns at issue in the
execution of search warrants and the individual privacy interests affected by no-knock entries.
This showing is not high, but the police should be required to make it whenever the
reasonableness of a no-knock entry is challenged.
III
Although we reject the Wisconsin court’s blanket exception to the knock-and-announce
requirement, we conclude that the officers’ no-knock entry into Richards’ motel room did not
violate the Fourth Amendment. We agree with the trial court that the circumstances in this case
show that the officers had a reasonable suspicion that Richards might destroy evidence if given
further opportunity to do so.
The judge who heard testimony at Richards’ suppression hearing concluded that it was
reasonable for the officers executing the warrant to believe that Richards knew, after opening
the door to his motel room the first time, that the men seeking entry to his room were the police.
Once the officers reasonably believed that Richards knew who they were, the court concluded, it
was reasonable for them to force entry immediately given the disposable nature of the drugs.
In arguing that the officers’ entry was unreasonable, Richards places great emphasis on the fact
that the Magistrate who signed the search warrant for his motel room deleted the portions of the
proposed warrant that would have given the officers permission to execute a no-knock entry. But
this fact does not alter the reasonableness of the officers’ decision, which must be evaluated as
of the time they entered the motel room. At the time the officers obtained the warrant, they did
not have evidence sufficient, in the judgment of the Magistrate, to justify a no-knock warrant. Of
course, the Magistrate could not have anticipated in every particular the circumstances that
would confront the officers when they arrived at Richards’ motel room. These actual
circumstances—petitioner’s apparent recognition of the officers combined with the easily
disposable nature of the drugs—justified the officers’ ultimate decision to enter without first
announcing their presence and authority.
Accordingly, although we reject the blanket exception to the knock-and-announce requirement
for felony drug investigations, the judgment of the Wisconsin Supreme Court is affirmed.

Chapter 7 — Page 167

Notes, Comments, and Questions
When police “knock and announce,” they are often not obligated to wait very long before forcing
entry. In United States v. Banks, 540 U.S. 31 (2003), the Court found that a “15-to-20-second
wait before a forcible entry” was justified by the circumstances, and federal courts have approved
even shorter wait times.4 Short wait times are especially likely to be deemed reasonable if officers
are searching for drugs and hear no response after knocking and announcing. The necessary
time officers must wait before “reasonably” breaking a door varies depending on factors such as
what police seek, the anticipated dangerousness of persons likely to be on the premises, and how
persons react to the arrival of officers.
The 2017 news that federal agents conducted a no-knock raid against Paul Manafort, the former
presidential campaign manager for Donald Trump, inspired new interest in the phenomenon of
no-knock entries and the breaking of doors by police. Although some commentators suggested
that such raids are unusual, it would have been more accurate to say that such raids are unusual
for suspects like Paul Manafort. In drug cases, no-knock raids are not unusual at all.5
Students interested in what happens when police execute warrants, particularly without
knocking and announcing, may appreciate Radley Balko’s book Rise of the Warrior Cop (2013).
Balko observed:
Today in America SWAT teams violently smash into private homes more than one
hundred times per day. The vast majority of these raids are to enforce laws against
consensual crimes.6 In many cities, police departments have given up the
traditional blue uniforms for “battle dress uniforms” modeled after soldier attire.
Police departments across the country now sport armored personnel carriers
designed for use on a battlefield. … They carry military-grade weapons. Most of
this equipment comes from the military itself. Many SWAT teams today are trained
by current and former personnel from special forces units.7
Balko notes also that despite the Supreme Court’s guidance concerning no-knock raids—that is,
holdings that the Fourth Amendment limits the use of such tactics—“the police officers
interviewed for this book unanimously told me that beginning in about the mid-1980s, judges
almost never denied their requests for a search warrant” and that “knock-and-announce requests
were never a problem.”8

4 See Banks at 38, n. 5 (collecting cases).
5 See Radley Balko, “No-Knock Raids like the one against Paul Manafort are more Common than You Think,” Wash.

Post (Aug. 10, 2017).
6 [Footnote by editors] Balko is referring to drug crimes and illegal gambling—or, more generally, crimes with no
apparent “victim.”
7 Radley Balko, Rise of the Warrior Cop xi-xii (2013).
8 Id. at 183; see also Radley Balko, “How Little Rock’s Illegal Police Raids Validate the Exclusionary Rule,” Wash.
Post (Oct. 19, 2018) (reporting routine issuance of no-knock warrants despite lack of any specific information in
application about “why the suspect named in the warrant merited a no-knock raid”).
Chapter 7 — Page 168

In March 2020, no-knock warrants gained national attention after police in Louisville, Kentucky
shot and killed Breonna Taylor, a 26-year-old emergency room technician. Police entered her
apartment soon after midnight on March 13, under authority of a no-knock warrant issued by a
judge. Taylor’s boyfriend, Kenneth Walker, said later that when police entered, he and Taylor
believed they were victims of a burglary and did not know that the persons entering their home
were police officers. Officers said later that they did knock and announce. After police entered,
Walker shot at the officers, hitting one in the leg. Police fired back, killing Taylor. She was shot
at least eight times. The warrant had been issued as part of an investigation into drug sales. No
drugs were found in Taylor’s apartment. Taylor’s death was one of several—including the May
2020 killing of George Floyd by police in Minneapolis—that inspired nationwide protests.
Louisville officials announced new policies relating to no-knock warrants in the wake of protests.
In addition, some have argued that under existing law set forth in Wilson and Richards, the noknock warrant in Taylor’s case was not lawfully issued.
In our next chapter, we will continue examining how the Court regulates the execution of
warrants by police. In particular, we will review how officers may treat persons who happen to
be present while officers are searching pursuant to a warrant (including whether such persons
may be detained and searched), as well as how mistakes by police in the execution of warrants
(such as searching the wrong place) affect the “reasonableness” of searches.
After that, we will spend several chapters studying the circumstances in which the Court has
declared that warrants are not required.

Chapter 7 — Page 169

THE FOURTH AMENDMENT
Chapter 8
Execution of Warrants
The execution of warrants presents several opportunities for disaster, as well as more minor
problems. Straightforward risks include efforts by persons present at the search location to
disrupt the search, such as by destroying evidence or barring entry. In addition, the possibility
that suspects will assault officers cannot be ignored. The Court has attempted to balance concern
about these risks with concern for the civil liberties of persons present during a search. Two
common recurring questions include: (1) when officers may detain those present at the search
location and (2) when officers may search them.
In addition to hazards faced by law enforcement officers, other problems can be created by
officers themselves or by the judges who issue warrants. For example, a warrant listing the wrong
address can cause officers to search the wrong house. Officers who do not read a warrant
carefully can search locations beyond those authorized by a warrant. And rough search methods
can cause needless property damage.
We begin with the Court’s rulings about how police may treat persons who are present during
the execution of a valid search warrant.
Supreme Court of the United States
Darin L. Muehler v. Iris Mena
Decided March 22, 2005 – 544 U.S. 93
Chief Justice REHNQUIST delivered the opinion of the Court.
Respondent Iris Mena was detained in handcuffs during a search of the premises that she and
several others occupied. Petitioners were lead members of a police detachment executing a
search warrant of these premises. She sued the officers and the District Court found in her favor.
The Court of Appeals affirmed the judgment, holding that the use of handcuffs to detain Mena
during the search violated the Fourth Amendment and that the officers’ questioning of Mena
about her immigration status during the detention constituted an independent Fourth
Amendment violation. We hold that Mena’s detention in handcuffs for the length of the search
was consistent with our opinion in Michigan v. Summers, 452 U.S. 692 (1981), and that the
officers’ questioning during that detention did not violate her Fourth Amendment rights.

Chapter 8 — Page 170

Based on information gleaned from the investigation of a gang-related, driveby shooting,
petitioners Muehler and Brill had reason to believe at least one member of a gang—the West Side
Locos—lived at 1363 Patricia Avenue. They also suspected that the individual was armed and
dangerous, since he had recently been involved in the driveby shooting. As a result, Muehler
obtained a search warrant for 1363 Patricia Avenue that authorized a broad search of the house
and premises for, among other things, deadly weapons and evidence of gang membership. In
light of the high degree of risk involved in searching a house suspected of housing at least one,
and perhaps multiple, armed gang members, a Special Weapons and Tactics (SWAT) team was
used to secure the residence and grounds before the search.
At 7 a.m. on February 3, 1998, petitioners, along with the SWAT team and other officers,
executed the warrant. Mena was asleep in her bed when the SWAT team, clad in helmets and
black vests adorned with badges and the word “POLICE,” entered her bedroom and placed her
in handcuffs at gunpoint. The SWAT team also handcuffed three other individuals found on the
property. The SWAT team then took those individuals and Mena into a converted garage, which
contained several beds and some other bedroom furniture. While the search proceeded, one or
two officers guarded the four detainees, who were allowed to move around the garage but
remained in handcuffs.
Aware that the West Side Locos gang was composed primarily of illegal immigrants, the officers
had notified the Immigration and Naturalization Service (INS) that they would be conducting
the search, and an INS officer accompanied the officers executing the warrant. During their
detention in the garage, an officer asked for each detainee’s name, date of birth, place of birth,
and immigration status. The INS officer later asked the detainees for their immigration
documentation. Mena’s status as a permanent resident was confirmed by her papers. 1
The search of the premises yielded a .22 caliber handgun with .22 caliber ammunition, a box of
.25 caliber ammunition, several baseball bats with gang writing, various additional gang
paraphernalia, and a bag of marijuana. Before the officers left the area, Mena was released.
In her § 1983 suit against the officers she alleged that she was detained “for an unreasonable
time and in an unreasonable manner” in violation of the Fourth Amendment. In addition, she
claimed that the warrant and its execution were overbroad, that the officers failed to comply with
the “knock and announce” rule, and that the officers had needlessly destroyed property during
the search. The officers moved for summary judgment, asserting that they were entitled to
qualified immunity, but the District Court denied their motion. The Court of Appeals affirmed
that denial, except for Mena’s claim that the warrant was overbroad; on this claim the Court of
Appeals held that the officers were entitled to qualified immunity. After a trial, a jury, pursuant
to a special verdict form, found that Officers Muehler and Brill violated Mena’s Fourth
Amendment right to be free from unreasonable seizures by detaining her both with force greater
than that which was reasonable and for a longer period than that which was reasonable. The jury
awarded Mena $10,000 in actual damages and $20,000 in punitive damages against each
petitioner for a total of $60,000.

1 [Footnote

by editors] A Lawful Permanent Resident, also known as a “green card” holder, is a non-citizen
authorized to live permanently within the United States.
Chapter 8 — Page 171

The Court of Appeals affirmed the judgment on two grounds. Reviewing the denial of qualified
immunity de novo, it first held that the officers’ detention of Mena violated the Fourth
Amendment because it was objectively unreasonable to confine her in the converted garage and
keep her in handcuffs during the search. In the Court of Appeals’ view, the officers should have
released Mena as soon as it became clear that she posed no immediate threat. The court
additionally held that the questioning of Mena about her immigration status constituted an
independent Fourth Amendment violation. The Court of Appeals went on to hold that those
rights were clearly established at the time of Mena’s questioning, and thus the officers were not
entitled to qualified immunity. We granted certiorari and now vacate and remand.
In Michigan v. Summers, 452 U.S. 692 (1981), we held that officers executing a search warrant
for contraband have the authority “to detain the occupants of the premises while a proper search
is conducted.” Such detentions are appropriate, we explained, because the character of the
additional intrusion caused by detention is slight and because the justifications for detention are
substantial. We made clear that the detention of an occupant is “surely less intrusive than the
search itself,” and the presence of a warrant assures that a neutral magistrate has determined
that probable cause exists to search the home. Against this incremental intrusion, we posited
three legitimate law enforcement interests that provide substantial justification for detaining an
occupant: “preventing flight in the event that incriminating evidence is found”; “minimizing the
risk of harm to the officers”; and facilitating “the orderly completion of the search,” as detainees’
“self-interest may induce them to open locked doors or locked containers to avoid the use of
force.”
Mena’s detention was, under Summers, plainly permissible. An officer’s authority to detain
incident to a search is categorical; it does not depend on the “quantum of proof justifying
detention or the extent of the intrusion to be imposed by the seizure.” Thus, Mena’s detention
for the duration of the search was reasonable under Summers because a warrant existed to
search 1363 Patricia Avenue and she was an occupant of that address at the time of the search.
Inherent in Summers’ authorization to detain an occupant of the place to be searched is the
authority to use reasonable force to effectuate the detention. Indeed, Summers itself stressed
that the risk of harm to officers and occupants is minimized “if the officers routinely exercise
unquestioned command of the situation.”
The officers’ use of force in the form of handcuffs to effectuate Mena’s detention in the garage,
as well as the detention of the three other occupants, was reasonable because the governmental
interests outweigh the marginal intrusion. The imposition of correctly applied handcuffs on
Mena, who was already being lawfully detained during a search of the house, was undoubtedly a
separate intrusion in addition to detention in the converted garage. The detention was thus more
intrusive than that which we upheld in Summers.
But this was no ordinary search. The governmental interests in not only detaining, but using
handcuffs, are at their maximum when, as here, a warrant authorizes a search for weapons and
a wanted gang member resides on the premises. In such inherently dangerous situations, the use
of handcuffs minimizes the risk of harm to both officers and occupants. Though this safety risk
inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs,
the need to detain multiple occupants made the use of handcuffs all the more reasonable.
Chapter 8 — Page 172

Mena argues that, even if the use of handcuffs to detain her in the garage was reasonable as an
initial matter, the duration of the use of handcuffs made the detention unreasonable. The
duration of a detention can, of course, affect the balance of interests. However, the 2– to 3–hour
detention in handcuffs in this case does not outweigh the government’s continuing safety
interests. As we have noted, this case involved the detention of four detainees by two officers
during a search of a gang house for dangerous weapons. We conclude that the detention of Mena
in handcuffs during the search was reasonable.
The Court of Appeals also determined that the officers violated Mena’s Fourth Amendment
rights by questioning her about her immigration status during the detention. This holding, it
appears, was premised on the assumption that the officers were required to have independent
reasonable suspicion in order to question Mena concerning her immigration status because the
questioning constituted a discrete Fourth Amendment event. But the premise is faulty. We have
“held repeatedly that mere police questioning does not constitute a seizure.” “[E]ven when
officers have no basis for suspecting a particular individual, they may generally ask questions of
that individual; ask to examine the individual’s identification; and request consent to search his
or her luggage.” As the Court of Appeals did not hold that the detention was prolonged by the
questioning, there was no additional seizure within the meaning of the Fourth Amendment.
Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place
of birth, or immigration status.
In summary, the officers’ detention of Mena in handcuffs during the execution of the search
warrant was reasonable and did not violate the Fourth Amendment. Additionally, the officers’
questioning of Mena did not constitute an independent Fourth Amendment violation.
The judgment of the Court of Appeals is therefore vacated, and the case is remanded for further
proceedings consistent with this opinion.
Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG, and Justice BREYER join,
concurring in the judgment.
In its opinion affirming the judgment, the Court of Appeals made two mistakes. First, as the
Court explains, it erroneously held that the immigration officers’ questioning of Mena about her
immigration status was an independent violation of the Fourth Amendment. Second, instead of
merely deciding whether there was sufficient evidence in the record to support the jury’s verdict,
the Court of Appeals appears to have ruled as a matter of law that the officers should have
released her from the handcuffs sooner than they did. I agree that it is appropriate to remand
the case to enable the Court of Appeals to consider whether the evidence supports Mena’s
contention that she was held longer than the search actually lasted. In doing so, the Court of
Appeals must of course accord appropriate deference to the jury’s reasonable factual findings,
while applying the correct legal standard.
In my judgment, however, the Court’s discussion of the amount of force used to detain Mena is
analytically unsound. Although the Court correctly purports to apply the “objective
reasonableness” test announced in Graham v. Connor, 490 U.S. 386 (1989), it misapplies that
test. Given the facts of this case—and the presumption that a reviewing court must draw all
Chapter 8 — Page 173

reasonable inferences in favor of supporting the verdict—I think it clear that the jury could
properly have found that this 5–foot–2–inch young lady posed no threat to the officers at the
scene, and that they used excessive force in keeping her in handcuffs for up to three hours.
Although Summers authorizes the detention of any individual who is present when a valid search
warrant is being executed, that case does not give officers carte blanche to keep individuals who
pose no threat in handcuffs throughout a search, no matter how long it may last. On remand, I
would therefore instruct the Court of Appeals to consider whether the evidence supports Mena’s
contention that the petitioners used excessive force in detaining her when it considers the length
of the Summers detention.
As the Court notes, the warrant in this case authorized the police to enter the Mena home to
search for a gun belonging to Raymond Romero that may have been used in a gang-related
driveby shooting. Romero, a known member of the West Side Locos gang, rented a room from
the Mena family. The house, described as a “‘poor house,’” was home to several unrelated
individuals who rented from the Menas. Each resident had his or her own bedroom, which could
be locked with a padlock on the outside, and each had access to the living room and kitchen. In
addition, several individuals lived in trailers in the back yard and also had access to the common
spaces in the Mena home.
In addition to Romero, police had reason to believe that at least one other West Side Locos gang
member had lived at the residence, although Romero's brother told police that the individual
had returned to Mexico. The officers in charge of the search, petitioners Muehler and Brill, had
been at the same residence a few months earlier on an unrelated domestic violence call, but did
not see any other individuals they believed to be gang members inside the home on that occasion.
In light of the fact that the police believed that Romero possessed a gun and that there might be
other gang members at the residence, petitioner Muehler decided to use a Special Weapons and
Tactics (SWAT) team to execute the warrant. As described in the majority opinion, eight
members of the SWAT team forcefully entered the home at 7 a.m. In fact, Mena was the only
occupant of the house, and she was asleep in her bedroom. The police woke her up at gunpoint,
and immediately handcuffed her. At the same time, officers served another search warrant at the
home of Romero's mother, where Romero was known to stay several nights each week. In part
because Romero's mother had previously cooperated with police officers, they did not use a
SWAT team to serve that warrant. Romero was found at his mother's house; after being cited for
possession of a small amount of marijuana, he was released.
Meanwhile, after the SWAT team secured the Mena residence and gave the “all clear,” police
officers transferred Mena and three other individuals (who had been in trailers in the back yard)
to a converted garage. To get to the garage, Mena, who was still in her bedclothes, was forced to
walk barefoot through the pouring rain. The officers kept her and the other three individuals in
the garage for up to three hours while they searched the home. Although she requested them to
remove the handcuffs, they refused to do so. For the duration of the search, two officers guarded
Mena and the other three detainees. A .22–caliber handgun, ammunition, and gang-related
paraphernalia were found in Romero's bedroom, and other gang-related paraphernalia was
found in the living room. Officers found nothing of significance in Mena's bedroom.

Chapter 8 — Page 174

Police officers’ legitimate concern for their own safety is always a factor that should weigh heavily
in balancing the relevant Graham factors. But, as Officer Brill admitted at trial, if that
justification were always sufficient, it would authorize the handcuffing of every occupant of the
premises for the duration of every Summers detention. Nothing in either the Summers or the
Graham opinion provides any support for such a result. Rather, the decision of what force to use
must be made on a case-by-case basis. There is evidence in this record that may well support the
conclusion that it was unreasonable to handcuff Mena throughout the search. On remand,
therefore, I would instruct the Ninth Circuit to consider that evidence, as well as the possibility
that Mena was detained after the search was completed, when deciding whether the evidence in
the record is sufficient to support the jury’s verdict.
Notes, Comments, and Questions
Although the Court has authorized officers executing a search warrant to detain persons found
on the premises, officers do not necessarily have authority to search the persons who are
detained. In Ybarra v. Illinois, 444 U.S. 85 (1979), the Court considered a search that police had
conducted at a bar pursuant to a warrant. The warrant allowed police to search the bar and the
bartender for drugs, and it was based on reports of “tinfoil packets” possessed by the bartender
and stored behind the bar.
When officers arrived at the bar, they told patrons to prepare to be searched for weapons, and
officers then patted down the patrons. During one pat down, an officer felt a cigarette pack that
seemed to have objects in it. The officer later removed the package from the suspect’s pocket and
opened it, finding tinfoil packets containing heroin.
The suspect, charged with possession of the heroin, moved to suppress the evidence as the fruit
of an illegal search. The Supreme Court agreed, holding that officers lacked probable cause to
believe that any particular customer possessed drugs. “It is true that the police possessed a
warrant based on probable cause to search the tavern in which Ybarra happened to be at the time
the warrant was executed. But, a person's mere propinquity to others independently suspected
of criminal activity does not, without more, give rise to probable cause to search that person.”
Id. at 91. (The Court also rejected an argument that the initial pat down was a lawful “stop and
frisk” authorized by the Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968), a topic to which we
will return.) See also United States v. Di Re, 332 U.S. 581 (1948) (holding that even if the search
of a certain car was lawful, that did not justify the ensuing search of its occupant).
A magazine aimed at a police officer readership stated the Court’s holding clearly and succinctly
in a 2016 article called “Serving the Search Warrant.”2 One heading reads: “Occupants Can be
Detained.” The next heading is: “Occupants Cannot be Searched.” The article advises officers,
“To justify searching detainees who are not authorized to be searched by the warrant, try to
develop grounds for warrantless search, such as consent or probationary/paro le search
terms, where available.” We will examine these police tactics later in the book.

2 See Devallis Rutledge, “Serving the Search Warrant,” Police (Mar. 2, 2016).

Chapter 8 — Page 175

If mere presence during the execution of a search warrant does not justify the search of a person,
it follows that mere presence surely does not justify arresting everyone present. To reinforce this
message, the Legal Bureau of the New York Police Department issued a bulletin in 2013 to this
effect.3 In response to the question, “May a police officer arrest all persons found in a location
during the execution of a search warrant?,” the bulletin answered, “No. An individual’s mere
presence in a search location does not establish probable cause to arrest.”
Note that while police may detain persons present at the location to be searched, they may not
detain persons who happened to be at the location earlier but have already left before police
arrive to execute the warrant. In Bailey v. United States, 568 U.S. 186 (2013), the Court held that
the rule of Michigan v. Summers, 452 U.S. 692 (1981) applies only to those in “the immediate
vicinity of the premises to be searched.” The Court explained, “Because detention is justified by
the interests in executing a safe and efficient search, the decision to detain must be acted upon
at the scene of the search and not at a later time in a more remote place.” In Bailey, officers had
followed two men 0.7 miles after seeing them leave the building officers had been about to
search. The Court found the detention unreasonable. In a dissent, Justice Breyer complained
that “immediate vicinity” was not defined by the majority.
In the next two cases, we examine what happens when police search the wrong location when
executing a warrant. In one case, a building turned out to have more apartments than officers
realized when obtaining the warrant, causing officers to search the wrong person’s home. In the
other, officers entered a house looking for suspects who had moved out months earlier, causing
an unpleasant surprise to the new residents.
Supreme Court of the United States
Maryland v. Harold Garrison
Decided Feb. 24, 1987 – 480 U.S. 79
Justice STEVENS delivered the opinion of the Court.
Baltimore police officers obtained and executed a warrant to search the person of Lawrence
McWebb and “the premises known as 2036 Park Avenue third floor apartment.” When the police
applied for the warrant and when they conducted the search pursuant to the warrant, they
reasonably believed that there was only one apartment on the premises described in the warrant.
In fact, the third floor was divided into two apartments, one occupied by McWebb and one by
respondent Garrison. Before the officers executing the warrant became aware that they were in
a separate apartment occupied by respondent, they had discovered the contraband that provided
the basis for respondent’s conviction for violating Maryland’s Controlled Substances Act. The
question presented is whether the seizure of that contraband was prohibited by the Fourth
Amendment.
The trial court denied respondent’s motion to suppress the evidence seized from his apartment,
and the Maryland Court of Special Appeals affirmed. The Court of Appeals of Maryland reversed
and remanded with instructions to remand the case for a new trial.
3 See NYPD, Legal Bureau Bulletin, Vol. 43, No. 3 (Nov. 2013).

Chapter 8 — Page 176

There is no question that the warrant was valid and was supported by probable cause. The trial
court found, and the two appellate courts did not dispute, that after making a reasonable
investigation, including a verification of information obtained from a reliable informant, an
exterior examination of the three-story building at 2036 Park Avenue, and an inquiry of the
utility company, the officer who obtained the warrant reasonably concluded that there was only
one apartment on the third floor and that it was occupied by McWebb. When six Baltimore police
officers executed the warrant, they fortuitously encountered McWebb in front of the building
and used his key to gain admittance to the first-floor hallway and to the locked door at the top of
the stairs to the third floor. As they entered the vestibule on the third floor, they encountered
respondent, who was standing in the hallway area. The police could see into the interior of both
McWebb’s apartment to the left and respondent’s to the right, for the doors to both were open.
Only after respondent’s apartment had been entered and heroin, cash, and drug paraphernalia
had been found did any of the officers realize that the third floor contained two apartments. As
soon as they became aware of that fact, the search was discontinued. All of the officers reasonably
believed that they were searching McWebb’s apartment. No further search of respondent’s
apartment was made.
The matter on which there is a difference of opinion concerns the proper interpretation of the
warrant. A literal reading of its plain language, as well as the language used in the application
for the warrant, indicates that it was intended to authorize a search of the entire third floor. This
is the construction adopted by the intermediate appellate court and it also appears to be the
construction adopted by the trial judge. One sentence in the trial judge’s oral opinion, however,
lends support to the construction adopted by the Court of Appeals, namely, that the warrant
authorized a search of McWebb’s apartment only. Under that interpretation, the Court of
Appeals concluded that the warrant did not authorize the search of respondent’s apartment and
the police had no justification for making a warrantless entry into his premises.
Because the result that the Court of Appeals reached did not appear to be required by the Fourth
Amendment, we granted certiorari. We reverse.
In our view, the case presents two separate constitutional issues, one concerning the validity of
the warrant and the other concerning the reasonableness of the manner in which it was executed.
I
The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any
warrant except one “particularly describing the place to be searched and the persons or things
to be seized.” The manifest purpose of this particularity requirement was to prevent general
searches. By limiting the authorization to search to the specific areas and things for which there
is probable cause to search, the requirement ensures that the search will be carefully tailored to
its justifications, and will not take on the character of the wide-ranging exploratory searches the
Framers intended to prohibit. Thus, the scope of a lawful search is “defined by the object of the
search and the places in which there is probable cause to believe that it may be found. Just as
probable cause to believe that a stolen lawnmower may be found in a garage will not support a
warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are
being transported in a van will not justify a warrantless search of a suitcase.”
Chapter 8 — Page 177

In this case there is no claim that the “persons or things to be seized” were inadequately
described or that there was no probable cause to believe that those things might be found in “the
place to be searched” as it was described in the warrant. With the benefit of hindsight, however,
we now know that the description of that place was broader than appropriate because it was
based on the mistaken belief that there was only one apartment on the third floor of the building
at 2036 Park Avenue. The question is whether that factual mistake invalidated a warrant that
undoubtedly would have been valid if it had reflected a completely accurate understanding of
the building’s floor plan.
Plainly, if the officers had known, or even if they should have known, that there were two
separate dwelling units on the third floor of 2036 Park Avenue, they would have been obligated
to exclude respondent’s apartment from the scope of the requested warrant. But we must judge
the constitutionality of their conduct in light of the information available to them at the time
they acted. Those items of evidence that emerge after the warrant is issued have no bearing on
whether or not a warrant was validly issued. Just as the discovery of contraband cannot validate
a warrant invalid when issued, so is it equally clear that the discovery of facts demonstrating that
a valid warrant was unnecessarily broad does not retroactively invalidate the warrant. The
validity of the warrant must be assessed on the basis of the information that the officers
disclosed, or had a duty to discover and to disclose, to the issuing Magistrate. On the basis of
that information, we agree with the conclusion of all three Maryland courts that the warrant,
insofar as it authorized a search that turned out to be ambiguous in scope, was valid when it
issued.
II
The question whether the execution of the warrant violated respondent’s constitutional right to
be secure in his home is somewhat less clear. We have no difficulty concluding that the officers’
entry into the third-floor common area was legal; they carried a warrant for those premises, and
they were accompanied by McWebb, who provided the key that they used to open the door giving
access to the third-floor common area. If the officers had known, or should have known, that the
third floor contained two apartments before they entered the living quarters on the third floor,
and thus had been aware of the error in the warrant, they would have been obligated to limit
their search to McWebb’s apartment. Moreover, as the officers recognized, they were required
to discontinue the search of respondent’s apartment as soon as they discovered that there were
two separate units on the third floor and therefore were put on notice of the risk that they might
be in a unit erroneously included within the terms of the warrant. The officers’ conduct and the
limits of the search were based on the information available as the search proceeded. While the
purposes justifying a police search strictly limit the permissible extent of the search, the Court
has also recognized the need to allow some latitude for honest mistakes that are made by officers
in the dangerous and difficult process of making arrests and executing search warrants.
[T]he validity of the search of respondent’s apartment pursuant to a warrant authorizing the
search of the entire third floor depends on whether the officers’ failure to realize the overbreadth
of the warrant was objectively understandable and reasonable. Here it unquestionably was. The
objective facts available to the officers at the time suggested no distinction between McWebb’s
apartment and the third-floor premises.
Chapter 8 — Page 178

For that reason, the officers properly responded to the command contained in a valid warrant
even if the warrant is interpreted as authorizing a search limited to McWebb’s apartment rather
than the entire third floor. Prior to the officers’ discovery of the factual mistake, they perceived
McWebb’s apartment and the third-floor premises as one and the same; therefore their
execution of the warrant reasonably included the entire third floor. Under either interpretation
of the warrant, the officers’ conduct was consistent with a reasonable effort to ascertain and
identify the place intended to be searched within the meaning of the Fourth Amendment.
The judgment of the Court of Appeals is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
Under this Court’s precedents, the search of respondent Garrison’s apartment violated the
Fourth Amendment. While executing a warrant specifically limited to McWebb’s residence, the
officers expanded their search to include respondent’s adjacent apartment, an expansion made
without a warrant and in the absence of exigent circumstances. In my view, Maryland’s highest
court correctly concluded that the trial judge should have granted respondent’s motion to
suppress the evidence seized as a result of this warrantless search of his apartment. Moreover,
even if I were to accept the majority’s analysis of this case as one involving a mistake on the part
of the police officers, I would find that the officers’ error, either in obtaining or in executing the
warrant, was not reasonable under the circumstances.
I
The Fourth Amendment states that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” The particularity-of-description requirement is satisfied where
“the description is such that the officer with a search warrant can with reasonable effort ascertain
and identify the place intended.” In applying this requirement to searches aimed at residences
within multiunit buildings, such as the search in the present case, courts have declared invalid
those warrants that fail to describe the targeted unit with enough specificity to prevent a search
of all the units.
Applying the above principle[] to this case, I conclude that the search of respondent’s apartment
was improper. The words of the warrant were plain and distinctive: the warrant directed the
officers to seize marijuana and drug paraphernalia on the person of McWebb and in McWebb’s
apartment, i.e., “on the premises known as 2036 Park Avenue third floor apartment.” As the
Court of Appeals observed, this warrant specifically authorized a search only of McWebb’s—not
respondent’s—residence. In its interpretation of the warrant, the majority suggests that the
language of this document, as well as that in the supporting affidavit, permitted a search of the
entire third floor. It escapes me why the language in question, “third floor apartment,” when
used with reference to a single unit in a multiple-occupancy building and in the context of one
person’s residence, plainly has the meaning the majority discerns, rather than its apparent and,
indeed, obvious signification—one apartment located on the third floor. Accordingly, if, as
appears to be the case, the warrant was limited in its description to the third-floor apartment of
Chapter 8 — Page 179

McWebb, then the search of an additional apartment—respondent’s—was warrantless and is
presumed unreasonable “in the absence of some one of a number of well defined ‘exigent
circumstances.’” Because the State has not advanced any such exception to the warrant
requirement, the evidence obtained as a result of this search should have been excluded.
II
Because the Court cannot justify the officers’ search under the “exceptional circumstances”
rubric, it analyzes the police conduct here in terms of “mistake.” According to the Court,
hindsight makes it clear that the officers were mistaken, first, in not describing McWebb’s
apartment with greater specificity in the warrant, and second, in including respondent’s
apartment within the scope of the execution of the warrant. The Court’s inquiry focuses on what
the officers knew or should have known at these particular junctures. The Court reasons that if,
in light of the officers’ actual or imputed knowledge, their behavior was reasonable, then their
mistakes did not constitute an infringement on respondent’s Fourth Amendment rights. In this
case, the Court finds no Fourth Amendment violation because the officers could not reasonably
have drawn the warrant with any greater particularity and because, until the moment when the
officers realized that they were in fact searching two different apartments, they had no reason to
believe that McWebb’s residence did not cover the entire third floor.
Even if one accepts the majority’s view that there is no Fourth Amendment violation where the
officers’ mistake is reasonable, it is questionable whether that standard was met in this case. To
repeat Justice Harlan’s observation, although the proper question in Fourth Amendment
analysis is “what protection it affords to ... people, ... that question requires reference to a ‘place.’”
The “place” at issue here is a small multiple-occupancy building. Such forms of habitation are
now common in this country, particularly in neighborhoods with changing populations and of
declining affluence. Accordingly, any analysis of the “reasonableness” of the officers’ behavior
here must be done with this context in mind.
The efforts of Detective Marcus, the officer who procured the search warrant, do not meet a
standard of reasonableness, particularly considering that the detective knew the search
concerned a unit in a multiple-occupancy building. Upon learning from his informant that
McWebb was selling marijuana in his third-floor apartment, Marcus inspected the outside of the
building. He did not approach it, however, to gather information about the configuration of the
apartments. Had he done so, he would have discovered, as did another officer on the day of
executing the warrant, that there were seven separate mailboxes and bells on the porch outside
the main entrance to the house. Although there is some dispute over whether names were affixed
near these boxes and bells, their existence alone puts a reasonable observer on notice that the
three-story structure (with, possibly, a basement) had seven individual units. The detective,
therefore, should have been aware that further investigation was necessary to eliminate the
possibility of more than one unit’s being located on the third floor. Moreover, when Detective
Marcus’ informant told him that he had purchased drugs in McWebb’s apartment, it appears
that the detective never thought to ask the informant whether McWebb’s apartment was the only
one on the third floor. These efforts, which would have placed a slight burden upon the detective,
are necessary in order to render reasonable the officer’s behavior in seeking the warrant.
Moreover, even if one believed that Marcus’ efforts in providing information for issuance of the
Chapter 8 — Page 180

warrant were reasonable, I doubt whether the officers’ execution of the warrant could meet such
a standard. In the Court’s view, the “objective facts” did not put the officers on notice that they
were dealing with two separate apartments on the third floor until the moment, considerably
into the search after they had rummaged through a dresser and a closet in respondent’s
apartment and had discovered evidence incriminating him, when they realized their “mistake.”
The Court appears to base its conclusion that the officers’ error here was reasonable on the fact
that neither McWebb nor respondent ever told the officers during the search that they lived in
separate apartments.
In my view, however, the “objective facts” should have made the officers aware that there were
two different apartments on the third floor well before they discovered the incriminating
evidence in respondent’s apartment. Before McWebb happened to drive up while the search
party was preparing to execute the warrant, one of the officers, Detective Shea, somewhat
disguised as a construction worker, was already on the porch of the row house and was seeking
to gain access to the locked first-floor door that permitted entrance into the building. From this
vantage point he had time to observe the seven mailboxes and bells; indeed, he rang all seven
bells, apparently in an effort to summon some resident to open the front door to the search party.
A reasonable officer in Detective Shea’s position, already aware that this was a multiunit building
and now armed with further knowledge of the number of units in the structure, would have
conducted at that time more investigation to specify the exact location of McWebb’s apartment
before proceeding further. For example, he might have questioned another resident of the
building.
It is surprising, moreover, that the Court places so much emphasis on the failure of McWebb to
volunteer information about the exact location of his apartment. When McWebb drove up, one
of the police vehicles blocked his car and the officers surrounded him and his passenger as they
got out. Although the officers had no arrest warrant for McWebb, but only a search warrant for
his person and apartment, and although they testified that they did not arrest him at that time,
it was clear that neither McWebb nor his passenger was free to leave. In such circumstances,
which strongly suggest that McWebb was already in custody, it was proper for the officers to
administer to him [Miranda] warnings. It would have been reasonable for the officers, aware of
the problem, from Detective Shea’s discovery, in the specificity of their warrant, to ask McWebb
whether his apartment was the only one on the third floor. As it is, the officers made several
requests of and questioned McWebb, without giving him Miranda warnings, and yet failed to
ask him the question, obvious in the circumstances, concerning the exact location of his
apartment.
Moreover, a reasonable officer would have realized the mistake in the warrant during the
moments following the officers’ entrance to the third floor. The officers gained access to the
vestibule separating McWebb’s and respondent’s apartments through a locked door for which
McWebb supplied the key. There, in the open doorway to his apartment, they encountered
respondent. Once again, the officers were curiously silent. The informant had not led the officers
to believe that anyone other than McWebb lived in the third-floor apartment; the search party
had McWebb, the person targeted by the search warrant, in custody when it gained access to the
vestibule; yet when they met respondent on the third floor, they simply asked him who he was
but never where he lived. Had they done so, it is likely that they would have discovered the
mistake in the warrant before they began their search.
Chapter 8 — Page 181

Finally and most importantly, even if the officers had learned nothing from respondent, they
should have realized the error in the warrant from their initial security sweep. Once on the third
floor, the officers first fanned out through the rooms to conduct a preliminary check for other
occupants who might pose a danger to them. As the map of the third floor demonstrates, the two
apartments were almost a mirror image of each other—each had a bathroom, a kitchen, a living
room, and a bedroom. Given the somewhat symmetrical layout of the apartments, it is difficult
to imagine that, in the initial security sweep, a reasonable officer would not have discerned that
two apartments were on the third floor, realized his mistake, and then confined the ensuing
search to McWebb’s residence.
Accordingly, even if a reasonable error on the part of police officers prevents a Fourth
Amendment violation, the mistakes here, both with respect to obtaining and executing the
warrant, are not reasonable and could easily have been avoided.
I respectfully dissent.
*

*

*

In the next case, the Supreme Court forcefully rejects the reasoning of a decision by the U.S.
Court of Appeals for the Ninth Circuit. The Court not only decided the case per curiam—that is,
in an unsigned opinion—but also did so immediately upon the grant of certiorari, without
allowing briefing or oral argument on the merits.
Supreme Court of the United States
Los Angeles County, California v. Max Rettele
Decided May 21, 2007 – 550 U.S. 609.
PER CURIAM.
Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a
house, but they were unaware that the suspects being sought had moved out three months
earlier. When the deputies searched the house, they found in a bedroom two residents who were
of a different race than the suspects. The deputies ordered these innocent residents, who had
been sleeping unclothed, out of bed. The deputies required them to stand for a few minutes
before allowing them to dress.
The residents brought suit, naming the deputies and other parties and accusing them of violating
the Fourth Amendment right to be free from unreasonable searches and seizures. The District
Court granted summary judgment to all named defendants. The Court of Appeals for the Ninth
Circuit reversed, concluding both that the deputies violated the Fourth Amendment and that
they were not entitled to qualified immunity because a reasonable deputy would have stopped
the search upon discovering that respondents were of a different race than the suspects and
because a reasonable deputy would not have ordered respondents from their bed. We grant the
petition for certiorari and reverse the judgment of the Court of Appeals by this summary
disposition.
Chapter 8 — Page 182

I
From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis
Watters investigated a fraud and identity-theft crime ring. There were four suspects of the
investigation. One had registered a 9-millimeter Glock handgun. The four suspects were known
to be African-Americans.
On December 11, Watters obtained a search warrant for two houses in Lancaster, California,
where he believed he could find the suspects. The warrant authorized him to search the homes
and three of the suspects for documents and computer files. In support of the search warrant an
affidavit cited various sources showing the suspects resided at respondents’ home. The sources
included Department of Motor Vehicles reports, mailing address listings, an outstanding
warrant, and an Internet telephone directory. In this Court respondents do not dispute the
validity of the warrant or the means by which it was obtained.
What Watters did not know was that one of the houses (the first to be searched) had been sold
in September to a Max Rettele. He had purchased the home and moved into it three months
earlier with his girlfriend Judy Sadler and Sadler’s 17-year-old son Chase Hall. All three,
respondents here, are Caucasians.
On the morning of December 19, Watters briefed six other deputies in preparation for the search
of the houses. Watters informed them they would be searching for three African–American
suspects, one of whom owned a registered handgun. The possibility a suspect would be armed
caused the deputies concern for their own safety. Watters had not obtained special permission
for a night search, so he could not execute the warrant until 7 a.m. Around 7:15 Watters and six
other deputies knocked on the door and announced their presence. Chase Hall answered. The
deputies entered the house after ordering Hall to lie face down on the ground.
The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom
with guns drawn and ordered them to get out of their bed and to show their hands. They
protested that they were not wearing clothes. Rettele stood up and attempted to put on a pair of
sweatpants, but deputies told him not to move. Sadler also stood up and attempted, without
success, to cover herself with a sheet. Rettele and Sadler were held at gunpoint for one to two
minutes before Rettele was allowed to retrieve a robe for Sadler. He was then permitted to dress.
Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in the living
room.
By that time the deputies realized they had made a mistake. They apologized to Rettele and
Sadler, thanked them for not becoming upset, and left within five minutes. They proceeded to
the other house the warrant authorized them to search, where they found three suspects. Those
suspects were arrested and convicted.
Rettele and Sadler, individually and as guardians ad litem for Hall, filed this § 1983 suit against
Los Angeles County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other
members of the sheriff’s department. Respondents alleged petitioners violated their Fourth
Amendment rights by obtaining a warrant in reckless fashion and conducting an unreasonable
search and detention. The District Court held that the warrant was obtained by proper
Chapter 8 — Page 183

procedures and the search was reasonable. It concluded in the alternative that any Fourth
Amendment rights the deputies violated were not clearly established and that, as a result, the
deputies were entitled to qualified immunity.
On appeal respondents did not challenge the validity of the warrant; they did argue that the
deputies had conducted the search in an unreasonable manner. A divided panel of the Court of
Appeals for the Ninth Circuit reversed in an unpublished opinion.
II
Because respondents were of a different race than the suspects the deputies were seeking, the
Court of Appeals held that “[a]fter taking one look at [respondents], the deputies should have
realized that [respondents] were not the subjects of the search warrant and did not pose a threat
to the deputies’ safety.” We need not pause long in rejecting this unsound proposition. When the
deputies ordered respondents from their bed, they had no way of knowing whether the African–
American suspects were elsewhere in the house. The presence of some Caucasians in the
residence did not eliminate the possibility that the suspects lived there as well. As the deputies
stated in their affidavits, it is not uncommon in our society for people of different races to live
together. Just as people of different races live and work together, so too might they engage in
joint criminal activity. The deputies, who were searching a house where they believed a suspect
might be armed, possessed authority to secure the premises before deciding whether to continue
with the search.
In Michigan v. Summers, 452 U.S. 692 (1981), this Court held that officers executing a search
warrant for contraband may “detain the occupants of the premises while a proper search is
conducted.” In weighing whether the search in Summers was reasonable the Court first found
that “detention represents only an incremental intrusion on personal liberty when the search of
a home has been authorized by a valid warrant.” Against that interest, it balanced “preventing
flight in the event that incriminating evidence is found”; “minimizing the risk of harm to the
officers”; and facilitating “the orderly completion of the search.”
In executing a search warrant officers may take reasonable action to secure the premises and to
ensure their own safety and the efficacy of the search. The test of reasonableness under the
Fourth Amendment is an objective one. Unreasonable actions include the use of excessive force
or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period
of time.
The orders by the police to the occupants, in the context of this lawful search, were permissible,
and perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a
weapon, and one of the suspects was known to own a firearm, factors which underscore this
point. The Constitution does not require an officer to ignore the possibility that an armed suspect
may sleep with a weapon within reach. The reports are replete with accounts of suspects sleeping
close to weapons.

Chapter 8 — Page 184

The deputies needed a moment to secure the room and ensure that other persons were not close
by or did not present a danger. Deputies were not required to turn their backs to allow Rettele
and Sadler to retrieve clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm
to both the police and the occupants is minimized if the officers routinely exercise unquestioned
command of the situation.”
This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain
motionless and standing for any longer than necessary. We have recognized that “special
circumstances, or possibly a prolonged detention,” might render a search unreasonable. There
is no accusation that the detention here was prolonged. The deputies left the home less than 15
minutes after arriving. The detention was shorter and less restrictive than the 2– to 3–hour
handcuff detention upheld in Mena. And there is no allegation that the deputies prevented
Sadler and Rettele from dressing longer than necessary to protect their safety. Sadler was
unclothed for no more than two minutes, and Rettele for only slightly more time than that. Sadler
testified that once the police were satisfied that no immediate threat was presented, “they wanted
us to get dressed and they were pressing us really fast to hurry up and get some clothes on.”
The Fourth Amendment allows warrants to issue on probable cause, a standard well short of
absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and
Sadler unfortunately bear the cost. Officers executing search warrants on occasion enter a house
when residents are engaged in private activity; and the resulting frustration, embarrassment,
and humiliation may be real, as was true here. When officers execute a valid warrant and act in
a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not
violated.
Appeals is reversed, and the case is remanded for further proceedings consistent with this
opinion.
Notes, Comments, and Questions
One issue potentially raised by the facts of Rettele—although not addressed by the Justices—is
the question of when a warrant goes “stale.” A warrant based upon probable cause to believe that
contraband or suspects will be found in a certain place becomes less reliable over time. To pick
an extreme example, if police receive a warrant in 2018 to search a particular house for a suspect,
news that the suspect died in 2019 would make it unreasonable for police to execute the warrant
in 2021. Actual cases will present closer questions. For example, a warrant to search for drugs
recently delivered to the house of a dealer might go stale relatively quickly because the dealer is
likely to sell the drugs soon. By contrast, courts have found that collectors of child pornography
rarely destroy their material, meaning that warrants to search their computers for illicit images
do not go stale. Similarly, a warrant to search an accountant’s office for documents proving a
client’s tax fraud would probably remain “fresh” for a long time.
A 2010 raid on a Columbia, Missouri home illustrates the issue. Police had an eight-day-old
warrant to search the house of Jonathan Whitworth for drugs. The raid went poorly, and officers
shot two dogs, killing one. Officers pointed guns at Whitworth’s wife and her seven-year-old
daughter. While some contraband was found, police did not discover evidence of significant drug
Chapter 8 — Page 185

dealing.4 Whitworth and his family sued the police, alleging among other things that the warrant
was stale when executed. Although the court dismissed the lawsuit, Columbia police adopted
new policies in response to outcry over the incident.5 (A video of the raid—which is unpleasant
to watch—is available online: https://www.youtube.com/watch?v=WF2nM9wsBYs)
Further Resources for Greater Detail about Warrants
Officers who execute search warrants will need far more detailed information than is appropriate
to include for our purposes here. Prosecutors and criminal defense lawyers will wish to study the
rules of their jurisdictions, as well as details about Supreme Court doctrine beyond the scope of
this course. Albert M. Rosenblatt, a retired judge of the New York Court of Appeals, compiled
“The Complete Search Warrant, Annotated,” which summarized both federal constitutional law
as well as rules applicable only in New York.6 As Judge Rosenblatt noted in the preface to the
cited edition, “The cases (not to mention the writer) have grown older but the inventory has been
replenished several times over, and so what began as a 44 page work has grown to 120 pages.”
Topics include: when no-knock warrants may issue, what evidence constitutes probable cause,
and how persons and places should be described in a warrant. It also delves into more esoteric
topics such as the acquisition of an “anticipatory search warrant.”
Missouri practitioners may wish to consult “Search & Seizure Law in Missouri: State & Federal
Law” (Jan. 2017 edition) by H. Morley Swingle. Swingle has served as a federal prosecutor in St.
Louis and as the elected prosecutor in Cape Girardeau County. He is currently an assistant circuit
attorney in the office of the St. Louis Circuit Attorney. Swingle’s manual covers topics such as:
locations where search warrants are not required (for example, open fields), which searches
require warrants and which do not, and how to get warrants when necessary. A section about
“Persons on Premises” discusses when a person may be detained, searched, and arrested. For
officers executing warrants, detailed sections on topics such as “closed containers,” “searches of
visitors’ purses and bags,” and “damage to property” will be of interest.
Much of the material in these two example manuals overlaps, and will overlap with manuals
from other states, because federal case law is the backbone of the regulation of searches.
Nonetheless, practitioners must attend to the details of their own local rules.

4 See P.M. ex rel. Whitworth v. Bolinger, No. 2:10–CV–04208–NKL, 2011 WL 5838406 (W.D. Mo. Nov. 21, 2011)

(describing the search and its aftermath in detail).
5 See Brennan David, “Burton Touts Restrictive Policy,” Colum. Tribune (May 11, 2010).
6 See Albert M. Rosenblatt, “The Complete Search Warrant, Annotated” (Nov. 2004).
Chapter 8 — Page 186

Example Search Warrant Form
Reprinted below is a form used by courts in Missouri when issuing warrants.
FORM NO. 39A
SEARCH WARRANT AUTHORIZING SEARCH FOR STOLEN PROPERTY
STATE OF MISSOURI )
) ss.
COUNTY OF ___________ )
IN THE MAGISTRATE COURT OF ____________ COUNTY
THE STATE OF MISSOURI TO ANY PEACE OFFICER IN THE STATE OF MISSOURI:
WHEREAS a complaint in writing, duly verified by oath, has been filed with the undersigned
Judge of this court, stating that heretofore the following described personal property, to-wit:
____________ of the goods and chattels of _____________________, has been
unlawfully stolen, and it further appears from the allegations of said complaint that said
property is being kept or held in this county and state at and in
__________________________
_________________________________________________________________
_________________________________________________________________
_____________________________________________;
NOW, THEREFORE, these are to command you that you search the said premises above
described within 10 days after the issuance of this warrant by day or night, and take with you, if
need be, the power of your county, and, if said above described property or any part thereof be
found on said premises by you, that you seize the same and take same into your possession,
making a complete and accurate inventory of the property so taken by you in the presence of
the person from whose possession the same is taken, if that be possible, and giving to such
person a receipt for such property, together with a copy of this warrant, or, if no person be
found in possession of said property, leaving said receipt and said copy upon the premises
searched, and that you thereafter return the property so taken and seized by you, together with
a duly verified copy of the inventory thereof and with your return to this warrant to this court
to be herein dealt with in accordance with law. Witness my hand and seal of this court on this
_____ day of _____________, 19___.
______________________________
JUDGE OF SAID COURT
*

*

*

Chapter 8 — Page 187

[The material below appears on the reverse side of the form.]
RETURN AND INVENTORY
I, ______________, being a peace officer within and for the aforesaid county, to-wit:
______________, do hereby make return to the above and within warrant as follows: that
on the _____ day of _____________, 19___, and within ten days after issuance of said
warrant, I went to the location and premises described therein and searched the same for
personal property described therein, and that upon said premises I discovered the following
personal property described in the warrant which I then and there took into my possession
(here inventory of property taken):
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
___; that I made this inventory in the presence of the person from whose possession I took
said property (that there was no person present from whose possession said property was
taken); that I delivered to such person a receipt for the property taken, together with a copy of
this warrant (that, there being no person in possession of said property present on said
premises, I left a copy of this warrant with a receipt for the property taken, in a conspicuous
place on said premises); that I have now placed said property so taken in the possession of this
court.
___________________________________________
Subscribed and sworn to before me this _____ day of _____________, 19___.
___________________________________
CLERK, MAGISTRATE COURT

Chapter 8 — Page 188

Sample Search Warrant Application Form (available online)

Chapter 8 — Page 189

THE FOURTH AMENDMENT
Chapter 9
Warrant Exceptions
The Court has stated repeatedly over the decades that searches and seizures conducted without
warrants are presumptively unlawful. The Court has also, however, created several exceptions to
the warrant requirement. We will spend the next several chapters exploring these exceptions.
For every warrant exception, students should consider: (1) when the exception applies and (2)
what the exception allows police to do. In particular, students should note whether probable
cause is necessary for the exception to apply and, if not, what other quantum of evidence is
required.
In this chapter, we consider the “plain view exception” and the “automobile exception,” each of
which has grown over time. In our first case, the Court considered both exceptions.
The Plain View Exception
The “plain view” exception to the Fourth Amendment warrant requirement permits a law
enforcement officer to seize what clearly is incriminating evidence or contraband when it is
discovered in a place where the officer has a right to be.1
Supreme Court of the United States
Edward H. Coolidge, Jr. v. New Hampshire
Decided June 21, 1971 – 403 U.S. 443
Mr. Justice STEWART delivered the opinion of the Court.2
We are called upon in this case to decide issues under the Fourth and Fourteenth Amendments
arising in the context of a state criminal trial for the commission of a particularly brutal murder.
As in every case, our single duty is to determine the issues presented in accord with the
Constitution and the law.
Pamela Mason, a 14-year-old girl, left her home in Manchester, New Hampshire, on the evening
of January 13, 1964, during a heavy snowstorm, apparently in response to a man’s telephone
call for a babysitter. Eight days later, after a thaw, her body was found by the site of a major
north-south highway several miles away. She had been murdered. The event created great alarm
in the area, and the police immediately began a massive investigation.

1 See Washington v. Chrisman, 455 U.S. 1, 5–6 (1982).

2 [Footnote ** by the court] Part[] II-C of this opinion [is] joined only by Mr. Justice DOUGLAS, Mr. Justice

BRENNAN, and Mr. Justice MARSHALL.
Chapter 9—Page 190

On January 28, having learned from a neighbor that the petitioner, Edward Coolidge, had been
away from home on the evening of the girl’s disappearance, the police went to his house to
question him. They asked him, among other things, if he owned any guns, and he produced
three, two shotguns and a rifle. They also asked whether he would take a lie-detector test
concerning his account of his activities on the night of the disappearance. He agreed to do so on
the following Sunday, his day off. The police later described his attitude on the occasion of this
visit as fully “cooperative.” His wife was in the house throughout the interview.
On the following Sunday, a policeman called Coolidge early in the morning and asked him to
come down to the police station for the trip to Concord, New Hampshire, where the lie-detector
test was to be administered. That evening, two plainclothes policemen arrived at the Coolidge
house, where Mrs. Coolidge was waiting with her mother-in-law for her husband’s return. These
two policemen were not the two who had visited the house earlier in the week, and they
apparently did not know that Coolidge had displayed three guns for inspection during the earlier
visit. The plainclothesmen told Mrs. Coolidge that her husband was in “serious trouble” and
probably would not be home that night. They asked Coolidge’s mother to leave, and proceeded
to question Mrs. Coolidge. During the course of the interview they obtained from her four guns
belonging to Coolidge, and some clothes that Mrs. Coolidge thought her husband might have
been wearing on the evening of Pamela Mason’s disappearance.
Coolidge was held in jail on an unrelated charge that night, but he was released the next day.
During the ensuing two and a half weeks, the State accumulated a quantity of evidence to support
the theory that it was he who had killed Pamela Mason. On February 19, the results of the
investigation were presented at a meeting between the police officers working on the case and
the State Attorney General, who had personally taken charge of all police activities relating to
the murder, and was later to serve as chief prosecutor at the trial. At this meeting, it was decided
that there was enough evidence to justify the arrest of Coolidge on the murder charge and a
search of his house and two cars. At the conclusion of the meeting, the Manchester police chief
made formal application, under oath, for the arrest and search warrants. The complaint
supporting the warrant for a search of Coolidge’s Pontiac automobile, the only warrant that
concerns us here, stated that the affiant “has probable cause to suspect and believe, and does
suspect and believe, and herewith offers satisfactory evidence, that there are certain objects and
things used in the Commission of said offense, now kept, and concealed in or upon a certain
vehicle, to wit: 1951 Pontiac two-door sedan ....” The warrants were then signed and issued by
the Attorney General himself, acting as a justice of the peace. Under New Hampshire law in force
at that time, all justices of the peace were authorized to issue search warrants.
The police arrested Coolidge in his house on the day the warrant issued. Mrs. Coolidge asked
whether she might remain in the house with her small child, but was told that she must stay
elsewhere, apparently in part because the police believed that she would be harassed by reporters
if she were accessible to them. When she asked whether she might take her car, she was told that
both cars had been “impounded,” and that the police would provide transportation for her. Some
time later, the police called a towing company, and about two and a half hours after Coolidge
had been taken into custody the cars were towed to the police station. It appears that at the time
of the arrest the cars were parked in the Coolidge driveway, and that although dark had fallen
they were plainly visible both from the street and from inside the house where Coolidge was
actually arrested. The 1951 Pontiac was searched and vacuumed on February 21, two days after
it was seized, again a year later, in January 1965, and a third time in April 1965.
Chapter 9—Page 191

At Coolidge’s subsequent jury trial on the charge of murder, vacuum sweepings, including
particles of gun powder, taken from the Pontiac were introduced in evidence against him, as part
of an attempt by the State to show by microscopic analysis that it was highly probable that
Pamela Mason had been in Coolidge’s car. Also introduced in evidence was one of the guns taken
by the police on their Sunday evening visit to the Coolidge house—a 22-caliber Mossberg rifle,
which the prosecution claimed was the murder weapon. Conflicting ballistics testimony was
offered on the question whether the bullets found in Pamela Mason’s body had been fired from
this rifle. Finally, the prosecution introduced vacuum sweepings of the clothes taken from the
Coolidge house that same Sunday evening, and attempted to show through microscopic analysis
that there was a high probability that the clothes had been in contact with Pamela Mason’s body.
Pretrial motions to suppress all this evidence were referred by the trial judge to the New
Hampshire Supreme Court, which ruled the evidence admissible. The jury found Coolidge guilty
and he was sentenced to life imprisonment. The New Hampshire Supreme Court affirmed the
judgment of conviction, and we granted certiorari to consider the constitutional questions raised
by the admission of this evidence against Coolidge at his trial.
I
The petitioner’s first claim is that the warrant authorizing the seizure and subsequent search of
his 1951 Pontiac automobile was invalid because not issued by a “neutral and detached
magistrate.” Since we agree with the petitioner that the warrant was invalid for this reason, we
need not consider his further argument that the allegations under oath supporting the issuance
of the warrant were so conclusory as to violate relevant constitutional standards.
The classic statement of the policy underlying the warrant requirement of the Fourth
Amendment is that of Mr. Justice Jackson, writing for the Court:
“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that
it denies law enforcement the support of the usual inferences which reasonable men draw from
evidence. Its protection consists in requiring that those inferences be drawn by a neutral and
detached magistrate instead of being judged by the officer engaged in the often competitive
enterprise of ferreting out crime. Any assumption that evidence sufficient to support a
magistrate's disinterested determination to issue a search warrant will justify the officers in
making a search without a warrant would reduce the Amendment to a nullity and leave the
people's homes secure only in the discretion of police officers.... When the right of privacy must
reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a
policeman or Government enforcement agent.”
We find no escape from the conclusion that the seizure and search of the Pontiac automobile
cannot constitutionally rest upon the warrant issued by the state official who was the chief
investigator and prosecutor in this case. Since he was not the neutral and detached magistrate
required by the Constitution, the search stands on no firmer ground than if there had been no
warrant at all. If the seizure and search are to be justified, they must, therefore, be justified on
some other theory.

Chapter 9—Page 192

II
[T]he most basic constitutional rule in this area is that “searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well delineated exceptions.” The
exceptions are “jealously and carefully drawn,” and there must be “a showing by those who seek
exemption ... that the exigencies of the situation made that course imperative.” “[T]he burden
is on those seeking the exemption to show the need for it.” In times of unrest, whether caused by
crime or racial conflict or fear of internal subversion, this basic law and the values that it
represents may appear unrealistic or “extravagant” to some. But the values were those of the
authors of our fundamental constitutional concepts. In times not altogether unlike our own they
won—by legal and constitutional means in England, and by revolution on this continent—a right
of personal security against arbitrary intrusions by official power. If times have changed,
reducing everyman’s scope to do as he pleases in an urban and industrial world, the changes
have made the values served by the Fourth Amendment more, not less, important.
B
[The majority rejected the state’s claim that the automobile exception justified the search.
Because the Court’s analysis of the automobile exception is both confusing and at odds with
current law, it is not included here at length. Certain language, however, is well known and
illustrates the Court’s early thinking on the exception. For example, citing precedent, the Court
stated:
“‘[E]xigent circumstances’ justify the warrantless search of ‘an automobile stopped on the
highway,’ where there is probable cause, because the car is ‘movable, the occupants are alerted,
and the car’s contents may never be found again if a warrant must be obtained.’ ‘[T]he
opportunity to search is fleeting ….”
Failing to find the necessary circumstances in this case, the Court wrote, “The word ‘automobile’
is not a talisman in whose presence the Fourth Amendment fades away and disappears.”
Although the Court separated the concept of “exigent circumstances” from the automobile
exception in subsequent cases, it continues to justify the automobile exception’s existence with
references to the easy mobility of vehicles.
The dissent of Justice Black, which disputed the Court’s automobile exception analysis, has been
omitted.]
C
The State’s [] theory in support of the warrantless seizure and search of the Pontiac car is that
the car itself was an “instrumentality of the crime,” and as such might be seized by the police on
Coolidge’s property because it was in plain view. [F]or the reasons that follow, we hold that the
“plain view” exception to the warrant requirement is inapplicable to this case.

Chapter 9—Page 193

It is well established that under certain circumstances the police may seize evidence in plain view
without a warrant. But it is important to keep in mind that, in the vast majority of cases, any
evidence seized by the police will be in plain view, at least at the moment of seizure. The problem
with the ‘plain view’ doctrine has been to identify the circumstances in which plain view has legal
significance rather than being simply the normal concomitant of any search, legal or illegal.
An example of the applicability of the “plain view” doctrine is the situation in which the police
have a warrant to search a given area for specified objects, and in the course of the search come
across some other article of incriminating character. Where the initial intrusion that brings the
police within plain view of such an article is supported, not by a warrant, but by one of the
recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus the police
may inadvertently come across evidence while in “hot pursuit” of a fleeing suspect. And an object
that comes into view during a search incident to arrest that is appropriately limited in scope
under existing law may be seized without a warrant. Finally, the “plain view” doctrine has been
applied where a police officer is not searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object.
What the “plain view” cases have in common is that the police officer in each of them had a prior
justification for an intrusion in the course of which he came inadvertently across a piece of
evidence incriminating the accused. The doctrine serves to supplement the prior justification—
whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some
other legitimate reason for being present unconnected with a search directed against the
accused—and permits the warrantless seizure. Of course, the extension of the original
justification is legitimate only where it is immediately apparent to the police that they have
evidence before them; the “plan view” doctrine may not be used to extend a general exploratory
search from one object to another until something incriminating at last emerges.
The rationale for the “plain view” exception is evident if we keep in mind the two distinct
constitutional protections served by the warrant requirement. First, the magistrate’s scrutiny is
intended to eliminate altogether searches not based on probable cause. The premise here is that
any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified
without a careful prior determination of necessity. The second, distinct objective is that those
searches deemed necessary should be as limited as possible. Here, the specific evil is the “general
warrant” abhorred by the colonists, and the problem is not that of intrusion per se, but of a
general, exploratory rummaging in a person’s belongings. The warrant accomplishes this second
objective by requiring a “particular description” of the things to be seized.
The “plain view” doctrine is not in conflict with the first objective because plain view does not
occur until a search is in progress. In each case, this initial intrusion is justified by a warrant or
by an exception such as “hot pursuit” or search incident to a lawful arrest, or by an extraneous
valid reason for the officer’s presence. And, given the initial intrusion, the seizure of an object in
plain view is consistent with the second objective, since it does not convert the search into a
general or exploratory one. As against the minor peril to Fourth Amendment protections, there
is a major gain in effective law enforcement. Where, once an otherwise lawful search is in
progress, the police inadvertently come upon a piece of evidence, it would often be a needless
inconvenience, and sometimes dangerous—to the evidence or to the police themselves—to
require them to ignore it until they have obtained a warrant particularly describing it.
Chapter 9—Page 194

The limits on the doctrine are implicit in the statement of its rationale. The first of these is that
plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a
corollary of the familiar principle discussed above, that no amount of probable cause can justify
a warrantless search or seizure absent “exigent circumstances.” Incontrovertible testimony of
the senses that an incriminating object is on premises belonging to a criminal suspect may
establish the fullest possible measure of probable cause. But even where the object is contraband,
this Court has repeatedly stated and enforced the basic rule that the police may not enter and
make a warrantless seizure.
The second limitation is that the discovery of evidence in plain view must be inadvertent. The
rationale of the exception to the warrant requirement, as just stated, is that a plain-view seizure
will not turn an initially valid (and therefore limited) search into a “general” one, while the
inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the
discovery is anticipated, where the police know in advance the location of the evidence and
intend to seize it, the situation is altogether different. The requirement of a warrant to seize
imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a
legal system that regards warrantless searches as “per se unreasonable” in the absence of
“exigent circumstances.”
If the initial intrusion is bottomed upon a warrant that fails to mention a particular object,
though the police know its location and intend to seize it, then there is a violation of the express
constitutional requirement of “Warrants ... particularly describing ... [the] things to be seized.”
The initial intrusion may, of course, be legitimated not by a warrant but by one of the exceptions
to the warrant requirement, such as hot pursuit or search incident to lawful arrest. But to extend
the scope of such an intrusion to the seizure of objects—not contraband nor stolen nor dangerous
in themselves—which the police know in advance they will find in plain view and intend to seize,
would fly in the face of the basic rule that no amount of probable cause can justify a warrantless
seizure.
In the light of what has been said, it is apparent that the “plain view” exception cannot justify the
police seizure of the Pontiac car in this case. The police had ample opportunity to obtain a valid
warrant; they knew the automobile’s exact description and location well in advance; they
intended to seize it when they came upon Coolidge’s property. And this is not a case involving
contraband or stolen goods or objects dangerous in themselves.
The seizure was therefore unconstitutional, and so was the subsequent search at the station
house. Since evidence obtained in the course of the search was admitted at Coolidge’s trial, the
judgment must be reversed and the case remanded to the New Hampshire Supreme Court.
Notes, Comments, and Questions
In Coolidge, the Court stated that the “plain view exception” existed but did not justify the search
at issue in the case. In Arizona v. Hicks, 480 U.S. 321 (1987), the Court explained the plain view
exception further. As the Hicks Court sets forth, the plain view exception can apply only if an
officer conducts a seizure (1) while the officer is somewhere the officer has the lawful right to be
Chapter 9—Page 195

(e.g., while on a public sidewalk, or inside a house executing a warrant) and (2) the officer has
probable cause to believe that the object is subject to seizure. Objects are subject to seizure if
they are contraband or are otherwise evidence of, fruits of, or instrumentalities of a crime.
(“Contraband” refers to items that are unlawful to possess, such as illegal drugs.) In Hicks, an
officer was lawfully inside a house and spotted an object the officer believed to be stolen. But
because the officer lacked probable cause to support his belief upon picking up the item, the
officer’s seizure of the object (a stolen stereo) was deemed outside the scope of the exception—
that is, it was unlawful.
In Horton v. California, 496 U.S. 128 (1990), the Court expanded the scope of the plain view
exception by removing the “inadvertence requirement” set forth in Justice Stewart’s plurality
opinion in Coolidge. Although the Horton Court described Coolidge as “binding precedent,” it
held that the inadvertence requirement was not “essential” to the Court’s result in Coolidge. As
the Horton majority put it, for the exception to apply, “not only must the officer be lawfully
located in a place from which the object can be plainly seen, but he or she must also have a lawful
right of access to the object itself.” In addition, “not only must the item be in plain view; its
incriminating character must also be ‘immediately apparent.’”
After restating Justice Stewart’s arguments in support of the inadvertence requirement, the
Horton Court rejected it as follows:
“We find two flaws in this reasoning. First, even-handed law enforcement is best achieved by the
application of objective standards of conduct, rather than standards that depend upon the
subjective state of mind of the officer. The fact that an officer is interested in an item of evidence
and fully expects to find it in the course of a search should not invalidate its seizure if the search
is confined in area and duration by the terms of a warrant or a valid exception to the warrant
requirement. If the officer has knowledge approaching certainty that the item will be found, we
see no reason why he or she would deliberately omit a particular description of the item to be
seized from the application for a search warrant. Specification of the additional item could only
permit the officer to expand the scope of the search. On the other hand, if he or she has a valid
warrant to search for one item and merely a suspicion concerning the second, whether or not it
amounts to probable cause, we fail to see why that suspicion should immunize the second item
from seizure if it is found during a lawful search for the first.”
“Second, the suggestion that the inadvertence requirement is necessary to prevent the police
from conducting general searches, or from converting specific warrants into general warrants, is
not persuasive, because that interest is already served by the requirements that no warrant issue
unless it ‘particularly describ[es] the place to be searched and the persons or things to be seized,’”
and that a warrantless search be circumscribed by the exigencies which justify its initiation.”
Justice Brennan, joined by Justice Marshall, noted in dissent that “Forty-six States and the
District of Columbia and 12 United States Courts of Appeals” had adopted the inadvertence
requirement and that there had “been no outcry from law enforcement officials that the
inadvertent discovery requirement unduly burdens their efforts.” It is possible, however, that
many of the courts cited by the dissent felt bound by Coolidge, regardless of their opinions on
the wisdom of the inadvertence requirement.
Chapter 9—Page 196

In the next case, the Court explored the concept of a “plain feel” exception, which was analogized
to the plain view exception.
Supreme Court of the United States
Minnesota v. Timothy Dickerson
Decided June 7, 1993 – 508 U.S. 366
Justice WHITE delivered the opinion of the Court.
In this case, we consider whether the Fourth Amendment permits the seizure of contraband
detected through a police officer’s sense of touch during a protective patdown search.
I
On the evening of November 9, 1989, two Minneapolis police officers were patrolling an area
on the city’s north side in a marked squad car. At about 8:15 p.m., one of the officers observed
respondent leaving a 12-unit apartment building on Morgan Avenue North. The officer, having
previously responded to complaints of drug sales in the building’s hallways and having executed
several search warrants on the premises, considered the building to be a notorious “crack
house.” According to testimony credited by the trial court, respondent began walking toward
the police but, upon spotting the squad car and making eye contact with one of the officers,
abruptly halted and began walking in the opposite direction. His suspicion aroused, this officer
watched as respondent turned and entered an alley on the other side of the apartment building.
Based upon respondent’s seemingly evasive actions and the fact that he had just left a building
known for cocaine traffic, the officers decided to stop respondent and investigate further.
The officers pulled their squad car into the alley and ordered respondent to stop and submit to a
patdown search. The search revealed no weapons, but the officer conducting the search did take
an interest in a small lump in respondent’s nylon jacket. The officer later testified:
“[A]s I pat-searched the front of his body, I felt a lump, a small lump, in the front pocket. I
examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane.”
The officer then reached into respondent’s pocket and retrieved a small plastic bag containing
one fifth of one gram of crack cocaine. Respondent was arrested and charged in Hennepin
County District Court with possession of a controlled substance.
Before trial, respondent moved to suppress the cocaine. The trial court first concluded that the
officers were justified under Terry v. Ohio, 392 U.S. 1 (1968), in stopping respondent to
investigate whether he might be engaged in criminal activity. The court further found that the
officers were justified in frisking respondent to ensure that he was not carrying a weapon.
Finally, analogizing to the “plain-view” doctrine, under which officers may make a warrantless
seizure of contraband found in plain view during a lawful search for other items, the trial court
ruled that the officers’ seizure of the cocaine did not violate the Fourth Amendment.
His suppression motion having failed, respondent proceeded to trial and was found guilty.

Chapter 9—Page 197

On appeal, the Minnesota Court of Appeals reversed. The court agreed with the trial court that
the investigative stop and protective patdown search of respondent were lawful under Terry
because the officers had a reasonable belief based on specific and articulable facts that
respondent was engaged in criminal behavior and that he might be armed and dangerous. The
court concluded, however, that the officers had overstepped the bounds allowed by Terry in
seizing the cocaine. In doing so, the Court of Appeals “decline[d] to adopt the plain feel
exception” to the warrant requirement.
The Minnesota Supreme Court affirmed. Like the Court of Appeals, the State Supreme Court
held that both the stop and the frisk of respondent were valid under Terry, but found the seizure
of the cocaine to be unconstitutional. The court expressly refused “to extend the plain view
doctrine to the sense of touch” on the grounds that “the sense of touch is inherently less
immediate and less reliable than the sense of sight” and that “the sense of touch is far more
intrusive into the personal privacy that is at the core of the [F]ourth [A]mendment.”
We granted certiorari to resolve a conflict among the state and federal courts over whether
contraband detected through the sense of touch during a patdown search may be admitted into
evidence. We now affirm.
II
A
The question presented today is whether police officers may seize nonthreatening contraband
detected during a protective patdown search of the sort permitted by Terry. We think the answer
is clearly that they may, so long as the officers’ search stays within the bounds marked by Terry.
B
We have already held that police officers, at least under certain circumstances, may seize
contraband detected during the lawful execution of a Terry search. The Court [has] held: “If,
while conducting a legitimate Terry search of the interior of the automobile, the officer should,
as here, discover contraband other than weapons, he clearly cannot be required to ignore the
contraband, and the Fourth Amendment does not require its suppression in such
circumstances.”
The Court justified this latter holding by reference to our cases under the “plain-view” doctrine.
Under that doctrine, if police are lawfully in a position from which they view an object, if its
incriminating character is immediately apparent, and if the officers have a lawful right of access
to the object, they may seize it without a warrant. If, however, the police lack probable cause to
believe that an object in plain view is contraband without conducting some further search of the
object—i.e., if “its incriminating character [is not] ‘immediately apparent,’”—the plain-view
doctrine cannot justify its seizure.
We think that this doctrine has an obvious application by analogy to cases in which an officer
discovers contraband through the sense of touch during an otherwise lawful search. The
rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a
Chapter 9—Page 198

police officer from a lawful vantage point, there has been no invasion of a legitimate expectation
of privacy and thus no “search” within the meaning of the Fourth Amendment—or at least no
search independent of the initial intrusion that gave the officers their vantage point. The
warrantless seizure of contraband that presents itself in this manner is deemed justified by the
realization that resort to a neutral magistrate under such circumstances would often be
impracticable and would do little to promote the objectives of the Fourth Amendment. The same
can be said of tactile discoveries of contraband. If a police officer lawfully pats down a suspect’s
outer clothing and feels an object whose contour or mass makes its identity immediately
apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by
the officer’s search for weapons; if the object is contraband, its warrantless seizure would be
justified by the same practical considerations that inhere in the plain-view context.
III
It remains to apply these principles to the facts of this case. Respondent has not challenged the
finding made by the trial court and affirmed by both the Court of Appeals and the State Supreme
Court that the police were justified under Terry in stopping him and frisking him for weapons.
Thus, the dispositive question before this Court is whether the officer who conducted the search
was acting within the lawful bounds marked by Terry at the time he gained probable cause to
believe that the lump in respondent’s jacket was contraband. The State District Court did not
make precise findings on this point, instead finding simply that the officer, after feeling “a small,
hard object wrapped in plastic” in respondent’s pocket, “formed the opinion that the object ...
was crack ... cocaine.” The District Court also noted that the officer made “no claim that he
suspected this object to be a weapon,” a finding affirmed on appeal. The Minnesota Supreme
Court, after “a close examination of the record,” held that the officer’s own testimony “belies any
notion that he ‘immediately’” recognized the lump as crack cocaine. Rather, the court concluded,
the officer determined that the lump was contraband only after “squeezing, sliding and otherwise
manipulating the contents of the defendant’s pocket”—a pocket which the officer already knew
contained no weapon.
Under the State Supreme Court’s interpretation of the record before it, it is clear that the court
was correct in holding that the police officer in this case overstepped the bounds of the “strictly
circumscribed” search for weapons allowed under Terry. Where, as here, “an officer who is
executing a valid search for one item seizes a different item,” this Court rightly “has been
sensitive to the danger ... that officers will enlarge a specific authorization, furnished by a
warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.”
Here, the officer’s continued exploration of respondent’s pocket after having concluded that it
contained no weapon was unrelated to “[t]he sole justification of the search [under Terry: ] ...
the protection of the police officer and others nearby.” It therefore amounted to the sort of
evidentiary search that Terry expressly refused to authorize and that we have condemned in
subsequent cases.
For these reasons, the judgment of the Minnesota Supreme Court is [a]ffirmed.

Chapter 9—Page 199

Notes, Comments, and Questions
Students often ask for examples of what would satisfy the “plain feel” standard that the Court
found was not met in Dickerson. The simplest examples likely involve guns and other weapons
that have fairly obvious shapes, such as a club.
When one of your authors taught bar review, he employed a different example, desiring to use
something memorable not involving a weapon. Imagine that the Museum of Natural History has
reported stolen a rare starfish from its Asteroidea collection. A few hours later, a police officer
notices a person walking in an unusual way near the museum and—based on reasonable
suspicion—lawfully stops and frisks the suspect. Upon patting down the suspect’s jacket, the
officer feels sharp pains in her hand. When she looks at her hand, she notices five rows of
indentations on her palm, each radiating from a central point. It seems likely that the officer
could reach into the suspect’s jacket to seize (what she expects to be) the stolen starfish.
The Automobile Exception
In the early 2000s, hip hop mogul Jay-Z released “99 Problems,” a song that concerned—among
other things—the law governing when police may search the vehicles of criminal suspects. The
song recounts a conversation between the rapper and a police officer who pulled him over in
1994.
Officer:
Jay-Z:
Officer:
Jay-Z:

Do you mind if I look around the car a little bit?
Well, my glove compartment is locked, so is the trunk and the back,
And I know my rights so you go’n need a warrant for that
Aren’t you sharp as a tack, some type of lawyer or something
Or somebody important or something?”
Nah I ain’t pass the bar but I know a little bit …3

Professor Caleb Mason published an essay in 2012 that examines “99 Problems” in great detail,
focusing particularly on its relevance to criminal procedure.4
If this Essay serves no other purpose, I hope it serves to debunk, for any readers
who persist in believing it, the myth that locking your trunk will keep the cops from
searching it. Based on the number of my students who arrived at law school
believing that if you lock your trunk and glove compartment, the police will need a
warrant to search them, I surmise that it's even more widespread among the lay
public. But it’s completely, 100% wrong.
There is no warrant requirement for car searches. The Supreme Court has declared
unequivocally that because cars are inherently mobile (and are pervasively
regulated, and operated in public spaces), it is reasonable under the Fourth
Amendment for the police to search the car--the whole car, and everything in the
car, including containers--whenever they have probable cause to believe that the
3 Jay-Z, “99 Problems,” THE BLACK ALBUM (Roc-A-Fella Records 2003)
4 Caleb Mason, Jay-Z’s 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and

Perps, 56 St. Louis U. L.J. 567, 581 (2012)

Chapter 9—Page 200

car contains evidence of crime. You don’t have to arrest the person, or impound
the vehicle. You just need probable cause to believe that the car contains evidence
of crime. So, in any vehicle stop, the officers may search the entire car, without
consent, if they develop probable cause to believe that car contains, say, drugs.
All the action, in short, is about probable cause. Warrants never come into the
picture. The fact that the trunk and glove compartments are locked is completely
irrelevant. Now, Jay-Z may have just altered the lyrics for dramatic effect, but that
would be unfortunate insofar as the song is going to reach many more people than
any criminal procedure lecture, and everyone should really know the outline of the
law in this area. What the line should say is: “You’ll need some p.c. for that.”
In the next case, the Court sets forth what counts as an “automobile” for purposes of the
automobile exception.
Supreme Court of the United States
California v. Charles R. Carney
Decided May 13, 1985 – 471 U.S. 386
Chief Justice BURGER delivered the opinion of the Court.
We granted certiorari to decide whether law enforcement agents violated the Fourth
Amendment when they conducted a warrantless search, based on probable cause, of a fully
mobile “motor home” located in a public place.
I
On May 31, 1979, Drug Enforcement Agency Agent Robert Williams watched respondent,
Charles Carney, approach a youth in downtown San Diego. The youth accompanied Carney to
a Dodge Mini Motor Home parked in a nearby lot. Carney and the youth closed the window
shades in the motor home, including one across the front window. Agent Williams had
previously received uncorroborated information that the same motor home was used by
another person who was exchanging marihuana for sex. Williams, with assistance from other
agents, kept the motor home under surveillance for the entire one and one-quarter hours that
Carney and the youth remained inside. When the youth left the motor home, the agents followed
and stopped him. The youth told the agents that he had received marijuana in return for
allowing Carney sexual contacts.
At the agents’ request, the youth returned to the motor home and knocked on its door; Carney
stepped out. The agents identified themselves as law enforcement officers. Without a warrant or
consent, one agent entered the motor home and observed marihuana, plastic bags, and a scale
of the kind used in weighing drugs on a table. Agent Williams took Carney into custody and took
possession of the motor home. A subsequent search of the motor home at the police station
revealed additional marihuana in the cupboards and refrigerator.

Chapter 9—Page 201

Respondent was charged with possession of marihuana for sale. At a preliminary hearing, he
moved to suppress the evidence discovered in the motor home. The Magistrate denied the
motion, upholding the initial search as a justifiable search for other persons, and the subsequent
search as a routine inventory search.
Respondent renewed his suppression motion in the Superior Court. The Superior Court also
rejected the claim, holding that there was probable cause to arrest respondent, that the search
of the motor home was authorized under the automobile exception to the Fourth Amendment’s
warrant requirement, and that the motor home itself could be seized without a warrant as an
instrumentality of the crime. Respondent then pleaded nolo contendere to the charges against
him, and was placed on probation for three years.
Respondent appealed from the order placing him on probation. The California Court of Appeal
affirmed, reasoning that the vehicle exception applied to respondent’s motor home.
The California Supreme Court reversed the conviction. The Supreme Court did not disagree with
the conclusion of the trial court that the agents had probable cause to arrest respondent and to
believe that the vehicle contained evidence of a crime; however, the court held that the search
was unreasonable because no warrant was obtained, rejecting the State’s argument that the
vehicle exception to the warrant requirement should apply. That court reached its decision by
concluding that the mobility of a vehicle “is no longer the prime justification for the automobile
exception; rather, ‘the answer lies in the diminished expectation of privacy which surrounds the
automobile.’” The California Supreme Court held that the expectations of privacy in a motor
home are more like those in a dwelling than in an automobile because the primary function of
motor homes is not to provide transportation but to “provide the occupant with living quarters.”
We granted certiorari. We reverse.
II
[The automobile] exception to the [Fourth Amendment] warrant requirement was first set forth
by the Court 60 years ago in Carroll v. United States, 267 U.S. 132 (1925). There, the Court
recognized that the privacy interests in an automobile are constitutionally protected; however,
it held that the ready mobility of the automobile justifies a lesser degree of protection of those
interests. The Court rested this exception on a long-recognized distinction between stationary
structures and vehicles.
The capacity to be “quickly moved” was clearly the basis of the holding in Carroll, and our cases
have consistently recognized ready mobility as one of the principal bases of the automobile
exception.... The mobility of automobiles, we have observed, “creates circumstances of such
exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is
impossible.”
However, although ready mobility alone was perhaps the original justification for the vehicle
exception, our later cases have made clear that ready mobility is not the only basis for the
exception. The reasons for the vehicle exception, we have said, are twofold. “Besides the element
of mobility, less rigorous warrant requirements govern because the expectation of privacy with
Chapter 9—Page 202

respect to one’s automobile is significantly less than that relating to one’s home or office.”
Even in cases where an automobile was not immediately mobile, the lesser expectation of privacy
resulting from its use as a readily mobile vehicle justified application of the vehicular exception.
In some cases, the configuration of the vehicle contributed to the lower expectations of privacy;
for example, we held in Cardwell v. Lewis, 417 U.S. 583 (1974), that because the passenger
compartment of a standard automobile is relatively open to plain view, there are lesser
expectations of privacy. But even when enclosed “repository” areas have been involved, we have
concluded that the lesser expectations of privacy warrant application of the exception. We have
applied the exception in the context of a locked car trunk, a sealed package in a car trunk, a closed
compartment under the dashboard, the interior of a vehicle’s upholstery, or sealed packages
inside a covered pickup truck.
These reduced expectations of privacy derive not from the fact that the area to be searched is in
plain view, but from the pervasive regulation of vehicles capable of traveling on the public
highways. As we explained in South Dakota v. Opperman [428 U.S. 364 (1976)], an inventory
search case:
“Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation
and controls, including periodic inspection and licensing requirements. As an everyday
occurrence, police stop and examine vehicles when license plates or inspection stickers have
expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if
headlights or other safety equipment are not in proper working order.”
The public is fully aware that it is accorded less privacy in its automobiles because of this
compelling governmental need for regulation. Historically, “individuals always [have] been on
notice that movable vessels may be stopped and searched on facts giving rise to probable cause
that the vehicle contains contraband, without the protection afforded by a magistrate’s prior
evaluation of those facts.” In short, the pervasive schemes of regulation, which necessarily lead
to reduced expectations of privacy, and the exigencies attendant to ready mobility justify
searches without prior recourse to the authority of a magistrate so long as the overriding
standard of probable cause is met.
When a vehicle is being used on the highways, or if it is readily capable of such use and is found
stationary in a place not regularly used for residential purposes—temporary or otherwise—the
two justifications for the vehicle exception come into play. First, the vehicle is obviously readily
mobile by the turn of an ignition key, if not actually moving. Second, there is a reduced
expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of
police regulation inapplicable to a fixed dwelling. At least in these circumstances, the overriding
societal interests in effective law enforcement justify an immediate search before the vehicle and
its occupants become unavailable.

Chapter 9—Page 203

While it is true that respondent’s vehicle possessed some, if not many of the attributes of a home,
it is equally clear that the vehicle falls clearly within the scope of the exception laid down in
Carroll and applied in succeeding cases. Like the automobile in Carroll, respondent’s motor
home was readily mobile. Absent the prompt search and seizure, it could readily have been
moved beyond the reach of the police. Furthermore, the vehicle was licensed to “operate on
public streets; [was] serviced in public places; ... and [was] subject to extensive regulation and
inspection.” And the vehicle was so situated that an objective observer would conclude that it
was being used not as a residence, but as a vehicle.
Respondent urges us to distinguish his vehicle from other vehicles within the exception because
it was capable of functioning as a home. In our increasingly mobile society, many vehicles used
for transportation can be and are being used not only for transportation but for shelter, i.e., as a
“home” or “residence.” To distinguish between respondent’s motor home and an ordinary sedan
for purposes of the vehicle exception would require that we apply the exception depending upon
the size of the vehicle and the quality of its appointments. Moreover, to fail to apply the exception
to vehicles such as a motor home ignores the fact that a motor home lends itself easily to use as
an instrument of illicit drug traffic and other illegal activity. We decline today to distinguish
between “worthy” and “unworthy” vehicles which are either on the public roads and highways,
or situated such that it is reasonable to conclude that the vehicle is not being used as a residence.
Our application of the vehicle exception has never turned on the other uses to which a vehicle
might be put. The exception has historically turned on the ready mobility of the vehicle, and on
the presence of the vehicle in a setting that objectively indicates that the vehicle is being used for
transportation.5 These two requirements for application of the exception ensure that law
enforcement officials are not unnecessarily hamstrung in their efforts to detect and prosecute
criminal activity, and that the legitimate privacy interests of the public are protected. Applying
the vehicle exception in these circumstances allows the essential purposes served by the
exception to be fulfilled, while assuring that the exception will acknowledge legitimate privacy
interests.
The judgment of the California Supreme Court is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
The character of “the place to be searched” plays an important role in Fourth Amendment
analysis. In this case, police officers searched a Dodge/Midas Mini Motor Home. The California
Supreme Court correctly characterized this vehicle as a “hybrid” which combines “the mobility
attribute of an automobile ... with most of the privacy characteristics of a house.”

5 [Footnote 3 by the Court] We need not pass on the application of the vehicle exception to a motor home that is

situated in a way or place that objectively indicates that it is being used as a residence. Among the factors that might
be relevant in determining whether a warrant would be required in such a circumstance is its location, whether the
vehicle is readily mobile or instead, for instance, elevated on blocks, whether the vehicle is licensed, whether it is
connected to utilities, and whether it has convenient access to a public road.
Chapter 9—Page 204

The hybrid character of the motor home places it at the crossroads between the privacy interests
that generally forbid warrantless invasions of the home and the law enforcement interests that
support the exception for warrantless searches of automobiles based on probable cause. By
choosing to follow the latter route, the Court errs in three respects: it has entered new territory
prematurely, it has accorded priority to an exception rather than to the general rule [of the
warrant requirement], and it has abandoned the limits on the exception imposed by prior cases.
If the motor home were parked in the exact middle of the intersection between the general rule
and the exception for automobiles, priority should be given to the rule rather than the exception.
The motor home, however, was not parked in the middle of that intersection. Our prior cases
teach us that inherent mobility is not a sufficient justification for the fashioning of an exception
to the warrant requirement, especially in the face of heightened expectations of privacy in the
location searched. Motor homes, by their common use and construction, afford their owners a
substantial and legitimate expectation of privacy when they dwell within. When a motor home
is parked in a location that is removed from the public highway, I believe that society is prepared
to recognize that the expectations of privacy within it are not unlike the expectations one has in
a fixed dwelling. As a general rule, such places may only be searched with a warrant based upon
probable cause. Warrantless searches of motor homes are only reasonable when the motor home
is traveling on the public streets or highways, or when exigent circumstances otherwise require
an immediate search without the expenditure of time necessary to obtain a warrant.
In this case, the motor home was parked in an off-the-street lot only a few blocks from the
courthouse in downtown San Diego where dozens of magistrates were available to entertain a
warrant application. The officers clearly had the element of surprise with them, and with curtains
covering the windshield, the motor home offered no indication of any imminent departure. The
officers plainly had probable cause to arrest the respondent and search the motor home, and on
this record, it is inexplicable why they eschewed the safe harbor of a warrant.
In my opinion, searches of places that regularly accommodate a wide range of private human
activity are fundamentally different from searches of automobiles which primarily serve a public
transportation function. Although it may not be a castle, a motor home is usually the functional
equivalent of a hotel room, a vacation and retirement home, or a hunting and fishing cabin.
These places may be as spartan as a humble cottage when compared to the most majestic
mansion, but the highest and most legitimate expectations of privacy associated with these
temporary abodes should command the respect of this Court.
I respectfully dissent.
Notes, Comments, and Questions
Imagine that Andy, along with his friends Akiva and T-Pain, is on a boat. Police have probable
cause to believe that the boat contains evidence of crime. May police search the boat without a
warrant?

Chapter 9—Page 205

It turns out that the answer is “yes.” Police can search the boat, can search the boat. Don’t you
ever forget. As indicated by the Court’s references to “movable vessels” searched during the
earliest days of the Republic, the automobile exception is not limited to cars, trucks, and other
land-based vehicles. It has been applied to boats and airplanes in the same way as to cars. See
United States v. Hill, 855 F.2d 664, 668 (10th Cir. 1988) (houseboats); United States v. Albers,
136 F.3d 670, 673 & n.3 (9th Cir. 1997) (noting that when a houseboat is “permanently moored”
and therefore not easily mobile, the exception may not apply); United States v. Montgomery,
620 F.2d 753 (10th Cir. 1980) (airplanes); United States v. Nigro, 727 F.2d 100, 107 (6th Cir.
1984) (same).
The next case allowed the Court to reconsider whether closed containers found inside an
automobile are subject to the automobile exception. Students should note that if the answer is
yes, then an object not subject to lawful warrantless search (for example, a duffel bag sitting on
a sidewalk next to its owner) becomes subject to a lawful warrantless search simply by being
moved into a vehicle.
Supreme Court of the United States
California v. Charles Steven Acevedo
Decided May 30, 1991 – 500 U.S. 565
Justice BLACKMUN delivered the opinion of the Court.
This case requires us once again to consider the so-called “automobile exception” to the warrant
requirement of the Fourth Amendment and its application to the search of a closed container
in the trunk of a car.
I
On October 28, 1987, Officer Coleman of the Santa Ana, Cal., Police Department received a
telephone call from a federal drug enforcement agent in Hawaii. The agent informed Coleman
that he had seized a package containing marijuana which was to have been delivered to the
Federal Express Office in Santa Ana and which was addressed to J.R. Daza at 805 West Stevens
Avenue in that city. The agent arranged to send the package to Coleman instead. Coleman then
was to take the package to the Federal Express office and arrest the person who arrived to claim
it.
Coleman received the package on October 29, verified its contents, and took it to the Senior
Operations Manager at the Federal Express office. At about 10:30 a.m. on October 30, a man,
who identified himself as Jamie Daza, arrived to claim the package. He accepted it and drove to
his apartment on West Stevens. He carried the package into the apartment.
At 11:45 a.m., officers observed Daza leave the apartment and drop the box and paper that had
contained the marijuana into a trash bin. Coleman at that point left the scene to get a search
warrant. About 12:05 p.m., the officers saw Richard St. George leave the apartment carrying a
blue knapsack which appeared to be half full. The officers stopped him as he was driving off,
searched the knapsack, and found 1 ½ pounds of marijuana.
Chapter 9—Page 206

At 12:30 p.m., respondent Charles Steven Acevedo arrived. He entered Daza’s apartment, stayed
for about 10 minutes, and reappeared carrying a brown paper bag that looked full. The officers
noticed that the bag was the size of one of the wrapped marijuana packages sent from Hawaii.
Acevedo walked to a silver Honda in the parking lot. He placed the bag in the trunk of the car
and started to drive away. Fearing the loss of evidence, officers in a marked police car stopped
him. They opened the trunk and the bag, and found marijuana.
Respondent was charged in state court with possession of marijuana for sale. He moved to
suppress the marijuana found in the car. The motion was denied. He then pleaded guilty but
appealed the denial of the suppression motion.
The California Court of Appeal, Fourth District, concluded that the marijuana found in the paper
bag in the car’s trunk should have been suppressed.
The Supreme Court of California denied the State’s petition for review. We granted certiorari to
reexamine the law applicable to a closed container in an automobile, a subject that has troubled
courts and law enforcement officers since it was first considered.
II
Contemporaneously with the adoption of the Fourth Amendment, the First Congress, and, later,
the Second and Fourth Congresses, distinguished between the need for a warrant to search for
contraband concealed in “a dwelling house or similar place” and the need for a warrant to search
for contraband concealed in a movable vessel. In [1925] this Court established an exception to
the warrant requirement for moving vehicles, for it recognized
“a necessary difference between a search of a store, dwelling house or other structure in respect
of which a proper official warrant readily may be obtained, and a search of a ship, motor boat,
wagon or automobile, for contraband goods, where it is not practicable to secure a warrant
because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant
must be sought.”
It therefore held that a warrantless search of an automobile, based upon probable cause to
believe that the vehicle contained evidence of crime in the light of an exigency arising out of the
likely disappearance of the vehicle, did not contravene the Warrant Clause of the Fourth
Amendment.
In United States v. Ross, 456 U.S. 798 (1982), we held that a warrantless search of an automobile
under the Carroll doctrine could include a search of a container or package found inside the car
when such a search was supported by probable cause. The warrantless search of Ross’ car
occurred after an informant told the police that he had seen Ross complete a drug transaction
using drugs stored in the trunk of his car. The police stopped the car, searched it, and discovered
in the trunk a brown paper bag containing drugs. We decided that the search of Ross’ car was
not unreasonable under the Fourth Amendment: “The scope of a warrantless search based on
probable cause is no narrower—and no broader—than the scope of a search authorized by a
warrant supported by probable cause.” Thus, “[i]f probable cause justifies the search of a lawfully
stopped vehicle, it justifies the search of every part of the vehicle and its contents that may
Chapter 9—Page 207

conceal the object of the search.” In Ross, therefore, we clarified the scope of the Carroll doctrine
as properly including a “probing search” of compartments and containers within the automobile
so long as the search is supported by probable cause.
In addition to this clarification, Ross distinguished the Carroll doctrine from the separate rule
that governed the search of closed containers. The Court had announced this separate rule,
unique to luggage and other closed packages, bags, and containers, in United States v. Chadwick,
433 U.S. 1 (1977). In Chadwick, federal narcotics agents had probable cause to believe that a
200-pound double-locked footlocker contained marijuana. The agents tracked the locker as the
defendants removed it from a train and carried it through the station to a waiting car. As soon
as the defendants lifted the locker into the trunk of the car, the agents arrested them, seized the
locker, and searched it. In this Court, the United States did not contend that the locker’s brief
contact with the automobile’s trunk sufficed to make the Carroll doctrine applicable. Rather, the
United States urged that the search of movable luggage could be considered analogous to the
search of an automobile.
The Court rejected this argument because, it reasoned, a person expects more privacy in his
luggage and personal effects than he does in his automobile. Moreover, it concluded that as “may
often not be the case when automobiles are seized,” secure storage facilities are usually available
when the police seize luggage.
In Arkansas v. Sanders, 442 U.S. 753 (1979), the Court extended Chadwick’s rule to apply to a
suitcase actually being transported in the trunk of a car. In Sanders, the police had probable
cause to believe a suitcase contained marijuana. They watched as the defendant placed the
suitcase in the trunk of a taxi and was driven away. The police pursued the taxi for several blocks,
stopped it, found the suitcase in the trunk, and searched it. [T]he Sanders majority stressed the
heightened privacy expectation in personal luggage and concluded that the presence of luggage
in an automobile did not diminish the owner’s expectation of privacy in his personal items.
In Ross, the Court endeavored to distinguish between Carroll, which governed the Ross
automobile search, and Chadwick, which governed the Sanders automobile search. It held that
the Carroll doctrine covered searches of automobiles when the police had probable cause to
search an entire vehicle, but that the Chadwick doctrine governed searches of luggage when the
officers had probable cause to search only a container within the vehicle. Thus, in a Ross
situation, the police could conduct a reasonable search under the Fourth Amendment without
obtaining a warrant, whereas in a Sanders situation, the police had to obtain a warrant before
they searched.
III
The facts in this case closely resemble the facts in Ross. In Ross, the police had probable cause
to believe that drugs were stored in the trunk of a particular car. Here, the California Court of
Appeal concluded that the police had probable cause to believe that respondent was carrying
marijuana in a bag in his car’s trunk. Furthermore, for what it is worth, in Ross, as here, the
drugs in the trunk were contained in a brown paper bag.

Chapter 9—Page 208

We now must decide the question deferred in Ross: whether the Fourth Amendment requires
the police to obtain a warrant to open the sack in a movable vehicle simply because they lack
probable cause to search the entire car. We conclude that it does not.
IV
Dissenters in Ross asked why the suitcase in Sanders was “more private, less difficult for police
to seize and store, or in any other relevant respect more properly subject to the warrant
requirement, than a container that police discover in a probable-cause search of an entire
automobile?” We now agree that a container found after a general search of the automobile and
a container found in a car after a limited search for the container are equally easy for the police
to store and for the suspect to hide or destroy. In fact, we see no principled distinction in terms
of either the privacy expectation or the exigent circumstances between the paper bag found by
the police in Ross and the paper bag found by the police here. Furthermore, by attempting to
distinguish between a container for which the police are specifically searching and a container
which they come across in a car, we have provided only minimal protection for privacy and have
impeded effective law enforcement.
The line between probable cause to search a vehicle and probable cause to search a package in
that vehicle is not always clear, and separate rules that govern the two objects to be searched
may enable the police to broaden their power to make warrantless searches and disserve privacy
interests. We noted this in Ross in the context of a search of an entire vehicle. Recognizing that
under Carroll, the “entire vehicle itself ... could be searched without a warrant,” we concluded
that “prohibiting police from opening immediately a container in which the object of the search
is most likely to be found and instead forcing them first to comb the entire vehicle would actually
exacerbate the intrusion on privacy interests.” At the moment when officers stop an automobile,
it may be less than clear whether they suspect with a high degree of certainty that the vehicle
contains drugs in a bag or simply contains drugs. If the police know that they may open a bag
only if they are actually searching the entire car, they may search more extensively than they
otherwise would in order to establish the general probable cause required by Ross.
We cannot see the benefit of a rule that requires law enforcement officers to conduct a more
intrusive search in order to justify a less intrusive one.
To the extent that the Chadwick-Sanders rule protects privacy, its protection is minimal. Law
enforcement officers may seize a container and hold it until they obtain a search warrant. “Since
the police, by hypothesis, have probable cause to seize the property, we can assume that a
warrant will be routinely forthcoming in the overwhelming majority of cases.”
Finally, the search of a paper bag intrudes far less on individual privacy than does the incursion
sanctioned long ago in Carroll. In that case, prohibition agents slashed the upholstery of the
automobile. This Court nonetheless found their search to be reasonable under the Fourth
Amendment. If destroying the interior of an automobile is not unreasonable, we cannot conclude
that looking inside a closed container is. In light of the minimal protection to privacy afforded
by the Chadwick-Sanders rule, and our serious doubt whether that rule substantially serves
privacy interests, we now hold that the Fourth Amendment does not compel separate treatment
for an automobile search that extends only to a container within the vehicle.
Chapter 9—Page 209

V
The Chadwick-Sanders rule not only has failed to protect privacy but also has confused courts
and police officers and impeded effective law enforcement.
Although we have recognized firmly that the doctrine of stare decisis serves profoundly
important purposes in our legal system, this Court has overruled a prior case on the
comparatively rare occasion when it has bred confusion or been a derelict or led to anomalous
results. We conclude that it is better to adopt one clear-cut rule to govern automobile searches
and eliminate the warrant requirement for closed containers set forth in Sanders.
VI
The interpretation of the Carroll doctrine set forth in Ross now applies to all searches of
containers found in an automobile. In other words, the police may search without a warrant if
their search is supported by probable cause.
“Probable cause to believe that a container placed in the trunk of a taxi contains contraband or
evidence does not justify a search of the entire cab.” We reaffirm that principle. In the case before
us, the police had probable cause to believe that the paper bag in the automobile’s trunk
contained marijuana. That probable cause now allows a warrantless search of the paper bag. The
facts in the record reveal that the police did not have probable cause to believe that contraband
was hidden in any other part of the automobile and a search of the entire vehicle would have
been without probable cause and unreasonable under the Fourth Amendment.
Until today, this Court has drawn a curious line between the search of an automobile that
coincidentally turns up a container and the search of a container that coincidentally turns up in
an automobile. The protections of the Fourth Amendment must not turn on such coincidences.
We therefore interpret Carroll as providing one rule to govern all automobile searches. The
police may search an automobile and the containers within it where they have probable cause to
believe contraband or evidence is contained.
The judgment of the California Court of Appeal is reversed, and the case is remanded to that
court for further proceedings not inconsistent with this opinion.
Justice STEVENS, with whom Justice MARSHALL joins, dissenting.
It is “‘a cardinal principle that ‘searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject
only to a few specifically established and well-delineated exceptions.”’
Relying on arguments that conservative judges have repeatedly rejected in past cases, the Court
today—despite its disclaimer to the contrary—enlarges the scope of the automobile exception to
this “cardinal principle,” which undergirded our Fourth Amendment jurisprudence.

Chapter 9—Page 210

Our decisions have always acknowledged that the warrant requirement imposes a burden on law
enforcement. And our cases have not questioned that trained professionals normally make
reliable assessments of the existence of probable cause to conduct a search. We have repeatedly
held, however, that these factors are outweighed by the individual interest in privacy that is
protected by advance judicial approval. The Fourth Amendment dictates that the privacy interest
is paramount, no matter how marginal the risk of error might be if the legality of warrantless
searches were judged only after the fact.
In its opinion today, the Court recognizes that the police did not have probable cause to search
respondent’s vehicle and that a search of anything but the paper bag that respondent had carried
from Daza’s apartment and placed in the trunk of his car would have been unconstitutional.
Moreover, as I read the opinion, the Court assumes that the police could not have made a
warrantless inspection of the bag before it was placed in the car. Finally, the Court also does not
question the fact that, under our prior cases, it would have been lawful for the police to seize the
container and detain it (and respondent) until they obtained a search warrant. Thus, all of the
relevant facts that governed our decisions in Chadwick and Sanders are present here whereas
the relevant fact that justified the vehicle search in Ross is not present.
The Court does not attempt to identify any exigent circumstances that would justify its refusal to
apply the general rule against warrantless searches.
It is too early to know how much freedom America has lost today. The magnitude of the loss is,
however, not nearly as significant as the Court’s willingness to inflict it without even a colorable
basis for its rejection of prior law.
I respectfully dissent.
Notes, Comments, and Questions
Imagine that police suspect a person of committing vehicular homicide. The issue is whether
the suspect’s actions before a fatal crash qualify as criminal conduct or are instead merely
tortious (or perhaps not even blameworthy). Does the automobile exception allow police to
search the car’s internal computer without a warrant? See State v. Mobley, 834 S.E.2d 785 (Ga.
2019). The Mobley Court described the data searched by police in a Georgia case.
The record shows that an ACM, also known as an “event data recorder” or
“electronic control module,” is an onboard electronic data recording device that is
designed to preserve certain data about the operation of a vehicle in the moments
preceding certain occurrences, including any event that results in the deployment
of airbags. Although the precise data preserved varies from vehicle to vehicle, the
data retrieved from the Charger in this case included the speed of the vehicle, the
status of the brakes, the status of the brake switch, the time from maximum
deceleration to impact, the time from impact to airbag deployment, the speed of
the engine, the throttle position, the number of crankshaft revolutions per minute,
the status of the driver’s seatbelt, and a diagnostic indicator about the functioning
of the ACM.
Chapter 9—Page 211

What arguments best support applying the automobile exception to these data sources? What
arguments best support not applying the exception?
The issue remains unsettled, and different courts will likely make different judgments. More
background on the issue, see the amicus brief filed in Mobley by the American Civil Liberties
Union.
In Collins v. Virginia, 138 S. Ct. 1663 (2018), the Court decided “whether the automobile
exception to the Fourth Amendment permits a police officer, uninvited and without a warrant,
to enter the curtilage of a home in order to search a vehicle parked therein.” For the majority,
the question was straightforward. In an opinion joined by six other Justices, Justice Sotomayor
wrote: “Because the scope of the automobile exception extends no further than the automobile
itself, it did not justify Officer Rhodes’ invasion of the curtilage. Nothing in this Court’s case law
suggests that the automobile exception gives an officer the right to enter a home or its curtilage
to access a vehicle without a warrant. Such an expansion would both undervalue the core Fourth
Amendment protection afforded to the home and its curtilage and ‘“untether”’ the exception
‘“from the justifications underlying”’ it.” The Court rejected the idea “that the automobile
exception is a categorical one that permits the warrantless search of a vehicle anytime, anywhere,
including in a home or curtilage.”
Justice Alito dissented sharply, quoting Charles Dickens: “If that is the law, [a character in Oliver
Twist] exclaimed, ‘the law is a ass—a idiot.’” Justice Alito noted, “If the motorcycle had been
parked at the curb, instead of in the driveway, it is undisputed that Rhodes could have searched
it without obtaining a warrant.” He found it bizarre that search became “unreasonable”
“[b]ecause, in order to reach the motorcycle, [the officer] had to walk 30 feet or so up the
driveway of the house rented by petitioner’s girlfriend, and by doing that, … invaded the home’s
‘curtilage.’”

Chapter 9—Page 212

THE FOURTH AMENDMENT
Chapter 10
The Warrant Requirement: Exceptions (Part 2)
Warrant Exception: Searches Incident to a Lawful Arrest
When police perform a lawful arrest, they are allowed to search the arrestee. The permissible
scope of such searches—known as searches incident to lawful arrest (“SILA”)—has been the
subject of multiple Supreme Court cases. No warrant is required for a SILA. 1
For a search to be justified as a SILA: (1) there must have been an arrest, (2) the arrest must have
been “lawful,” and (3) the search must be “incident” to the arrest—that is, close in time and space
to the arrest.
Later in the semester, we will study when arrests are permitted. For now, note that because police
often need no warrant to arrest a suspect, a SILA can sometimes result from two distinct warrant
exceptions. The first allows the underlying arrest, and the second allows the ensuing search.
Supreme Court of the United States
Ted Steven Chimel v. California
Decided June 23, 1969 – 395 U.S. 752
Mr. Justice STEWART delivered the opinion of the Court.
This case raises basic questions concerning the permissible scope under the Fourth Amendment
of a search incident to a lawful arrest.
The relevant facts are essentially undisputed. Late in the afternoon of September 13, 1965, three
police officers arrived at the Santa Ana, California, home of the petitioner with a warrant
authorizing his arrest for the burglary of a coin shop. The officers knocked on the door, identified
themselves to the petitioner’s wife, and asked if they might come inside. She ushered them into
the house, where they waited 10 or 15 minutes until the petitioner returned home from work.
When the petitioner entered the house, one of the officers handed him the arrest warrant and
asked for permission to “look around.” The petitioner objected, but was advised that “on the
basis of the lawful arrest,” the officers would nonetheless conduct a search. No search warrant
had been issued.

1 This sort of search is sometimes abbreviated “SITA” for “Search Incident To Arrest.” This book uses “SILA” to

emphasize that only “lawful” arrests trigger the exception.

Chapter 10 — Page 213

Accompanied by the petitioner’s wife, the officers then looked through the entire three-bedroom
house, including the attic, the garage, and a small workshop. In some rooms the search was
relatively cursory. In the master bedroom and sewing room, however, the officers directed the
petitioner’s wife to open drawers and “to physically move contents of the drawers from side to
side so that [they] might view any items that would have come from [the] burglary.” After
completing the search, they seized numerous items—primarily coins, but also several medals,
tokens, and a few other objects. The entire search took between 45 minutes and an hour.
At the petitioner’s subsequent state trial on two charges of burglary, the items taken from his
house were admitted into evidence against him, over his objection that they had been
unconstitutionally seized. He was convicted, and the judgments of conviction were affirmed by
both the California Court of Appeal and the California Supreme Court. Both courts accepted the
petitioner’s contention that the arrest warrant was invalid because the supporting affidavit was
set out in conclusory terms, but held that since the arresting officers had procured the warrant
“in good faith,” and since in any event they had had sufficient information to constitute probable
cause for the petitioner’s arrest, that arrest had been lawful. From this conclusion the appellate
courts went on to hold that the search of the petitioner’s home had been justified, despite the
absence of a search warrant, on the ground that it had been incident to a valid arrest. We granted
certiorari in order to consider the petitioner’s substantial constitutional claims.
Without deciding the question, we proceed on the hypothesis that the California courts were
correct in holding that the arrest of the petitioner was valid under the Constitution. This brings
us directly to the question whether the warrantless search of the petitioner’s entire house can be
constitutionally justified as incident to that arrest. The decisions of this Court bearing upon that
question have been far from consistent, as even the most cursory review makes evident.
“The presence of a search warrant serves a high function. Absent some grave emergency, the
Fourth Amendment has interposed a magistrate between the citizen and the police. This was
done not to shield criminals nor to make the home a safe haven for illegal activities. It was done
so that an objective mind might weigh the need to invade that privacy in order to enforce the
law. The right of privacy was deemed too precious to entrust to the discretion of those whose job
is the detection of crime and the arrest of criminals. … And so the Constitution requires a
magistrate to pass on the desires of the police before they violate the privacy of the home. We
cannot be true to that constitutional requirement and excuse the absence of a search warrant
without a showing by those who seek exemption from the constitutional mandate that the
exigencies of the situation made that course imperative.”

Chapter 10 — Page 214

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in
order to remove any weapons that the latter might seek to use in order to resist arrest or effect
his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself
frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize
any evidence on the arrestee’s person in order to prevent its concealment or destruction. And
the area into which an arrestee might reach in order to grab a weapon or evidentiary items must,
of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested
can be as dangerous to the arresting officer as one concealed in the clothing of the person
arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area
“within his immediate control”—construing that phrase to mean the area from within which he
might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that
in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other
closed or concealed areas in that room itself. Such searches, in the absence of well-recognized
exceptions, may be made only under the authority of a search warrant. The “adherence to judicial
processes” mandated by the Fourth Amendment requires no less.
It is argued in the present case that it is “reasonable” to search a man’s house when he is arrested
in it. But that argument is founded on little more than a subjective view regarding the
acceptability of certain sorts of police conduct, and not on consideration relevant to Fourth
Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in
this area would approach the evaporation point. It is not easy to explain why, for instance, it is
less subjectively “reasonable” to search a man’s house when he is arrested on his front lawn—or
just down the street—than it is when he happens to be in the house at the time of arrest. As Mr.
Justice Frankfurter put it:
“To say that the search must be reasonable is to require some criterion of reason. It is no guide
at all either for a jury or for district judges or the police to say that an ‘unreasonable search’ is
forbidden—that the search must be reasonable. What is the test of reason which makes a search
reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the
history and experience which it embodies and the safeguards afforded by it against the evils to
which it was a response.”
Thus, although “[t]he recurring questions of the reasonableness of searches” depend upon “the
facts and circumstances—the total atmosphere of the case,” those facts and circumstances must
be viewed in the light of established Fourth Amendment principles.
No consideration relevant to the Fourth Amendment suggests any point of rational limitation,
once the search is allowed to go beyond the area from which the person arrested might obtain
weapons or evidentiary items. The only reasoned distinction is one between a search of the
person arrested and the area within his reach on the one hand, and more extensive searches on
the other.

Chapter 10 — Page 215

[T]he general point so forcefully made by Judge Learned Hand remains:
“After arresting a man in his house, to rummage at will among his papers in search of whatever
will convict him, appears to us to be indistinguishable from what might be done under a general
warrant; indeed, the warrant would give more protection, for presumably it must be issued by a
magistrate. True, by hypothesis the power would not exist, if the supposed offender were not
found on the premises; but it is small consolation to know that one’s papers are safe only so long
as one is not at home.”
Application of sound Fourth Amendment principles to the facts of this case produces a clear
result. The search here went far beyond the petitioner’s person and the area from within which
he might have obtained either a weapon or something that could have been used as evidence
against him. There was no constitutional justification, in the absence of a search warrant, for
extending the search beyond that area. The scope of the search was, therefore, “unreasonable”
under the Fourth and Fourteenth Amendments and the petitioner’s conviction cannot stand.
Reversed.
Mr. Justice WHITE, with whom Mr. Justice BLACK joins, dissenting.
Few areas of the law have been as subject to shifting constitutional standards over the last 50
years as that of the search “incident to an arrest.” There has been a remarkable instability in this
whole area, which has seen at least four major shifts in emphasis. Today’s opinion makes an
untimely fifth. In my view, the Court should not now abandon the old rule.
The rule which has prevailed, but for very brief or doubtful periods of aberration, is that a search
incident to an arrest may extend to those areas under the control of the defendant and where
items subject to constitutional seizure may be found. The justification for this rule must, under
the language of the Fourth Amendment, lie in the reasonableness of the rule.
In terms, then, the Court must decide whether a given search is reasonable. The Amendment
does not proscribe “warrantless searches” but instead it proscribes “unreasonable searches” and
this Court has never held nor does the majority today assert that warrantless searches are
necessarily unreasonable.
Applying this reasonableness test to the area of searches incident to arrests, one thing is clear at
the outset. Search of an arrested man and of the items within his immediate reach must in almost
every case be reasonable. There is always a danger that the suspect will try to escape, seizing
concealed weapons with which to overpower and injure the arresting officers, and there is a
danger that he may destroy evidence vital to the prosecution. Circumstances in which these
justifications would not apply are sufficiently rare that inquiry is not made into searches of this
scope, which have been considered reasonable throughout.
The justifications which make such a search reasonable obviously do not apply to the search of
areas to which the accused does not have ready physical access. This is not enough, however, to
prove such searches unconstitutional. The Court has always held, and does not today deny, that
when there is probable cause to search and it is “impracticable” for one reason or another to get
a search warrant, then a warrantless search may be reasonable. This is the case whether an arrest
was made at the time of the search or not.
Chapter 10 — Page 216

This is not to say that a search can be reasonable without regard to the probable cause to believe
that seizable items are on the premises. But when there are exigent circumstances, and probable
cause, then the search may be made without a warrant, reasonably. An arrest itself may often
create an emergency situation making it impracticable to obtain a warrant before embarking on
a related search. Again assuming that there is probable cause to search premises at the spot
where a suspect is arrested, it seems to me unreasonable to require the police to leave the scene
in order to obtain a search warrant when they are already legally there to make a valid arrest,
and when there must almost always be a strong possibility that confederates of the arrested man
will in the meanwhile remove the items for which the police have probable cause to search. This
must so often be the case that it seems to me as unreasonable to require a warrant for a search
of the premises as to require a warrant for search of the person and his very immediate
surroundings.
This case provides a good illustration of my point that it is unreasonable to require police to leave
the scene of an arrest in order to obtain a search warrant when they already have probable cause
to search and there is a clear danger that the items for which they may reasonably search will be
removed before they return with a warrant. Petitioner was arrested in his home after an arrest.
There was doubtless probable cause not only to arrest petitioner, but also to search his house.
He had obliquely admitted, both to a neighbor and to the owner of the burglarized store, that he
had committed the burglary. In light of this, and the fact that the neighbor had seen other
admittedly stolen property in petitioner’s house, there was surely probable cause on which a
warrant could have issued to search the house for the stolen coins. Moreover, had the police
simply arrested petitioner, taken him off to the station house, and later returned with a warrant,
it seems very likely that petitioner’s wife, who in view of petitioner’s generally garrulous nature
must have known of the robbery, would have removed the coins. For the police to search the
house while the evidence they had probable cause to search out and seize was still there cannot
be considered unreasonable.
In considering searches incident to arrest, it must be remembered that there will be immediate
opportunity to challenge the probable cause for the search in an adversary proceeding. The
suspect has been apprised of the search by his very presence at the scene, and having been
arrested, he will soon be brought into contact with people who can explain his rights.
An arrested man, by definition conscious of the police interest in him, and provided almost
immediately with a lawyer and a judge, is in an excellent position to dispute the reasonableness
of his arrest and contemporaneous search in a full adversary proceeding. I would uphold the
constitutionality of this search contemporaneous with an arrest since there were probable cause
both for the search and for the arrest, exigent circumstances involving the removal or destruction
of evidence, and satisfactory opportunity to dispute the issues of probable cause shortly
thereafter. In this case, the search was reasonable.
*

*

*

Chapter 10 — Page 217

In the next case, the Court made clear that a search cannot be “incident to a lawful arrest” if no
one is arrested.
Supreme Court of the United States
Patrick Knowles v. Iowa
Decided Dec. 8, 1998 – 525 U.S. 113
Chief Justice REHNQUIST delivered the opinion of the Court.
An Iowa police officer stopped petitioner Knowles for speeding, but issued him a citation rather
than arresting him. The question presented is whether such a procedure authorizes the officer,
consistently with the Fourth Amendment, to conduct a full search of the car. We answer this
question “no.”
Knowles was stopped in Newton, Iowa, after having been clocked driving 43 miles per hour on a
road where the speed limit was 25 miles per hour. The police officer issued a citation to Knowles,
although under Iowa law he might have arrested him. The officer then conducted a full search of
the car, and under the driver’s seat he found a bag of marijuana and a “pot pipe.” Knowles was
then arrested and charged with violation of state laws dealing with controlled substances.
Before trial, Knowles moved to suppress the evidence so obtained. He argued that the search
could not be sustained under the “search incident to arrest” exception because he had not been
placed under arrest. At the hearing on the motion to suppress, the police officer conceded that
he had neither Knowles’ consent nor probable cause to conduct the search. He relied on Iowa
law dealing with such searches.
[Under Iowa law at the time, when an officer was authorized to arrest someone for a traffic
offense but instead issued a citation, “the issuance of a citation in lieu of an arrest” did “not affect
the officer’s authority to conduct an otherwise lawful search.”]
[T]he trial court denied the motion to suppress and found Knowles guilty. The Supreme Court
of Iowa, sitting en banc, affirmed by a divided vote. [T]he Iowa Supreme Court upheld the
constitutionality of the search under a bright-line “search incident to citation” exception to the
Fourth Amendment’s warrant requirement, reasoning that so long as the arresting officer had
probable cause to make a custodial arrest, there need not in fact have been a custodial arrest. We
granted certiorari and we now reverse.
[W]e [have] noted the two historical rationales for the “search incident to arrest” exception: (1)
the need to disarm the suspect in order to take him into custody, and (2) the need to preserve
evidence for later use at trial. But neither of these underlying rationales for the search incident
to arrest exception is sufficient to justify the search in the present case.
We have recognized that the first rationale—officer safety—is “‘both legitimate and weighty,’”
The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the
case of a custodial arrest. [A] custodial arrest involves “danger to an officer” because of “the
extended exposure which follows the taking of a suspect into custody and transporting him to
Chapter 10 — Page 218

the police station.” We recognized that “[t]he danger to the police officer flows from the fact of
the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for
arrest.” A routine traffic stop, on the other hand, is a relatively brief encounter and “is more
analogous to a so-called ‘Terry stop’ ... than to a formal arrest.”
This is not to say that the concern for officer safety is absent in the case of a routine traffic stop.
It plainly is not. But while the concern for officer safety in this context may justify the “minimal”
additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify
the often considerably greater intrusion attending a full field-type search. Even without the
search authority Iowa urges, officers have other, independent bases to search for weapons and
protect themselves from danger. For example, they may order out of a vehicle both the driver
and any passengers, perform a “patdown” of a driver and any passengers upon reasonable
suspicion that they may be armed and dangerous, conduct a “Terry patdown” of the passenger
compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may
gain immediate control of a weapon, and even conduct a full search of the passenger
compartment, including any containers therein, pursuant to a custodial arrest.
Nor has Iowa shown the second justification for the authority to search incident to arrest—the
need to discover and preserve evidence. Once Knowles was stopped for speeding and issued a
citation, all the evidence necessary to prosecute that offense had been obtained. No further
evidence of excessive speed was going to be found either on the person of the offender or in the
passenger compartment of the car.
Iowa nevertheless argues that a “search incident to citation” is justified because a suspect who is
subject to a routine traffic stop may attempt to hide or destroy evidence related to his identity
(e.g., a driver’s license or vehicle registration), or destroy evidence of another, as yet undetected
crime. As for the destruction of evidence relating to identity, if a police officer is not satisfied
with the identification furnished by the driver, this may be a basis for arresting him rather than
merely issuing a citation. As for destroying evidence of other crimes, the possibility that an
officer would stumble onto evidence wholly unrelated to the speeding offense seems remote.
[T]he authority to conduct a full field search as incident to an arrest [is] a “bright-line rule,”
which [is] based on the concern for officer safety and destruction or loss of evidence, but which
[does] not depend in every case upon the existence of either concern. Here we are asked to extend
that “bright-line rule” to a situation where the concern for officer safety is not present to the
same extent and the concern for destruction or loss of evidence is not present at all. We decline
to do so. The judgment of the Supreme Court of Iowa is reversed, and the cause is remanded for
further proceedings not inconsistent with this opinion.
Notes, Comments, and Questions
After the Court decided Chimel v. California, the proper physical scope of a SILA was defined
with reasonable clarity in most contexts. In cases in which suspects were arrested in or near cars,
however, there was substantial confusion about the proper scope of ensuing searches. In
particular, the Court has repeatedly considered whether police may search a car from which a
suspect was removed (or from which the suspect otherwise exited) shortly prior to arrest. In
Chapter 10 — Page 219

Arizona v. Gant, the Court considered the continuing vitality of a doctrine set forth in New York
v. Belton, 453 U.S. 454 (1981). (Because the Gant Court describes Belton at length, students need
not read Belton to understand the controversy it created.) Students should note that Justice
Stevens, who wrote for the Court, could not have assembled a majority without the vote of Justice
Scalia, who wrote separately to explain his discontent with how the majority responded to
criticism of Belton.
Supreme Court of the United States
Arizona v. Rodney Joseph Gant
Decided April 21, 2009 – 556 U.S. 332
Justice STEVENS delivered the opinion of the Court.
After Rodney Gant was arrested for driving with a suspended license, handcuffed, and locked in
the back of a patrol car, police officers searched his car and discovered cocaine in the pocket of
a jacket on the backseat. Because Gant could not have accessed his car to retrieve weapons or
evidence at the time of the search, the Arizona Supreme Court held that the search-incident-toarrest exception to the Fourth Amendment’s warrant requirement, as defined in Chimel v.
California, 395 U.S. 752 (1969), and applied to vehicle searches in New York v. Belton, 453 U.S.
454 (1981), did not justify the search in this case. We agree with that conclusion.
Under Chimel, police may search incident to arrest only the space within an arrestee’s
“‘immediate control,’” meaning “the area from within which he might gain possession of a
weapon or destructible evidence.” The safety and evidentiary justifications underlying Chimel’s
reaching-distance rule determine Belton’s scope. Accordingly, we hold that Belton does not
authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been
secured and cannot access the interior of the vehicle. [W]e also conclude that circumstances
unique to the automobile context justify a search incident to arrest when it is reasonable to
believe that evidence of the offense of arrest might be found in the vehicle.
I
On August 25, 1999, acting on an anonymous tip that the residence at 2524 North Walnut
Avenue was being used to sell drugs, Tucson police officers Griffith and Reed knocked on the
front door and asked to speak to the owner. Gant answered the door and, after identifying
himself, stated that he expected the owner to return later. The officers left the residence and
conducted a records check, which revealed that Gant’s driver’s license had been suspended and
there was an outstanding warrant for his arrest for driving with a suspended license.
When the officers returned to the house that evening, they found a man near the back of the
house and a woman in a car parked in front of it. After a third officer arrived, they arrested the
man for providing a false name and the woman for possessing drug paraphernalia. Both
arrestees were handcuffed and secured in separate patrol cars when Gant arrived. The officers
recognized his car as it entered the driveway, and Officer Griffith confirmed that Gant was the
driver by shining a flashlight into the car as it drove by him. Gant parked at the end of the
driveway, got out of his car, and shut the door. Griffith, who was about 30 feet away, called to
Chapter 10 — Page 220

Gant, and they approached each other, meeting 10–to–12 feet from Gant’s car. Griffith
immediately arrested Gant and handcuffed him.
Because the other arrestees were secured in the only patrol cars at the scene, Griffith called for
backup. When two more officers arrived, they locked Gant in the backseat of their vehicle. After
Gant had been handcuffed and placed in the back of a patrol car, two officers searched his car:
One of them found a gun, and the other discovered a bag of cocaine in the pocket of a jacket on
the backseat.
Gant was charged with two offenses—possession of a narcotic drug for sale and possession of
drug paraphernalia (i.e., the plastic bag in which the cocaine was found). He moved to suppress
the evidence seized from his car on the ground that the warrantless search violated the Fourth
Amendment. Among other things, Gant argued that Belton did not authorize the search of his
vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and
because he was arrested for a traffic offense for which no evidence could be found in his vehicle.
When asked at the suppression hearing why the search was conducted, Officer Griffith
responded: “Because the law says we can do it.”
The trial court rejected the State’s contention that the officers had probable cause to search
Gant’s car for contraband when the search began but it denied the motion to suppress. Relying
on the fact that the police saw Gant commit the crime of driving without a license and
apprehended him only shortly after he exited his car, the court held that the search was
permissible as a search incident to arrest. A jury found Gant guilty on both drug counts, and he
was sentenced to a 3–year term of imprisonment.
After protracted state-court proceedings, the Arizona Supreme Court concluded that the search
of Gant’s car was unreasonable within the meaning of the Fourth Amendment. The court’s
opinion discussed at length our decision in Belton, which held that police may search the
passenger compartment of a vehicle and any containers therein as a contemporaneous incident
of an arrest of the vehicle’s recent occupant. The court distinguished Belton as a case concerning
the permissible scope of a vehicle search incident to arrest and concluded that it did not answer
“the threshold question whether the police may conduct a search incident to arrest at all once
the scene is secure.” Relying on our earlier decision in Chimel, the court observed that the searchincident-to-arrest exception to the warrant requirement is justified by interests in officer safety
and evidence preservation. When “the justifications underlying Chimel no longer exist because
the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under
the supervision of an officer,” the court concluded, a “warrantless search of the arrestee’s car
cannot be justified as necessary to protect the officers at the scene or prevent the destruction of
evidence.” Accordingly, the court held that the search of Gant’s car was unreasonable.
The chorus that has called for us to revisit Belton includes courts, scholars, and Members of this
Court who have questioned that decision’s clarity and its fidelity to Fourth Amendment
principles. We therefore granted the State’s petition for certiorari.

Chapter 10 — Page 221

II
Consistent with our precedent, our analysis begins, as it should in every case addressing the
reasonableness of a warrantless search, with the basic rule that “searches conducted outside the
judicial process, without prior approval by judge or magistrate, are per se unreasonable under
the Fourth Amendment—subject only to a few specifically established and well-delineated
exceptions.” Among the exceptions to the warrant requirement is a search incident to a lawful
arrest. The exception derives from interests in officer safety and evidence preservation that are
typically implicated in arrest situations.
In Chimel, we held that a search incident to arrest may only include “the arrestee’s person and
the area ‘within his immediate control’—construing that phrase to mean the area from within
which he might gain possession of a weapon or destructible evidence.” That limitation, which
continues to define the boundaries of the exception, ensures that the scope of a search incident
to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any
evidence of the offense of arrest that an arrestee might conceal or destroy. If there is no
possibility that an arrestee could reach into the area that law enforcement officers seek to search,
both justifications for the search-incident-to-arrest exception are absent and the rule does not
apply.
In Belton, we considered Chimel’s application to the automobile context. A lone police officer in
that case stopped a speeding car in which Belton was one of four occupants. While asking for the
driver’s license and registration, the officer smelled burnt marijuana and observed an envelope
on the car floor marked “Supergold”—a name he associated with marijuana. Thus having
probable cause to believe the occupants had committed a drug offense, the officer ordered them
out of the vehicle, placed them under arrest, and patted them down. Without handcuffing the
arrestees, the officer “‘split them up into four separate areas of the Thruway ... so they would not
be in physical touching area of each other’” and searched the vehicle, including the pocket of a
jacket on the backseat, in which he found cocaine.
The New York Court of Appeals found the search unconstitutional, concluding that after the
occupants were arrested the vehicle and its contents were “safely within the exclusive custody
and control of the police.” The State asked this Court to consider whether the exception
recognized in Chimel permits an officer to search “a jacket found inside an automobile while the
automobile’s four occupants, all under arrest, are standing unsecured around the vehicle.” We
granted certiorari because “courts ha[d] found no workable definition of ‘the area within the
immediate control of the arrestee’ when that area arguably includes the interior of an
automobile.”
[W]e held that when an officer lawfully arrests “the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger compartment of the automobile”
and any containers therein. That holding was based in large part on our assumption “that articles
inside the relatively narrow compass of the passenger compartment of an automobile are in fact
generally, even if not inevitably, within ‘the area into which an arrestee might reach.’”
The Arizona Supreme Court read our decision in Belton as merely delineating “the proper scope
of a search of the interior of an automobile” incident to an arrest. That is, when the passenger
Chapter 10 — Page 222

compartment is within an arrestee’s reaching distance, Belton supplies the generalization that
the entire compartment and any containers therein may be reached. On that view of Belton, the
state court concluded that the search of Gant’s car was unreasonable because Gant clearly could
not have accessed his car at the time of the search. It also found that no other exception to the
warrant requirement applied in this case.
Gant now urges us to adopt the reading of Belton followed by the Arizona Supreme Court.
III
Despite the textual and evidentiary support for the Arizona Supreme Court’s reading of Belton,
our opinion has been widely understood to allow a vehicle search incident to the arrest of a recent
occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of
the search. This reading may be attributable to Justice Brennan’s dissent in Belton, in which he
characterized the Court’s holding as resting on the “fiction ... that the interior of a car is always
within the immediate control of an arrestee who has recently been in the car.” Under the
majority’s approach, he argued, “the result would presumably be the same even if [the officer]
had handcuffed Belton and his companions in the patrol car” before conducting the search.
Since we decided Belton, Courts of Appeals have given different answers to the question whether
a vehicle must be within an arrestee’s reach to justify a vehicle search incident to arrest, but
Justice Brennan’s reading of the Court’s opinion has predominated. As Justice O’Connor
observed, “lower court decisions seem now to treat the ability to search a vehicle incident to the
arrest of a recent occupant as a police entitlement rather than as an exception justified by the
twin rationales of Chimel.” Justice SCALIA has similarly noted that, although it is improbable
that an arrestee could gain access to weapons stored in his vehicle after he has been handcuffed
and secured in the backseat of a patrol car, cases allowing a search in “this precise factual
scenario ... are legion.” Indeed, some courts have upheld searches under Belton “even when ...
the handcuffed arrestee has already left the scene.”
Under this broad reading of Belton, a vehicle search would be authorized incident to every arrest
of a recent occupant notwithstanding that in most cases the vehicle’s passenger compartment
will not be within the arrestee’s reach at the time of the search. To read Belton as authorizing a
vehicle search incident to every recent occupant’s arrest would thus untether the rule from the
justifications underlying the Chimel exception—a result clearly incompatible with our statement
in Belton that it “in no way alters the fundamental principles established in the Chimel case
regarding the basic scope of searches incident to lawful custodial arrests.” Accordingly, we reject
this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle
incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching
distance of the passenger compartment at the time of the search.
Although it does not follow from Chimel, we also conclude that circumstances unique to the
vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle.” In many cases, as when a
recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the
vehicle contains relevant evidence. But in others … the offense of arrest will supply a basis for
searching the passenger compartment of an arrestee’s vehicle and any containers therein.
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Neither the possibility of access nor the likelihood of discovering offense-related evidence
authorized the search in this case. Unlike in Belton, which involved a single officer confronted
with four unsecured arrestees, the five officers in this case outnumbered the three arrestees, all
of whom had been handcuffed and secured in separate patrol cars before the officers searched
Gant’s car. Under those circumstances, Gant clearly was not within reaching distance of his car
at the time of the search. An evidentiary basis for the search was also lacking in this case. Gant
was arrested for driving with a suspended license—an offense for which police could not expect
to find evidence in the passenger compartment of Gant’s car. Because police could not
reasonably have believed either that Gant could have accessed his car at the time of the search
or that evidence of the offense for which he was arrested might have been found therein, the
search in this case was unreasonable.
IV
The State does not seriously disagree with the Arizona Supreme Court’s conclusion that Gant
could not have accessed his vehicle at the time of the search, but it nevertheless asks us to uphold
the search of his vehicle under the broad reading of Belton discussed above. The State argues
that Belton searches are reasonable regardless of the possibility of access in a given case because
that expansive rule correctly balances law enforcement interests, including the interest in a
bright-line rule, with an arrestee’s limited privacy interest in his vehicle.
For several reasons, we reject the State’s argument. First, the State seriously undervalues the
privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his
vehicle is less substantial than in his home, the former interest is nevertheless important and
deserving of constitutional protection. It is particularly significant that Belton searches authorize
police officers to search not just the passenger compartment but every purse, briefcase, or other
container within that space. A rule that gives police the power to conduct such a search whenever
an individual is caught committing a traffic offense, when there is no basis for believing evidence
of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy
of countless individuals. Indeed, the character of that threat implicates the central concern
underlying the Fourth Amendment—the concern about giving police officers unbridled
discretion to rummage at will among a person’s private effects.
At the same time as it undervalues these privacy concerns, the State exaggerates the clarity that
its reading of Belton provides. Courts that have read Belton expansively are at odds regarding
how close in time to the arrest and how proximate to the arrestee’s vehicle an officer’s first
contact with the arrestee must be to bring the encounter within Belton’s purview and whether a
search is reasonable when it commences or continues after the arrestee has been removed from
the scene. The rule has thus generated a great deal of uncertainty, particularly for a rule touted
as providing a “bright line.”

Chapter 10 — Page 224

Contrary to the State’s suggestion, a broad reading of Belton is also unnecessary to protect law
enforcement safety and evidentiary interests. Under our view, Belton and Thornton [v. United
States, 541 U.S.615 (2004)] permit an officer to conduct a vehicle search when an arrestee is
within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence
of the offense of arrest. Other established exceptions to the warrant requirement authorize a
vehicle search under additional circumstances when safety or evidentiary concerns demand.
These exceptions together ensure that officers may search a vehicle when genuine safety or
evidentiary concerns encountered during the arrest of a vehicle’s recent occupant justify a
search. Construing Belton broadly to allow vehicle searches incident to any arrest would serve
no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment
to permit a warrantless search on that basis. For these reasons, we are unpersuaded by the State’s
arguments that a broad reading of Belton would meaningfully further law enforcement interests
and justify a substantial intrusion on individuals’ privacy.
VI
Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of arrest. When these justifications are
absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or
show that another exception to the warrant requirement applies. The Arizona Supreme Court
correctly held that this case involved an unreasonable search. Accordingly, the judgment of the
State Supreme Court is affirmed.
Justice SCALIA, concurring.
To determine what is an “unreasonable” search within the meaning of the Fourth Amendment,
we look first to the historical practices the Framers sought to preserve; if those provide
inadequate guidance, we apply traditional standards of reasonableness. Since the historical
scope of officers’ authority to search vehicles incident to arrest is uncertain, traditional standards
of reasonableness govern. It is abundantly clear that those standards do not justify what I take
to be the rule set forth in Belton and Thornton: that arresting officers may always search an
arrestee’s vehicle in order to protect themselves from hidden weapons. When an arrest is made
in connection with a roadside stop, police virtually always have a less intrusive and more effective
means of ensuring their safety—and a means that is virtually always employed: ordering the
arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him
in the squad car.
Law enforcement officers face a risk of being shot whenever they pull a car over. But that risk is
at its height at the time of the initial confrontation; and it is not at all reduced by allowing a
search of the stopped vehicle after the driver has been arrested and placed in the squad car. I
observed in Thornton that the Government had failed to provide a single instance in which a
formerly restrained arrestee escaped to retrieve a weapon from his own vehicle; Arizona and its
amici have not remedied that significant deficiency in the present case.

Chapter 10 — Page 225

It must be borne in mind that we are speaking here only of a rule automatically permitting a
search when the driver or an occupant is arrested. Where no arrest is made, we have held that
officers may search the car if they reasonably believe “the suspect is dangerous and ... may gain
immediate control of weapons.” In the no-arrest case, the possibility of access to weapons in the
vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when
the interrogation is completed.
Justice STEVENS acknowledges that an officer-safety rationale cannot justify all vehicle
searches incident to arrest, but asserts that that is not the rule Belton and Thornton adopted.
Justice STEVENS would therefore retain the application of Chimel v. California, 395 U.S. 752
(1969), in the car-search context but would apply in the future what he believes our cases held
in the past: that officers making a roadside stop may search the vehicle so long as the “arrestee
is within reaching distance of the passenger compartment at the time of the search.” I believe
that this standard fails to provide the needed guidance to arresting officers and also leaves much
room for manipulation, inviting officers to leave the scene unsecured (at least where dangerous
suspects are not involved) in order to conduct a vehicle search. In my view we should simply
abandon the Belton–Thornton charade of officer safety and overrule those cases. I would hold
that a vehicle search incident to arrest is ipso facto “reasonable” only when the object of the
search is evidence of the crime for which the arrest was made, or of another crime that the officer
has probable cause to believe occurred. Because respondent was arrested for driving without a
license (a crime for which no evidence could be expected to be found in the vehicle), I would hold
in the present case that the search was unlawful.
Justice ALITO [in dissent] insists that the Court must demand a good reason for abandoning
prior precedent. That is true enough, but it seems to me ample reason that the precedent was
badly reasoned and produces erroneous (in this case unconstitutional) results. We should
recognize Belton’s fanciful reliance upon officer safety for what it was: “a return to the broader
sort of [evidence-gathering] search incident to arrest that we allowed before Chimel.”
Justice ALITO argues that there is no reason to adopt a rule limiting automobile-arrest searches
to those cases where the search’s object is evidence of the crime of arrest. I disagree. This
formulation of officers’ authority both preserves the outcomes of our prior cases and tethers the
scope and rationale of the doctrine to the triggering event. Belton, by contrast, allowed searches
precisely when its exigency-based rationale was least applicable: The fact of the arrest in the
automobile context makes searches on exigency grounds less reasonable, not more. I also
disagree with Justice ALITO’s conclusory assertion that this standard will be difficult to
administer in practice; the ease of its application in this case would suggest otherwise.
No other Justice, however, shares my view that application of Chimel in this context should be
entirely abandoned. It seems to me unacceptable for the Court to come forth with a 4–to–1–to–
4 opinion that leaves the governing rule uncertain. I am therefore confronted with the choice of
either leaving the current understanding of Belton and Thornton in effect, or acceding to what
seems to me the artificial narrowing of those cases adopted by Justice STEVENS. The latter, as
I have said, does not provide the degree of certainty I think desirable in this field; but the former
opens the field to what I think are plainly unconstitutional searches—which is the greater evil. I
therefore join the opinion of the Court.
Chapter 10 — Page 226

Notes, Comments, and Questions
Consider what is included in the “passenger compartment.” Does it include the trunk? What if
the car is a hatchback or station wagon? Are the wheel wells or undercarriage part of the
passenger compartment? What other warrant exceptions might apply to trunk searches?
Although some have argued that Gant implicitly overruled Belton, one could argue that the
majority instead properly confined Belton to facts similar to those that justified the Belton
decision itself. In Belton, a police officer stopped a car for speeding on the New York State
Thruway. The Thruway is a system of highways covering hundreds of miles and is among the
busiest toll roads in the United States.
The car contained four men (including Belton), and the officer was alone. The officer directed
the four men to stand apart from one another so that they could not touch each other. By
contrast, in Gant, multiple officers saw Gant park his car in a driveway. Perhaps the facts of
Belton—a single officer dealing with multiple suspects on a busy highway—justified a search
incident to lawful arrest in a way that the facts of Gant did not. In other words, perhaps police
officers and courts had erroneously applied the rule of Belton to inappropriate circumstances,
and the Gant Court clarified the Court’s prior holding. Then again, perhaps Belton was written
too broadly, and the passage of time allowed the Court to see its own error, which it corrected in
Gant. In any event, students would be wise to memorize the rule set forth in Gant, which is easy
for bar examiners (and law professors) to test.
In 1973, the Court decided in United States v. Robinson, 414 U.S. 218, that police may lawfully
open a cigarette package found upon an arrestee’s person during a search incident to arrest. Even
though the arresting officer had no particular reason to believe that the cigarette package
contained contraband or evidence of crime, the Court held the search permissible. The majority
concluded that, so long as officers stay within the temporal and geographic constraints imposed
in cases such as Chimel, no further quantum of evidence is required to justify a thorough search
of the arrestee’s person, clothing, and immediate surroundings, along with inspection of papers
and effects found during these searches. Accordingly, other than the probable cause necessary
to justify the underlying arrest, no probable cause (or even reasonable suspicion) is required for
a SILA.
Although the rule of Robinson may seem relatively clear at first, the case did not resolve the
common issue of locked containers seized incident to arrest; nor did it explicitly address the
issue of closed (but not locked) containers found near (but not on the person of) the arrestee. In
United States v Chadwick, 433 U.S. 1 (1977) (abrogated on grounds unrelated to SILA law), the
Court held that opening an arrestee’s luggage ninety minutes after the arrest could not be
justified as “incident” to the arrest—the time delay was too great. But the Court did not decide
whether a locked (or otherwise closed) container could be opened closer in time to the arrest.
Lower courts have split on the question.2

2 For opinions reviewing the relevant precedent in some detail and reaching opposite conclusions, see, e.g., People

v. Cregan, 10 N.E.3d 1196 (Ill. 2014) (allowing such a search); id. at 1210 (Burke, J., dissenting) (arguing the
majority misread Supreme Court precedent).
Chapter 10 — Page 227

When the Court decided Riley v. California in 2014, it considered facts about a “container” that
would have been unimaginable in 1973. Just a few decades ago, no arrestee had in his pocket a
mini-computer full of private data, much less one capable of connecting to even more powerful
computers with vast repositories of additional private information. Today, most arrestees carry
such devices. The question before the Court was whether the rule from Robinson allows police
to obtain data from a mobile phone found during a search incident to lawful arrest.
Supreme Court of the United States
David Leon Riley v. California
Decided June 25, 2014 – 134 S. Ct. 2473
Chief Justice ROBERTS delivered the opinion of the Court.
[This] case[] raise[s] a common question: whether the police may, without a warrant, search
digital information on a cell phone seized from an individual who has been arrested.
I
A
[P]etitioner David Riley was stopped by a police officer for driving with expired registration tags.
In the course of the stop, the officer also learned that Riley’s license had been suspended. The
officer impounded Riley’s car, pursuant to department policy, and another officer conducted an
inventory search of the car. Riley was arrested for possession of concealed and loaded firearms
when that search turned up two handguns under the car’s hood.
An officer searched Riley incident to the arrest and found items associated with the “Bloods”
street gang. He also seized a cell phone from Riley’s pants pocket. According to Riley’s
uncontradicted assertion, the phone was a “smart phone,” a cell phone with a broad range of
other functions based on advanced computing capability, large storage capacity, and Internet
connectivity. The officer accessed information on the phone and noticed that some words
(presumably in text messages or a contacts list) were preceded by the letters “CK”—a label that,
he believed, stood for “Crip Killers,” a slang term for members of the Bloods gang.
At the police station about two hours after the arrest, a detective specializing in gangs further
examined the contents of the phone. The detective testified that he “went through” Riley’s phone
“looking for evidence, because ... gang members will often video themselves with guns or take
pictures of themselves with the guns.” Although there was “a lot of stuff” on the phone, particular
files that “caught [the detective’s] eye” included videos of young men sparring while someone
yelled encouragement using the moniker “Blood.” The police also found photographs of Riley
standing in front of a car they suspected had been involved in a shooting a few weeks earlier.
Riley was ultimately charged, in connection with that earlier shooting, with firing at an occupied
vehicle, assault with a semiautomatic firearm, and attempted murder. The State alleged that
Riley had committed those crimes for the benefit of a criminal street gang, an aggravating factor
that carries an enhanced sentence. Prior to trial, Riley moved to suppress all evidence that the
Chapter 10 — Page 228

police had obtained from his cell phone. He contended that the searches of his phone violated
the Fourth Amendment, because they had been performed without a warrant and were not
otherwise justified by exigent circumstances. The trial court rejected that argument. At Riley’s
trial, police officers testified about the photographs and videos found on the phone, and some of
the photographs were admitted into evidence. Riley was convicted on all three counts and
received an enhanced sentence of 15 years to life in prison.
The California Court of Appeal affirmed. The court relied on [] California Supreme Court
[precedent], which held that the Fourth Amendment permits a warrantless search of cell phone
data incident to an arrest, so long as the cell phone was immediately associated with the
arrestee’s person.
The California Supreme Court denied Riley’s petition for review and we granted certiorari.
II
In the absence of a warrant, a search is reasonable only if it falls within a specific exception to
the warrant requirement.
The [] case[] before us concern[s] the reasonableness of a warrantless search incident to a lawful
arrest. In 1914, this Court first acknowledged in dictum “the right on the part of the Government,
always recognized under English and American law, to search the person of the accused when
legally arrested to discover and seize the fruits or evidences of crime.” Since that time, it has been
well accepted that such a search constitutes an exception to the warrant requirement. Indeed,
the label “exception” is something of a misnomer in this context, as warrantless searches incident
to arrest occur with far greater frequency than searches conducted pursuant to a warrant.
Although the existence of the exception for such searches has been recognized for a century, its
scope has been debated for nearly as long. That debate has focused on the extent to which officers
may search property found on or near the arrestee. [The Court then discussed the development
of the law in Chimel, Robinson, and Gant.]
III
[We now must] decide how the search incident to arrest doctrine applies to modern cell phones,
which are now such a pervasive and insistent part of daily life that the proverbial visitor from
Mars might conclude they were an important feature of human anatomy. A smart phone of the
sort taken from Riley was unheard of ten years ago; a significant majority of American adults
now own such phones. [The] phone[] [is] based on technology nearly inconceivable just a few
decades ago, when Chimel and Robinson were decided.
Absent more precise guidance from the founding era, we generally determine whether to exempt
a given type of search from the warrant requirement “by assessing, on the one hand, the degree
to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is
needed for the promotion of legitimate governmental interests.”

Chapter 10 — Page 229

On the government interest side, [the Court held in Robinson] that the two risks identified
in Chimel—harm to officers and destruction of evidence—are present in all custodial arrests.
There are no comparable risks when the search is of digital data. In addition, any privacy
interests retained by an individual after arrest [are] significantly diminished by the fact of the
arrest itself. Cell phones, however, place vast quantities of personal information literally in the
hands of individuals. A search of the information on a cell phone bears little resemblance to the
type of brief physical search [we have previously] considered.
We therefore hold [] that officers must generally secure a warrant before conducting such a
search.
A
In doing so, we do not overlook … that searches of a person incident to arrest, “while based upon
the need to disarm and to discover evidence,” are reasonable regardless of “the probability in a
particular arrest situation that weapons or evidence would in fact be found.” Rather than
requiring [] “case-by-case adjudication” … we ask instead whether application of the search
incident to arrest doctrine to this particular category of effects would “untether the rule from the
justifications underlying the [] exception.”
1
Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer
or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the
physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine
whether there is a razor blade hidden between the phone and its case. Once an officer has secured
a phone and eliminated any potential physical threats, however, data on the phone can endanger
no one.
Perhaps the same might have been said of the cigarette pack seized from Robinson's pocket.
Once an officer gained control of the pack, it was unlikely that Robinson could have accessed the
pack’s contents. But unknown physical objects may always pose risks, no matter how slight,
during the tense atmosphere of a custodial arrest. The officer in Robinson testified that he could
not identify the objects in the cigarette pack but knew they were not cigarettes. Given that, a
further search was a reasonable protective measure. No such unknowns exist with respect to
digital data.
California suggest[s] that a search of cell phone data might help ensure officer safety in more
indirect ways, for example by alerting officers that confederates of the arrestee are headed to the
scene. There is undoubtedly a strong government interest in warning officers about such
possibilities, but [] California offers [no] evidence to suggest that their concerns are based on
actual experience. The proposed consideration would also represent a broadening of Chimel’s
concern that an arrestee himself might grab a weapon and use it against an officer “to resist
arrest or effect his escape.” And any such threats from outside the arrest scene do not “lurk[ ] in
all custodial arrests.” Accordingly, the interest in protecting officer safety does not justify
dispensing with the warrant requirement across the board. To the extent dangers to arresting
officers may be implicated in a particular way in a particular case, they are better addressed
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through consideration of case-specific exceptions to the warrant requirement, such as the one
for exigent circumstances.
2
California focus[es] primarily on … preventing the destruction of evidence. Riley concede[s] that
officers could have seized and secured [his] cell phone[] to prevent destruction of evidence while
seeking a warrant. That is a sensible concession. And once law enforcement officers have secured
a cell phone, there is no longer any risk that the arrestee himself will be able to delete
incriminating data from the phone.
California argue[s] that information on a cell phone may nevertheless be vulnerable to two types
of evidence destruction unique to digital data—remote wiping and data encryption. As an initial
matter, these broader concerns about the loss of evidence are distinct from Chimel’s focus on a
defendant who responds to arrest by trying to conceal or destroy evidence within his reach. With
respect to remote wiping, the Government’s primary concern turns on the actions of third parties
who are not present at the scene of arrest. And data encryption is even further afield. [That]
focuses on the ordinary operation of a phone’s security features, apart from any active attempt
by a defendant or his associates to conceal or destroy evidence upon arrest.
We have also been given little reason to believe that either problem is prevalent. Moreover, in
situations in which an arrest might trigger a remote-wipe attempt or an officer discovers an
unlocked phone, it is not clear that the ability to conduct a warrantless search would make much
of a difference. The need to effect the arrest, secure the scene, and tend to other pressing matters
means that law enforcement officers may well not be able to turn their attention to a cell phone
right away.
In any event, as to remote wiping, law enforcement is not without specific means to address the
threat. Remote wiping can be fully prevented by disconnecting a phone from the network. There
are at least two simple ways to do this: First, law enforcement officers can turn the phone off or
remove its battery. Second, if they are concerned about encryption or other potential problems,
they can leave a phone powered on and place it in a [] “Faraday bag.”
To the extent that law enforcement still has specific concerns about the potential loss of evidence
in a particular case, there remain more targeted ways to address those concerns. If “the police
are truly confronted with a ‘now or never’ situation,” they may be able to rely on exigent
circumstances to search the phone immediately.
B
The search incident to arrest exception rests not only on the heightened government interests at
stake in a volatile arrest situation, but also on an arrestee’s reduced privacy interests upon being
taken into police custody.

Chapter 10 — Page 231

The fact that an arrestee has diminished privacy interests does not, [however,] mean that the
Fourth Amendment falls out of the picture entirely. Not every search “is acceptable solely
because a person is in custody.” To the contrary, when “privacy-related concerns are weighty
enough” a “search may require a warrant, notwithstanding the diminished expectations of
privacy of the arrestee.”
The [Government] asserts that a search of all data stored on a cell phone is “materially
indistinguishable” from searches [] of physical items. That is like saying a ride on horseback is
materially indistinguishable from a flight to the moon. Both are ways of getting from point A to
point B, but little else justifies lumping them together. A conclusion that inspecting the contents
of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest
itself may make sense as applied to physical items, but any extension of that reasoning to digital
data has to rest on its own bottom.
1
Cell phones differ in both a quantitative and a qualitative sense from other objects that might be
kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these
devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.
They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders,
libraries, diaries, albums, televisions, maps, or newspapers.
One of the most notable distinguishing features of modern cell phones is their immense storage
capacity. Before cell phones, a search of a person was limited by physical realities and tended as
a general matter to constitute only a narrow intrusion on privacy. Most people cannot lug around
every piece of mail they have received for the past several months, every picture they have taken,
or every book or article they have read—nor would they have any reason to attempt to do so. And
if they did, they would have to drag behind them a trunk of the sort held to require a search
warrant in Chadwick, rather than a container the size of the cigarette package in Robinson.
The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell
phone collects in one place many distinct types of information—an address, a note, a
prescription, a bank statement, a video—that reveal much more in combination than any isolated
record. Second, a cell phone’s capacity allows even just one type of information to convey far
more than previously possible. The sum of an individual’s private life can be reconstructed
through a thousand photographs labeled with dates, locations, and descriptions; the same
cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a
phone can date back to the purchase of the phone, or even earlier. A person might carry in his
pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his
communications with Mr. Jones for the past several months, as would routinely be kept on a
phone.
Finally, there is an element of pervasiveness that characterizes cell phones but not physical
records. Prior to the digital age, people did not typically carry a cache of sensitive personal
information with them as they went about their day. A decade ago police officers searching an
arrestee might have occasionally stumbled across a highly personal item such as a diary. But
those discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration
Chapter 10 — Page 232

to say that many of the more than 90% of American adults who own a cell phone keep on their
person a digital record of nearly every aspect of their lives—from the mundane to the intimate.
Allowing the police to scrutinize such records on a routine basis is quite different from allowing
them to search a personal item or two in the occasional case.
Although the data stored on a cell phone is distinguished from physical records by quantity
alone, certain types of data are also qualitatively different. An Internet search and browsing
history, for example, can be found on an Internet-enabled phone and could reveal an individual’s
private interests or concerns—perhaps a search for certain symptoms of disease, coupled with
frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic
location information is a standard feature on many smart phones and can reconstruct someone’s
specific movements down to the minute, not only around town but also within a particular
building.
In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally
different thing to search a man’s pockets and use against him what they contain, from ransacking
his house for everything which may incriminate him.” If his pockets contain a cell phone,
however, that is no longer true. Indeed, a cell phone search would typically expose to the
government far more than the most exhaustive search of a house: A phone not only contains in
digital form many sensitive records previously found in the home; it also contains a broad array
of private information never found in a home in any form—unless the phone is.
2
To further complicate the scope of the privacy interests at stake, the data a user views on many
modern cell phones may not in fact be stored on the device itself. Treating a cell phone as a
container whose contents may be searched incident to an arrest is a bit strained as an initial
matter. But the analogy crumbles entirely when a cell phone is used to access data located
elsewhere, at the tap of a screen. Moreover, the same type of data may be stored locally on the
device for one user and in the cloud for another. [O]fficers searching a phone’s data would not
typically know whether the information they are viewing was stored locally at the time of the
arrest or has been pulled from the cloud. The possibility that a search might extend well beyond
papers and effects in the physical proximity of an arrestee is yet another reason that the privacy
interests here dwarf those in Robinson.
IV
We cannot deny that our decision today will have an impact on the ability of law enforcement to
combat crime. Cell phones have become important tools in facilitating coordination and
communication among members of criminal enterprises, and can provide valuable
incriminating information about dangerous criminals. Privacy comes at a cost.
Our holding, of course, is not that the information on a cell phone is immune from search; it is
instead that a warrant is generally required before such a search, even when a cell phone is seized
incident to arrest. Our cases have historically recognized that the warrant requirement is “an
important working part of our machinery of government,” not merely “an inconvenience to be
somehow ‘weighed’ against the claims of police efficiency.”
Chapter 10 — Page 233

Moreover, even though the search incident to arrest exception does not apply to cell phones,
other case-specific exceptions may still justify a warrantless search of a particular phone. “One
well-recognized exception applies when ‘“the exigencies of the situation’ make the needs of law
enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth
Amendment.’” Such exigencies could include the need to prevent the imminent destruction of
evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously
injured or are threatened with imminent injury.
In light of the availability of the exigent circumstances exception, there is no reason to believe
that law enforcement officers will not be able to address some of the more extreme hypotheticals
that have been suggested: a suspect texting an accomplice who, it is feared, is preparing to
detonate a bomb, or a child abductor who may have information about the child’s location on his
cell phone. The defendants here recognize—indeed, they stress—that such fact-specific threats
may justify a warrantless search of cell phone data. The critical point is that, unlike the search
incident to arrest exception, the exigent circumstances exception requires a court to examine
whether an emergency justified a warrantless search in each particular case.
Modern cell phones are not just another technological convenience. With all they contain and all
they may reveal, they hold for many Americans “the privacies of life.” The fact that technology
now allows an individual to carry such information in his hand does not make the information
any less worthy of the protection for which the Founders fought. Our answer to the question of
what police must do before searching a cell phone seized incident to an arrest is accordingly
simple—get a warrant.
We reverse and remand the case for further proceedings not inconsistent with this opinion.
Justice ALITO, concurring in part and concurring in the judgment.
I agree that we should not mechanically apply the rule used in the predigital era to the search of
a cell phone. Many cell phones now in use are capable of storing and accessing a quantity of
information, some highly personal, that no person would ever have had on his person in hardcopy form. This calls for a new balancing of law enforcement and privacy interests.
The Court strikes this balance in favor of privacy interests with respect to all cell phones and all
information found in them, and this approach leads to anomalies. For example, the Court’s broad
holding favors information in digital form over information in hard-copy form. Suppose that two
suspects are arrested. Suspect number one has in his pocket a monthly bill for his land-line
phone, and the bill lists an incriminating call to a long-distance number. He also has in his a
wallet a few snapshots, and one of these is incriminating. Suspect number two has in his pocket
a cell phone, the call log of which shows a call to the same incriminating number. In addition, a
number of photos are stored in the memory of the cell phone, and one of these is incriminating.
Under established law, the police may seize and examine the phone bill and the snapshots in the
wallet without obtaining a warrant, but under the Court’s holding today, the information stored
in the cell phone is out.

Chapter 10 — Page 234

While the Court’s approach leads to anomalies, I do not see a workable alternative. Law
enforcement officers need clear rules regarding searches incident to arrest, and it would take
many cases and many years for the courts to develop more nuanced rules. And during that time,
the nature of the electronic devices that ordinary Americans carry on their persons would
continue to change.
Notes, Comments, and Questions
Although the Court considered a different question in Carpenter v. United States (Chapter 5)—
the issue was whether a “search” occurred at all when police obtained historical mobile phone
location data—students likely noticed that the majority opinions in Carpenter and Riley (both
by Chief Justice Roberts) made similar observations about the importance of protecting the
privacy of data related to modern telephones. As Justice Alito noted in his Riley concurrence,
the Court will occasionally reach results that are not satisfying to anyone desiring perfect
theoretical coherence in the Court’s Fourth Amendment jurisprudence. The Court must decide
the cases before it, and its case-by-case balance of competing interests (such as privacy and crime
control) will depend on the facts of individual cases, as well as the march of technological change.
Let’s reconsider Jay-Z’s predicament in “99 Problems.” If an officer arrests Jay-Z for reckless
driving after catching him driving 75 in a 55 mph zone, can the officer search the trunk for drugs?
What if instead the officer stops Jay-Z for speeding, looks up the license plate, and sees that Los
Angeles County has an outstanding warrant for Jay-Z’s arrest for the crime of marijuana
possession. Now can the officer search the trunk?
Two additional points to consider:
When an unarrested third party is near a car, there may be authority for a “sweep” (to quickly
search the vehicle for dangerous items third parties could use).
When an unarrested third party is at a house that police wish to search, police likely can secure
the house temporarily as they seek a warrant (to prevent mischief by, say, Chimel’s wife). This
rule applies only if police have probable cause; otherwise, they cannot obtain a warrant.

Chapter 10 — Page 235

THE FOURTH AMENDMENT
Chapter 11
The Warrant Requirement: Exceptions (Part 3)
Waiving the Warrant Requirement: Consent
As is true of most constitutional rights, the right to be free from warrantless searches can be
waived. Police investigations rely every day on such consent. Owners of vehicles and luggage
allow officers to search their effects, and occupants of houses allow officers to enter and look
around. There is no dispute about the principle that genuine consent serves as a valid substitute
for a search warrant. The controversial questions include what is necessary for consent to be
valid, who may provide valid consent, and whether certain police tactics render otherwise-valid
consent ineffective.
Supreme Court of the United States
Merle R. Schneckloth v. Robert Clyde Bustamonte
Decided May 29, 1973 – 412 U.S. 218
Mr. Justice STEWART delivered the opinion of the Court.
It is well settled under the Fourth and Fourteenth Amendments that a search conducted without
a warrant issued upon probable cause is “per se unreasonable ... subject only to a few specifically
established and well-delineated exceptions.” It is equally well settled that one of the specifically
established exceptions to the requirements of both a warrant and probable cause is a search that
is conducted pursuant to consent. The constitutional question in the present case concerns the
definition of “consent” in this Fourth and Fourteenth Amendment context.
I
The respondent was brought to trial in a California court upon a charge of possessing a check
with intent to defraud. He moved to suppress the introduction of certain material as evidence
against him on the ground that the material had been acquired through an unconstitutional
search and seizure. In response to the motion, the trial judge conducted an evidentiary hearing
where it was established that the material in question had been acquired by the State under the
following circumstances:
While on routine patrol in Sunnyvale, California, at approximately 2:40 in the morning, Police
Officer James Rand stopped an automobile when he observed that one headlight and its license
plate light were burned out. Six men were in the vehicle. Joe Alcala and the respondent, Robert
Bustamonte, were in the front seat with Joe Gonzales, the driver. Three older men were seated
in the rear. When, in response to the policeman’s question, Gonzales could not produce a driver’s
license, Officer Rand asked if any of the other five had any evidence of identification. Only Alcala
produced a license, and he explained that the car was his brother’s. After the six occupants had
stepped out of the car at the officer’s request and after two additional policemen had arrived,
Officer Rand asked Alcala if he could search the car. Alcala replied, “Sure, go ahead.” Prior to the
search no one was threatened with arrest and, according to Officer Rand’s uncontradicted
Chapter 11 — Page 236

testimony, it “was all very congenial at this time.” Gonzales testified that Alcala actually helped
in the search of the car, by opening the trunk and glove compartment. In Gonzales’ words: “[T]he
police officer asked Joe [Alcala], he goes, ‘Does the trunk open?’ And Joe said, ‘Yes.’ He went to
the car and got the keys and opened up the trunk.” Wadded up under the left rear seat, the police
officers found three checks that had previously been stolen from a car wash.
The trial judge denied the motion to suppress, and the checks in question were admitted in
evidence at Bustamonte’s trial. On the basis of this and other evidence he was convicted, and the
California Court of Appeal for the First Appellate District affirmed the conviction. The California
Supreme Court denied review.
Thereafter, the respondent sought a writ of habeas corpus in a federal district court. It was
denied. On appeal, the Court of Appeals for the Ninth Circuit, relying on its prior decisions set
aside the District Court’s order. The appellate court reasoned that a consent was a waiver of a
person’s Fourth and Fourteenth Amendment rights, and that the State was under an obligation
to demonstrate, not only that the consent had been uncoerced, but that it had been given with
an understanding that it could be freely and effectively withheld. Consent could not be found,
the court held, solely from the absence of coercion and a verbal expression of assent. Since the
District Court had not determined that Alcala had known that his consent could have been
withheld and that he could have refused to have his vehicle searched, the Court of Appeals
vacated the order denying the writ and remanded the case for further proceedings. We granted
certiorari to determine whether the Fourth and Fourteenth Amendments require the showing
thought necessary by the Court of Appeals.
II
It is important to make it clear at the outset what is not involved in this case. The respondent
concedes that a search conducted pursuant to a valid consent is constitutionally permissible.
[W]e [have] recognized that a search authorized by consent is wholly valid. And similarly the
State concedes that “[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of
a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.”
The precise question in this case, then, is what must the prosecution prove to demonstrate that
a consent was “voluntarily” given.
A
The most extensive judicial exposition of the meaning of “voluntariness” has been developed in
those cases in which the Court has had to determine the “voluntariness” of a defendant’s
confession for purposes of the Fourteenth Amendment.
Those cases yield no talismanic definition of “voluntariness,” mechanically applicable to the host
of situations where the question has arisen. “The notion of ‘voluntariness,’” Mr. Justice
Frankfurter once wrote, “is itself an amphibian.” It cannot be taken literally to mean a “knowing”
choice. “Except where a person is unconscious or drugged or otherwise lacks capacity for
conscious choice, all incriminating statements—even those made under brutal treatment—are
‘voluntary’ in the sense of representing a choice of alternatives. On the other hand, if
‘voluntariness’ incorporates notions of ‘but-for’ cause, the question should be whether the
Chapter 11 — Page 237

statement would have been made even absent inquiry or other official action. Under such a test,
virtually no statement would be voluntary because very few people give incriminating statements
in the absence of official action of some kind.” It is thus evident that neither linguistics nor
epistemology will provide a ready definition of the meaning of “voluntariness.”
This Court’s decisions reflect a frank recognition that the Constitution requires the sacrifice of
neither security nor liberty. The Due Process Clause does not mandate that the police forgo all
questioning, or that they be given carte blanche to extract what they can from a suspect. “The
ultimate test remains that which has been the only clearly established test in Anglo-American
courts for two hundred years: the test of voluntariness. Is the confession the product of an
essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may
be used against him. If it is not, if his will has been overborne and his capacity for selfdetermination critically impaired, the use of his confession offends due process.”
In determining whether a defendant’s will was overborne in a particular case, the Court has
assessed the totality of all the surrounding circumstances—both the characteristics of the
accused and the details of the interrogation.1
B
Similar considerations lead us to agree with the courts of California that the question whether a
consent to a search was in fact “voluntary” or was the product of duress or coercion, express or
implied, is a question of fact to be determined from the totality of all the circumstances. While
knowledge of the right to refuse consent is one factor to be taken into account, the government
need not establish such knowledge as the sine qua non of an effective consent. As with police
questioning, two competing concerns must be accommodated in determining the meaning of a
“voluntary” consent—the legitimate need for such searches and the equally important
requirement of assuring the absence of coercion.
In situations where the police have some evidence of illicit activity, but lack probable cause to
arrest or search, a search authorized by a valid consent may be the only means of obtaining
important and reliable evidence. In the present case for example, while the police had reason to
stop the car for traffic violations, the State does not contend that there was probable cause to
search the vehicle or that the search was incident to a valid arrest of any of the occupants. Yet,
the search yielded tangible evidence that served as a basis for a prosecution, and provided some
assurance that others, wholly innocent of the crime, were not mistakenly brought to trial. And in
those cases where there is probable cause to arrest or search, but where the police lack a warrant,
a consent search may still be valuable. If the search is conducted and proves fruitless, that in
itself may convince the police that an arrest with its possible stigma and embarrassment is
unnecessary, or that a far more extensive search pursuant to a warrant is not justified. In short,
a search pursuant to consent may result in considerably less inconvenience for the subject of the
search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect
of effective police activity.

1 [Footnote by editors] We will consider these factors later in the semester, when studying the Court’s regulation of

interrogations pursuant to the Fifth, Sixth, and Fourteenth Amendments.
Chapter 11 — Page 238

But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit
or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was
applied, the resulting “consent” would be no more than a pretext for the unjustified police
intrusion against which the Fourth Amendment is directed.
The approach of the Ninth Circuit finds no support in any of our decisions that have attempted
to define the meaning of “voluntariness.” Its ruling, that the State must affirmatively prove that
the subject of the search knew that he had a right to refuse consent, would, in practice, create
serious doubt whether consent searches could continue to be conducted. There might be rare
cases where it could be proved from the record that a person in fact affirmatively knew of his
right to refuse—such as a case where he announced to the police that if he didn’t sign the consent
form, “you [police] are going to get a search warrant;” or a case where by prior experience and
training a person had clearly and convincingly demonstrated such knowledge. But more
commonly where there was no evidence of any coercion, explicit or implicit, the prosecution
would nevertheless be unable to demonstrate that the subject of the search in fact had known of
his right to refuse consent.
The very object of the inquiry—the nature of a person’s subjective understanding—underlines
the difficulty of the prosecution’s burden under the rule applied by the Court of Appeals in this
case. Any defendant who was the subject of a search authorized solely by his consent could
effectively frustrate the introduction into evidence of the fruits of that search by simply failing to
testify that he in fact knew he could refuse to consent. And the near impossibility of meeting this
prosecutorial burden suggests why this Court has never accepted any such litmus-paper test of
voluntariness.
One alternative that would go far toward proving that the subject of a search did know he had a
right to refuse consent would be to advise him of that right before eliciting his consent. That,
however, is a suggestion that has been almost universally repudiated by both federal and state
courts, and, we think, rightly so. For it would be thoroughly impractical to impose on the normal
consent search the detailed requirements of an effective warning. Consent searches are part of
the standard investigatory techniques of law enforcement agencies. They normally occur on the
highway, or in a person’s home or office, and under informal and unstructured conditions. The
circumstances that prompt the initial request to search may develop quickly or be a logical
extension of investigative police questioning. The police may seek to investigate further
suspicious circumstances or to follow up leads developed in questioning persons at the scene of
a crime. These situations are a far cry from the structured atmosphere of a trial where, assisted
by counsel if he chooses, a defendant is informed of his trial rights. And, while surely a closer
question, these situations are still immeasurably, far removed from “custodial interrogation”
where, in Miranda v. Arizona[, 384 U.S. 436 (1966)] we found that the Constitution required
certain now familiar warnings as a prerequisite to police interrogation. Indeed, in language
applicable to the typical consent search, we refused to extend the need for warnings.
Consequently, we cannot accept the position of the Court of Appeals in this case that proof of
knowledge of the right to refuse consent is a necessary prerequisite to demonstrating a
“voluntary” consent. Rather it is only by analyzing all the circumstances of an individual consent
that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of
the unique facts and circumstances of each case that is evidenced in our prior decisions involving
consent searches.
Chapter 11 — Page 239

In short, neither this Court’s prior cases, nor the traditional definition of “voluntariness” requires
proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search.
C
It is said, however, that a “consent” is a “waiver” of a person’s rights under the Fourth and
Fourteenth Amendments. The argument is that by allowing the police to conduct a search, a
person “waives” whatever right he had to prevent the police from searching. It is argued that
under the doctrine of Johnson v. Zerbst, 304 U.S. 458 (1938), to establish such a “waiver” the
State must demonstrate “an intentional relinquishment or abandonment of a known right or
privilege.”
But these standards were enunciated in Johnson in the context of the safeguards of a fair
criminal trial. Our cases do not reflect an uncritical demand for a knowing and intelligent waiver
in every situation where a person has failed to invoke a constitutional protection. As Mr. Justice
Black once observed for the Court: “‘Waiver’ is a vague term used for a great variety of purposes,
good and bad, in the law.” With respect to procedural due process, for example, the Court has
acknowledged that waiver is possible, while explicitly leaving open the question whether a
“knowing and intelligent” waiver need be shown.
The requirement of a “knowing” and “intelligent” waiver was articulated in a case involving the
validity of a defendant’s decision to forego a right constitutionally guaranteed to protect a fair
trial and the reliability of the truth-determining process. Johnson v. Zerbst dealt with the denial
of counsel in a federal criminal trial.
Almost without exception, the requirement of a knowing and intelligent waiver has been applied
only to those rights which the Constitution guarantees to a criminal defendant in order to
preserve a fair trial. Hence, the standard of a knowing and intelligent waiver has most often been
applied to test the validity of a waiver of counsel, either at trial, or upon a guilty plea. The
guarantees afforded a criminal defendant at trial also protect him at certain stages before the
actual trial, and any alleged waiver must meet the strict standard of an intentional
relinquishment of a “known” right. But the “trial” guarantees that have been applied to the
“pretrial” stage of the criminal process are similarly designed to protect the fairness of the trial
itself.
There is a vast difference between those rights that protect a fair criminal trial and the rights
guaranteed under the Fourth Amendment. Nothing, either in the purposes behind requiring a
“knowing” and “intelligent” waiver of trial rights, or in the practical application of such a
requirement suggests that it ought to be extended to the constitutional guarantee against
unreasonable searches and seizures.

Chapter 11 — Page 240

The protections of the Fourth Amendment are of a wholly different order, and have nothing
whatever to do with promoting the fair ascertainment of truth at a criminal trial. Rather, the
Fourth Amendment protects the “security of one’s privacy against arbitrary intrusion by the
police ….” The Fourth Amendment “is not an adjunct to the ascertainment of truth.” The
guarantees of the Fourth Amendment stand “as a protection of quite different constitutional
values—values reflecting the concern of our society for the right of each individual to be let
alone.”
Nor can it even be said that a search, as opposed to an eventual trial, is somehow “unfair” if a
person consents to a search. While the Fourth and Fourteenth Amendments limit the
circumstances under which the police can conduct a search, there is nothing constitutionally
suspect in a person’s voluntarily allowing a search. The actual conduct of the search may be
precisely the same as if the police had obtained a warrant. And, unlike those constitutional
guarantees that protect a defendant at trial, it cannot be said every reasonable presumption
ought to be indulged against voluntary relinquishment.
D
Much of what has already been said disposes of the argument that the Court’s decision in the
Miranda case requires the conclusion that knowledge of a right to refuse is an indispensable
element of a valid consent. The considerations that informed the Court’s holding in Miranda are
simply inapplicable in the present case. In Miranda the Court found that the techniques of police
questioning and the nature of custodial surroundings produce an inherently coercive situation.
In this case, there is no evidence of any inherently coercive tactics—either from the nature of the
police questioning or the environment in which it took place. Indeed, since consent searches will
normally occur on a person’s own familiar territory, the specter of incommunicado police
interrogation in some remote station house is simply inapposite. There is no reason to believe,
under circumstances such as are present here, that the response to a policeman’s question is
presumptively coerced; and there is, therefore, no reason to reject the traditional test for
determining the voluntariness of a person’s response.
It is also argued that the failure to require the Government to establish knowledge as a
prerequisite to a valid consent, will relegate the Fourth Amendment to the special province of
“the sophisticated, [the] knowledgeable and the privileged.” We cannot agree. The traditional
definition of voluntariness we accept today has always taken into account evidence of minimal
schooling, low intelligence, and the lack of any effective warnings to a person of his rights; and
the voluntariness of any statement taken under those conditions has been carefully scrutinized
to determine whether it was in fact voluntarily given.
E
Our decision today is a narrow one. We hold only that when the subject of a search is not in
custody and the State attempts to justify a search on the basis of his consent, the Fourth and
Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily
given, and not the result of duress or coercion, express or implied. Voluntariness is a question of
fact to be determined from all the circumstances, and while the subject’s knowledge of a right to
refuse is a factor to be taken into account, the prosecution is not required to demonstrate such
Chapter 11 — Page 241

knowledge as a prerequisite to establishing a voluntary consent. Because the California court
followed these principles in affirming the respondent’s conviction, and because the Court of
Appeals for the Ninth Circuit in remanding for an evidentiary hearing required more, its
judgment must be reversed.
Mr. Justice DOUGLAS, dissenting.
I agree with the Court of Appeals that “verbal assent” to a search is not enough, that the fact that
consent was given to the search does not imply that the suspect knew that the alternative of a
refusal existed. As that court stated:
“[U]nder many circumstances a reasonable person might read an officer’s ‘May I’ as the
courteous expression of a demand backed by force of law.”
[W]hether Alcala knew he had the right to refuse, we do not know. All the Court of Appeals did
was to remand the case to the District Court for a finding—and if necessary, a hearing on that
issue.
I would let the case go forward on that basis. The long, time-consuming contest in this Court
might well wash out. At least we could be assured that, if it came back, we would not be rendering
an advisory opinion. Had I voted to grant this petition, I would suggest we dismiss it as
improvidently granted. But, being in the minority, I am bound by the Rule of Four.
Mr. Justice BRENNAN, dissenting.
[T]he search of the vehicle can be justified solely on the ground that the owner’s brother gave his
consent—that is, that he waived his Fourth Amendment right “to be secure” against an otherwise
“unreasonable” search. The Court holds today that an individual can effectively waive this right
even though he is totally ignorant of the fact that, in the absence of his consent, such invasions
of his privacy would be constitutionally prohibited. It wholly escapes me how our citizens can
meaningfully be said to have waived something as precious as a constitutional guarantee without
ever being aware of its existence. In my view, the Court’s conclusion is supported neither by
“linguistics,” nor by “epistemology,” nor, indeed, by “common sense.” I respectfully dissent.
Mr. Justice MARSHALL, dissenting.
I would have thought that the capacity to choose necessarily depends upon knowledge that there
is a choice to be made. But today the Court reaches the curious result that one can choose to
relinquish a constitutional right—the right to be free of unreasonable searches—without knowing
that he has the alternative of refusing to accede to a police request to search. I cannot agree, and
therefore dissent.
I believe that the Court misstates the true issue in this case. That issue is not, as the Court
suggests whether the police overbore Alcala’s will in eliciting his consent, but rather, whether a
simple statement of assent to search, without more, should be sufficient to permit the police to
search and thus act as a relinquishment of Alcala’s constitutional right to exclude the police. This
Court has always scrutinized with great care claims that a person has forgone the opportunity to
assert constitutional rights. I see no reason to give the claim that a person consented to a search
any less rigorous scrutiny. Every case in this Court involving this kind of search has heretofore
Chapter 11 — Page 242

spoken of consent as a waiver. Perhaps one skilled in linguistics or epistemology can disregard
those comments, but I find them hard to ignore.
The Court assumes that the issue in this case is: what are the standards by which courts are to
determine that consent is voluntarily given? It then imports into the law of search and seizure
standards developed to decide entirely different questions about coerced confessions.
In contrast, this case deals not with “coercion,” but with “consent,” a subtly different concept to
which different standards have been applied in the past. Freedom from coercion is a substantive
right, guaranteed by the Fifth and Fourteenth Amendments. Consent, however, is a mechanism
by which substantive requirements, otherwise applicable, are avoided. In the context of the
Fourth Amendment, the relevant substantive requirements are that searches be conducted only
after evidence justifying them has been submitted to an impartial magistrate for a determination
of probable cause. There are, of course, exceptions to these requirements based on a variety of
exigent circumstances that make it impractical to invalidate a search simply because the police
failed to get a warrant. But none of the exceptions relating to the overriding needs of law
enforcement are applicable when a search is justified solely by consent. On the contrary, the
needs of law enforcement are significantly more attenuated, for probable cause to search may be
lacking but a search permitted if the subject’s consent has been obtained. Thus, consent searches
are permitted, not because such an exception to the requirements of probable cause and warrant
is essential to proper law enforcement, but because we permit our citizens to choose whether or
not they wish to exercise their constitutional rights. Our prior decisions simply do not support
the view that a meaningful choice has been made solely because no coercion was brought to bear
on the subject.
My approach to the case is straight-forward and, to me, obviously required by the notion of
consent as a relinquishment of Fourth Amendment rights. I am at a loss to understand why
consent “cannot be taken literally to mean a ‘knowing’ choice.” In fact, I have difficulty in
comprehending how a decision made without knowledge of available alternatives can be treated
as a choice at all.
I must conclude with some reluctance that when the Court speaks of practicality, what it really
is talking of is the continued ability of the police to capitalize on the ignorance of citizens so as
to accomplish by subterfuge what they could not achieve by relying only on the knowing
relinquishment of constitutional rights. Of course it would be “practical” for the police to ignore
the commands of the Fourth Amendment, if by practicality we mean that more criminals will be
apprehended, even though the constitutional rights of innocent people also go by the board. But
such a practical advantage is achieved only at the cost of permitting the police to disregard the
limitations that the Constitution places on their behavior, a cost that a constitutional democracy
cannot long absorb.

Chapter 11 — Page 243

Notes, Comments, and Questions
The Court has affirmed the principles of Schneckloth v. Bustamonte repeatedly. The most
prominent cases have involved searches aboard public buses.
The Court addressed consent searches on Greyhound buses in United States v. Drayton, 536
U.S. 194 (2002). There, the Court held that police officers could board a bus and ask for
permission to search the property of passengers, as long as under the totality of the
circumstances the officers obtained valid consent. The majority reiterated that officers need not
advise passengers of their right to leave or to refuse consent. Previously, in Florida v. Bostick,
501 U.S.429 (1991), the Court held that officers may approach bus passengers at random to ask
questions and request their consent to searches, provided “a reasonable person would feel free
to decline the officers’ requests or otherwise terminate the encounter.” See also Ohio v.
Robinette, 519 U.S. 33 (1996) (rejecting rule created by Ohio judges that required officers at
traffic stops to state “‘At this time you legally are free to go’ or [] words of similar import” before
initiating extra questioning or seeking consent to search).
Consider the following scenarios:
A police officer assigned to be a “school resource officer” at a high school confronts a student
who has been sent to the principal’s office for disrespectful classroom behavior. The officer says,
“You must be on drugs to act so stupid. Let me see what’s in that backpack, and then you can go
see the principal.” If the student hands over the backpack, does the officer have valid consent to
search it? Why or why not?
A police officer has probable cause to believe that drugs are being stored at a certain house. The
officer, without a warrant, knocks on the door. When someone answers, the officer says, “I could
get a warrant to search this house for drugs, but I’d rather save myself the trouble. If you let me
look around the house and I don’t find anything, I’ll move on to other business. But if you refuse,
I’ll be back soon with a warrant, and my partner and I will search this place from top to bottom.”
If the person at the door admits the officer inside, does the officer have valid consent to enter
and search the house? Why or why not?
Now imagine that two people are present when police request consent to enter a home. One
person consents while the other says, “Stay out!” Consent or no consent? Why or why not? The
Court addresses this issue in the next case.
Supreme Court of the United States
Georgia v. Scott Fitz Randolph
Decided March 22, 2006 – 547 U.S. 103
Justice SOUTER delivered the opinion of the Court.
The Fourth Amendment recognizes a valid warrantless entry and search of premises when police
obtain the voluntary consent of an occupant who shares, or is reasonably believed to share,
authority over the area in common with a co-occupant who later objects to the use of evidence
Chapter 11 — Page 244

so obtained. The question here is whether such an evidentiary seizure is likewise lawful with the
permission of one occupant when the other, who later seeks to suppress the evidence, is present
at the scene and expressly refuses to consent. We hold that, in the circumstances here at issue, a
physically present co-occupant’s stated refusal to permit entry prevails, rendering the
warrantless search unreasonable and invalid as to him.
I
Respondent Scott Randolph and his wife, Janet, separated in late May 2001, when she left the
marital residence in Americus, Georgia, and went to stay with her parents in Canada, taking their
son and some belongings. In July, she returned to the Americus house with the child, though the
record does not reveal whether her object was reconciliation or retrieval of remaining
possessions.
On the morning of July 6, she complained to the police that after a domestic dispute her husband
took their son away, and when officers reached the house she told them that her husband was a
cocaine user whose habit had caused financial troubles. She mentioned the marital problems
and said that she and their son had only recently returned after a stay of several weeks with her
parents. Shortly after the police arrived, Scott Randolph returned and explained that he had
removed the child to a neighbor’s house out of concern that his wife might take the boy out of
the country again; he denied cocaine use, and countered that it was in fact his wife who abused
drugs and alcohol.
One of the officers, Sergeant Murray, went with Janet Randolph to reclaim the child, and when
they returned she not only renewed her complaints about her husband’s drug use, but also
volunteered that there were “‘items of drug evidence’” in the house. Sergeant Murray asked Scott
Randolph for permission to search the house, which he unequivocally refused.
The sergeant turned to Janet Randolph for consent to search, which she readily gave. She led the
officer upstairs to a bedroom that she identified as Scott’s, where the sergeant noticed a section
of a drinking straw with a powdery residue he suspected was cocaine. He then left the house to
get an evidence bag from his car and to call the district attorney’s office, which instructed him to
stop the search and apply for a warrant. When Sergeant Murray returned to the house, Janet
Randolph withdrew her consent. The police took the straw to the police station, along with the
Randolphs. After getting a search warrant, they returned to the house and seized further
evidence of drug use, on the basis of which Scott Randolph was indicted for possession of
cocaine.
He moved to suppress the evidence, as products of a warrantless search of his house
unauthorized by his wife’s consent over his express refusal. The trial court denied the motion,
ruling that Janet Randolph had common authority to consent to the search.
The Court of Appeals of Georgia reversed and was itself sustained by the State Supreme Court,
principally on the ground that “the consent to conduct a warrantless search of a residence given
by one occupant is not valid in the face of the refusal of another occupant who is physically
present at the scene to permit a warrantless search.” The Supreme Court of Georgia
acknowledged this Court’s holding in Matlock [, 415 U.S. 164 (1974)] that “the consent of one
Chapter 11 — Page 245

who possesses common authority over premises or effects is valid as against the absent,
nonconsenting person with whom that authority is shared” and found Matlock distinguishable
just because Scott Randolph was not “absent” from the colloquy on which the police relied for
consent to make the search. The State Supreme Court stressed that the officers in Matlock had
not been “faced with the physical presence of joint occupants, with one consenting to the search
and the other objecting.” It held that an individual who chooses to live with another assumes a
risk no greater than “‘an inability to control access to the premises during [his] absence,’” and
does not contemplate that his objection to a request to search commonly shared premises, if
made, will be overlooked.
We granted certiorari to resolve a split of authority on whether one occupant may give law
enforcement effective consent to search shared premises, as against a co-tenant who is present
and states a refusal to permit the search. We now affirm.
II
To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house
as unreasonable per se, one “jealously and carefully drawn” exception recognizes the validity of
searches with the voluntary consent of an individual possessing authority. That person might be
the householder against whom evidence is sought or a fellow occupant who shares common
authority over property, when the suspect is absent, and the exception for consent extends even
to entries and searches with the permission of a co-occupant whom the police reasonably, but
erroneously, believe to possess shared authority as an occupant. None of our co-occupant
consent-to-search cases, however, has presented the further fact of a second occupant physically
present and refusing permission to search, and later moving to suppress evidence so obtained.
The significance of such a refusal turns on the underpinnings of the co-occupant consent rule,
as recognized since Matlock.
A
The defendant in that case was arrested in the yard of a house where he lived with a Mrs. Graff
and several of her relatives, and was detained in a squad car parked nearby. When the police
went to the door, Mrs. Graff admitted them and consented to a search of the house. In resolving
the defendant’s objection to use of the evidence taken in the warrantless search, we said that “the
consent of one who possesses common authority over premises or effects is valid as against the
absent, nonconsenting person with whom that authority is shared.”
The constant element in assessing Fourth Amendment reasonableness in the consent cases,
then, is the great significance given to widely shared social expectations, which are naturally
enough influenced by the law of property, but not controlled by its rules. Matlock accordingly
not only holds that a solitary co-inhabitant may sometimes consent to a search of shared
premises, but stands for the proposition that the reasonableness of such a search is in significant
part a function of commonly held understanding about the authority that co-inhabitants may
exercise in ways that affect each other’s interests.

Chapter 11 — Page 246

B
Matlock’s example of common understanding is readily apparent. When someone comes to the
door of a domestic dwelling with a baby at her hip, as Mrs. Graff did, she shows that she belongs
there, and that fact standing alone is enough to tell a law enforcement officer or any other visitor
that if she occupies the place along with others, she probably lives there subject to the
assumption tenants usually make about their common authority when they share quarters. They
understand that any one of them may admit visitors, with the consequence that a guest
obnoxious to one may nevertheless be admitted in his absence by another. As Matlock put it,
shared tenancy is understood to include an “assumption of risk,” on which police officers are
entitled to rely, and although some group living together might make an exceptional
arrangement that no one could admit a guest without the agreement of all, the chance of such an
eccentric scheme is too remote to expect visitors to investigate a particular household’s rules
before accepting an invitation to come in. So, Matlock relied on what was usual and placed no
burden on the police to eliminate the possibility of atypical arrangements, in the absence of
reason to doubt that the regular scheme was in place.
It is also easy to imagine different facts on which, if known, no common authority could sensibly
be suspected. A person on the scene who identifies himself, say, as a landlord or a hotel manager
calls up no customary understanding of authority to admit guests without the consent of the
current occupant. A tenant in the ordinary course does not take rented premises subject to any
formal or informal agreement that the landlord may let visitors into the dwelling, and a hotel
guest customarily has no reason to expect the manager to allow anyone but his own employees
into his room. In these circumstances, neither state-law property rights, nor common
contractual arrangements, nor any other source points to a common understanding of authority
to admit third parties generally without the consent of a person occupying the premises. And
when it comes to searching through bureau drawers, there will be instances in which even a
person clearly belonging on premises as an occupant may lack any perceived authority to
consent; “a child of eight might well be considered to have the power to consent to the police
crossing the threshold into that part of the house where any caller, such as a pollster or salesman,
might well be admitted,” but no one would reasonably expect such a child to be in a position to
authorize anyone to rummage through his parents’ bedroom.
C
To begin with, it is fair to say that a caller standing at the door of shared premises would have no
confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow
tenant stood there saying, “stay out.” Without some very good reason, no sensible person would
go inside under those conditions.

Chapter 11 — Page 247

Unless the people living together fall within some recognized hierarchy, like a household of
parent and child or barracks housing military personnel of different grades, there is no societal
understanding of superior and inferior, a fact reflected in a standard formulation of domestic
property law, that “[e]ach cotenant ... has the right to use and enjoy the entire property as if he
or she were the sole owner, limited only by the same right in the other cotenants.” [T]here is no
common understanding that one co-tenant generally has a right or authority to prevail over the
express wishes of another, whether the issue is the color of the curtains or invitations to
outsiders.
D
Since the co-tenant wishing to open the door to a third party has no recognized authority in law
or social practice to prevail over a present and objecting co-tenant, his disputed invitation,
without more, gives a police officer no better claim to reasonableness in entering than the officer
would have in the absence of any consent at all. Accordingly, in the balancing of competing
individual and governmental interests entailed by the bar to unreasonable searches, the
cooperative occupant’s invitation adds nothing to the government’s side to counter the force of
an objecting individual’s claim to security against the government’s intrusion into his dwelling
place.
E
There are two loose ends, the first being the explanation given in Matlock for the constitutional
sufficiency of a co-tenant’s consent to enter and search: it “rests ... on mutual use of the property
by persons generally having joint access or control for most purposes, so that it is reasonable to
recognize that any of the co-inhabitants has the right to permit the inspection in his own right
....” If Matlock’s co-tenant is giving permission “in his own right,” how can his “own right” be
eliminated by another tenant’s objection? The answer appears in the very footnote from which
the quoted statement is taken: the “right” to admit the police to which Matlock refers is not an
enduring and enforceable ownership right as understood by the private law of property, but is
instead the authority recognized by customary social usage as having a substantial bearing on
Fourth Amendment reasonableness in specific circumstances. Thus, to ask whether the
consenting tenant has the right to admit the police when a physically present fellow tenant
objects is not to question whether some property right may be divested by the mere objection of
another. It is, rather, the question whether customary social understanding accords the
consenting tenant authority powerful enough to prevail over the co-tenant’s objection. The
Matlock Court did not purport to answer this question.
The second loose end is the significance of Matlock and Rodriguez after today’s decision.2
Although the Matlock defendant was not present with the opportunity to object, he was in a
squad car not far away; the Rodriguez defendant was actually asleep in the apartment, and the
police might have roused him with a knock on the door before they entered with only the consent
of an apparent co-tenant. If those cases are not to be undercut by today’s holding, we have to
admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in
2 [Footnote by editors] The Court’s decision in Illinois v. Rodriguez, 497 U.S. 177 (1990), is discussed briefly in the

notes following this case.

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fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search,
whereas the potential objector, nearby but not invited to take part in the threshold colloquy,
loses out.
This is the line we draw, and we think the formalism is justified. So long as there is no evidence
that the police have removed the potentially objecting tenant from the entrance for the sake of
avoiding a possible objection, there is practical value in the simple clarity of complementary
rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the
other according dispositive weight to the fellow occupant’s contrary indication when he
expresses it. For the very reason that Rodriguez held it would be unjustifiably impractical to
require the police to take affirmative steps to confirm the actual authority of a consenting
individual whose authority was apparent, we think it would needlessly limit the capacity of the
police to respond to ostensibly legitimate opportunities in the field if we were to hold that
reasonableness required the police to take affirmative steps to find a potentially objecting cotenant before acting on the permission they had already received. There is no ready reason to
believe that efforts to invite a refusal would make a difference in many cases, whereas every cotenant consent case would turn into a test about the adequacy of the police’s efforts to consult
with a potential objector. Better to accept the formalism of distinguishing Matlock from this case
than to impose a requirement, time consuming in the field and in the courtroom, with no
apparent systemic justification. The pragmatic decision to accept the simplicity of this line is,
moreover, supported by the substantial number of instances in which suspects who are asked for
permission to search actually consent, albeit imprudently, a fact that undercuts any argument
that the police should try to locate a suspected inhabitant because his denial of consent would
be a foregone conclusion.
III
This case invites a straightforward application of the rule that a physically present inhabitant’s
express refusal of consent to a police search is dispositive as to him, regardless of the consent of
a fellow occupant. Scott Randolph’s refusal is clear, and nothing in the record justifies the search
on grounds independent of Janet Randolph’s consent. The State does not argue that she gave
any indication to the police of a need for protection inside the house that might have justified
entry into the portion of the premises where the police found the powdery straw (which, if
lawfully seized, could have been used when attempting to establish probable cause for the
warrant issued later). Nor does the State claim that the entry and search should be upheld under
the rubric of exigent circumstances, owing to some apprehension by the police officers that Scott
Randolph would destroy evidence of drug use before any warrant could be obtained.
The judgment of the Supreme Court of Georgia is therefore affirmed.
Chief Justice ROBERTS, with whom Justice SCALIA joins, dissenting.
The Court creates constitutional law by surmising what is typical when a social guest encounters
an entirely atypical situation. The rule the majority fashions does not implement the high office
of the Fourth Amendment to protect privacy, but instead provides protection on a random and
happenstance basis, protecting, for example, a co-occupant who happens to be at the front door
when the other occupant consents to a search, but not one napping or watching television in the
Chapter 11 — Page 249

next room. And the cost of affording such random protection is great, as demonstrated by the
recurring cases in which abused spouses seek to authorize police entry into a home they share
with a nonconsenting abuser.
The correct approach to the question presented is clearly mapped out in our precedents: The
Fourth Amendment protects privacy. If an individual shares information, papers, or places with
another, he assumes the risk that the other person will in turn share access to that information
or those papers or places with the government. And just as an individual who has shared illegal
plans or incriminating documents with another cannot interpose an objection when that other
person turns the information over to the government, just because the individual happens to be
present at the time, so too someone who shares a place with another cannot interpose an
objection when that person decides to grant access to the police, simply because the objecting
individual happens to be present.
A warrantless search is reasonable if police obtain the voluntary consent of a person authorized
to give it. Co-occupants have “assumed the risk that one of their number might permit [a]
common area to be searched.” Just as Mrs. Randolph could walk upstairs, come down, and turn
her husband’s cocaine straw over to the police, she can consent to police entry and search of what
is, after all, her home, too.
*

*

*

As the Randolph majority noted, police may rely on the “consent of an occupant who shares, or
is reasonably believed to share, authority over the area in common.” In other words, warrantless
entry is valid—that is, reasonable—“when based upon the consent of a third party whom the
police, at the time of the entry, reasonably believe to possess common authority over the
premises, but who in fact does not do so.” Illinois v. Rodriguez, 497 U.S. 177 (1990) (emphasis
added).
In Randolph, the Court decided that when one occupant consents to a search and another
occupant concurrently refuses consent, the refusal gets priority. A clever student might ask, what
happens if the occupant who refuses consent somehow disappears from the scene? If he takes a
short walk, for example, or is rushed to the hospital after suffering a heart attack, does his refusal
keep working?

Supreme Court of the United States
Walter Fernandez v. California
Decided Feb. 25, 2014 – 571 U.S. 292
Justice ALITO delivered the opinion of the Court.
Our cases firmly establish that police officers may search jointly occupied premises if one of the
occupants consents. In Georgia v. Randolph we recognized a narrow exception to this rule,
holding that the consent of one occupant is insufficient when another occupant is present and
Chapter 11 — Page 250

objects to the search. In this case, we consider whether Randolph applies if the objecting
occupant is absent when another occupant consents. Our opinion in Randolph took great pains
to emphasize that its holding was limited to situations in which the objecting occupant is
physically present. We therefore refuse to extend Randolph to the very different situation in this
case, where consent was provided by an abused woman well after her male partner had been
removed from the apartment they shared.
I
A
The events involved in this case occurred in Los Angeles in October 2009. After observing Abel
Lopez cash a check, petitioner Walter Fernandez approached Lopez and asked about the
neighborhood in which he lived. When Lopez responded that he was from Mexico, Fernandez
laughed and told Lopez that he was in territory ruled by the “D.F.S.,” i.e., the “Drifters” gang.
Petitioner then pulled out a knife and pointed it at Lopez’ chest. Lopez raised his hand in selfdefense, and petitioner cut him on the wrist.
Lopez ran from the scene and called 911 for help, but petitioner whistled, and four men emerged
from a nearby apartment building and attacked Lopez. After knocking him to the ground, they
hit and kicked him and took his cell phone and his wallet, which contained $400 in cash.
A police dispatch reported the incident and mentioned the possibility of gang involvement, and
two Los Angeles police officers, Detective Clark and Officer Cirrito, drove to an alley frequented
by members of the Drifters. A man who appeared scared walked by the officers and said: “‘[T]he
guy is in the apartment.’” The officers then observed a man run through the alley and into the
building to which the man was pointing. A minute or two later, the officers heard sounds of
screaming and fighting coming from that building.
After backup arrived, the officers knocked on the door of the apartment unit from which the
screams had been heard. Roxanne Rojas answered the door. She was holding a baby and
appeared to be crying. Her face was red, and she had a large bump on her nose. The officers also
saw blood on her shirt and hand from what appeared to be a fresh injury. Rojas told the police
that she had been in a fight. Officer Cirrito asked if anyone else was in the apartment, and Rojas
said that her 4–year–old son was the only other person present.
After Officer Cirrito asked Rojas to step out of the apartment so that he could conduct a
protective sweep, petitioner appeared at the door wearing only boxer shorts. Apparently
agitated, petitioner stepped forward and said, “‘You don’t have any right to come in here. I know
my rights.’” Suspecting that petitioner had assaulted Rojas, the officers removed him from the
apartment and then placed him under arrest. Lopez identified petitioner as his initial attacker,
and petitioner was taken to the police station for booking.

Chapter 11 — Page 251

Approximately one hour after petitioner’s arrest, Detective Clark returned to the apartment and
informed Rojas that petitioner had been arrested. Detective Clark requested and received both
oral and written consent from Rojas to search the premises. In the apartment, the police found
Drifters gang paraphernalia, a butterfly knife, clothing worn by the robbery suspect, and
ammunition. Rojas’ young son also showed the officers where petitioner had hidden a sawed-off
shotgun.
B
Petitioner was charged with robbery, infliction of corporal injury on a spouse, cohabitant, or
child’s parent, possession of a firearm by a felon, possession of a short-barreled shotgun, and
felony possession of ammunition.
Before trial, petitioner moved to suppress the evidence found in the apartment, but after a
hearing, the court denied the motion. Petitioner then pleaded nolo contendere to the firearms
and ammunition charges. On the remaining counts—for robbery and infliction of corporal
injury—he went to trial and was found guilty by a jury. The court sentenced him to 14 years of
imprisonment.
The California Court of Appeal affirmed. Because Randolph did not overturn our prior decisions
recognizing that an occupant may give effective consent to search a shared residence, the court
agreed with the majority of the federal circuits that an objecting occupant’s physical presence is
“indispensable to the decision in Randolph.” And because petitioner was not present when Rojas
consented, the court held that petitioner’s suppression motion had been properly denied.
The California Supreme Court denied the petition for review, and we granted certiorari.
II
A
“Consent searches are part of the standard investigatory techniques of law enforcement
agencies” and are “a constitutionally permissible and wholly legitimate aspect of effective police
activity.” It would be unreasonable—indeed, absurd—to require police officers to obtain a
warrant when the sole owner or occupant of a house or apartment voluntarily consents to a
search. The owner of a home has a right to allow others to enter and examine the premises, and
there is no reason why the owner should not be permitted to extend this same privilege to police
officers if that is the owner’s choice. Where the owner believes that he or she is under suspicion,
the owner may want the police to search the premises so that their suspicions are dispelled. This
may be particularly important where the owner has a strong interest in the apprehension of the
perpetrator of a crime and believes that the suspicions of the police are deflecting the course of
their investigation. An owner may want the police to search even where they lack probable cause,
and if a warrant were always required, this could not be done. And even where the police could
establish probable cause, requiring a warrant despite the owner’s consent would needlessly
inconvenience everyone involved—not only the officers and the magistrate but also the occupant
of the premises, who would generally either be compelled or would feel a need to stay until the
search was completed.
Chapter 11 — Page 252

B
While consent by one resident of jointly occupied premises is generally sufficient to justify a
warrantless search, we recognized a narrow exception to this rule in Georgia v. Randolph. The
Court reiterated the proposition that a person who shares a residence with others assumes the
risk that “any one of them may admit visitors, with the consequence that a guest obnoxious to
one may nevertheless be admitted in his absence by another.” But the Court held that “a
physically present inhabitant’s express refusal of consent to a police search [of his home] is
dispositive as to him, regardless of the consent of a fellow occupant.” The Court’s opinion went
to great lengths to make clear that its holding was limited to situations in which the objecting
occupant is present.
III
In this case, petitioner was not present when Rojas consented, but petitioner still contends that
Randolph is controlling. He advances two main arguments. First, he claims that his absence
should not matter since he was absent only because the police had taken him away. Second, he
maintains that it was sufficient that he objected to the search while he was still present. Such an
objection, he says, should remain in effect until the objecting party “no longer wishes to keep the
police out of his home.” Neither of these arguments is sound.
We first consider the argument that the presence of the objecting occupant is not necessary when
the police are responsible for his absence. In Randolph, the Court suggested in dictum that
consent by one occupant might not be sufficient if “there is evidence that the police have removed
the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.”
We do not believe the statement should be read to suggest that improper motive may invalidate
objectively justified removal. Hence, it does not govern here.
This brings us to petitioner’s second argument, viz., that his objection, made at the threshold of
the premises that the police wanted to search, remained effective until he changed his mind and
withdrew his objection. This argument is inconsistent with Randolph’s reasoning in at least two
important ways. First, the argument cannot be squared with the “widely shared social
expectations” or “customary social usage” upon which the Randolph holding was based.
It seems obvious that the calculus of this hypothetical caller would likely be quite different if the
objecting tenant was not standing at the door. When the objecting occupant is standing at the
threshold saying “stay out,” a friend or visitor invited to enter by another occupant can expect at
best an uncomfortable scene and at worst violence if he or she tries to brush past the objector.
But when the objector is not on the scene (and especially when it is known that the objector will
not return during the course of the visit), the friend or visitor is much more likely to accept the
invitation to enter. Thus, petitioner’s argument is inconsistent with Randolph’s reasoning.
Second, petitioner’s argument would create the very sort of practical complications that
Randolph sought to avoid. The Randolph Court recognized that it was adopting a “formalis[tic]”
rule, but it did so in the interests of “simple clarity” and administrability.

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The rule that petitioner would have us adopt would produce a plethora of practical problems.
For one thing, there is the question of duration. Petitioner argues that an objection, once made,
should last until it is withdrawn by the objector, but such a rule would be unreasonable. Suppose
that a husband and wife owned a house as joint tenants and that the husband, after objecting to
a search of the house, was convicted and sentenced to a 15–year prison term. Under petitioner’s
proposed rule, the wife would be unable to consent to a search of the house 10 years after the
date on which her husband objected. We refuse to stretch Randolph to such strange lengths.
Nor are we persuaded to hold that an objection lasts for a “reasonable” time. “[I]t is certainly
unusual for this Court to set forth precise time limits governing police action” and what interval
of time would be reasonable in this context? A week? A month? A year? Ten years?
Petitioner’s rule would also require the police and ultimately the courts to determine whether,
after the passage of time, an objector still had “common authority” over the premises, and this
would often be a tricky question. Suppose that an incarcerated objector and a consenting cooccupant were joint tenants on a lease. If the objector, after incarceration, stopped paying rent,
would he still have “common authority,” and would his objection retain its force? Would it be
enough that his name remained on the lease? Would the result be different if the objecting and
consenting lessees had an oral month-to-month tenancy?
Another problem concerns the procedure needed to register a continuing objection. Would it be
necessary for an occupant to object while police officers are at the door? If presence at the time
of consent is not needed, would an occupant have to be present at the premises when the
objection was made? Could an objection be made pre-emptively? Could a person like Scott
Randolph, suspecting that his estranged wife might invite the police to view his drug stash and
paraphernalia, register an objection in advance? Could this be done by posting a sign in front of
the house? Could a standing objection be registered by serving notice on the chief of police?
Finally, there is the question of the particular law enforcement officers who would be bound by
an objection. Would this set include just the officers who were present when the objection was
made? Would it also apply to other officers working on the same investigation? Would it extend
to officers who were unaware of the objection? How about officers assigned to different but
arguably related cases? Would it be limited by law enforcement agency?
If Randolph is taken at its word—that it applies only when the objector is standing in the door
saying “stay out” when officers propose to make a consent search—all of these problems
disappear.
Putting the exception the Court adopted in Randolph to one side, the lawful occupant of a house
or apartment should have the right to invite the police to enter the dwelling and conduct a search.
Any other rule would trample on the rights of the occupant who is willing to consent. Such an
occupant may want the police to search in order to dispel “suspicion raised by sharing quarters
with a criminal.” And an occupant may want the police to conduct a thorough search so that any
dangerous contraband can be found and removed. In this case, for example, the search resulted
in the discovery and removal of a sawed-off shotgun to which Rojas’ 4–year–old son had access.

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Denying someone in Rojas’ position the right to allow the police to enter her home would also
show disrespect for her independence. Having beaten Rojas, petitioner would bar her from
controlling access to her own home until such time as he chose to relent. The Fourth Amendment
does not give him that power.
The judgment of the California Court of Appeal is affirmed.
Justice GINSBURG, with whom Justice SOTOMAYOR and Justice KAGAN join, dissenting.
This case calls for a straightforward application of Randolph. The police officers in Randolph
were confronted with a scenario closely resembling the situation presented here. After Walter
Fernandez, while physically present at his home, rebuffed the officers’ request to come in, the
police removed him from the premises and then arrested him, albeit with cause to believe he had
assaulted his cohabitant, Roxanne Rojas. At the time of the arrest, Rojas said nothing to
contradict Fernandez’ refusal. About an hour later, however, and with no attempt to obtain a
search warrant, the police returned to the apartment and prevailed upon Rojas to sign a consent
form authorizing search of the premises.
In this case, the police could readily have obtained a warrant to search the shared residence. The
Court does not dispute this, but instead disparages the warrant requirement as inconvenient,
burdensome, entailing delay “[e]ven with modern technological advances.”
Although the police have probable cause and could obtain a warrant with dispatch, if they can
gain the consent of someone other than the suspect, why should the law insist on the formality
of a warrant? Because the Framers saw the neutral magistrate as an essential part of the criminal
process shielding all of us, good or bad, saint or sinner, from unchecked police activity.
I would honor the Fourth Amendment’s warrant requirement and hold that Fernandez’ objection
to the search did not become null upon his arrest and removal from the scene. “There is every
reason to conclude that securing a warrant was entirely feasible in this case, and no reason to
contract the Fourth Amendment’s dominion.”
Notes, Comments, and Questions
Justice Souter, who wrote for the majority in Randolph, retired before Fernandez was decided.
In addition, Justice Kennedy, who voted with the Randolph majority, supported the Fernandez
majority in its limitation of the holding of Randolph to its unusual facts. Justice Breyer, who
concurred with the Court’s judgement in Randolph but did not endorse all of the majority’s
reasoning, also joined Justice Alito’s majority opinion in Fernandez. In short, while Randolph
remains good law, its reasoning may not have support from a current majority of the Court, and
its holding is unlikely to be applied to new fact patterns.
Beyond the somewhat esoteric questions presented by Randolph and Fernandez, the broader
issue of consent inspires intense disagreements. In particular, dissenting Justices question
whether people can really “terminate encounters” with police officers as easily as majority
opinions seems to suggest, and they argue that refusing consent is not always practical (or even
Chapter 11 — Page 255

possible), particularly among portions of the populations already uneasy with police. Observers
note that gender, among other factors, affects whether one has the confidence to deny consent.
See David K. Kessler, Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure
Standard, 99 J. Crim L. & Criminology 51 (2009) (reporting on random survey of Boston
residents concerning sidewalks and buses, finding that “women and young people feel less free
to leave than other groups”).
On the other hand, robust cooperation with police is essential to the prevention and detection of
crime. If police needed a warrant every time they searched a car, bag, or house, investigations
would be slowed considerably. This reality encourages Justices to avoid placing high hurdles in
the path of officers who seek consent from members of the public.
The Authority of Co-Occupants and Co-Owners to Consent to Searches
Students, generally familiar with shared housing, frequently ask about the scope of authority
possessed by a co-occupant to consent to searches of shared living quarters. In particular, when
two or more students share a common living room and kitchen yet have individual bedrooms,
can one resident of a shared apartment allow police to search the entire premises? The answer
is that residents may authorize searches of areas over which they have control, whether sole
control or shared control. Accordingly, in the apartment described above, a resident could permit
police to search the living room, the kitchen, and her own personal bedroom, but she would not
have authority to authorize searches of someone else’s bedroom.
The same principle applies to items that are shared or are lent by an owner to another person.
Someone permitted to use and carry a backpack—whether the sole owner, a co-owner, or a
borrower—may authorize police to search the bag.
Recall that police can rely on apparent authority—a search is reasonable as long as officers
reasonably believe they receive valid consent. Nonetheless, officers should be careful when
entering shared premises with consent to learn what areas are controlled by the consenting
resident.

Chapter 11 — Page 256

THE FOURTH AMENDMENT
Chapter 12
The Warrant Requirement: Exceptions (Part 4)
Warrant Exception: Exigent Circumstances
The Court has grouped a handful of recurring situations under the umbrella term “exigent
circumstances.” This exception allows police to conduct searches without warrants as long as
officers have probable cause to believe that one of the approved kinds of unusual situations—
that is, exigent circumstances—exists. For all the categories of exigent circumstances, the Court
has decided that seeking a warrant would be impossible, or at least impractical. The key
categories are: (1) hot pursuit of a fleeing criminal suspect, (2) protection of public safety from
immediate threats, and (3) preservation of evidence (that officers have probable cause to believe
is subject to seizure and will be found on the premises) from destruction.
We begin with hot pursuit.
Exigent Circumstances: Hot Pursuit
Supreme Court of the United States
Warden, Maryland Penitentiary v. Bennie Joe Hayden
Decided May 29, 1967 – 387 U.S. 294
Mr. Justice BRENNAN delivered the opinion of the Court.
We review in this case the validity of the proposition that there is under the Fourth Amendment
a “distinction between merely evidentiary materials, on the one hand, which may not be seized
either under the authority of a search warrant or during the course of a search incident to arrest,
and on the other hand, those objects which may validly be seized including the instrumentalities
and means by which a crime is committed, the fruits of crime such as stolen property, weapons
by which escape of the person arrested might be effected, and property the possession of which
is a crime.”
A Maryland court sitting without a jury convicted respondent of armed robbery. Items of his
clothing, a cap, jacket, and trousers, among other things, were seized during a search of his home,
and were admitted in evidence without objection. After unsuccessful state court proceedings, he
sought and was denied federal habeas corpus relief in the District Court for Maryland. A divided
panel of the Court of Appeals for the Fourth Circuit reversed. The Court of Appeals held that
respondent was correct in his contention that the clothing seized was improperly admitted in
evidence because the items had “evidential value only” and therefore were not lawfully subject
to seizure. We granted certiorari. We reverse.

Chapter 12 – Page 257

I
About 8 a.m. on March 17, 1962, an armed robber entered the business premises of the Diamond
Cab Company in Baltimore, Maryland. He took some $363 and ran. Two cab drivers in the
vicinity, attracted by shouts of “Holdup,” followed the man to 2111 Cocoa Lane. One driver
notified the company dispatcher by radio that the man was a Negro about 5’ 8” tall, wearing a
light cap and dark jacket, and that he had entered the house on Cocoa Lane. The dispatcher
relayed the information to police who were proceeding to the scene of the robbery. Within
minutes, police arrived at the house in a number of patrol cars. An officer knocked and
announced their presence. Mrs. Hayden answered, and the officers told her they believed that a
robber had entered the house, and asked to search the house. She offered no objection. 1
The officers spread out through the first and second floors and the cellar in search of the robber.
Hayden was found in an upstairs bedroom feigning sleep. He was arrested when the officers on
the first floor and in the cellar reported that no other man was in the house. Meanwhile an officer
was attracted to an adjoining bathroom by the noise of running water, and discovered a shotgun
and a pistol in a flush tank; another officer who, according to the District Court, “was searching
the cellar for a man or the money” found in a washing machine a jacket and trousers of the type
the fleeing man was said to have worn. A clip of ammunition for the pistol and a cap were found
under the mattress of Hayden’s bed, and ammunition for the shotgun was found in a bureau
drawer in Hayden’s room. All these items of evidence were introduced against respondent at his
trial.
II
We agree with the Court of Appeals that neither the entry without warrant to search for the
robber, nor the search for him without warrant was invalid. Under the circumstances of this case,
“the exigencies of the situation made that course imperative.” The police were informed that an
armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five
minutes before they reached it. They acted reasonably when they entered the house and began
to search for a man of the description they had been given and for weapons which he had used
in the robbery or might use against them. The Fourth Amendment does not require police
officers to delay in the course of an investigation if to do so would gravely endanger their lives or
the lives of others. Speed here was essential, and only a thorough search of the house for persons
and weapons could have insured that Hayden was the only man present and that the police had
control of all weapons which could be used against them or to effect an escape.
[T]he seizures occurred prior to or immediately contemporaneous with Hayden’s arrest, as part
of an effort to find a suspected felon, armed, within the house into which he had run only minutes
before the police arrived. The permissible scope of search must, therefore, at the least, be as
broad as may reasonably be necessary to prevent the dangers that the suspect at large in the
house may resist or escape.

1 [Footnote by editors] Valid consent would have justified entry even absent exigent circumstances. During post-

conviction proceedings, the appellate courts decided that because they found exigent circumstances, they did not
need to determine whether consent existed. Accordingly, only exigent circumstances was before the Court.
Chapter 12 – Page 258

It is argued that, while the weapons, ammunition, and cap may have been seized in the course of
a search for weapons, the officer who seized the clothing was searching neither for the suspect
nor for weapons when he looked into the washing machine in which he found the clothing. But
even if we assume, although we do not decide, that the exigent circumstances in this case made
lawful a search without warrant only for the suspect or his weapons, it cannot be said on this
record that the officer who found the clothes in the washing machine was not searching for
weapons. He testified that he was searching for the man or the money, but his failure to state
explicitly that he was searching for weapons, in the absence of a specific question to that effect,
can hardly be accorded controlling weight. He knew that the robber was armed and he did not
know that some weapons had been found at the time he opened the machine. In these
circumstances the inference that he was in fact also looking for weapons is fully justified.
III
We come, then, to the question whether, even though the search was lawful, the Court of Appeals
was correct in holding that the seizure and introduction of the items of clothing violated the
Fourth Amendment because they are “mere evidence.” The distinction made by some of our
cases between seizure of items of evidential value only and seizure of instrumentalities, fruits, or
contraband has been criticized by courts and commentators. The Court of Appeals, however, felt
“obligated to adhere to it.” We today reject the distinction as based on premises no longer
accepted as rules governing the application of the Fourth Amendment.
Nothing in the language of the Fourth Amendment supports the distinction between “mere
evidence” and instrumentalities, fruits of crime, or contraband. Privacy is disturbed no more by
a search directed to a purely evidentiary object than it is by a search directed to an
instrumentality, fruit, or contraband. A magistrate can intervene in both situations, and the
requirements of probable cause and specificity can be preserved intact. Moreover, nothing in the
nature of property seized as evidence renders it more private than property seized, for example,
as an instrumentality; quite the opposite may be true. Indeed, the distinction is wholly irrational,
since, depending on the circumstances, the same “papers and effects” may be “mere evidence”
in one case and “instrumentality” in another.
The judgment of the Court of Appeals is reversed.
Notes, Comments, and Questions
Hot pursuit allows officers to follow a fleeing felon into a house. The Court has explained that
“‘hot pursuit’ means some sort of a chase, but it need not be an extended hue and cry ‘in and
about (the) public streets.’” United States v. Santana, 427 U.S. 38 (1976).
After entering a home in hot pursuit, police may look around to protect themselves, find the
suspect, find weapons, etc. The Court in Hayden even allows an officer to search a washing
machine around the time the suspect was caught elsewhere. Consider the following scenario:

Chapter 12 – Page 259

Police have probable cause to arrest a suspect for a misdemeanor. The suspect flees, and police
give chase. If the suspect enters a home, may police follow? Why or why not? See Stanton v.
Sims, 571 U.S. 3 (2013) (declining to decide the question); People v. Wear, 893 N.E.2d 631 (Ill.
2008) (extending “hot pursuit” doctrine to misdemeanors).
In addition to its appearance in criminal procedure law, “hot pursuit” is a term of art in
international law. A “backgrounder” published by the Council on Foreign Relations (CFR)
describes the doctrine as follows: “The doctrine generally pertains to the law of the seas and the
ability of one state’s navy to pursue a foreign ship that has violated laws and regulations in its
territorial waters (twelve nautical miles from shore), even if the ship flees to the high seas.”
Quoting Professor Michael P. Scharf, the CFR document explained further: “It means you are
literally and temporally in pursuit and following the tail of a fugitive. … [A state] is allowed to
temporarily violate borders to make an apprehension under those circumstances.”
Students interested in further information can review the 1982 UN Convention on the Law of
the Sea, which covers hot pursuit in Article 111, along with the 1958 Convention on the High Seas,
which covers the doctrine in Article 23. Students will notice similarities among the international
law doctrine and our domestic criminal procedure rule. Under each, state agents are permitted
to briefly enter otherwise prohibited areas for law enforcement purposes. On the other hand,
application of “hot pursuit” on land (for example, entering a foreign country to capture or kill a
wanted terrorist) is disputed in international law.
In the next case, the Court considers whether a “routine felony arrest” constitutes exigent
circumstances and accordingly allows warrantless entry of a home in which police have probable
cause to believe the felony suspect will be found. Students should consider that even in the Bronx
in 1970—the location and year of the search at issue—the crime rate was not so high that
arresting a man suspected of murdering someone two days earlier during an armed robbery had
become “routine.” What then made this scenario different from “hot pursuit” and other sorts of
exigent circumstances in the eyes of the Justices?
Supreme Court of the United States
Theodore Payton v. New York
Decided April 15, 1980 – 445 U.S. 573
Mr. Justice STEVENS delivered the opinion of the Court.
These appeals challenge the constitutionality of New York statutes that authorize police officers
to enter a private residence without a warrant and with force, if necessary, to make a routine
felony arrest.
I
On January 14, 1970, after two days of intensive investigation, New York detectives had
assembled evidence sufficient to establish probable cause to believe that Theodore Payton had
murdered the manager of a gas station two days earlier. At about 7:30 a.m. on January 15, six
officers went to Payton’s apartment in the Bronx, intending to arrest him. They had not obtained
Chapter 12 – Page 260

a warrant. Although light and music emanated from the apartment, there was no response to
their knock on the metal door. They summoned emergency assistance and, about 30 minutes
later, used crowbars to break open the door and enter the apartment. No one was there. In plain
view, however, was a .30-caliber shell casing that was seized and later admitted into evidence at
Payton’s murder trial.
In due course Payton surrendered to the police, was indicted for murder, and moved to suppress
the evidence taken from his apartment. The trial judge held that the warrantless and forcible
entry was authorized by the New York Code of Criminal Procedure, and that the evidence in plain
view was properly seized. He found that exigent circumstances justified the officers’ failure to
announce their purpose before entering the apartment as required by the statute. He had no
occasion, however, to decide whether those circumstances also would have justified the failure
to obtain a warrant, because he concluded that the warrantless entry was adequately supported
by the statute without regard to the circumstances. The Appellate Division, First Department,
summarily affirmed. The New York Court of Appeals affirmed the conviction[] of [] Payton.
Before addressing the narrow question presented by these appeals, we put to one side other
related problems that are not presented today. Although it is arguable that the warrantless entry
to effect Payton’s arrest might have been justified by exigent circumstances, none of the New
York courts relied on any such justification. The Court of Appeals majority treated [] Payton’s []
case[] as involving [a] routine arrest in which there was ample time to obtain a warrant, and we
will do the same. Accordingly, we have no occasion to consider the sort of emergency or
dangerous situation, described in our cases as “exigent circumstances,” that would justify a
warrantless entry into a home for the purpose of either arrest or search.
Nor do these cases raise any question concerning the authority of the police, without either a
search or arrest warrant, to enter a third party’s home to arrest a suspect. The police broke into
Payton’s apartment intending to arrest Payton. We also note that it [is not] argued that the police
lacked probable cause to believe that [Payton] was at home when they entered. Finally, we are
dealing with [an] entr[y] into [a] home[] made without the consent of any occupant.
II
It is familiar history that indiscriminate searches and seizures conducted under the authority of
“general warrants” were the immediate evils that motivated the framing and adoption of the
Fourth Amendment. It is [] perfectly clear that the evil the Amendment was designed to prevent
was broader than the abuse of a general warrant. Unreasonable searches or seizures conducted
without any warrant at all are condemned by the plain language of the first clause of the
Amendment. Almost a century ago the Court stated in resounding terms that the principles
reflected in the Amendment “reached farther than the concrete form” of the specific cases that
gave it birth, and “apply to all invasions on the part of the government and its employees of the
sanctity of a man’s home and the privacies of life.”
The simple language of the Amendment applies equally to seizures of persons and to seizures of
property. Our analysis in this case may therefore properly commence with rules that have been
well established in Fourth Amendment litigation involving tangible items. As the Court
reiterated just a few years ago, the “physical entry of the home is the chief evil against which the
Chapter 12 – Page 261

wording of the Fourth Amendment is directed.” And we have long adhered to the view that the
warrant procedure minimizes the danger of needless intrusions of that sort.
It is a “basic principle of Fourth Amendment law” that searches and seizures inside a home
without a warrant are presumptively unreasonable. Yet it is also well settled that objects such as
weapons or contraband found in a public place may be seized by the police without a warrant.
The seizure of property in plain view involves no invasion of privacy and is presumptively
reasonable, assuming that there is probable cause to associate the property with criminal
activity. [T]his distinction has equal force when the seizure of a person is involved. [T]he critical
point is that any differences in the intrusiveness of entries to search and entries to arrest are
merely ones of degree rather than kind. The two intrusions share this fundamental
characteristic: the breach of the entrance to an individual’s home. The Fourth Amendment
protects the individual’s privacy in a variety of settings. In none is the zone of privacy more
clearly defined than when bounded by the unambiguous physical dimensions of an individual’s
home—a zone that finds its roots in clear and specific constitutional terms: “The right of the
people to be secure in their ... houses ... shall not be violated.” That language unequivocally
establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right
of a man to retreat into his own home and there be free from unreasonable governmental
intrusion.” In terms that apply equally to seizures of property and to seizures of persons, the
Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent
circumstances, that threshold may not reasonably be crossed without a warrant.
IV
The parties have argued at some length about the practical consequences of a warrant
requirement as a precondition to a felony arrest in the home. In the absence of any evidence that
effective law enforcement has suffered in those States that already have such a requirement, we
are inclined to view such arguments with skepticism. More fundamentally, however, such
arguments of policy must give way to a constitutional command that we consider to be
unequivocal.
Finally, we note the State’s suggestion that only a search warrant based on probable cause to
believe the suspect is at home at a given time can adequately protect the privacy interests at
stake, and since such a warrant requirement is manifestly impractical, there need be no warrant
of any kind. We find this ingenious argument unpersuasive. It is true that an arrest warrant
requirement may afford less protection than a search warrant requirement, but it will suffice to
interpose the magistrate’s determination of probable cause between the zealous officer and the
citizen. If there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial
officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors
to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on
probable cause implicitly carries with it the limited authority to enter a dwelling in which the
suspect lives when there is reason to believe the suspect is within.
Because no arrest warrant was obtained, the judgments must be reversed and the cases
remanded to the New York Court of Appeals for further proceedings not inconsistent with this
opinion.
Chapter 12 – Page 262

Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join,
dissenting.
The Court today holds that absent exigent circumstances officers may never enter a home during
the daytime to arrest for a dangerous felony unless they have first obtained a warrant. This hardand-fast rule, founded on erroneous assumptions concerning the intrusiveness of home arrest
entries, finds little or no support in the common law or in the text and history of the Fourth
Amendment. I respectfully dissent.
Today’s decision distorts the historical meaning of the Fourth Amendment, by proclaiming for
the first time a rigid warrant requirement for all nonexigent home arrest entries. The history of
the Fourth Amendment does not support the rule announced today. At the time that Amendment
was adopted the constable possessed broad inherent powers to arrest. The limitations on those
powers derived, not from a warrant “requirement,” but from the generally ministerial nature of
the constable’s office at common law. Far from restricting the constable’s arrest power, the
institution of the warrant was used to expand that authority by giving the constable delegated
powers of a superior officer such as a justice of the peace. Hence at the time of the Bill of Rights,
the warrant functioned as a powerful tool of law enforcement rather than as a protection for the
rights of criminal suspects.
In fact, it was the abusive use of the warrant power, rather than any excessive zeal in the
discharge of peace officers’ inherent authority, that precipitated the Fourth Amendment. That
Amendment grew out of colonial opposition to the infamous general warrants known as writs of
assistance, which empowered customs officers to search at will, and to break open receptacles or
packages, wherever they suspected uncustomed goods to be. The writs did not specify where
searches could occur and they remained effective throughout the sovereign’s lifetime. In effect,
the writs placed complete discretion in the hands of executing officials. Customs searches of this
type were beyond the inherent power of common-law officials and were the subject of court suits
when performed by colonial customs agents not acting pursuant to a writ.
That the Framers were concerned about warrants, and not about the constable’s inherent power
to arrest, is also evident from the text and legislative history of the Fourth Amendment. That
provision first reaffirms the basic principle of common law, that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated ....” The Amendment does not here purport to limit or restrict the peace
officer’s inherent power to arrest or search, but rather assumes an existing right against actions
in excess of that inherent power and ensures that it remain inviolable. [I]t was not generally
considered “unreasonable” at common law for officers to break doors in making warrantless
felony arrests. The Amendment’s second clause is directed at the actions of officers taken in their
ministerial capacity pursuant to writs of assistance and other warrants. In contrast to the first
Clause, the second Clause does purport to alter colonial practice: “and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.”
That the Fourth Amendment was directed towards safeguarding the rights at common law, and
restricting the warrant practice which gave officers vast new powers beyond their inherent
authority, is evident from the legislative history of that provision. As originally drafted by James
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Madison, it was directed only at warrants; so deeply ingrained was the basic common-law
premise that it was not even expressed:
“The rights of the people to be secured in their persons[,] their houses, their papers, and their
other property, from all unreasonable searches and seizures, shall not be violated by warrants
issued without probable cause, supported by oath or affirmation, or not particularly describing
the places to be searched, or the persons or things to be seized.” 1 Annals of Cong. 452 (1789).
In sum, the background, text, and legislative history of the Fourth Amendment demonstrate that
the purpose was to restrict the abuses that had developed with respect to warrants; the
Amendment preserved common-law rules of arrest. Because it was not considered generally
unreasonable at common law for officers to break doors to effect a warrantless felony arrest, I
do not believe that the Fourth Amendment was intended to outlaw the types of police conduct at
issue in the present cases.
Today’s decision rests, in large measure, on the premise that warrantless arrest entries constitute
a particularly severe invasion of personal privacy. I do not dispute that the home is generally a
very private area or that the common law displayed a special “reverence ... for the individual’s
right of privacy in his house.” However, the Fourth Amendment is concerned with protecting
people, not places, and no talismanic significance is given to the fact that an arrest occurs in the
home rather than elsewhere. It is necessary in each case to assess realistically the actual extent
of invasion of constitutionally protected privacy. Further, all arrests involve serious intrusions
into an individual’s privacy and dignity. Yet we settled in [United States v.] Watson [423 U.S.
411 (1976)], that the intrusiveness of a public arrest is not enough to mandate the obtaining of a
warrant. The inquiry in the present case, therefore, is whether the incremental intrusiveness that
results from an arrest’s being made in the dwelling is enough to support an inflexible
constitutional rule requiring warrants for such arrests whenever exigent circumstances are not
present.
Today’s decision ignores the carefully crafted restrictions on the common-law power of arrest
entry and thereby overestimates the dangers inherent in that practice. At common law, absent
exigent circumstances, entries to arrest could be made only for felony. Even in cases of felony,
the officers were required to announce their presence, demand admission, and be refused entry
before they were entitled to break doors. Further, it seems generally accepted that entries could
be made only during daylight hours. And, in my view, the officer entering to arrest must have
reasonable grounds to believe, not only that the arrestee has committed a crime, but also that
the person suspected is present in the house at the time of the entry.
These four restrictions on home arrests—felony, knock and announce, daytime, and stringent
probable cause—constitute powerful and complementary protections for the privacy interests
associated with the home. The felony requirement guards against abusive or arbitrary
enforcement and ensures that invasions of the home occur only in case of the most serious
crimes. The knock-and-announce and daytime requirements protect individuals against the fear,
humiliation, and embarrassment of being aroused from their beds in states of partial or complete
undress. And these requirements allow the arrestee to surrender at his front door, thereby
maintaining his dignity and preventing the officers from entering other rooms of the dwelling.
The stringent probable-cause requirement would help ensure against the possibility that the
Chapter 12 – Page 264

police would enter when the suspect was not home, and, in searching for him, frighten members
of the family or ransack parts of the house, seizing items in plain view. In short, these
requirements, taken together, permit an individual suspected of a serious crime to surrender at
the front door of his dwelling and thereby avoid most of the humiliation and indignity that the
Court seems to believe necessarily accompany a house arrest entry.
While exaggerating the invasion of personal privacy involved in home arrests, the Court fails to
account for the danger that its rule will “severely hamper effective law enforcement.” The
policeman on his beat must now make subtle discriminations that perplex even judges in their
chambers. [P]olice will sometimes delay making an arrest, even after probable cause is
established, in order to be sure that they have enough evidence to convict. Then, if they suddenly
have to arrest, they run the risk that the subsequent exigency will not excuse their prior failure
to obtain a warrant. This problem cannot effectively be cured by obtaining a warrant as soon as
probable cause is established because of the chance that the warrant will go stale before the arrest
is made.
Further, police officers will often face the difficult task of deciding whether the circumstances
are sufficiently exigent to justify their entry to arrest without a warrant. This is a decision that
must be made quickly in the most trying of circumstances. If the officers mistakenly decide that
the circumstances are exigent, the arrest will be invalid and any evidence seized incident to the
arrest or in plain view will be excluded at trial. On the other hand, if the officers mistakenly
determine that exigent circumstances are lacking, they may refrain from making the arrest, thus
creating the possibility that a dangerous criminal will escape into the community. The police
could reduce the likelihood of escape by staking out all possible exits until the circumstances
become clearly exigent or a warrant is obtained. But the costs of such a stakeout seem excessive
in an era of rising crime and scarce police resources.
The uncertainty inherent in the exigent-circumstances determination burdens the judicial
system as well. In the case of searches, exigent circumstances are sufficiently unusual that this
Court has determined that the benefits of a warrant outweigh the burdens imposed, including
the burdens on the judicial system. In contrast, arrests recurringly involve exigent
circumstances, and this Court has heretofore held that a warrant can be dispensed with without
undue sacrifice in Fourth Amendment values. The situation should be no different with respect
to arrests in the home. Under today’s decision, whenever the police have made a warrantless
home arrest there will be the possibility of “endless litigation with respect to the existence of
exigent circumstances, whether it was practicable to get a warrant, whether the suspect was
about to flee, and the like.”
Our cases establish that the ultimate test under the Fourth Amendment is one of
“reasonableness.” I cannot join the Court in declaring unreasonable a practice which has been
thought entirely reasonable by so many for so long.

Chapter 12 – Page 265

Notes, Comments, and Questions
Consider the “routine felony arrest” in other locations. Do the police need a search warrant to
enter third party’s home? Suspect’s place of employment? Suspect’s privately-owned business?
Suspect’s girlfriend’s home? Suspect’s parent’s home?
Exigent Circumstances: Public Safety
The next category of exigent circumstances includes situations in which police believe public
safety is at immediate risk. For example, when operators receive a 911 call reporting an ongoing
assault, police need not seek a warrant before heading to the crime scene and, if necessary,
entering a home. Firefighters and emergency medical personnel also enter buildings without
warrants to provide prompt aid. Similarly, officers who hear screams coming from a house or
perceive other evidence of imminent danger may have probable cause that justifies warrantless
entry. In these situations, police could not effectively “serve and protect” without an exception
to the warrant requirement.
Supreme Court of the United States
Brigham City, Utah v. Charles W. Stuart
Decided May 22, 2006 – 547 U.S. 398
Chief Justice ROBERTS delivered the opinion of the [unanimous] Court.
In this case we consider whether police may enter a home without a warrant when they have an
objectively reasonable basis for believing that an occupant is seriously injured or imminently
threatened with such injury. We conclude that they may.
I
This case arises out of a melee that occurred in a Brigham City, Utah, home in the early morning
hours of July 23, 2000. At about 3 a.m., four police officers responded to a call regarding a loud
party at a residence. Upon arriving at the house, they heard shouting from inside, and proceeded
down the driveway to investigate. There, they observed two juveniles drinking beer in the
backyard. They entered the backyard, and saw—through a screen door and windows—an
altercation taking place in the kitchen of the home. According to the testimony of one of the
officers, four adults were attempting, with some difficulty, to restrain a juvenile. The juvenile
eventually “broke free, swung a fist and struck one of the adults in the face.” The officer testified
that he observed the victim of the blow spitting blood into a nearby sink. The other adults
continued to try to restrain the juvenile, pressing him up against a refrigerator with such force
that the refrigerator began moving across the floor. At this point, an officer opened the screen
door and announced the officers’ presence. Amid the tumult, nobody noticed. The officer entered
the kitchen and again cried out, and as the occupants slowly became aware that the police were
on the scene, the altercation ceased.

Chapter 12 – Page 266

The officers subsequently arrested respondents and charged them with contributing to the
delinquency of a minor, disorderly conduct, and intoxication. In the trial court, respondents filed
a motion to suppress all evidence obtained after the officers entered the home, arguing that the
warrantless entry violated the Fourth Amendment. The court granted the motion, and the Utah
Court of Appeals affirmed.
We granted certiorari in light of differences among state courts and the Courts of Appeals
concerning the appropriate Fourth Amendment standard governing warrantless entry by law
enforcement in an emergency situation.
II
It is a “‘basic principle of Fourth Amendment law that searches and seizures inside a home
without a warrant are presumptively unreasonable.’” Nevertheless, because the ultimate
touchstone of the Fourth Amendment is “reasonableness,” the warrant requirement is subject to
certain exceptions. We have held, for example, that law enforcement officers may make a
warrantless entry onto private property to fight a fire and investigate its cause, to prevent the
imminent destruction of evidence, or to engage in “‘hot pursuit’” of a fleeing suspect. “[W]arrants
are generally required to search a person’s home or his person unless ‘the exigencies of the
situation’ make the needs of law enforcement so compelling that the warrantless search is
objectively reasonable under the Fourth Amendment.”
One exigency obviating the requirement of a warrant is the need to assist persons who are
seriously injured or threatened with such injury. “‘The need to protect or preserve life or avoid
serious injury is justification for what would be otherwise illegal absent an exigency or
emergency.’” Accordingly, law enforcement officers may enter a home without a warrant to
render emergency assistance to an injured occupant or to protect an occupant from imminent
injury.
Respondents do not take issue with these principles, but instead advance two reasons why the
officers’ entry here was unreasonable. First, they argue that the officers were more interested in
making arrests than quelling violence. They urge us to consider, in assessing the reasonableness
of the entry, whether the officers were “indeed motivated primarily by a desire to save lives and
property.” The Utah Supreme Court also considered the officers’ subjective motivations relevant.
Our cases have repeatedly rejected this approach. An action is “reasonable” under the Fourth
Amendment, regardless of the individual officer’s state of mind, “as long as the circumstances,
viewed objectively, justify [the] action.” The officer’s subjective motivation is irrelevant. It
therefore does not matter here—even if their subjective motives could be so neatly unraveled—
whether the officers entered the kitchen to arrest respondents and gather evidence against them
or to assist the injured and prevent further violence.
As respondents note, we have held in the context of programmatic searches conducted without
individualized suspicion—such as checkpoints to combat drunk driving or drug trafficking—that
“an inquiry into programmatic purpose” is sometimes appropriate. But this inquiry is directed
at ensuring that the purpose behind the program is not “ultimately indistinguishable from the
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general interest in crime control.” It has nothing to do with discerning what is in the mind of the
individual officer conducting the search.
Respondents further contend that their conduct was not serious enough to justify the officers’
intrusion into the home. They rely on Welsh v. Wisconsin, 466 U.S. 740 (1984), in which we held
that “an important factor to be considered when determining whether any exigency exists is the
gravity of the underlying offense for which the arrest is being made.” This contention, too, is
misplaced. Welsh involved a warrantless entry by officers to arrest a suspect for driving while
intoxicated. There, the “only potential emergency” confronting the officers was the need to
preserve evidence (i.e., the suspect’s blood-alcohol level)—an exigency that we held insufficient
under the circumstances to justify entry into the suspect’s home. Here, the officers were
confronted with ongoing violence occurring within the home. Welsh did not address such a
situation.
We think the officers’ entry here was plainly reasonable under the circumstances. The officers
were responding, at 3 o’clock in the morning, to complaints about a loud party. As they
approached the house, they could hear from within “an altercation occurring, some kind of a
fight.” “It was loud and it was tumultuous.” The officers heard “thumping and crashing” and
people yelling “stop, stop” and “get off me.” As the trial court found, “it was obvious that ...
knocking on the front door” would have been futile. The noise seemed to be coming from the
back of the house; after looking in the front window and seeing nothing, the officers proceeded
around back to investigate further. They found two juveniles drinking beer in the backyard. From
there, they could see that a fracas was taking place inside the kitchen. A juvenile, fists clenched,
was being held back by several adults. As the officers watch, he breaks free and strikes one of the
adults in the face, sending the adult to the sink spitting blood.
In these circumstances, the officers had an objectively reasonable basis for believing both that
the injured adult might need help and that the violence in the kitchen was just beginning.
Nothing in the Fourth Amendment required them to wait until another blow rendered someone
“unconscious” or “semi-conscious” or worse before entering. The role of a peace officer includes
preventing violence and restoring order, not simply rendering first aid to casualties; an officer is
not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided.
The manner of the officers’ entry was also reasonable. After witnessing the punch, one of the
officers opened the screen door and “yelled in police.” When nobody heard him, he stepped into
the kitchen and announced himself again. Only then did the tumult subside. The officer’s
announcement of his presence was at least equivalent to a knock on the screen door. Indeed, it
was probably the only option that had even a chance of rising above the din. Under these
circumstances, there was no violation of the Fourth Amendment’s knock-and-announce rule.
Furthermore, once the announcement was made, the officers were free to enter; it would serve
no purpose to require them to stand dumbly at the door awaiting a response while those within
brawled on, oblivious to their presence.
Accordingly, we reverse the judgment of the Supreme Court of Utah, and remand the case for
further proceedings not inconsistent with this opinion.
*

*

*

Chapter 12 – Page 268

In Michigan v. Fisher, the majority (in a brief unsigned opinion, issued without oral argument),
held that the law set forth in cases like Brigham City easily justified the warrantless entry at
issue. However, while Brigham City was decided by a unanimous Court, the facts of Fisher
inspired two Justices to dissent. Regardless of which opinion one finds more persuasive in
Fisher, students can use this case to see approximately where different judges will draw the line
between exigent circumstances—in which public safety concerns allow warrantless entry—and
day-to-day law enforcement scenarios requiring warrants.
Supreme Court of the United States
Michigan v. Jeremy Fisher
Dec. 7, 2009 – 558 U.S. 45
PER CURIAM.
Police officers responded to a complaint of a disturbance near Allen Road in Brownstown,
Michigan. Officer Christopher Goolsby later testified that, as he and his partner approached the
area, a couple directed them to a residence where a man was “going crazy.” Upon their arrival,
the officers found a household in considerable chaos: a pickup truck in the driveway with its
front smashed, damaged fenceposts along the side of the property, and three broken house
windows, the glass still on the ground outside. The officers also noticed blood on the hood of the
pickup and on clothes inside of it, as well as on one of the doors to the house. (It is disputed
whether they noticed this immediately upon reaching the house, but undisputed that they
noticed it before the allegedly unconstitutional entry.) Through a window, the officers could see
respondent, Jeremy Fisher, inside the house, screaming and throwing things. The back door was
locked, and a couch had been placed to block the front door.
The officers knocked, but Fisher refused to answer. They saw that Fisher had a cut on his hand,
and they asked him whether he needed medical attention. Fisher ignored these questions and
demanded, with accompanying profanity, that the officers go to get a search warrant. Officer
Goolsby then pushed the front door partway open and ventured into the house. Through the
window of the open door he saw Fisher pointing a long gun at him. Officer Goolsby withdrew.
Fisher was charged under Michigan law with assault with a dangerous weapon and possession
of a firearm during the commission of a felony. The trial court concluded that Officer Goolsby
violated the Fourth Amendment when he entered Fisher’s house, and granted Fisher’s motion
to suppress the evidence obtained as a result—that is, Officer Goolsby’s statement that Fisher
pointed a rifle at him. The Michigan Court of Appeals initially remanded for an evidentiary
hearing, after which the trial court reinstated its order. The Court of Appeals then affirmed.
Because the decision of the Michigan Court of Appeals is indeed contrary to our Fourth
Amendment case law, particularly Brigham City v. Stuart, we grant the State’s petition for
certiorari and reverse.
“[T]he ultimate touchstone of the Fourth Amendment,” we have often said, “is ‘reasonableness.’”
Therefore, although “searches and seizures inside a home without a warrant are presumptively
unreasonable,” that presumption can be overcome. For example, “the exigencies of the situation
Chapter 12 – Page 269

[may] make the needs of law enforcement so compelling that the warrantless search is
objectively reasonable.”
Brigham City identified one such exigency: “the need to assist persons who are seriously injured
or threatened with such injury.” Thus, law enforcement officers “may enter a home without a
warrant to render emergency assistance to an injured occupant or to protect an occupant from
imminent injury.” This “emergency aid exception” does not depend on the officers’ subjective
intent or the seriousness of any crime they are investigating when the emergency arises. It
requires only “an objectively reasonable basis for believing” that “a person within [the house] is
in need of immediate aid.”
A straightforward application of the emergency aid exception, as in Brigham City, dictates that
the officer’s entry was reasonable. Just as in Brigham City, the police officers here were
responding to a report of a disturbance. Just as in Brigham City, when they arrived on the scene
they encountered a tumultuous situation in the house—and here they also found signs of a recent
injury, perhaps from a car accident, outside. And just as in Brigham City, the officers could see
violent behavior inside. Although Officer Goolsby and his partner did not see punches thrown,
as did the officers in Brigham City, they did see Fisher screaming and throwing things. It would
be objectively reasonable to believe that Fisher’s projectiles might have a human target (perhaps
a spouse or a child), or that Fisher would hurt himself in the course of his rage. In short, we find
it as plain here as we did in Brigham City that the officer’s entry was reasonable under the Fourth
Amendment.
The Michigan Court of Appeals, however, thought the situation “did not rise to a level of
emergency justifying the warrantless intrusion into a residence.” Although the Court of Appeals
conceded that “there was evidence an injured person was on the premises,” it found it significant
that “the mere drops of blood did not signal a likely serious, life-threatening injury.” The court
added that the cut Officer Goolsby observed on Fisher’s hand “likely explained the trail of blood”
and that Fisher “was very much on his feet and apparently able to see to his own needs.”
Even a casual review of Brigham City reveals the flaw in this reasoning. Officers do not need
ironclad proof of “a likely serious, life-threatening” injury to invoke the emergency aid exception.
The only injury police could confirm in Brigham City was the bloody lip they saw the juvenile
inflict upon the adult. Fisher argues that the officers here could not have been motivated by a
perceived need to provide medical assistance, since they never summoned emergency medical
personnel. This would have no bearing, of course, upon their need to ensure that Fisher was not
endangering someone else in the house. Moreover, even if the failure to summon medical
personnel conclusively established that Goolsby did not subjectively believe, when he entered
the house, that Fisher or someone else was seriously injured (which is doubtful), the test, as we
have said, is not what Goolsby believed, but whether there was “an objectively reasonable basis
for believing” that medical assistance was needed, or persons were in danger.
It was error for the Michigan Court of Appeals to replace that objective inquiry into appearances
with its hindsight determination that there was in fact no emergency. It does not meet the needs
of law enforcement or the demands of public safety to require officers to walk away from a
situation like the one they encountered here. Only when an apparent threat has become an actual
harm can officers rule out innocuous explanations for ominous circumstances. But “[t]he role of
Chapter 12 – Page 270

a peace officer includes preventing violence and restoring order, not simply rendering first aid
to casualties.” It sufficed to invoke the emergency aid exception that it was reasonable to believe
that Fisher had hurt himself (albeit nonfatally) and needed treatment that in his rage he was
unable to provide, or that Fisher was about to hurt, or had already hurt, someone else. The
Michigan Court of Appeals required more than what the Fourth Amendment demands.
The petition for certiorari is granted. The judgment of the Michigan Court of Appeals is reversed,
and the case is remanded for further proceedings not inconsistent with this opinion.
Justice STEVENS, with whom Justice SOTOMAYOR joins, dissenting.
On October 31, 2003, Jeremy Fisher pointed a rifle at Officer Christopher Goolsby when Goolsby
attempted to force his way into Fisher’s home without a warrant. Fisher was charged with assault
with a dangerous weapon and possession of a dangerous weapon during the commission of a
felony. The charges were dismissed after the trial judge granted a motion to suppress evidence
of the assault because it was the product of Goolsby’s unlawful entry. In 2005 the Michigan Court
of Appeals held that the trial court had erred because it had decided the suppression motion
without conducting a full evidentiary hearing. On remand, the trial court conducted such a
hearing and again granted the motion to suppress.
As a matter of Michigan law it is well settled that police officers may enter a home without a
warrant “when they reasonably believe that a person within is in need of immediate aid.” We
have stated the rule in the same way under federal law and have explained that a warrantless
entry is justified by the “‘need to protect or preserve life or avoid serious injury.’” The State bears
the burden of proof on that factual issue and relied entirely on the testimony of Officer Goolsby
in its attempt to carry that burden. Since three years had passed, Goolsby was not sure about
certain facts—such as whether Fisher had a cut on his hand—but he did remember that Fisher
repeatedly swore at the officers and told them to get a warrant, and that Fisher was screaming
and throwing things. Goolsby also testified that he saw “mere drops” of blood outside Fisher’s
home and that he did not ask whether anyone else was inside. Goolsby did not testify that he had
any reason to believe that anyone else was in the house. Thus, the factual question was whether
Goolsby had “an objectively reasonable basis for believing that [Fisher was] seriously injured or
imminently threatened with such injury.”
After hearing the testimony, the trial judge was “even more convinced” that the entry was
unlawful. He noted the issue was “whether or not there was a reasonable basis to [enter the
house] or whether [Goolsby] was just acting on some possibilities” and evidently found the
record supported the latter rather than the former. He found the police decision to leave the
scene and not return for several hours—without resolving any potentially dangerous situation
and without calling for medical assistance—inconsistent with a reasonable belief that Fisher was
in need of immediate aid. In sum, the one judge who heard Officer Goolsby’s testimony was not
persuaded that Goolsby had an objectively reasonable basis for believing that entering Fisher’s
home was necessary to avoid serious injury.

Chapter 12 – Page 271

The Michigan Court of Appeals affirmed, concluding that the State had not met its burden.
Perhaps because one judge dissented, the Michigan Supreme Court initially granted an
application for leave to appeal. After considering briefs and oral argument, however, the majority
of that Court vacated its earlier order because it was “no longer persuaded that the questions
presented should be reviewed by this Court.”
Today, without having heard Officer Goolsby’s testimony, this Court decides that the trial judge
got it wrong. I am not persuaded that he did, but even if we make that assumption, it is hard to
see how the Court is justified in micromanaging the day-to-day business of state tribunals
making fact-intensive decisions of this kind. We ought not usurp the role of the factfinder when
faced with a close question of the reasonableness of an officer’s actions, particularly in a case
tried in a state court. I therefore respectfully dissent.
*

*

*

Exigent Circumstances: Preserving Evidence from Destruction
Our next category of exigent circumstances includes situations in which police have probable
cause to believe (1) that items subject to seizure are in a particular place and (2) that waiting for
a warrant would put the evidence at serious risk of destruction. Common scenarios involve
suspects who may be about to flush drugs down the toilet, burn documents, or tamper with
electronic devices.
Supreme Court of the United States
Kentucky v. Hollis Deshaun King
Decided May 16, 2011 – 563 U.S. 452
Justice ALITO delivered the opinion of the Court.
It is well established that “exigent circumstances,” including the need to prevent the destruction
of evidence, permit police officers to conduct an otherwise permissible search without first
obtaining a warrant. In this case, we consider whether this rule applies when police, by knocking
on the door of a residence and announcing their presence, cause the occupants to attempt to
destroy evidence. The Kentucky Supreme Court held that the exigent circumstances rule does
not apply in the case at hand because the police should have foreseen that their conduct would
prompt the occupants to attempt to destroy evidence. We reject this interpretation of the exigent
circumstances rule. The conduct of the police prior to their entry into the apartment was entirely
lawful. They did not violate the Fourth Amendment or threaten to do so. In such a situation, the
exigent circumstances rule applies.

Chapter 12 – Page 272

I
A
This case concerns the search of an apartment in Lexington, Kentucky. Police officers set up a
controlled buy of crack cocaine outside an apartment complex. Undercover Officer Gibbons
watched the deal take place from an unmarked car in a nearby parking lot. After the deal
occurred, Gibbons radioed uniformed officers to move in on the suspect. He told the officers that
the suspect was moving quickly toward the breezeway of an apartment building, and he urged
them to “hurry up and get there” before the suspect entered an apartment.
In response to the radio alert, the uniformed officers drove into the nearby parking lot, left their
vehicles, and ran to the breezeway. Just as they entered the breezeway, they heard a door shut
and detected a very strong odor of burnt marijuana. At the end of the breezeway, the officers saw
two apartments, one on the left and one on the right, and they did not know which apartment
the suspect had entered. Gibbons had radioed that the suspect was running into the apartment
on the right, but the officers did not hear this statement because they had already left their
vehicles. Because they smelled marijuana smoke emanating from the apartment on the left, they
approached the door of that apartment.
Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the
officers banged on the left apartment door “as loud as [they] could” and announced, “‘This is the
police’” or “‘Police, police, police.’” Cobb said that “[a]s soon as [the officers] started banging on
the door,” they “could hear people inside moving,” and “[i]t sounded as [though] things were
being moved inside the apartment.” These noises, Cobb testified, led the officers to believe that
drug-related evidence was about to be destroyed.
At that point, the officers announced that they “were going to make entry inside the apartment.”
Cobb then kicked in the door, the officers entered the apartment, and they found three people in
the front room: respondent Hollis King, respondent’s girlfriend, and a guest who was smoking
marijuana. The officers performed a protective sweep of the apartment during which they saw
marijuana and powder cocaine in plain view. In a subsequent search, they also discovered crack
cocaine, cash, and drug paraphernalia.
Police eventually entered the apartment on the right. Inside, they found the suspected drug
dealer who was the initial target of their investigation.
B
In the Fayette County Circuit Court, a grand jury charged respondent with trafficking in
marijuana, first-degree trafficking in a controlled substance, and second-degree persistent
felony offender status. Respondent filed a motion to suppress the evidence from the warrantless
search, but the Circuit Court denied the motion. The court sentenced respondent to 11 years’
imprisonment. The Kentucky Court of Appeals affirmed. The Supreme Court of Kentucky
reversed.

Chapter 12 – Page 273

II
A
Although the text of the Fourth Amendment does not specify when a search warrant must be
obtained, this Court has inferred that a warrant must generally be secured. “It is a ‘basic principle
of Fourth Amendment law,’” we have often said, “‘that searches and seizures inside a home
without a warrant are presumptively unreasonable.’” But we have also recognized that this
presumption may be overcome in some circumstances because “[t]he ultimate touchstone of the
Fourth Amendment is ‘reasonableness.’” Accordingly, the warrant requirement is subject to
certain reasonable exceptions.
One well-recognized exception applies when “‘the exigencies of the situation’ make the needs of
law enforcement so compelling that [a] warrantless search is objectively reasonable under the
Fourth Amendment.” This Court has identified several exigencies that may justify a warrantless
search of a home. [W]hat is relevant here—the need “to prevent the imminent destruction of
evidence” has long been recognized as a sufficient justification for a warrantless search.
B
Over the years, lower courts have developed an exception to the exigent circumstances rule, the
so-called “police-created exigency” doctrine. Under this doctrine, police may not rely on the need
to prevent destruction of evidence when that exigency was “created” or “manufactured” by the
conduct of the police.
In applying this exception for the “creation” or “manufacturing” of an exigency by the police,
courts require something more than mere proof that fear of detection by the police caused the
destruction of evidence. An additional showing is obviously needed because, as the Eighth
Circuit has recognized, “in some sense the police always create the exigent circumstances.” That
is to say, in the vast majority of cases in which evidence is destroyed by persons who are engaged
in illegal conduct, the reason for the destruction is fear that the evidence will fall into the hands
of law enforcement. Destruction of evidence issues probably occur most frequently in drug cases
because drugs may be easily destroyed by flushing them down a toilet or rinsing them down a
drain. Persons in possession of valuable drugs are unlikely to destroy them unless they fear
discovery by the police. Consequently, a rule that precludes the police from making a warrantless
entry to prevent the destruction of evidence whenever their conduct causes the exigency would
unreasonably shrink the reach of this well-established exception to the warrant requirement.
Presumably for the purpose of avoiding such a result, the lower courts have held that the policecreated exigency doctrine requires more than simple causation, but the lower courts have not
agreed on the test to be applied.

Chapter 12 – Page 274

III
Despite the welter of tests devised by the lower courts, the answer to the question presented in
this case follows directly and clearly from the principle that permits warrantless searches in the
first place. As previously noted, warrantless searches are allowed when the circumstances make
it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant
requirement. Therefore, the answer to the question before us is that the exigent circumstances
rule justifies a warrantless search when the conduct of the police preceding the exigency is
reasonable in the same sense. Where, as here, the police did not create the exigency by engaging
or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to
prevent the destruction of evidence is reasonable and thus allowed.
Some lower courts have adopted a rule that is similar to the one that we recognize today. But
others, including the Kentucky Supreme Court, have imposed additional requirements that are
unsound and that we now reject.
Bad faith. Some courts, including the Kentucky Supreme Court, ask whether law enforcement
officers “‘deliberately created the exigent circumstances with the bad faith intent to avoid the
warrant requirement.’”
This approach is fundamentally inconsistent with our Fourth Amendment jurisprudence. “Our
cases have repeatedly rejected” a subjective approach, asking only whether “the circumstances,
viewed objectively, justify the action.” “Indeed, we have never held, outside limited contexts such
as an “inventory search or administrative inspection ..., that an officer’s motive invalidates
objectively justifiable behavior under the Fourth Amendment.”
The reasons for looking to objective factors, rather than subjective intent, are clear. Legal tests
based on reasonableness are generally objective, and this Court has long taken the view that
“evenhanded law enforcement is best achieved by the application of objective standards of
conduct, rather than standards that depend upon the subjective state of mind of the officer.”
Reasonable foreseeability. Some courts, again including the Kentucky Supreme Court, hold that
police may not rely on an exigency if “‘it was reasonably foreseeable that the investigative tactics
employed by the police would create the exigent circumstances.’” Courts applying this test have
invalidated warrantless home searches on the ground that it was reasonably foreseeable that
police officers, by knocking on the door and announcing their presence, would lead a drug
suspect to destroy evidence.
Contrary to this reasoning, however, we have rejected the notion that police may seize evidence
without a warrant only when they come across the evidence by happenstance. Adoption of a
reasonable foreseeability test would also introduce an unacceptable degree of unpredictability.
For example, whenever law enforcement officers knock on the door of premises occupied by a
person who may be involved in the drug trade, there is some possibility that the occupants may
possess drugs and may seek to destroy them. Under a reasonable foreseeability test, it would be
necessary to quantify the degree of predictability that must be reached before the police-created
exigency doctrine comes into play.
Chapter 12 – Page 275

A simple example illustrates the difficulties that such an approach would produce. Suppose that
the officers in the present case did not smell marijuana smoke and thus knew only that there was
a 50% chance that the fleeing suspect had entered the apartment on the left rather than the
apartment on the right. Under those circumstances, would it have been reasonably foreseeable
that the occupants of the apartment on the left would seek to destroy evidence upon learning
that the police were at the door? Or suppose that the officers knew only that the suspect had
disappeared into one of the apartments on a floor with 3, 5, 10, or even 20 units? If the police
chose a door at random and knocked for the purpose of asking the occupants if they knew a
person who fit the description of the suspect, would it have been reasonably foreseeable that the
occupants would seek to destroy evidence?
We have noted that “[t]he calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving.” The reasonable foreseeability test would create unacceptable
and unwarranted difficulties for law enforcement officers who must make quick decisions in the
field, as well as for judges who would be required to determine after the fact whether the
destruction of evidence in response to a knock on the door was reasonably foreseeable based on
what the officers knew at the time.
Probable cause and time to secure a warrant. Some courts, in applying the police-created
exigency doctrine, fault law enforcement officers if, after acquiring evidence that is sufficient
to establish probable cause to search particular premises, the officers do not seek a warrant
but instead knock on the door and seek either to speak with an occupant or to obtain consent
to search.
This approach unjustifiably interferes with legitimate law enforcement strategies. There are
many entirely proper reasons why police may not want to seek a search warrant as soon as the
bare minimum of evidence needed to establish probable cause is acquired.
Standard or good investigative tactics. Finally, some lower court cases suggest that law
enforcement officers may be found to have created or manufactured an exigency if the court
concludes that the course of their investigation was “contrary to standard or good law
enforcement practices [or to the policies or practices of their jurisdictions].” This approach fails
to provide clear guidance for law enforcement officers and authorizes courts to make judgments
on matters that are the province of those who are responsible for federal and state law
enforcement agencies.
Respondent argues for a rule that differs from those discussed above, but his rule is also flawed.
Respondent contends that law enforcement officers impermissibly create an exigency when they
“engage in conduct that would cause a reasonable person to believe that entry is imminent and
inevitable.” In respondent’s view, relevant factors include the officers’ tone of voice in
announcing their presence and the forcefulness of their knocks. But the ability of law
enforcement officers to respond to an exigency cannot turn on such subtleties.
If respondent’s test were adopted, it would be extremely difficult for police officers to know how
loudly they may announce their presence or how forcefully they may knock on a door without
running afoul of the police-created exigency rule. And in most cases, it would be nearly
Chapter 12 – Page 276

impossible for a court to determine whether that threshold had been passed. The Fourth
Amendment does not require the nebulous and impractical test that respondent proposes.
For these reasons, we conclude that the exigent circumstances rule applies when the police do
not gain entry to premises by means of an actual or threatened violation of the Fourth
Amendment. This holding provides ample protection for the privacy rights that the Amendment
protects.
When law enforcement officers who are not armed with a warrant knock on a door, they do no
more than any private citizen might do. And whether the person who knocks on the door and
requests the opportunity to speak is a police officer or a private citizen, the occupant has no
obligation to open the door or to speak. When the police knock on a door but the occupants
choose not to respond or to speak, “the investigation will have reached a conspicuously low
point,” and the occupants “will have the kind of warning that even the most elaborate security
system cannot provide.” And even if an occupant chooses to open the door and speak with the
officers, the occupant need not allow the officers to enter the premises and may refuse to answer
any questions at any time.
Occupants who choose not to stand on their constitutional rights but instead elect to attempt to
destroy evidence have only themselves to blame for the warrantless exigent-circumstances
search that may ensue.
IV
We now apply our interpretation of the police-created exigency doctrine to the facts of this case.
A
We need not decide whether exigent circumstances existed in this case. Any warrantless entry
based on exigent circumstances must, of course, be supported by a genuine exigency. The trial
court and the Kentucky Court of Appeals found that there was a real exigency in this case, but
the Kentucky Supreme Court expressed doubt on this issue, observing that there was “certainly
some question as to whether the sound of persons moving [inside the apartment] was sufficient
to establish that evidence was being destroyed.” The Kentucky Supreme Court “assum[ed] for
the purpose of argument that exigent circumstances existed,” and it held that the police had
impermissibly manufactured the exigency.
We, too, assume for purposes of argument that an exigency existed. We decide only the question
on which the Kentucky Supreme Court ruled and on which we granted certiorari: Under what
circumstances do police impermissibly create an exigency? Any question about whether an
exigency actually existed is better addressed by the Kentucky Supreme Court on remand

Chapter 12 – Page 277

B
In this case, we see no evidence that the officers either violated the Fourth Amendment or
threatened to do so prior to the point when they entered the apartment. Officer Cobb testified
without contradiction that the officers “banged on the door as loud as [they] could” and
announced either “‘Police, police, police’” or “‘This is the police.’” This conduct was entirely
consistent with the Fourth Amendment, and we are aware of no other evidence that might show
that the officers either violated the Fourth Amendment or threatened to do so (for example, by
announcing that they would break down the door if the occupants did not open the door
voluntarily).
Like the court below, we assume for purposes of argument that an exigency existed. Because the
officers in this case did not violate or threaten to violate the Fourth Amendment prior to the
exigency, we hold that the exigency justified the warrantless search of the apartment.
The judgment of the Kentucky Supreme Court is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
Justice GINSBURG, dissenting.
The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s
warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate,
police officers may now knock, listen, then break the door down, nevermind that they had ample
time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment’s force.
This case involves a principal exception to the warrant requirement, the exception applicable in
“exigent circumstances.” “[C]arefully delineated,” the exception should govern only in genuine
emergency situations. Circumstances qualify as “exigent” when there is an imminent risk of
death or serious injury, or danger that evidence will be immediately destroyed, or that a suspect
will escape. The question presented: May police, who could pause to gain the approval of a
neutral magistrate, dispense with the need to get a warrant by themselves creating exigent
circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist,
I would rule, when the police come on the scene, not subsequent to their arrival, prompted by
their own conduct.
That heavy burden has not been carried here. There was little risk that drug-related evidence
would have been destroyed had the police delayed the search pending a magistrate’s
authorization. As the Court recognizes, “[p]ersons in possession of valuable drugs are unlikely
to destroy them unless they fear discovery by the police.” Nothing in the record shows that, prior
to the knock at the apartment door, the occupants were apprehensive about police proximity.

Chapter 12 – Page 278

In no quarter does the Fourth Amendment apply with greater force than in our homes, our most
private space which, for centuries, has been regarded as “‘entitled to special protection.’” Home
intrusions, the Court has said, are indeed “the chief evil against which ... the Fourth Amendment
is directed.” “‘[S]earches and seizures inside a home without a warrant are [therefore]
presumptively unreasonable.’” How “secure” do our homes remain if police, armed with no
warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly
enter and search for evidence of unlawful activity?
As above noted, to justify the police activity in this case, Kentucky invoked the once-guarded
exception for emergencies “in which the delay necessary to obtain a warrant ... threaten[s] ‘the
destruction of evidence.’” To fit within this exception, “police action literally must be [taken]
‘now or never’ to preserve the evidence of the crime.”
The existence of a genuine emergency depends not only on the state of necessity at the time of
the warrantless search; it depends, first and foremost, on “actions taken by the police preceding
the warrantless search.” “[W]asting a clear opportunity to obtain a warrant,” therefore,
“disentitles the officer from relying on subsequent exigent circumstances.”
Under an appropriately reined-in “emergency” or “exigent circumstances” exception, the result
in this case should not be in doubt. The target of the investigation’s entry into the building, and
the smell of marijuana seeping under the apartment door into the hallway, the Kentucky
Supreme Court rightly determined, gave the police “probable cause ... sufficient ... to obtain a
warrant to search the ... apartment.” As that court observed, nothing made it impracticable for
the police to post officers on the premises while proceeding to obtain a warrant authorizing their
entry.
I [] would not allow an expedient knock to override the warrant requirement. Instead, I would
accord that core requirement of the Fourth Amendment full respect. When possible, “a warrant
must generally be secured,” the Court acknowledges. There is every reason to conclude that
securing a warrant was entirely feasible in this case, and no reason to contract the Fourth
Amendment’s dominion.
*

*

*

In our next chapter, we will review limits to the exigent circumstances exception, including one
case, Welsh v. Wisconsin, 466 U.S. 740 (1984), in which the prosecution unsuccessfully raised
three different exigent circumstances theories—hot pursuit, safety, and preservation of evidence.
We will also examine, more generally, the issue presented by cases in which police desire
evidence of the amount of alcohol in a suspect’s blood.

Chapter 12 – Page 279

THE FOURTH AMENDMENT
Chapter 13
The Warrant Requirement: Exceptions (Part 5)
Exigent Circumstance: Drunk Driving
Questions concerning the scope of the “exigent circumstances” exception to the warrant
requirement have arisen repeatedly in the context of drunk driving cases. These cases commonly
involve a special kind of evidence—alcohol in the blood of a driver—at risk of being destroyed by
the body’s metabolism.
Supreme Court of the United States
Missouri v. Tyler G. McNeely
Decided April 17, 2013 – 569 U.S. 141
Justice SOTOMAYOR announced the judgment of the Court and delivered the opinion of the
Court with respect to Parts I, II–A, II–B, and IV, and an opinion with respect to Part[] III, in
which Justice SCALIA, Justice GINSBURG, and Justice KAGAN join.
In Schmerber v. California, 384 U.S. 757 (1966), this Court upheld a warrantless blood test of
an individual arrested for driving under the influence of alcohol because the officer “might
reasonably have believed that he was confronted with an emergency, in which the delay
necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.”
The question presented here is whether the natural metabolization of alcohol in the bloodstream
presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant
requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does
not, and we hold, consistent with general Fourth Amendment principles, that exigency in this
context must be determined case by case based on the totality of the circumstances.
I
While on highway patrol at approximately 2:08 a.m., a Missouri police officer stopped Tyler
McNeely’s truck after observing it exceed the posted speed limit and repeatedly cross the
centerline. The officer noticed several signs that McNeely was intoxicated, including McNeely’s
bloodshot eyes, his slurred speech, and the smell of alcohol on his breath. McNeely
acknowledged to the officer that he had consumed “a couple of beers” at a bar and he appeared
unsteady on his feet when he exited the truck. After McNeely performed poorly on a battery of
field-sobriety tests and declined to use a portable breath-test device to measure his blood alcohol
concentration (BAC), the officer placed him under arrest.
The officer began to transport McNeely to the station house. But when McNeely indicated that
he would again refuse to provide a breath sample, the officer changed course and took McNeely
to a nearby hospital for blood testing. The officer did not attempt to secure a warrant. Upon
arrival at the hospital, the officer asked McNeely whether he would consent to a blood test.
Reading from a standard implied consent form, the officer explained to McNeely that under state
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law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s
license for one year and could be used against him in a future prosecution. McNeely nonetheless
refused. The officer then directed a hospital lab technician to take a blood sample, and the sample
was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely’s BAC
at 0.154 percent, which was well above the legal limit of 0.08 percent.
McNeely was charged with driving while intoxicated (DWI). He moved to suppress the results of
the blood test, arguing in relevant part that, under the circumstances, taking his blood for
chemical testing without first obtaining a search warrant violated his rights under the Fourth
Amendment. The trial court agreed. It concluded that the exigency exception to the warrant
requirement did not apply because, apart from the fact that “[a]s in all cases involving
intoxication, [McNeely’s] blood alcohol was being metabolized by his liver,” there were no
circumstances suggesting the officer faced an emergency in which he could not practicably
obtain a warrant. On appeal, the Missouri Court of Appeals stated an intention to reverse but
transferred the case directly to the Missouri Supreme Court.
The Missouri Supreme Court affirmed. We granted certiorari to resolve a split of authority on
the question whether the natural dissipation of alcohol in the bloodstream establishes a per se
exigency that suffices on its own to justify an exception to the warrant requirement for
nonconsensual blood testing in drunk-driving investigations. We now affirm.
II
A
[T]he warrant requirement is subject to exceptions. “One well-recognized exception,” and the
one at issue in this case, “applies when the exigencies of the situation make the needs of law
enforcement so compelling that a warrantless search is objectively reasonable under the Fourth
Amendment.” A variety of circumstances may give rise to an exigency sufficient to justify a
warrantless search, including law enforcement’s need to provide emergency assistance to an
occupant of a home, engage in “hot pursuit” of a fleeing suspect, or enter a burning building to
put out a fire and investigate its cause. As is relevant here, we have also recognized that in some
circumstances law enforcement officers may conduct a search without a warrant to prevent the
imminent destruction of evidence. While these contexts do not necessarily involve equivalent
dangers, in each a warrantless search is potentially reasonable because “there is compelling need
for official action and no time to secure a warrant.”
To determine whether a law enforcement officer faced an emergency that justified acting without
a warrant, this Court looks to the totality of circumstances. We apply this “finely tuned approach”
to Fourth Amendment reasonableness in this context because the police action at issue lacks “the
traditional justification that ... a warrant ... provides.” Absent that established justification, “the
fact-specific nature of the reasonableness inquiry” demands that we evaluate each case of alleged
exigency based “on its own facts and circumstances.”
Our decision in Schmerber applied this totality of the circumstances approach. In that case, the
petitioner had suffered injuries in an automobile accident and was taken to the hospital. While
he was there receiving treatment, a police officer arrested the petitioner for driving while under
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the influence of alcohol and ordered a blood test over his objection. After explaining that the
warrant requirement applied generally to searches that intrude into the human body, we
concluded that the warrantless blood test “in the present case” was nonetheless permissible
because the officer “might reasonably have believed that he was confronted with an emergency,
in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the
destruction of evidence.’”
In support of that conclusion, we observed that evidence could have been lost because “the
percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body
functions to eliminate it from the system.” We added that “[p]articularly in a case such as this,
where time had to be taken to bring the accused to a hospital and to investigate the scene of the
accident, there was no time to seek out a magistrate and secure a warrant.” “Given these special
facts,” we found that it was appropriate for the police to act without a warrant. We further held
that the blood test at issue was a reasonable way to recover the evidence because it was highly
effective, “involve[d] virtually no risk, trauma, or pain,” and was conducted in a reasonable
fashion “by a physician in a hospital environment according to accepted medical practices.” And
in conclusion, we noted that our judgment that there had been no Fourth Amendment violation
was strictly based “on the facts of the present record.”
Thus, our analysis in Schmerber fits comfortably within our case law applying the exigent
circumstances exception. In finding the warrantless blood test reasonable in Schmerber, we
considered all of the facts and circumstances of the particular case and carefully based our
holding on those specific facts.
B
The State properly recognizes that the reasonableness of a warrantless search under the exigency
exception to the warrant requirement must be evaluated based on the totality of the
circumstances. But the State nevertheless seeks a per se rule for blood testing in drunk-driving
cases. The State contends that whenever an officer has probable cause to believe an individual
has been driving under the influence of alcohol, exigent circumstances will necessarily exist
because BAC evidence is inherently evanescent. As a result, the State claims that so long as the
officer has probable cause and the blood test is conducted in a reasonable manner, it is
categorically reasonable for law enforcement to obtain the blood sample without a warrant.
It is true that as a result of the human body’s natural metabolic processes, the alcohol level in a
person’s blood begins to dissipate once the alcohol is fully absorbed and continues to decline
until the alcohol is eliminated. This fact was essential to our holding in Schmerber, as we
recognized that, under the circumstances, further delay in order to secure a warrant after the
time spent investigating the scene of the accident and transporting the injured suspect to the
hospital to receive treatment would have threatened the destruction of evidence.
But it does not follow that we should depart from careful case-by-case assessment of exigency
and adopt the categorical rule proposed by the State and its amici. In those drunk-driving
investigations where police officers can reasonably obtain a warrant before a blood sample can
be drawn without significantly undermining the efficacy of the search, the Fourth Amendment
mandates that they do so. We do not doubt that some circumstances will make obtaining a
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warrant impractical such that the dissipation of alcohol from the bloodstream will support an
exigency justifying a properly conducted warrantless blood test. That, however, is a reason to
decide each case on its facts, as we did in Schmerber, not to accept the “considerable
overgeneralization” that a per se rule would reflect.
The context of blood testing is different in critical respects from other destruction-of-evidence
cases in which the police are truly confronted with a “‘now or never’” situation. In contrast to,
for example, circumstances in which the suspect has control over easily disposable evidence,
BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and
relatively predictable manner. Moreover, because a police officer must typically transport a
drunk-driving suspect to a medical facility and obtain the assistance of someone with
appropriate medical training before conducting a blood test, some delay between the time of the
arrest or accident and the time of the test is inevitable regardless of whether police officers are
required to obtain a warrant. This reality undermines the force of the State’s contention that we
should recognize a categorical exception to the warrant requirement because BAC evidence “is
actively being destroyed with every minute that passes.” Consider, for example, a situation in
which the warrant process will not significantly increase the delay before the blood test is
conducted because an officer can take steps to secure a warrant while the suspect is being
transported to a medical facility by another officer. In such a circumstance, there would be no
plausible justification for an exception to the warrant requirement.
The State’s proposed per se rule also fails to account for advances in the 47 years since
Schmerber was decided that allow for the more expeditious processing of warrant applications,
particularly in contexts like drunk-driving investigations where the evidence offered to establish
probable cause is simple. We by no means claim that telecommunications innovations have, will,
or should eliminate all delay from the warrant-application process. But technological
developments that enable police officers to secure warrants more quickly, and do so without
undermining the neutral magistrate judge’s essential role as a check on police discretion, are
relevant to an assessment of exigency. That is particularly so in this context, where BAC evidence
is lost gradually and relatively predictably.
Of course, there are important countervailing concerns. While experts can work backwards from
the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense,
longer intervals may raise questions about the accuracy of the calculation. For that reason,
exigent circumstances justifying a warrantless blood sample may arise in the regular course of
law enforcement due to delays from the warrant application process. But adopting the State’s
per se approach would improperly ignore the current and future technological developments in
warrant procedures, and might well diminish the incentive for jurisdictions “to pursue
progressive approaches to warrant acquisition that preserve the protections afforded by the
warrant while meeting the legitimate interests of law enforcement.”
In short, while the natural dissipation of alcohol in the blood may support a finding of exigency
in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless
blood test of a drunk-driving suspect is reasonable must be determined case by case based on
the totality of the circumstances.

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III
The remaining arguments advanced in support of a per se exigency rule are unpersuasive. The
State and several of its amici, including the United States, express concern that a case-by-case
approach to exigency will not provide adequate guidance to law enforcement officers deciding
whether to conduct a blood test of a drunk-driving suspect without a warrant. While the desire
for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an
overly broad categorical approach that would dilute the warrant requirement in a context where
significant privacy interests are at stake. Moreover, a case-by-case approach is hardly unique
within our Fourth Amendment jurisprudence. Numerous police actions are judged based on
fact-intensive, totality of the circumstances analyses rather than according to categorical rules,
including in situations that are more likely to require police officers to make difficult split-second
judgments.
Next, the State and the United States contend that the privacy interest implicated by blood draws
of drunk-driving suspects is relatively minimal. That is so, they claim, both because motorists
have a diminished expectation of privacy and because our cases have repeatedly indicated that
blood testing is commonplace in society and typically involves “virtually no risk, trauma, or
pain.”
But the fact that people are “accorded less privacy in ... automobiles because of th[e] compelling
governmental need for regulation,” does not diminish a motorist’s privacy interest in preventing
an agent of the government from piercing his skin. As to the nature of a blood test conducted in
a medical setting by trained personnel, it is concededly less intrusive than other bodily invasions
we have found unreasonable. For that reason, we have held that medically drawn blood tests are
reasonable in appropriate circumstances. We have never retreated, however, from our
recognition that any compelled intrusion into the human body implicates significant,
constitutionally protected privacy interests.
Finally, the State and its amici point to the compelling governmental interest in combating
drunk driving and contend that prompt BAC testing, including through blood testing, is vital to
pursuit of that interest. They argue that is particularly so because, in addition to laws that make
it illegal to operate a motor vehicle under the influence of alcohol, all 50 States and the District
of Columbia have enacted laws that make it per se unlawful to operate a motor vehicle with a
BAC of over 0.08 percent. “No one can seriously dispute the magnitude of the drunken driving
problem or the States’ interest in eradicating it.” Certainly we do not. While some progress has
been made, drunk driving continues to exact a terrible toll on our society.
But the general importance of the government’s interest in this area does not justify departing
from the warrant requirement without showing exigent circumstances that make securing a
warrant impractical in a particular case. To the extent that the State and its amici contend that
applying the traditional Fourth Amendment totality-of-the-circumstances analysis to determine
whether an exigency justified a warrantless search will undermine the governmental interest in
preventing and prosecuting drunk-driving offenses, we are not convinced.

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States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC
evidence without undertaking warrantless nonconsensual blood draws. For example, all 50
States have adopted implied consent laws that require motorists, as a condition of operating a
motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise
detained on suspicion of a drunk-driving offense. Such laws impose significant consequences
when a motorist withdraws consent; typically the motorist’s driver’s license is immediately
suspended or revoked, and most States allow the motorist’s refusal to take a BAC test to be used
as evidence against him in a subsequent criminal prosecution.
IV
The State argued before this Court that the fact that alcohol is naturally metabolized by the
human body creates an exigent circumstance in every case. The State did not argue that there
were exigent circumstances in this particular case because a warrant could not have been
obtained within a reasonable amount of time. In his testimony before the trial court, the
arresting officer did not identify any other factors that would suggest he faced an emergency or
unusual delay in securing a warrant. He testified that he made no effort to obtain a search
warrant before conducting the blood draw even though he was “sure” a prosecuting attorney was
on call and even though he had no reason to believe that a magistrate judge would have been
unavailable. The officer also acknowledged that he had obtained search warrants before taking
blood samples in the past without difficulty. He explained that he elected to forgo a warrant
application in this case only because he believed it was not legally necessary to obtain a warrant.
Based on this testimony, the trial court concluded that there was no exigency and specifically
found that, although the arrest took place in the middle of the night, “a prosecutor was readily
available to apply for a search warrant and a judge was readily available to issue a warrant.”
The Missouri Supreme Court in turn affirmed that judgment, holding first that the dissipation
of alcohol did not establish a per se exigency, and second that the State could not otherwise
satisfy its burden of establishing exigent circumstances. In petitioning for certiorari to this Court,
the State challenged only the first holding; it did not separately contend that the warrantless
blood test was reasonable regardless of whether the natural dissipation of alcohol in a suspect’s
blood categorically justifies dispensing with the warrant requirement.
Here and in its own courts the State based its case on an insistence that a driver who declines to
submit to testing after being arrested for driving under the influence of alcohol is always subject
to a nonconsensual blood test without any precondition for a warrant. That is incorrect.
Although the Missouri Supreme Court referred to this case as “unquestionably a routine DWI
case,” the fact that a particular drunk-driving stop is “routine” in the sense that it does not
involve “‘special facts,’” such as the need for the police to attend to a car accident, does not mean
a warrant is required. Other factors present in an ordinary traffic stop, such as the procedures in
place for obtaining a warrant or the availability of a magistrate judge, may affect whether the
police can obtain a warrant in an expeditious way and therefore may establish an exigency that
permits a warrantless search. The relevant factors in determining whether a warrantless search
is reasonable, including the practical problems of obtaining a warrant within a timeframe that
still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon
the circumstances in the case.
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Because this case was argued on the broad proposition that drunk-driving cases present a per se
exigency, the arguments and the record do not provide the Court with an adequate analytic
framework for a detailed discussion of all the relevant factors that can be taken into account in
determining the reasonableness of acting without a warrant. It suffices to say that the
metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the
factors that must be considered in deciding whether a warrant is required. No doubt, given the
large number of arrests for this offense in different jurisdictions nationwide, cases will arise
when anticipated delays in obtaining a warrant will justify a blood test without judicial
authorization, for in every case the law must be concerned that evidence is being destroyed. But
that inquiry ought not to be pursued here where the question is not properly before this Court.
Having rejected the sole argument presented to us challenging the Missouri Supreme Court’s
decision, we affirm its judgment.
We hold that in drunk-driving investigations, the natural dissipation of alcohol in the
bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood
test without a warrant.
The judgment of the Missouri Supreme Court is affirmed.
Chief Justice ROBERTS, with whom Justice BREYER and Justice ALITO join, concurring in part
and dissenting in part
[Chief Justice Roberts would have provided more robust guidance to law enforcement about
precisely when warrantless nonconsensual blood draws are allowed. He wrote:
“A police officer reading this Court's opinion would have no idea—no idea—what the Fourth
Amendment requires of him, once he decides to obtain a blood sample from a drunk driving
suspect who has refused a breathalyzer test. I have no quarrel with the Court’s ‘totality of the
circumstances’ approach as a general matter; that is what our cases require. But the
circumstances in drunk driving cases are often typical, and the Court should be able to offer
guidance on how police should handle cases like the one before us.”
“In my view, the proper rule is straightforward. Our cases establish that there is an exigent
circumstances exception to the warrant requirement. That exception applies when there is a
compelling need to prevent the imminent destruction of important evidence, and there is no time
to obtain a warrant. The natural dissipation of alcohol in the bloodstream constitutes not only
the imminent but ongoing destruction of critical evidence. That would qualify as an exigent
circumstance, except that there may be time to secure a warrant before blood can be drawn. If
there is, an officer must seek a warrant. If an officer could reasonably conclude that there is not,
the exigent circumstances exception applies by its terms, and the blood may be drawn without a
warrant.”1]

1 [Footnote by editors] Part II-C of Justice Sotomayor’s opinion, which responds to the arguments raised by Chief

Justice Roberts and is not reprinted here, had the support of only four justices. Justice Kennedy, who concurred in
the result, wrote separately to argue that “this case does not call for the Court to consider in detail the issue discussed
in Part II-C and the separate opinion by” Roberts.
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Justice THOMAS, dissenting.
[Justice Thomas argued, “Because the body’s natural metabolization of alcohol inevitably
destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold
that a warrantless blood draw does not violate the Fourth Amendment.” He noted that all parties
agreed about the “rapid destruction of evidence” that “occurs in every situation where police
have probable cause to arrest a drunk driver.” He offered an evocative hypothetical:
“Officers are watching a warehouse and observe a worker carrying bundles from the warehouse
to a large bonfire and throwing them into the blaze. The officers have probable cause to believe
the bundles contain marijuana. Because there is only one person carrying the bundles, the
officers believe it will take hours to completely destroy the drugs. During that time the officers
likely could obtain a warrant. But it is clear that the officers need not sit idly by and watch the
destruction of evidence while they wait for a warrant.”]
*

*

*

The McNeely Court noted that to help enforce laws against drunk driving, states have enacted
laws requiring drivers to submit to blood-alcohol tests in certain situations. Failure to submit to
the test can lead to revocation of a driver’s license even if the driver is never proven in court to
have driven under the influence. In Birchfield v. North Dakota, the Court considered a
particularly punitive state law that—had it survived constitutional scrutiny—could have
undermined the Court’s holding in McNeely.
Supreme Court of the United States
Danny Birchfield v. North Dakota
Decided June 23, 2016 – 136 S. Ct. 2160
Justice ALITO delivered the opinion of the Court.
Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many
more victims, and inflicting billions of dollars in property damage every year. To fight this
problem, all States have laws that prohibit motorists from driving with a blood alcohol
concentration (BAC) that exceeds a specified level. But determining whether a driver’s BAC is
over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would
not submit to testing if given the option. So every State also has long had what are termed
“implied consent laws.” These laws impose penalties on motorists who refuse to undergo testing
when there is sufficient reason to believe they are violating the State’s drunk-driving laws.
In the past, the typical penalty for noncompliance was suspension or revocation of the motorist’s
license. The cases now before us involve laws that go beyond that and make it a crime for a
motorist to refuse to be tested after being lawfully arrested for driving while impaired. The
question presented is whether such laws violate the Fourth Amendment’s prohibition against
unreasonable searches.

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I
Because the cooperation of the test subject is necessary when a breath test is administered and
highly preferable when a blood sample is taken, the enactment of laws defining intoxication
based on BAC made it necessary for States to find a way of securing such cooperation. So-called
“implied consent” laws were enacted to achieve this result. They provided that cooperation with
BAC testing was a condition of the privilege of driving on state roads and that the privilege would
be rescinded if a suspected drunk driver refused to honor that condition. The first such law was
enacted by New York in 1953, and many other States followed suit not long thereafter. In 1962,
the Uniform Vehicle Code also included such a provision. Today, “all 50 States have adopted
implied consent laws that require motorists, as a condition of operating a motor vehicle within
the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a
drunk-driving offense.” Suspension or revocation of the motorist’s driver’s license remains the
standard legal consequence of refusal. In addition, evidence of the motorist’s refusal is admitted
as evidence of likely intoxication in a drunk-driving prosecution.
In recent decades, the States and the Federal Government have toughened drunk-driving laws,
and those efforts have corresponded to a dramatic decrease in alcohol-related fatalities. As of
the early 1980’s, the number of annual fatalities averaged 25,000; by 2014, the most recent year
for which statistics are available, the number had fallen to below 10,000. One legal change has
been further lowering the BAC standard from 0.10% to 0.08%. In addition, many States now
impose increased penalties for recidivists and for drivers with a BAC level that exceeds a higher
threshold. In North Dakota, for example, the standard penalty for first-time drunk-driving
offenders is license suspension and a fine. But an offender with a BAC of 0.16% or higher must
spend at least two days in jail. In addition, the State imposes increased mandatory minimum
sentences for drunk-driving recidivists.
Many other States have taken a similar approach, but this new structure threatened to
undermine the effectiveness of implied consent laws. If the penalty for driving with a greatly
elevated BAC or for repeat violations exceeds the penalty for refusing to submit to testing,
motorists who fear conviction for the more severely punished offenses have an incentive to reject
testing. And in some States, the refusal rate is high. On average, over one-fifth of all drivers asked
to submit to BAC testing in 2011 refused to do so. In North Dakota, the refusal rate for 2011 was
a representative 21%.
To combat the problem of test refusal, some States have begun to enact laws making it a crime
to refuse to undergo testing. North Dakota adopted a similar law, in 2013, after a pair of drunkdriving accidents claimed the lives of an entire young family and another family’s 5- and 9-yearold boys. The Federal Government also encourages this approach as a means for overcoming the
incentive that drunk drivers have to refuse a test.

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II
Petitioner Danny Birchfield accidentally drove his car off a North Dakota highway on October
10, 2013. A state trooper arrived and watched as Birchfield unsuccessfully tried to drive back out
of the ditch in which his car was stuck. The trooper approached, caught a strong whiff of alcohol,
and saw that Birchfield’s eyes were bloodshot and watery. Birchfield spoke in slurred speech and
struggled to stay steady on his feet. At the trooper’s request, Birchfield agreed to take several
field sobriety tests and performed poorly on each. He had trouble reciting sections of the
alphabet and counting backwards in compliance with the trooper’s directions.
Believing that Birchfield was intoxicated, the trooper informed him of his obligation under state
law to agree to a BAC test. Birchfield consented to a roadside breath test. The device used for this
sort of test often differs from the machines used for breath tests administered in a police station
and is intended to provide a preliminary assessment of the driver’s BAC. Because the reliability
of these preliminary or screening breath tests varies, many jurisdictions do not permit their
numerical results to be admitted in a drunk-driving trial as evidence of a driver’s BAC. In North
Dakota, results from this type of test are “used only for determining whether or not a further test
shall be given.” In Birchfield’s case, the screening test estimated that his BAC was 0.254%, more
than three times the legal limit of 0.08%.
The state trooper arrested Birchfield for driving while impaired, gave the usual Miranda
warnings, again advised him of his obligation under North Dakota law to undergo BAC testing,
and informed him, as state law requires that refusing to take the test would expose him to
criminal penalties. In addition to mandatory addiction treatment, sentences range from a
mandatory fine of $500 (for first-time offenders) to fines of at least $2,000 and imprisonment
of at least one year and one day (for serial offenders). These criminal penalties apply to blood,
breath, and urine test refusals alike.
Although faced with the prospect of prosecution under this law, Birchfield refused to let his blood
be drawn. Just three months before, Birchfield had received a citation for driving under the
influence, and he ultimately pleaded guilty to that offense. This time he also pleaded guilty—to a
misdemeanor violation of the refusal statute—but his plea was a conditional one: while Birchfield
admitted refusing the blood test, he argued that the Fourth Amendment prohibited criminalizing
his refusal to submit to the test. The State District Court rejected this argument and imposed a
sentence that accounted for his prior conviction. The sentence included 30 days in jail (20 of
which were suspended and 10 of which had already been served), 1 year of unsupervised
probation, $1,750 in fine and fees, and mandatory participation in a sobriety program and in a
substance abuse evaluation.
On appeal, the North Dakota Supreme Court affirmed. The court found support for the test
refusal statute in this Court’s McNeely plurality opinion, which had spoken favorably about
“acceptable ‘legal tools’ with ‘significant consequences’ for refusing to submit to testing.”
We granted certiorari in order to decide whether motorists lawfully arrested for drunk driving
may be convicted of a crime or otherwise penalized for refusing to take a warrantless test
measuring the alcohol in their bloodstream.
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III
[S]uccess for [] petitioner[] depends on the proposition that the criminal law ordinarily may not
compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant
authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless
searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal
to comply with a demand to submit to the required testing, just as a State may make it a crime
for a person to obstruct the execution of a valid search warrant. And by the same token, if such
warrantless searches are constitutional, there is no obstacle under federal law to the admission
of the results that they yield in either a criminal prosecution or a civil or administrative
proceeding. We therefore begin by considering whether the searches demanded in these cases
were consistent with the Fourth Amendment.
IV
The [Fourth] Amendment [] prohibits “unreasonable searches,” and our cases establish that the
taking of a blood sample or the administration of a breath test is a search. The question, then, is
whether the warrantless searches at issue here were reasonable. “[T]he text of the Fourth
Amendment does not specify when a search warrant must be obtained.” But “this Court has
inferred that a warrant must [usually] be secured.” This usual requirement, however, is subject
to a number of exceptions.
We have previously had occasion to examine whether one such exception—for “exigent
circumstances”—applies in drunk-driving investigations. In Schmerber v. California, we held
that drunk driving may present such an exigency. More recently, though, we have held that the
natural dissipation of alcohol from the bloodstream does not always constitute an exigency
justifying the warrantless taking of a blood sample. While emphasizing that the exigentcircumstances exception must be applied on a case-by-case basis, the [Missouri v.] McNeely
Court noted that other exceptions to the warrant requirement “apply categorically” rather than
in a “case-specific” fashion. One of these, as the McNeely opinion recognized, is the longestablished rule that a warrantless search may be conducted incident to a lawful arrest. But the
Court pointedly did not address any potential justification for warrantless testing of drunkdriving suspects except for the exception “at issue in th[e] case,” namely, the exception for
exigent circumstances.
In the [] case[] now before us, the driver[] w[as] [] told that [he was] required to submit to a
search after being placed under arrest for drunk driving. We therefore consider how the searchincident-to-arrest doctrine applies to breath and blood tests incident to such arrests.
V
Blood and breath tests to measure blood alcohol concentration are not as new as searches of cell
phones, but here, as in Riley [v. California], the founding era does not provide any definitive
guidance as to whether they should be allowed incident to arrest. Lacking such guidance, we
engage in the same mode of analysis as in Riley: we examine “the degree to which [they]
intrud[e] upon an individual’s privacy and ... the degree to which [they are] needed for the
promotion of legitimate governmental interests.’” We begin by considering the impact of breath
and blood tests on individual privacy interests, and we will discuss each type of test in turn.
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Years ago we said that breath tests do not “implicat[e] significant privacy concerns.” That
remains so today. First, the physical intrusion is almost negligible. Breath tests “do not require
piercing the skin” and entail “a minimum of inconvenience.” The effort is no more demanding
than blowing up a party balloon.
In prior cases, we have upheld warrantless searches involving physical intrusions that were at
least as significant as that entailed in the administration of a breath test. Just recently we
described the process of collecting a DNA sample by rubbing a swab on the inside of a person’s
cheek as a “negligible” intrusion. We have also upheld scraping underneath a suspect’s
fingernails to find evidence of a crime, calling that a “very limited intrusion.” A breath test is no
more intrusive than either of these procedures.
Second, breath tests are capable of revealing only one bit of information, the amount of alcohol
in the subject’s breath. In this respect, they contrast sharply with the sample of cells collected by
the swab in Maryland v. King [, 569 U.S. 435 (2013)]. Although the DNA obtained under the
law at issue in that case could lawfully be used only for identification purposes, the process put
into the possession of law enforcement authorities a sample from which a wealth of additional,
highly personal information could potentially be obtained. A breath test, by contrast, results in
a BAC reading on a machine, nothing more. No sample of anything is left in the possession of
the police.
Finally, participation in a breath test is not an experience that is likely to cause any great
enhancement in the embarrassment that is inherent in any arrest. The act of blowing into a straw
is not inherently embarrassing, nor are evidentiary breath tests administered in a manner that
causes embarrassment. Again, such tests are normally administered in private at a police station,
in a patrol car, or in a mobile testing facility, out of public view. Moreover, once placed under
arrest, the individual’s expectation of privacy is necessarily diminished. For all these reasons,
“[a] breath test does not “implicat[e] significant privacy concerns.”
Blood tests are a different matter. They “require piercing the skin” and extract a part of the
subject’s body. And while humans exhale air from their lungs many times per minute, humans
do not continually shed blood. It is true, of course, that people voluntarily submit to the taking
of blood samples as part of a physical examination, and the process involves little pain or risk.
Nevertheless, for many, the process is not one they relish. It is significantly more intrusive than
blowing into a tube. Perhaps that is why many States’ implied consent laws specifically prescribe
that breath tests be administered in the usual drunk-driving case instead of blood tests or give
motorists a measure of choice over which test to take.
In addition, a blood test, unlike a breath test, places in the hands of law enforcement authorities
a sample that can be preserved and from which it is possible to extract information beyond a
simple BAC reading. Even if the law enforcement agency is precluded from testing the blood for
any purpose other than to measure BAC, the potential remains and may result in anxiety for the
person tested.

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Having assessed the impact of breath and blood testing on privacy interests, we now look to the
States’ asserted need to obtain BAC readings for persons arrested for drunk driving.
The States and the Federal Government have a “paramount interest ... in preserving the safety
of ... public highways.” Although the number of deaths and injuries caused by motor vehicle
accidents has declined over the years, the statistics are still staggering.
Alcohol consumption is a leading cause of traffic fatalities and injuries. During the past decade,
annual fatalities in drunk-driving accidents ranged from 13,582 deaths in 2005 to 9,865 deaths
in 2011. The most recent data report a total of 9,967 such fatalities in 2014—on average, one
death every 53 minutes. Our cases have long recognized the “carnage” and “slaughter” caused by
drunk drivers.
To deter potential drunk drivers and thereby reduce alcohol-related injuries, the States and the
Federal Government have taken the series of steps that we recounted earlier. The law[] at issue
in the present cases—which make it a crime to refuse to submit to a BAC test—are designed to
provide an incentive to cooperate in such cases, and we conclude that they serve a very important
function.
Petitioner[] contend[s] that the States and the Federal Government could combat drunk driving
in other ways that do not have the same impact on personal privacy. [His] argument[] [is]
unconvincing.
The chief argument on this score is that an officer making an arrest for drunk driving should not
be allowed to administer a BAC test unless the officer procures a search warrant or could not do
so in time to obtain usable test results.
This argument contravenes our decisions holding that the legality of a search incident to arrest
must be judged on the basis of categorical rules.
Petitioners next suggest[s] that requiring a warrant for BAC testing in every case in which a
motorist is arrested for drunk driving would not impose any great burden on the police or the
courts. But of course the same argument could be made about searching through objects found
on the arrestee’s possession, which our cases permit even in the absence of a warrant. What
about the cigarette package in [United States v.] Robinson? What if a motorist arrested for drunk
driving has a flask in his pocket? What if a motorist arrested for driving while under the influence
of marijuana has what appears to be a marijuana cigarette on his person? What about an
unmarked bottle of pills?
If a search warrant were required for every search incident to arrest that does not involve exigent
circumstances, the courts would be swamped. And even if we arbitrarily singled out BAC tests
incident to arrest for this special treatment, the impact on the courts would be considerable. The
number of arrests every year for driving under the influence is enormous—more than 1.1 million
in 2014. Particularly in sparsely populated areas, it would be no small task for courts to field a
large new influx of warrant applications that could come on any day of the year and at any hour.
In many jurisdictions, judicial officers have the authority to issue warrants only within their own
districts, and in rural areas, some districts may have only a small number of judicial officers.
Chapter 13 — Page 292

North Dakota, for instance, has only 51 state district judges spread across eight judicial districts.
Those judges are assisted by 31 magistrates, and there are no magistrates in 20 of the State’s 53
counties. At any given location in the State, then, relatively few state officials have authority to
issue search warrants. Yet the State, with a population of roughly 740,000, sees nearly 7,000
drunk-driving arrests each year. With a small number of judicial officers authorized to issue
warrants in some parts of the State, the burden of fielding BAC warrant applications 24 hours
per day, 365 days of the year would not be the light burden that petitioner[] suggest[s].
In light of this burden and our prior search-incident-to-arrest precedents, petitioner[] would at
a minimum have to show some special need for warrants for BAC testing. It is therefore
appropriate to consider the benefits that such applications would provide. Search warrants
protect privacy in two main ways. First, they ensure that a search is not carried out unless a
neutral magistrate makes an independent determination that there is probable cause to believe
that evidence will be found. Second, if the magistrate finds probable cause, the warrant limits
the intrusion on privacy by specifying the scope of the search—that is, the area that can be
searched and the items that can be sought.
How well would these functions be performed by the warrant applications that petitioners
propose? In order to persuade a magistrate that there is probable cause for a search warrant, the
officer would typically recite the same facts that led the officer to find that there was probable
cause for arrest, namely, that there is probable cause to believe that a BAC test will reveal that
the motorist’s blood alcohol level is over the limit. [T]he facts that establish probable cause are
largely the same from one drunk-driving stop to the next and consist largely of the officer’s own
characterization of his or her observations—for example, that there was a strong odor of alcohol,
that the motorist wobbled when attempting to stand, that the motorist paused when reciting the
alphabet or counting backwards, and so on. A magistrate would be in a poor position to challenge
such characterizations.
As for the second function served by search warrants—delineating the scope of a search—the
warrants in question here would not serve that function at all. In every case the scope of the
warrant would simply be a BAC test of the arrestee. For these reasons, requiring the police to
obtain a warrant in every case would impose a substantial burden but no commensurate benefit.
Having assessed the effect of BAC tests on privacy interests and the need for such tests, we
conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for
drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is
great.
We reach a different conclusion with respect to blood tests. Blood tests are significantly more
intrusive, and their reasonableness must be judged in light of the availability of the less invasive
alternative of a breath test. Respondents have offered no satisfactory justification for demanding
the more intrusive alternative without a warrant.

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Neither respondents nor their amici dispute the effectiveness of breath tests in measuring BAC.
Breath tests have been in common use for many years. Their results are admissible in court and
are widely credited by juries, and respondents do not dispute their accuracy or utility. What,
then, is the justification for warrantless blood tests?
One advantage of blood tests is their ability to detect not just alcohol but also other substances
that can impair a driver’s ability to operate a car safely. A breath test cannot do this, but police
have other measures at their disposal when they have reason to believe that a motorist may be
under the influence of some other substance (for example, if a breath test indicates that a clearly
impaired motorist has little if any alcohol in his blood). Nothing prevents the police from seeking
a warrant for a blood test when there is sufficient time to do so in the particular circumstances
or from relying on the exigent circumstances exception to the warrant requirement when there
is not.
A blood test also requires less driver participation than a breath test. In order for a technician to
take a blood sample, all that is needed is for the subject to remain still, either voluntarily or by
being immobilized. Thus, it is possible to extract a blood sample from a subject who forcibly
resists, but many States reasonably prefer not to take this step. North Dakota, for example, tells
us that it generally opposes this practice because of the risk of dangerous altercations between
police officers and arrestees in rural areas where the arresting officer may not have backup.
Under current North Dakota law, only in cases involving an accident that results in death or
serious injury may blood be taken from arrestees who resist.
It is true that a blood test, unlike a breath test, may be administered to a person who is
unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath
test due to profound intoxication or injuries. But we have no reason to believe that such
situations are common in drunk-driving arrests, and when they arise, the police may apply for a
warrant if need be.
A breath test may also be ineffective if an arrestee deliberately attempts to prevent an accurate
reading by failing to blow into the tube for the requisite length of time or with the necessary
force. But courts have held that such conduct qualifies as a refusal to undergo testing and it may
be prosecuted as such. And again, a warrant for a blood test may be sought.
Because breath tests are significantly less intrusive than blood tests and in most cases amply
serve law enforcement interests, we conclude that a breath test, but not a blood test, may be
administered as a search incident to a lawful arrest for drunk driving. As in all cases involving
reasonable searches incident to arrest, a warrant is not needed in this situation.
VI
Having concluded that the search incident to arrest doctrine does not justify the warrantless
taking of a blood sample, we must address respondents’ alternative argument that such tests are
justified based on the driver’s legally implied consent to submit to them. It is well established
that a search is reasonable when the subject consents, and that sometimes consent to a search
need not be express but may be fairly inferred from context. Our prior opinions have referred
approvingly to the general concept of implied-consent laws that impose civil penalties and
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evidentiary consequences on motorists who refuse to comply. Petitioner[] do[es] not question
the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.
It is another matter, however, for a State not only to insist upon an intrusive blood test, but also
to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the
consequences to which motorists may be deemed to have consented by virtue of a decision to
drive on public roads.
Respondents and their amici all but concede this point. North Dakota emphasizes that its law
makes refusal a misdemeanor and suggests that laws punishing refusal more severely would
present a different issue. Borrowing from our Fifth Amendment jurisprudence, the United States
suggests that motorists could be deemed to have consented to only those conditions that are
“reasonable” in that they have a “nexus” to the privilege of driving and entail penalties that are
proportional to severity of the violation. But in the Fourth Amendment setting, this standard
does not differ in substance from the one that we apply, since reasonableness is always the
touchstone of Fourth Amendment analysis. And applying this standard, we conclude that
motorists cannot be deemed to have consented to submit to a blood test on pain of committing
a criminal offense.
VII
Our remaining task is to apply our legal conclusions to the [] case[] before us.
Petitioner Birchfield was criminally prosecuted for refusing a warrantless blood draw, and
therefore the search he refused cannot be justified as a search incident to his arrest or on the
basis of implied consent. There is no indication in the record or briefing that a breath test would
have failed to satisfy the State’s interests in acquiring evidence to enforce its drunk-driving laws
against Birchfield. And North Dakota has not presented any case-specific information to suggest
that the exigent circumstances exception would have justified a warrantless search. Unable to
see any other basis on which to justify a warrantless test of Birchfield’s blood, we conclude that
Birchfield was threatened with an unlawful search and that the judgment affirming his
conviction must be reversed.
We accordingly reverse the judgment of the North Dakota Supreme Court and remand the case
for further proceedings not inconsistent with this opinion.
Justice THOMAS, concurring in judgment in part and dissenting in part.
The compromise the Court reaches today is not a good one. By deciding that some (but not all)
warrantless tests revealing the blood alcohol concentration (BAC) of an arrested driver are
constitutional, the Court contorts the search-incident-to-arrest exception to the Fourth
Amendment’s warrant requirement. The far simpler answer to the question presented is the one
rejected in Missouri v. McNeely. Here, the tests revealing the BAC of a driver suspected of
driving drunk are constitutional under the exigent-circumstances exception to the warrant
requirement.

Chapter 13 — Page 295

I
Today’s decision chips away at a well-established exception to the warrant requirement. Until
recently, we have admonished that “[a] police officer’s determination as to how and where to
search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment
which the Fourth Amendment does not require to be broken down in each instance into an
analysis of each step in the search.” Under our precedents, a search incident to lawful arrest
“require[d] no additional justification.” Not until the recent decision in Riley v. California, did
the Court begin to retreat from this categorical approach because it feared that the search at
issue, the “search of the information on a cell phone,” bore “little resemblance to the type of brief
physical search” contemplated by this Court’s past search-incident-to-arrest decisions. I joined
Riley, however, because the Court resisted the temptation to permit searches of some kinds of
cellphone data and not others and instead asked more generally whether that entire “category of
effects” was searchable without a warrant.
Today’s decision begins where Riley left off. The Court purports to apply Robinson but further
departs from its categorical approach by holding that warrantless breath tests to prevent the
destruction of BAC evidence are constitutional searches incident to arrest, but warrantless blood
tests are not. That hairsplitting makes little sense. Either the search-incident-to-arrest exception
permits bodily searches to prevent the destruction of BAC evidence, or it does not.
The Court justifies its result—an arbitrary line in the sand between blood and breath tests—by
balancing the invasiveness of the particular type of search against the government’s reasons for
the search. Such case-by-case balancing is bad for the People, who “through ratification, have
already weighed the policy tradeoffs that constitutional rights entail.” It is also bad for law
enforcement officers, who depend on predictable rules to do their job, as Members of this Court
have exhorted in the past.
Today’s application of the search-incident-to-arrest exception is bound to cause confusion in the
lower courts. The Court’s choice to allow some (but not all) BAC searches is undeniably
appealing, for it both reins in the pernicious problem of drunk driving and also purports to
preserve some Fourth Amendment protections. But that compromise has little support under
this Court’s existing precedents.
II
The better (and far simpler) way to resolve these cases is by applying the per se rule that I
proposed in McNeely. Under that approach, both warrantless breath and blood tests are
constitutional because “the natural metabolization of [BAC] creates an exigency once police have
probable cause to believe the driver is drunk. It naturally follows that police may conduct a
search in these circumstances.”
Today’s decision rejects McNeely’s arbitrary distinction between the destruction of evidence
generally and the destruction of BAC evidence. But only for searches incident to arrest. The Court
declares that such a distinction “between an arrestee’s active destruction of evidence and the loss
of evidence due to a natural process makes little sense.” I agree. But it also “makes little sense”
for the Court to reject McNeely’s arbitrary distinction only for searches incident to arrest and
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not also for exigent-circumstances searches when both are justified by identical concerns about
the destruction of the same evidence. McNeely’s distinction is no less arbitrary for searches
justified by exigent circumstances than those justified by search incident to arrest.
The Court was wrong in McNeely, and today’s compromise is perhaps an inevitable consequence
of that error. Both searches contemplated by the state laws at issue in these cases would be
constitutional under the exigent-circumstances exception to the warrant requirement. I
respectfully concur in the judgment in part and dissent in part.
Notes, Comments, and Questions
The Court in Birchfield holds implied blood-draw consent laws that result in criminal
prosecution unconstitutional. What result if the implied consent law results in an administrative
(rather than criminal) penalty? For example, suppose a state’s implied consent law requires
drivers arrested or drunk driving to consent to a breathalyzer, blood draw, saliva or urine
analysis or have their license administratively revoked for one year. See, e.g., 577.020, RSMo
(2016).
In Mitchell v. Wisconsin, 139 S. Ct 2525 (2019), the Court issued a plurality opinion affirming
the legality of a warrantless blood draw conducted by police after a suspect became unconscious.
The plurality opinion—approved by four Justices—stated that when a driver is unconscious and
cannot submit to a breath test, police may perform a blood draw under the exigent circumstances
exception to the warrant requirement. The opinion relied upon Schmerber v. California,
Missouri v. McNeely, and Birchfield. Justice Thomas, concurring in the judgment, would have
held that the natural metabolism of alcohol by the human body always creates a per se exigency
“once police have probable cause to believe the driver is drunk.” Four Justices dissented, in two
separate opinions.
Like the preceding cases, Welsh v. Wisconsin involves police investigation of drunk driving and
an argument about whether the exigent circumstances exception justifies certain police activity.
The key difference here is that instead of seeking to take a suspect’s blood, the police in Welsh
sought to enter his home to arrest him. In addition, this case illustrates the far more relaxed
attitude toward drunk driving that was common among judges and legislators in the 1980s.
Supreme Court of the United States
Edward G. Welsh v. Wisconsin
Decided May 15, 1984 – 466 U.S. 740
Justice BRENNAN delivered the opinion of the Court.
Payton v. New York, 445 U.S. 573 (1980), held that, absent probable cause and exigent
circumstances, warrantless arrests in the home are prohibited by the Fourth Amendment. But
the Court in that case explicitly refused “to consider the sort of emergency or dangerous
situation, described in our cases as ‘exigent circumstances,’ that would justify a warrantless entry
into a home for the purpose of either arrest or search.” Certiorari was granted in this case to
decide at least one aspect of the unresolved question: whether, and if so under what
Chapter 13 — Page 297

circumstances, the Fourth Amendment prohibits the police from making a warrantless night
entry of a person’s home in order to arrest him for a nonjailable traffic offense.
I
A
Shortly before 9 o’clock on the rainy night of April 24, 1978, a lone witness, Randy Jablonic,
observed a car being driven erratically. After changing speeds and veering from side to side, the
car eventually swerved off the road and came to a stop in an open field. No damage to any person
or property occurred. Concerned about the driver and fearing that the car would get back on the
highway, Jablonic drove his truck up behind the car so as to block it from returning to the road.
Another passerby also stopped at the scene, and Jablonic asked her to call the police. Before the
police arrived, however, the driver of the car emerged from his vehicle, approached Jablonic’s
truck, and asked Jablonic for a ride home. Jablonic instead suggested that they wait for
assistance in removing or repairing the car. Ignoring Jablonic’s suggestion, the driver walked
away from the scene.
A few minutes later, the police arrived and questioned Jablonic. He told one officer what he had
seen, specifically noting that the driver was either very inebriated or very sick. The officer
checked the motor vehicle registration of the abandoned car and learned that it was registered
to the petitioner, Edward G. Welsh. In addition, the officer noted that the petitioner’s residence
was a short distance from the scene, and therefore easily within walking distance.
Without securing any type of warrant, the police proceeded to the petitioner’s home, arriving
about 9 p.m. When the petitioner’s stepdaughter answered the door, the police gained entry into
the house.2 Proceeding upstairs to the petitioner’s bedroom, they found him lying naked in bed.
At this point, the petitioner was placed under arrest for driving or operating a motor vehicle
while under the influence of an intoxicant. The petitioner was taken to the police station, where
he refused to submit to a breath-analysis test.
B
As a result of these events, the petitioner was subjected to two separate but related proceedings:
one concerning his refusal to submit to a breath test and the other involving the alleged code
violation for driving while intoxicated. Under the Wisconsin Vehicle Code in effect in April 1978,
one arrested for driving while intoxicated [] could be requested by a law enforcement officer to
provide breath, blood, or urine samples for the purpose of determining the presence or quantity
of alcohol. If such a request was made, the arrestee was required to submit to the appropriate
testing or risk a revocation of operating privileges … for 60 days.

2 [Footnote 1 by the Court] The state trial court never decided whether there was consent to the entry because it

deemed decision of that issue unnecessary in light of its finding that exigent circumstances justified the warrantless
arrest. For purposes of this decision, therefore, we assume that there was no valid consent to enter the petitioner’s
home.
Chapter 13 — Page 298

C
[T]he State filed a criminal complaint against the petitioner for driving while intoxicated. The
petitioner responded by filing a motion to dismiss the complaint, relying on his contention that
the underlying arrest was invalid. After receiving evidence at a hearing on this motion in July
1980, the trial court concluded that the criminal complaint would not be dismissed because the
existence of both probable cause and exigent circumstances justified the warrantless arrest.
[T]he appellate court concluded that the warrantless arrest of the petitioner in his home violated
the Fourth Amendment because the State, although demonstrating probable cause to arrest, had
not established the existence of exigent circumstances. The Supreme Court of Wisconsin in turn
reversed the Court of Appeals. Because of the important Fourth Amendment implications of the
decision below, we granted certiorari.
II
[T]he Court decided in Payton v. New York that warrantless felony arrests in the home are
prohibited by the Fourth Amendment, absent probable cause and exigent circumstances. At the
same time, the Court declined to consider the scope of any exception for exigent circumstances
that might justify warrantless home arrests, thereby leaving to the lower courts the initial
application of the exigent-circumstances exception. Prior decisions of this Court, however, have
emphasized that exceptions to the warrant requirement are “few in number and carefully
delineated” and that the police bear a heavy burden when attempting to demonstrate an urgent
need that might justify warrantless searches or arrests. Indeed, the Court has recognized only a
few such emergency conditions.
Our hesitation in finding exigent circumstances, especially when warrantless arrests in the home
are at issue, is particularly appropriate when the underlying offense for which there is probable
cause to arrest is relatively minor. Before agents of the government may invade the sanctity of
the home, the burden is on the government to demonstrate exigent circumstances that overcome
the presumption of unreasonableness that attaches to all warrantless home entries. When the
government’s interest is only to arrest for a minor offense, that presumption of unreasonableness
is difficult to rebut, and the government usually should be allowed to make such arrests only
with a warrant issued upon probable cause by a neutral and detached magistrate.
We [] conclude that the common-sense approach utilized by most lower courts is required by the
Fourth Amendment prohibition on “unreasonable searches and seizures,” and hold that an
important factor to be considered when determining whether any exigency exists is the gravity
of the underlying offense for which the arrest is being made. Moreover, although no exigency is
created simply because there is probable cause to believe that a serious crime has been
committed, application of the exigent-circumstances exception in the context of a home entry
should rarely be sanctioned when there is probable cause to believe that only a minor offense,
such as the kind at issue in this case, has been committed.
Application of this principle to the facts of the present case is relatively straightforward. The
petitioner was arrested in the privacy of his own bedroom for a noncriminal, traffic offense. The
State attempts to justify the arrest by relying on the hot-pursuit doctrine, on the threat to public
safety, and on the need to preserve evidence of the petitioner’s blood-alcohol level. On the facts
of this case, however, the claim of hot pursuit is unconvincing because there was no immediate
Chapter 13 — Page 299

or continuous pursuit of the petitioner from the scene of a crime. Moreover, because the
petitioner had already arrived home, and had abandoned his car at the scene of the accident,
there was little remaining threat to the public safety. Hence, the only potential emergency
claimed by the State was the need to ascertain the petitioner’s blood-alcohol level.
Even assuming, however, that the underlying facts would support a finding of this exigent
circumstance, mere similarity to other cases involving the imminent destruction of evidence is
not sufficient. The State of Wisconsin has chosen to classify the first offense for driving while
intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment is possible. This
is the best indication of the State’s interest in precipitating an arrest, and is one that can be easily
identified both by the courts and by officers faced with a decision to arrest. Given this expression
of the State’s interest, a warrantless home arrest cannot be upheld simply because evidence of
the petitioner’s blood-alcohol level might have dissipated while the police obtained a warrant.
To allow a warrantless home entry on these facts would be to approve unreasonable police
behavior that the principles of the Fourth Amendment will not sanction.
III
The Supreme Court of Wisconsin let stand a warrantless, nighttime entry into the petitioner’s
home to arrest him for a civil traffic offense. Such an arrest, however, is clearly prohibited by the
special protection afforded the individual in his home by the Fourth Amendment. The
petitioner’s arrest was therefore invalid, the judgment of the Supreme Court of Wisconsin is
vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice BLACKMUN, concurring.
I join the Court’s opinion but add a personal observation.
I yield to no one in my profound personal concern about the unwillingness of our national
consciousness to face up to—and to do something about—the continuing slaughter upon our
Nation’s highways, a good percentage of which is due to drivers who are drunk or semiincapacitated because of alcohol or drug ingestion. I have spoken in these Reports to this point
before. And it is amazing to me that one of our great States—one which, by its highway signs,
proclaims to be diligent and emphatic in its prosecution of the drunken driver—still classifies
driving while intoxicated as a civil violation that allows only a money forfeiture of not more than
$300 so long as it is a first offense. The State, like the indulgent parent, hesitates to discipline
the spoiled child very much, even though the child is engaging in an act that is dangerous to
others who are law abiding and helpless in the face of the child’s act. Our personal convenience
still weighs heavily in the balance, and the highway deaths and injuries continue. But if
Wisconsin and other States choose by legislation thus to regulate their penalty structure, there
is, unfortunately, nothing in the United States Constitution that says they may not do so.

Chapter 13 — Page 300

Notes, Comments, and Questions
In 1984, the Court prohibited police from entering a house to arrest an apparently intoxicated
man who had recently driven his car off the road and stumbled home. In 2016, the Court allowed
states to demand—under threat of criminal prosecution—that motorists arrested for drunk
driving submit to breath tests. The home entry was “unreasonable,” and demanding the breath
test is “reasonable.”
Perhaps the results can be explained by Fourth Amendment doctrine that has remained constant
since 1791. Students might also consider, however, that the decisions could result in part on
changing attitudes toward drunk driving. What was a noncriminal violation in Wisconsin in the
1980s is now punished far more severely across the nation. The position articulated by Justice
Blackmun in his dissent in Welsh, in which he chastised Wisconsin for its lax treatment of
drunken drivers, has won widespread appeal among lawmakers, both those on the bench and
those in legislatures. Mothers Against Drunk Driving, founded in 1980 after the founder’s
daughter was killed in a crash involving a drunk driver, won important legislative victories
beginning in 1984, when Congress acted to force states to raise their drinking ages to 21 years.3

3 See National Minimum Drinking Age Act of 1984, 98 Stat. 435; see also South Dakota v. Dole, 483 U.S. 203 (1987)

(upholding constitutionality of act).
Chapter 13 — Page 301

THE FOURTH AMENDMENT
Chapter 14
The Warrant Requirement: Exceptions (Part 6)
Warrant Exception: Ports of Entry
When persons and items enter the United States from abroad, agents of the executive enjoy
expansive authority to conduct searches and seizures without a warrant. The Court has
repeatedly chosen to provide relatively little judicial oversight of the executive’s use of that
authority, especially when compared to oversight of common domestic policing.
We begin with the Court’s approval of routine searches at the California-Mexico border. No
quantum of evidence (or suspicion) is needed.
Supreme Court of the United States
United States v. Manuel Flores-Montano
Decided March 30, 2004 – 541 U.S. 149
Chief Justice REHNQUIST delivered the opinion of the [unanimous] Court.
Customs officials seized 37 kilograms—a little more than 81 pounds—of marijuana from
respondent Manuel Flores-Montano’s gas tank at the international border. The Court of Appeals
for the Ninth Circuit, relying on an earlier decision by a divided panel of that court, held that the
Fourth Amendment forbade the fuel tank search absent reasonable suspicion. We hold that the
search in question did not require reasonable suspicion.
Respondent, driving a 1987 Ford Taurus station wagon, attempted to enter the United States at
the Otay Mesa Port of Entry in southern California. A customs inspector conducted an inspection
of the station wagon, and requested respondent to leave the vehicle. The vehicle was then taken
to a secondary inspection station.
At the secondary station, a second customs inspector inspected the gas tank by tapping it, and
noted that the tank sounded solid. Subsequently, the inspector requested a mechanic under
contract with Customs to come to the border station to remove the tank. Within 20 to 30
minutes, the mechanic arrived. He raised the car on a hydraulic lift, loosened the straps and
unscrewed the bolts holding the gas tank to the undercarriage of the vehicle, and then
disconnected some hoses and electrical connections. After the gas tank was removed, the
inspector hammered off bondo (a putty-like hardening substance that is used to seal openings)
from the top of the gas tank. The inspector opened an access plate underneath the bondo and
found 37 kilograms of marijuana bricks. The process took 15 to 25 minutes.

Chapter 14 — Page 302

A grand jury indicted respondent on one count of unlawfully importing marijuana and one count
of possession of marijuana with intent to distribute. Relying on [Ninth Circuit precedent], the
Court of Appeals held, inter alia, that removal of a gas tank requires reasonable suspicion in
order to be consistent with the Fourth Amendment.
We granted certiorari and now reverse.
In [United States v.] Molina-Tarazon, [279 F.3d 709] the Court of Appeals decided a case
presenting similar facts to the one at bar. It asked “whether [the removal and dismantling of the
defendant’s fuel tank] is a ‘routine’ border search for which no suspicion whatsoever is required.”
The Court of Appeals stated that “[i]n order to conduct a search that goes beyond the routine, an
inspector must have reasonable suspicion,” and the “critical factor” in determining whether a
search is “routine” is the “degree of intrusiveness.”
The Court of Appeals seized on language from our opinion in United States v. Montoya de
Hernandez, 473 U.S. 531 (1985), in which we used the word “routine” as a descriptive term in
discussing border searches. The Court of Appeals took the term “routine,” fashioned a new
balancing test, and extended it to searches of vehicles. But the reasons that might support a
requirement of some level of suspicion in the case of highly intrusive searches of the person—
dignity and privacy interests of the person being searched—simply do not carry over to vehicles.
Complex balancing tests to determine what is a “routine” search of a vehicle, as opposed to a
more “intrusive” search of a person, have no place in border searches of vehicles.
The Government’s interest in preventing the entry of unwanted persons and effects is at its zenith
at the international border. Time and again, we have stated that “searches made at the border,
pursuant to the longstanding right of the sovereign to protect itself by stopping and examining
persons and property crossing into this country, are reasonable simply by virtue of the fact that
they occur at the border.” Congress, since the beginning of our Government, “has granted the
Executive plenary authority to conduct routine searches and seizures at the border, without
probable cause or a warrant, in order to regulate the collection of duties and to prevent the
introduction of contraband into this country.” It is axiomatic that the United States, as sovereign,
has the inherent authority to protect, and a paramount interest in protecting, its territorial
integrity.
That interest in protecting the borders is illustrated in this case by the evidence that smugglers
frequently attempt to penetrate our borders with contraband secreted in their automobiles’ fuel
tank. Over the past 5 ½ fiscal years, there have been 18,788 vehicle drug seizures at the southern
California ports of entry. Of those 18,788, gas tank drug seizures have accounted for 4,619 of the
vehicle drug seizures, or approximately 25%. In addition, instances of persons smuggled in and
around gas tank compartments are discovered at the ports of entry of San Ysidro and Otay Mesa
at a rate averaging 1 approximately every 10 days.

Chapter 14 — Page 303

Respondent asserts two main arguments with respect to his Fourth Amendment interests. First,
he urges that he has a privacy interest in his fuel tank, and that the suspicionless disassembly of
his tank is an invasion of his privacy. But on many occasions, we have noted that the expectation
of privacy is less at the border than it is in the interior. We have long recognized that automobiles
seeking entry into this country may be searched. It is difficult to imagine how the search of a gas
tank, which should be solely a repository for fuel, could be more of an invasion of privacy than
the search of the automobile’s passenger compartment.
Second, respondent argues that the Fourth Amendment “protects property as well as privacy”
and that the disassembly and reassembly of his gas tank is a significant deprivation of his
property interest because it may damage the vehicle. He does not, and on the record cannot,
truly contend that the procedure of removal, disassembly, and reassembly of the fuel tank in this
case or any other has resulted in serious damage to, or destruction of, the property. According
to the Government, for example, in fiscal year 2003, 348 gas tank searches conducted along the
southern border were negative (i.e., no contraband was found), the gas tanks were reassembled,
and the vehicles continued their entry into the United States without incident.
Respondent cites not a single accident involving the vehicle or motorist in the many thousands
of gas tank disassemblies that have occurred at the border. A gas tank search involves a brief
procedure that can be reversed without damaging the safety or operation of the vehicle. If
damage to a vehicle were to occur, the motorist might be entitled to recovery. While the
interference with a motorist’s possessory interest is not insignificant when the Government
removes, disassembles, and reassembles his gas tank, it nevertheless is justified by the
Government’s paramount interest in protecting the border.
For the reasons stated, we conclude that the Government’s authority to conduct suspicionless
inspections at the border includes the authority to remove, disassemble, and reassemble a
vehicle’s fuel tank. While it may be true that some searches of property are so destructive as to
require a different result, this was not one of them. The judgment of the United States Court of
Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further
proceedings consistent with this opinion.
Justice BREYER, concurring.
I join the Court’s opinion in full. I also note that Customs keeps track of the border searches its
agents conduct, including the reasons for the searches. This administrative process should help
minimize concerns that gas tank searches might be undertaken in an abusive manner.
*

*

*

Chapter 14 — Page 304

In addition to permitting extensive suspicionless searches and seizures at international borders,
the Court has permitted similar searches and seizures at checkpoints some distance from the
border. The fixed checkpoint at issue in the next case was 66 miles north of the United StatesMexico border.
Supreme Court of the United States
United States v. Amado Martinez-Fuerte
Decided July 6, 1976 – 428 U.S. 543
Mr. Justice POWELL delivered the opinion of the Court.
Th[is] case[] involve[s] criminal prosecutions for offenses relating to the transportation of illegal
Mexican aliens. [D]efendant was arrested at a permanent checkpoint operated by the Border
Patrol away from the international border with Mexico, and [] sought the exclusion of certain
evidence on the ground that the operation of the checkpoint was incompatible with the Fourth
Amendment. [W]hether the Fourth Amendment was violated turns primarily on whether a
vehicle may be stopped at a fixed checkpoint for brief questioning of its occupants even though
there is no reason to believe the particular vehicle contains illegal aliens. We hold today that such
stops are consistent with the Fourth Amendment. We also hold that the operation of a fixed
checkpoint need not be authorized in advance by a judicial warrant.
I
A
The respondents are defendants in three separate prosecutions resulting from arrests made on
three different occasions at the permanent immigration checkpoint on Interstate 5 near San
Clemente, Cal. Interstate 5 is the principal highway between San Diego and Los Angeles, and the
San Clemente checkpoint is 66 road miles north of the Mexican border.
The “point” agent visually screens all northbound vehicles, which the checkpoint brings to a
virtual, if not a complete, halt. Most motorists are allowed to resume their progress without any
oral inquiry or close visual examination. In a relatively small number of cases the “point” agent
will conclude that further inquiry is in order. He directs these cars to a secondary inspection
area, where their occupants are asked about their citizenship and immigration status. The
Government informs us that at San Clemente the average length of an investigation in the
secondary inspection area is three to five minutes. A direction to stop in the secondary inspection
area could be based on something suspicious about a particular car passing through the
checkpoint, but the Government concedes that none of the three stops at issue was based on any
articulable suspicion. During the period when these stops were made, the checkpoint was
operating under a magistrate’s “warrant of inspection,” which authorized the Border Patrol to
conduct a routine-stop operation at the San Clemente location.
We turn now to the particulars of the stops and the procedural history of the case. Respondent
Amado Martinez-Fuerte approached the checkpoint driving a vehicle containing two female
passengers. The women were illegal Mexican aliens who had entered the United States at the
Chapter 14 — Page 305

San Ysidro port of entry by using false papers and rendezvoused with Martinez-Fuerte in San
Diego to be transported northward. At the checkpoint their car was directed to the secondary
inspection area. Martinez-Fuerte produced documents showing him to be a lawful resident alien,
but his passengers admitted being present in the country unlawfully. He was charged, inter alia,
with two counts of illegally transporting aliens. He moved before trial to suppress all evidence
stemming from the stop on the ground that the operation of the checkpoint was in violation of
the Fourth Amendment. The motion to suppress was denied, and he was convicted on both
counts after a jury trial.
Martinez-Fuerte appealed his conviction. The Court of Appeals held, with one judge dissenting,
that the[] stop[] violated the Fourth Amendment, concluding that a stop for inquiry is
constitutional only if the Border Patrol reasonably suspects the presence of illegal aliens on the
basis of articulable facts. It reversed Martinez-Fuerte’s conviction. We reverse and remand.
II
Before turning to the constitutional question, we examine the context in which it arises.
It has been national policy for many years to limit immigration into the United States.
Interdicting the flow of illegal entrants from Mexico poses formidable law enforcement
problems. The principal problem arises from surreptitious entries. The United States shares a
border with Mexico that is almost 2,000 miles long, and much of the border area is uninhabited
desert or thinly populated arid land. Although the Border Patrol maintains personnel, electronic
equipment, and fences along portions of the border, it remains relatively easy for individuals to
enter the United States without detection. It also is possible for an alien to enter unlawfully at a
port of entry by the use of falsified papers or to enter lawfully but violate restrictions of entry in
an effort to remain in the country unlawfully. Once within the country, the aliens seek to travel
inland to areas where employment is believed to be available, frequently meeting by
prearrangement with friends or professional smugglers who transport them in private vehicles.
The Border Patrol conducts three kinds of inland traffic-checking operations in an effort to
minimize illegal immigration. Permanent checkpoints are maintained at or near intersections of
important roads leading away from the border. They operate on a coordinated basis designed to
avoid circumvention by smugglers and others who transport the illegal aliens. Temporary
checkpoints, which operate like permanent ones, occasionally are established in other strategic
locations. Finally, roving patrols are maintained to supplement the checkpoint system.
We are concerned here with permanent checkpoints, the locations of which are chosen on the
basis of a number of factors. The Border Patrol believes that to assure effectiveness, a checkpoint
must be (i) distant enough from the border to avoid interference with traffic in populated areas
near the border, (ii) close to the confluence of two or more significant roads leading away from
the border, (iii) situated in terrain that restricts vehicle passage around the checkpoint, (iv) on a
stretch of highway compatible with safe operation, and (v) beyond the 25-mile zone in which
“border passes” are valid.1

1 [Footnote by editors] “Border passes,” also known as “border crossing cards,” allow bearers entry into parts of the

United States near the border for brief periods—less than 72 hours—and do not allow bearers to work.
Chapter 14 — Page 306

III
The Fourth Amendment imposes limits on search-and-seizure powers in order to prevent
arbitrary and oppressive interference by enforcement officials with the privacy and personal
security of individuals. In delineating the constitutional safeguards applicable in particular
contexts, the Court has weighed the public interest against the Fourth Amendment interest of
the individual, a process evident in our previous cases dealing with Border Patrol trafficchecking operations.
In Almeida-Sanchez v. United States, [413 U.S. 266 (1973)], the question was whether a rovingpatrol unit constitutionally could search a vehicle for illegal aliens simply because it was in the
general vicinity of the border. We recognized that important law enforcement interests were at
stake but held that searches by roving patrols impinged so significantly on Fourth Amendment
privacy interests that a search could be conducted without consent only if there was probable
cause to believe that a car contained illegal aliens, at least in the absence of a judicial warrant
authorizing random searches by roving patrols in a given area. We held in United States v. Ortiz,
[422 U.S. 891 (1975)], that the same limitations applied to vehicle searches conducted at a
permanent checkpoint.
In United States v. Brignoni-Ponce, [422 U.S. 873 (1975)], however, we recognized that other
traffic-checking practices involve a different balance of public and private interests and
appropriately are subject to less stringent constitutional safeguards. The question was under
what circumstances a roving patrol could stop motorists in the general area of the border for
brief inquiry into their residence status. We found that the interference with Fourth Amendment
interests involved in such a stop was “modest,” while the inquiry served significant law
enforcement needs. We therefore held that a roving-patrol stop need not be justified by probable
cause and may be undertaken if the stopping officer is “aware of specific articulable facts,
together with rational inferences from those facts, that reasonably warrant suspicion” that a
vehicle contains illegal aliens.
IV
It is agreed that checkpoint stops are “seizures” within the meaning of the Fourth Amendment.
The defendants contend primarily that the routine stopping of vehicles at a checkpoint is invalid
because Brignoni-Ponce must be read as proscribing any stops in the absence of reasonable
suspicion. [W]e turn first to whether reasonable suspicion is a prerequisite to a valid stop, a
question to be resolved by balancing the interests at stake.
A
Our previous cases have recognized that maintenance of a traffic-checking program in the
interior is necessary because the flow of illegal aliens cannot be controlled effectively at the
border. We note here only the substantiality of the public interest in the practice of routine stops
for inquiry at permanent checkpoints, a practice which the Government identifies as the most
important of the traffic-checking operations. These checkpoints are located on important
highways; in their absence such highways would offer illegal aliens a quick and safe route into
the interior. Routine checkpoint inquiries apprehend many smugglers and illegal aliens who
Chapter 14 — Page 307

succumb to the lure of such highways. And the prospect of such inquiries forces others onto less
efficient roads that are less heavily traveled, slowing their movement and making them more
vulnerable to detection by roving patrols.
A requirement that stops on major routes inland always be based on reasonable suspicion would
be impractical because the flow of traffic tends to be too heavy to allow the particularized study
of a given car that would enable it to be identified as a possible carrier of illegal aliens. In
particular, such a requirement would largely eliminate any deterrent to the conduct of welldisguised smuggling operations, even though smugglers are known to use these highways
regularly.
B
While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth
Amendment interests is quite limited. The stop does intrude to a limited extent on motorists’
right to “free passage without interruption,” and arguably on their right to personal security. But
it involves only a brief detention of travelers during which “‘[a]ll that is required of the vehicle’s
occupants is a response to a brief question or two and possibly the production of a document
evidencing a right to be in the United States.’”
Neither the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited
to what can be seen without a search. This objective intrusion the stop itself, the questioning,
and the visual inspection also existed in roving-patrol stops. But we view checkpoint stops in a
different light because the subjective intrusion—the generating of concern or even fright on the
part of lawful travelers—is appreciably less in the case of a checkpoint stop. In Ortiz, we noted:
“[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those
attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads,
and their approach may frighten motorists. At traffic checkpoints the motorist can see that other
vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less
likely to be frightened or annoyed by the intrusion.”
In Brignoni-Ponce, we recognized that Fourth Amendment analysis in this context also must
take into account the overall degree of interference with legitimate traffic. We concluded there
that random roving-patrol stops could not be tolerated because they “would subject the residents
of … [border] areas to potentially unlimited interference with their use of the highways, solely at
the discretion of Border Patrol officers. … [They] could stop motorists at random for questioning,
day or night, anywhere within 100 air miles of the 2,000-mile border, on a city street, a busy
highway, or a desert road ….” There also was a grave danger that such unreviewable discretion
would be abused by some officers in the field.
Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential
interference with legitimate traffic is minimal. Motorists using these highways are not taken by
surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not
be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less
discretionary enforcement activity. The regularized manner in which established checkpoints
are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly
authorized and believed to serve the public interest. The location of a fixed checkpoint is not
Chapter 14 — Page 308

chosen by officers in the field, but by officials responsible for making overall decisions as to the
most effective allocation of limited enforcement resources. We may assume that such officials
will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as
a class. And since field officers may stop only those cars passing the checkpoint, there is less
room for abusive or harassing stops of individuals than there was in the case of roving-patrol
stops. Moreover, a claim that a particular exercise of discretion in locating or operating a
checkpoint is unreasonable is subject to post-stop judicial review.
The defendants arrested at the San Clemente checkpoint suggest that its operation involves a
significant extra element of intrusiveness in that only a small percentage of cars are referred to
the secondary inspection area, thereby “stigmatizing” those diverted and reducing the
assurances provided by equal treatment of all motorists. We think defendants overstate the
consequences. Referrals are made for the sole purpose of conducting a routine and limited
inquiry into residence status that cannot feasibly be made of every motorist where the traffic is
heavy. The objective intrusion of the stop and inquiry thus remains minimal. Selective referral
may involve some annoyance, but it remains true that the stops should not be frightening or
offensive because of their public and relatively routine nature. Moreover, selective referrals
rather than questioning the occupants of every car tend to advance some Fourth Amendment
interests by minimizing the intrusion on the general motoring public.
C
The defendants note correctly that to accommodate public and private interests some quantum
of individualized suspicion is usually a prerequisite to a constitutional search or seizure. But the
Fourth Amendment imposes no irreducible requirement of such suspicion.
[Here,] we deal neither with searches nor with the sanctity of private dwellings, ordinarily
afforded the most stringent Fourth Amendment protection. As we have noted earlier, one’s
expectation of privacy in an automobile and of freedom in its operation are significantly different
from the traditional expectation of privacy and freedom in one’s residence. And the
reasonableness of the procedures followed in making these checkpoint stops makes the resulting
intrusion on the interests of motorists minimal. On the other hand, the purpose of the stops is
legitimate and in the public interest, and the need for this enforcement technique is
demonstrated by the records in the cases before us. Accordingly, we hold that the stops and
questioning at issue may be made in the absence of any individualized suspicion at reasonably
located checkpoints.
We further believe that it is constitutional to refer motorists selectively to the secondary
inspection area at the San Clemente checkpoint on the basis of criteria that would not sustain a
roving-patrol stop. Thus, even if it be assumed that such referrals are made largely on the basis
of apparent Mexican ancestry, we perceive no constitutional violation. As the intrusion here is
sufficiently minimal that no particularized reason need exist to justify it, we think it follows that
the Border Patrol officers must have wide discretion in selecting the motorists to be diverted for
the brief questioning involved.2
2 [Footnote 17 by the Court] Of the 820 vehicles referred to the secondary inspection area during the eight days

surrounding the arrests involved in [Martinez-Fuerte’s case], roughly 20% contained illegal aliens. Thus, to the
extent that the Border Patrol relies on apparent Mexican ancestry at this checkpoint, that reliance clearly is relevant
Chapter 14 — Page 309

VI
In summary, we hold that stops for brief questioning routinely conducted at permanent
checkpoints are consistent with the Fourth Amendment and need not be authorized by warrant.
The principal protection of Fourth Amendment rights at checkpoints lies in appropriate
limitations on the scope of the stop. We have held that checkpoint searches are constitutional
only if justified by consent or probable cause to search. And our holding today is limited to the
type of stops described in this opinion. “[A]ny further detention … must be based on consent or
probable cause.” None of the defendants in these cases argues that the stopping officers exceeded
these limitations. We reverse the judgment of the Court of Appeals for the Ninth Circuit and
remand the case with directions to affirm the conviction of Martinez-Fuerte.
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
Today’s decision is the ninth this Term marking the continuing evisceration of Fourth
Amendment protections against unreasonable searches and seizures. Consistent with this
purpose to debilitate Fourth Amendment protections, the Court’s decision today virtually
empties the Amendment of its reasonableness requirement by holding that law enforcement
officials manning fixed checkpoint stations who make standardless seizures of persons do not
violate the Amendment. I dissent.
We are told today [] that motorists without number may be individually stopped, questioned,
visually inspected, and then further detained without even a showing of articulable suspicion, let
alone the heretofore constitutional minimum of reasonable suspicion, a result that permits
search and seizure to rest upon “nothing more substantial than inarticulate hunches.” This
defacement of Fourth Amendment protections is arrived at by a balancing process that
overwhelms the individual’s protection against unwarranted official intrusion by a governmental
interest said to justify the search and seizure. But that method is only a convenient cover for
condoning arbitrary official conduct.
[T]he Court, without explanation, also ignores one major source of vexation. In abandoning any
requirement of a minimum of reasonable suspicion, or even articulable suspicion, the Court in
every practical sense renders meaningless, as applied to checkpoint stops, the Brignoni-Ponce
holding that “standing alone [Mexican appearance] does not justify stopping all MexicanAmericans to ask if they are aliens.” Since the objective is almost entirely the Mexican illegally
in the country, checkpoint officials, uninhibited by any objective standards and therefore free to
stop any or all motorists without explanation or excuse, wholly on whim, will perforce target
motorists of Mexican appearance. The process will then inescapably discriminate against
citizens of Mexican ancestry and Mexican aliens lawfully in this country for no other reason than
that they unavoidably possess the same “suspicious” physical and grooming characteristics of
illegal Mexican aliens.

to the law enforcement need to be served. [W]e [have] noted that “[t]he likelihood that any given person of Mexican
ancestry is an alien is high enough to make Mexican appearance a relevant factor …,” although we held that apparent
Mexican ancestry by itself could not create the reasonable suspicion required for a roving-patrol stop. Different
considerations would arise if, for example, reliance were put on apparent Mexican ancestry at a checkpoint operated
near the Canadian border.
Chapter 14 — Page 310

Every American citizen of Mexican ancestry and every Mexican alien lawfully in this country
must know after today’s decision that he travels the fixed checkpoint highways at the risk of
being subjected not only to a stop, but also to detention and interrogation, both prolonged and
to an extent far more than for non-Mexican appearing motorists. To be singled out for referral
and to be detained and interrogated must be upsetting to any motorist. One wonders what actual
experience supports my Brethren’s conclusion that referrals “should not be frightening or
offensive because of their public and relatively routine nature.” In point of fact, referrals viewed
in context, are not relatively routine; thousands are otherwise permitted to pass. But for the
arbitrarily selected motorists who must suffer the delay and humiliation of detention and
interrogation, the experience can obviously be upsetting. And that experience is particularly
vexing for the motorist of Mexican ancestry who is selectively referred, knowing that the officers’
target is the Mexican alien. That deep resentment will be stirred by a sense of unfair
discrimination is not difficult to foresee.3
In short, if a balancing process is required, the balance should be struck to require that Border
Patrol officers act upon at least reasonable suspicion in making checkpoint stops. In any event,
even if a different balance were struck, the Court cannot, without ignoring the Fourth
Amendment requirement of reasonableness, justify wholly unguided seizures by officials
manning the checkpoints.
The cornerstone of this society, indeed of any free society, is orderly procedure. The Constitution,
as originally adopted, was therefore, in great measure, a procedural document. For the same
reasons the drafters of the Bill of Rights largely placed their faith in procedural limitations on
government action. The Fourth Amendment’s requirement that searches and seizures be
reasonable enforces this fundamental understanding in erecting its buffer against the arbitrary
treatment of citizens by government. But to permit, as the Court does today, police discretion to
supplant the objectivity of reason and, thereby, expediency to reign in the place of order, is to
undermine Fourth Amendment safeguards and threaten erosion of the cornerstone of our
system of a government, for, as Mr. Justice Frankfurter reminded us, “[t]he history of American
freedom is, in no small measure, the history of procedure.”
Notes, Comments, and Questions
A police officer is 66 miles from the Canadian border. There is no checkpoint. The officer spots
a car and is suspicious that it contains Canadians who are not legally in the United States. How
much evidence must the officer have to stop the car to conduct a brief investigation of its
occupants?

3 [Footnote 4 in the opinion] Though today’s decision would clearly permit detentions to be based solely on Mexican

ancestry, the Court takes comfort in what appears to be the Border Patrol practice of not relying on Mexican ancestry
standing alone in referring motorists for secondary detentions. Good faith on the part of law enforcement officials,
however, has never sufficed in this tribunal to substitute as a safeguard for personal freedoms or to remit our duty
to effectuate constitutional guarantees. … Even if good faith is assumed, the affront to the dignity of American
citizens of Mexican ancestry and Mexican aliens lawfully within the country is in no way diminished. The fact still
remains that people of Mexican ancestry are targeted for examination at checkpoints and that the burden of
checkpoint intrusions will lie heaviest on them.
Chapter 14 — Page 311

What is your authority for your answer to the previous question? If you do not have authority to
which you can refer, review the Court’s opinion in Martinez-Fuerte. In that opinion, which
mostly concerned fixed checkpoints, the Court referred to prior law concerning roving patrols.
Opening another person’s mail without permission is normally a serious invasion of privacy, and
police normally must obtain a search warrant before opening a suspect’s mail. A great deal of
mail, however, is sent to the United States from abroad and accordingly crosses an international
border. Here the Court considers whether agents may open such mail at will.
Supreme Court of the United States
United States v. Charles W. Ramsey
Decided June 6, 1977 – 431 U.S. 606
Mr. Justice REHNQUIST delivered the opinion of the Court.
Customs officials, acting with “reasonable cause to suspect” a violation of customs laws, opened
for inspection incoming international letter-class mail without first obtaining a search warrant.
A divided Court of Appeals for the District of Columbia Circuit held contrary to every other Court
of Appeals which has considered the matter, that the Fourth Amendment forbade the opening
of such mail without probable cause and a search warrant. We granted the Government’s petition
for certiorari to resolve this Circuit conflict. We now reverse.
I
Charles W. Ramsey and James W. Kelly jointly commenced a heroin-by-mail enterprise in the
Washington, D.C., area. The process involved their procuring of heroin, which was mailed in
letters from Bangkok, Thailand, and sent to various locations in the District of Columbia area for
collection. Two of their suppliers, Sylvia Bailey and William Ward, who were located in West
Germany, were engaged in international narcotics trafficking during the latter part of 1973 and
the early part of 1974. West German agents, pursuant to court-authorized electronic surveillance,
intercepted several trans-Atlantic conversations between Bailey and Ramsey during which their
narcotics operation was discussed. By late January 1974, Bailey and Ward had gone to Thailand.
Thai officials, alerted to their presence by West German authorities, placed them under
surveillance. Ward was observed mailing letter-sized envelopes in six different mail boxes; five
of these envelopes were recovered; and one of the addresses in Washington, D.C., was later
linked to respondents. Bailey and Ward were arrested by Thai officials on February 2, 1974;
among the items seized were eleven heroin-filed envelopes addressed to the Washington, D.C.,
area, and later connected with respondents.
Two days after this arrest of Bailey and Ward, Inspector George Kallnischkies, a United States
customs officer in New York City, without any knowledge of the foregoing events, inspecting a
sack of incoming international mail from Thailand, spotted eight envelopes that were bulky and
which he believed might contain merchandise. The envelopes, all of which appeared to him to
have been typed on the same typewriter, were addressed to four different locations in the
Washington, D.C., area. Inspector Kallnischkies, based on the fact that the letters were from
Thailand, a known source of narcotics, and were “rather bulky,” suspected that the envelopes
Chapter 14 — Page 312

might contain merchandise or contraband rather than correspondence. He took the letters to an
examining area in the post office, and felt one of the letters: It “felt like there was something in
there, in the envelope. It was not just plain paper that the envelope is supposed to contain.” He
weighed one of the envelopes, and found it weighed 42 grams, some three to six times the normal
weight of an airmail letter. Inspector Kallnischkies then opened that envelope:
“In there I saw some cardboard and between the cardboard, if I recall, there was a plastic bag
containing a white powdered substance, which, based on experience, I knew from Thailand
would be heroin. I went ahead and removed a sample. Gave it a field test, a Marquis Reagent
field test, and I had a positive reaction for heroin.” He proceeded to open the other seven
envelopes which “in a lot of ways were identical”; examination revealed that at least the contents
were in fact identical: each contained heroin.
Ramsey and Kelly were indicted, along with Bailey and Ward, in a 17-count indictment.
Respondents moved to suppress the heroin. The District Court denied the motions, and after a
bench trial on the stipulated record, respondents were found guilty and sentenced to
imprisonment for what is in effect a term of 10 to 30 years. The Court of Appeals for the District
of Columbia Circuit, one judge dissenting, reversed the convictions, holding that the “border
search exception to the warrant requirement” applicable to persons, baggage, and mailed
packages did not apply to the routine opening of international letter mail, and held that the
Constitution requires that “before international letter mail is opened, a showing of probable
cause be made to and a warrant secured from a neutral magistrate.”
II
Congress and the applicable postal regulations authorized the actions undertaken in this case.
[Title 19 U.S.C. § 482] authorizes customs officials to inspect, under the circumstances therein
stated, incoming international mail. The “reasonable cause to suspect” test adopted by the
statute is, we think, a practical test which imposes a less stringent requirement than that of
“probable cause” imposed by the Fourth Amendment as a requirement for the issuance of
warrants. Inspector Kallnischkies, at the time he opened the letters, knew that they were from
Thailand, were bulky, were many times the weight of a normal airmail letter, and “felt like there
was something in there.” Under these circumstances, we have no doubt that he had reasonable
“cause to suspect” that there was merchandise or contraband in the envelopes. The search,
therefore, was plainly authorized by the statute.
Since the search in this case was authorized by statute, we are left simply with the question of
whether the search, nevertheless violated the Constitution. Specifically, we need not decide
whether Congress conceived the statute as a necessary precondition to the validity of the search
or whether it was viewed, instead, as a limitation on otherwise existing authority of the
Executive. Having acted pursuant to, and within the scope of, a congressional Act, Inspector
Kallnischkies’ searches were permissible unless they violated the Constitution.

Chapter 14 — Page 313

III
A
That searches made at the border, pursuant to the long-standing right of the sovereign to protect
itself by stopping and examining persons and property crossing into this country, are reasonable
simply by virtue of the fact that they occur at the border, should, by now, require no extended
demonstration. This interpretation, that border searches were not subject to the warrant
provisions of the Fourth Amendment and were “reasonable” within the meaning of that
Amendment, has been faithfully adhered to by this Court. [We have] recognized the distinction
between searches within this country, requiring probable cause, and border searches:
“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every
automobile on the chance of finding liquor and thus subject all persons lawfully using the
highways to the inconvenience and indignity of such a search. Travelers may be so stopped in
crossing an international boundary because of national self protection reasonably requiring
one entering the country to identify himself as entitled to come in, and his belongings as effects
which may be lawfully brought in. But those lawfully within the country … have a right to free
passage without interruption or search unless there is known to a competent official authorized
to search, probable cause for believing that their vehicles are carrying contraband or illegal
merchandise.” (Emphasis supplied.)
Border searches, then, from before the adoption of the Fourth Amendment, have been
considered to be “reasonable” by the single fact that the person or item in question had entered
into our country from outside. There has never been any additional requirement that the
reasonableness of a border search depended on the existence of probable cause. This
longstanding recognition that searches at our borders without probable cause and without a
warrant are nonetheless “reasonable” has a history as old as the Fourth Amendment itself. We
reaffirm it now.
B
The border-search exception is grounded in the recognized right of the sovereign to control,
subject to substantive limitations imposed by the Constitution, who and what may enter the
country. It is clear that there is nothing in the rationale behind the border-search exception
which suggests that the mode of entry will be critical. It was conceded at oral argument that
customs officials could search, without probable cause and without a warrant, envelopes carried
by an entering traveler, whether in his luggage or on his person. Surely no different
constitutional standard should apply simply because the envelopes were mailed not carried. The
critical fact is that the envelopes cross the border and enter this country, not that that are brought
in by one mode of transportation rather than another. It is their entry into this country from
without it that makes a resulting search “reasonable.”

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We therefore conclude that the Fourth Amendment does not interdict the actions taken by
Inspector Kallnischkies in opening and searching the eight envelopes. The judgment of the Court
of Appeals is, therefore,
Reversed.
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join,
dissenting.
The decisive question in this case is whether Congress has granted customs officials the authority
to open and inspect personal letters entering the United States from abroad without the
knowledge or consent of the sender or the addressee, and without probable cause to believe the
mail contains contraband or dutiable merchandise.
If the Government is allowed to exercise the power it claims, the door will be open to the
wholesale, secret examination of all incoming international letter mail. No notice would be
necessary either before or after the search. Until Congress has made an unambiguous policy
decision that such an unprecedented intrusion upon a vital method of personal communication
is in the Nation’s interest, this Court should not address the serious constitutional question it
decides today. For it is settled that “when action taken by an inferior governmental agency was
accomplished by procedures which raise serious constitutional questions, an initial inquiry will
be made to determine whether or not ‘the President or Congress, within their respective
constitutional powers, specifically has decided that the imposed procedures are necessary and
warranted and has authorized their use.’”
Accordingly, I would affirm the judgment of the Court of Appeals.
*

*

*

In the next case, the Court considers the treatment of a woman who flew to the United States
from abroad and was suspected of smuggling drugs. Her unpleasant ordeal further illustrates
the broad authority and discretion given to agents at the border.
Supreme Court of the United States
United States v. Rosa Elvira Montoya de Hernandez
Decided July 1, 1985 – 473 U.S. 531
Justice REHNQUIST delivered the opinion of the Court.
Respondent Rosa Elvira Montoya de Hernandez was detained by customs officials upon her
arrival at the Los Angeles Airport on a flight from Bogota, Colombia. She was found to be
smuggling 88 cocaine-filled balloons in her alimentary canal, and was convicted after a bench
trial of various federal narcotics offenses. A divided panel of the United States Court of Appeals
for the Ninth Circuit reversed her convictions, holding that her detention violated the Fourth
Amendment to the United States Constitution because the customs inspectors did not have a
“clear indication” of alimentary canal smuggling at the time she was detained. Because of a
Chapter 14 — Page 315

conflict in the decisions of the Courts of Appeals on this question and the importance of its
resolution to the enforcement of customs laws, we granted certiorari. We now reverse.
Respondent arrived at Los Angeles International Airport shortly after midnight, March 5, 1983,
on Avianca Flight 080, a direct 10-hour flight from Bogota, Colombia. Her visa was in order so
she was passed through Immigration and proceeded to the customs desk. At the customs desk
she encountered Customs Inspector Talamantes, who reviewed her documents and noticed from
her passport that she had made at least eight recent trips to either Miami or Los Angeles.
Talamantes referred respondent to a secondary customs desk for further questioning. At this
desk Talamantes and another inspector asked respondent general questions concerning herself
and the purpose of her trip. Respondent revealed that she spoke no English and had no family
or friends in the United States. She explained in Spanish that she had come to the United States
to purchase goods for her husband’s store in Bogota. The customs inspectors recognized Bogota
as a “source city” for narcotics. Respondent possessed $5,000 in cash, mostly $50 bills, but had
no billfold. She indicated to the inspectors that she had no appointments with merchandise
vendors, but planned to ride around Los Angeles in taxicabs visiting retail stores such as J.C.
Penney and K-Mart in order to buy goods for her husband’s store with the $5,000.
Respondent admitted that she had no hotel reservations, but stated that she planned to stay at a
Holiday Inn. Respondent could not recall how her airline ticket was purchased. When the
inspectors opened respondent’s one small valise they found about four changes of “cold weather”
clothing. Respondent had no shoes other than the high-heeled pair she was wearing. Although
respondent possessed no checks, waybills, credit cards, or letters of credit, she did produce a
Colombian business card and a number of old receipts, waybills, and fabric swatches displayed
in a photo album.
At this point Talamantes and the other inspector suspected that respondent was a “balloon
swallower,” one who attempts to smuggle narcotics into this country hidden in her alimentary
canal. Over the years Inspector Talamantes had apprehended dozens of alimentary canal
smugglers arriving on Avianca Flight 080.
The inspectors requested a female customs inspector to take respondent to a private area and
conduct a patdown and strip search. During the search the female inspector felt respondent’s
abdomen area and noticed a firm fullness, as if respondent were wearing a girdle. The search
revealed no contraband, but the inspector noticed that respondent was wearing two pairs of
elastic underpants with a paper towel lining the crotch area.
When respondent returned to the customs area and the female inspector reported her
discoveries, the inspector in charge told respondent that he suspected she was smuggling drugs
in her alimentary canal. Respondent agreed to the inspector’s request that she be x-rayed at a
hospital but in answer to the inspector’s query stated that she was pregnant. She agreed to a
pregnancy test before the x ray. Respondent withdrew the consent for an x ray when she learned
that she would have to be handcuffed en route to the hospital. The inspector then gave
respondent the option of returning to Colombia on the next available flight, agreeing to an x ray,
or remaining in detention until she produced a monitored bowel movement that would confirm
or rebut the inspectors’ suspicions. Respondent chose the first option and was placed in a
customs office under observation. She was told that if she went to the toilet she would have to
Chapter 14 — Page 316

use a wastebasket in the women’s restroom, in order that female customs inspectors could
inspect her stool for balloons or capsules carrying narcotics. The inspectors refused respondent’s
request to place a telephone call.
Respondent sat in the customs office, under observation, for the remainder of the night. During
the night customs officials attempted to place respondent on a Mexican airline that was flying to
Bogota via Mexico City in the morning. The airline refused to transport respondent because she
lacked a Mexican visa necessary to land in Mexico City. Respondent was not permitted to leave,
and was informed that she would be detained until she agreed to an x ray or her bowels moved.
She remained detained in the customs office under observation, for most of the time curled up
in a chair leaning to one side. She refused all offers of food and drink, and refused to use the
toilet facilities. The Court of Appeals noted that she exhibited symptoms of discomfort consistent
with “heroic efforts to resist the usual calls of nature.”
At the shift change at 4 o’clock the next afternoon, almost 16 hours after her flight had landed,
respondent still had not defecated or urinated or partaken of food or drink. At that time customs
officials sought a court order authorizing a pregnancy test, an x ray, and a rectal examination.
The Federal Magistrate issued an order just before midnight that evening, which authorized a
rectal examination and involuntary x ray, provided that the physician in charge considered
respondent’s claim of pregnancy. Respondent was taken to a hospital and given a pregnancy test,
which later turned out to be negative. Before the results of the pregnancy test were known, a
physician conducted a rectal examination and removed from respondent’s rectum a balloon
containing a foreign substance. Respondent was then placed formally under arrest. By 4:10 a.m.
respondent had passed 6 similar balloons; over the next four days she passed 88 balloons
containing a total of 528 grams of 80% pure cocaine hydrochloride.
After a suppression hearing the District Court admitted the cocaine in evidence against
respondent. She was convicted of possession of cocaine with intent to distribute and unlawful
importation of cocaine.
A divided panel of the United States Court of Appeals for the Ninth Circuit reversed respondent’s
convictions. The court noted that customs inspectors had a “justifiably high level of official
skepticism” about respondent’s good motives, but the inspectors decided to let nature take its
course rather than seek an immediate magistrate’s warrant for an x ray. Such a magistrate’s
warrant required a “clear indication” or “plain suggestion” that the traveler was an alimentary
canal smuggler under previous decisions of the Court of Appeals. The court applied this required
level of suspicion to respondent’s case. The court questioned the “humanity” of the inspectors’
decision to hold respondent until her bowels moved, knowing that she would suffer “many hours
of humiliating discomfort” if she chose not to submit to the x-ray examination. The court
concluded that under a “clear indication” standard “the evidence available to the customs officers
when they decided to hold [respondent] for continued observation was insufficient to support
the 16-hour detention.”

Chapter 14 — Page 317

The Government contends that the customs inspectors reasonably suspected that respondent
was an alimentary canal smuggler, and this suspicion was sufficient to justify the detention. In
support of the judgment below respondent argues, inter alia, that reasonable suspicion would
not support respondent’s detention, and in any event the inspectors did not reasonably suspect
that respondent was carrying narcotics internally.
The Fourth Amendment commands that searches and seizures be reasonable. What is
reasonable depends upon all of the circumstances surrounding the search or seizure and the
nature of the search or seizure itself. The permissibility of a particular law enforcement practice
is judged by “balancing its intrusion on the individual’s Fourth Amendment interests against its
promotion of legitimate governmental interests.”
Here the seizure of respondent took place at the international border. Since the founding of our
Republic, Congress has granted the Executive plenary authority to conduct routine searches and
seizures at the border, without probable cause or a warrant, in order to regulate the collection of
duties and to prevent the introduction of contraband into this country.
Consistently, therefore, with Congress’ power to protect the Nation by stopping and examining
persons entering this country, the Fourth Amendment’s balance of reasonableness is
qualitatively different at the international border than in the interior. Routine searches of the
persons and effects of entrants are not subject to any requirement of reasonable suspicion,
probable cause, or warrant, and first-class mail may be opened without a warrant on less than
probable cause. Automotive travelers may be stopped at fixed checkpoints near the border
without individualized suspicion even if the stop is based largely on ethnicity, and boats on
inland waters with ready access to the sea may be hailed and boarded with no suspicion
whatever.
[There is] longstanding concern for the protection of the integrity of the border. This concern is,
if anything, heightened by the veritable national crisis in law enforcement caused by smuggling
of illicit narcotics, and in particular by the increasing utilization of alimentary canal smuggling.
This desperate practice appears to be a relatively recent addition to the smugglers’ repertoire of
deceptive practices, and it also appears to be exceedingly difficult to detect. Congress had
recognized these difficulties. Customs agents may “stop, search, and examine” any “vehicle,
beast or person” upon which an officer suspects there is contraband or “merchandise which is
subject to duty.”
Balanced against the sovereign’s interests at the border are the Fourth Amendment rights of
respondent. Having presented herself at the border for admission, and having subjected herself
to the criminal enforcement powers of the Federal Government, respondent was entitled to be
free from unreasonable search and seizure. But not only is the expectation of privacy less at the
border than in the interior, the Fourth Amendment balance between the interests of the
Government and the privacy right of the individual is also struck much more favorably to the
Government at the border.
We have not previously decided what level of suspicion would justify a seizure of an incoming
traveler for purposes other than a routine border search. We hold that the detention of a traveler
at the border, beyond the scope of a routine customs search and inspection, is justified at its
Chapter 14 — Page 318

inception if customs agents, considering all the facts surrounding the traveler and her trip,
reasonably suspect that the traveler is smuggling contraband in her alimentary canal.
The “reasonable suspicion” standard has been applied in a number of contexts and effects a
needed balance between private and public interests when law enforcement officials must make
a limited intrusion on less than probable cause. It thus fits well into the situations involving
alimentary canal smuggling at the border: this type of smuggling gives no external signs and
inspectors will rarely possess probable cause to arrest or search, yet governmental interests in
stopping smuggling at the border are high indeed. Under this standard officials at the border
must have a “particularized and objective basis for suspecting the particular person” of
alimentary canal smuggling.
The facts, and their rational inferences, known to customs inspectors in this case clearly
supported a reasonable suspicion that respondent was an alimentary canal smuggler. We need
not belabor the facts, including respondent’s implausible story, that supported this suspicion.
The trained customs inspectors had encountered many alimentary canal smugglers and certainly
had more than an “inchoate and unparticularized suspicion or ‘hunch,’” that respondent was
smuggling narcotics in her alimentary canal. The inspectors’ suspicion was a “‘common-sense
conclusio[n] about human behavior’ upon which ‘practical people,’—including government
officials, are entitled to rely.”
The final issue in this case is whether the detention of respondent was reasonably related in
scope to the circumstances which justified it initially. In this regard we have cautioned that
courts should not indulge in “unrealistic second-guessing,” and we have noted that “creative
judge[s], engaged in post hoc evaluations of police conduct can almost always imagine some
alternative means by which the objectives of the police might have been accomplished.” But
“[t]he fact that the protection of the public might, in the abstract, have been accomplished by
‘less intrusive’ means does not, in itself, render the search unreasonable.” Authorities must be
allowed “to graduate their response to the demands of any particular situation.” Here,
respondent was detained incommunicado for almost 16 hours before inspectors sought a
warrant; the warrant then took a number of hours to procure, through no apparent fault of the
inspectors. This length of time undoubtedly exceeds any other detention we have approved
under reasonable suspicion. But we have also consistently rejected hard-and-fast time limits.
Instead, “common sense and ordinary human experience must govern over rigid criteria.”
The rudimentary knowledge of the human body which judges possess in common with the rest
of humankind tells us that alimentary canal smuggling cannot be detected in the amount of time
in which other illegal activity may be investigated through brief Terry-type stops. It presents
few, if any external signs; a quick frisk will not do, nor will even a strip search. In the case of
respondent the inspectors had available, as an alternative to simply awaiting her bowel
movement, an x ray. They offered her the alternative of submitting herself to that procedure. But
when she refused that alternative, the customs inspectors were left with only two practical
alternatives: detain her for such time as necessary to confirm their suspicions, a detention which
would last much longer than the typical Terry stop, or turn her loose into the interior carrying
the reasonably suspected contraband drugs.

Chapter 14 — Page 319

The inspectors in this case followed this former procedure. They no doubt expected that
respondent, having recently disembarked from a 10-hour direct flight with a full and stiff
abdomen, would produce a bowel movement without extended delay. But her visible efforts to
resist the call of nature, which the court below labeled “heroic,” disappointed this expectation
and in turn caused her humiliation and discomfort. Our prior cases have refused to charge police
with delays in investigatory detention attributable to the suspect’s evasive actions, and that
principle applies here as well. Respondent alone was responsible for much of the duration and
discomfort of the seizure.
Under these circumstances, we conclude that the detention in this case was not unreasonably
long. It occurred at the international border, where the Fourth Amendment balance of interests
leans heavily to the Government. At the border, customs officials have more than merely an
investigative law enforcement role. They are also charged, along with immigration officials, with
protecting this Nation from entrants who may bring anything harmful into this country, whether
that be communicable diseases, narcotics, or explosives. In this regard the detention of a
suspected alimentary canal smuggler at the border is analogous to the detention of a suspected
tuberculosis carrier at the border: both are detained until their bodily processes dispel the
suspicion that they will introduce a harmful agent into this country.
Respondent’s detention was long, uncomfortable, indeed, humiliating; but both its length and
its discomfort resulted solely from the method by which she chose to smuggle illicit drugs into
this country. “[T]he Fourth Amendment does not require a policeman who lacks the precise level
of information necessary for probable cause to arrest to simply shrug his shoulders and allow a
crime to occur or a criminal to escape.” Here, by analogy, in the presence of articulable suspicion
of smuggling in her alimentary canal, the customs officers were not required by the Fourth
Amendment to pass respondent and her 88 cocaine-filled balloons into the interior. Her
detention for the period of time necessary to either verify or dispel the suspicion was not
unreasonable. The judgment of the Court of Appeals is therefore
Reversed.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
We confront a “disgusting and saddening episode” at our Nation’s border. Shortly after midnight
on March 5, 1983, the respondent Rosa Elvira Montoya De Hernandez was detained by customs
officers because she fit the profile of an “alimentary canal smuggler.” This profile did not of
course give the officers probable cause to believe that De Hernandez was smuggling drugs into
the country, but at most a “reasonable suspicion” that she might be engaged in such an attempt.
After a thorough strip search failed to uncover any contraband, De Hernandez agreed to go to a
local hospital for an abdominal x ray to resolve the matter. When the officers approached with
handcuffs at the ready to lead her away, however, “she crossed her arms by her chest and began
stepping backwards shaking her head negatively,” protesting: “You are not going to put those on
me. That is an insult to my character.”
Stymied in their efforts, the officers decided on an alternative course: they would simply lock De
Hernandez away in an adjacent manifest room “until her peristaltic functions produced a
monitored bowel movement.” The officers explained to De Hernandez that she could not leave
Chapter 14 — Page 320

until she had excreted by squatting over a wastebasket pursuant to the watchful eyes of two
attending matrons. De Hernandez responded: “I will not submit to your degradation and I’d
rather die.” She was locked away with the matrons.
De Hernandez remained locked up in the room for almost 24 hours. Three shifts of matrons
came and went during this time. The room had no bed or couch on which she could lie, but only
hard chairs and a table. The matrons told her that if she wished to sleep she could lie down on
the hard, uncarpeted floor. De Hernandez instead “sat in her chair clutching her purse,”
“occasionally putting her head down on the table to nap.” Most of the time she simply wept and
pleaded “to go home.” She repeatedly begged for permission “to call my husband and tell him
what you are doing to me.” Permission was denied. Sobbing, she insisted that she had to “make
a phone call home so that she could talk to her children and to let them know that everything
was all right.” Permission again was denied. In fact, the matrons considered it highly “unusual”
that “each time someone entered the search room, she would take out two small pictures of her
children and show them to the person.” De Hernandez also demanded that her attorney be
contacted. Once again, permission was denied. As far as the outside world knew, Rosa de
Hernandez had simply vanished. And although she already had been stripped and searched and
probed, the customs officers decided about halfway through her ordeal to repeat that process—
“to ensure the safety of the surveilling officers. The result was again negative.”
After almost 24 hours had passed, someone finally had the presence of mind to consult a
Magistrate and to obtain a court order for an x ray and a body-cavity search. De Hernandez,
“very agitated,” was handcuffed and led away to the hospital. A rectal examination disclosed the
presence of a cocaine-filled balloon. At approximately 3:15 on the morning of March 6, almost
27 hours after her initial detention, De Hernandez was formally placed under arrest and advised
of her Miranda rights. Over the course of the next four days she excreted a total of 88 balloons.
The issue [] is simply this: Does the Fourth Amendment permit an international traveler, citizen
or alien, to be subjected to the sort of treatment that occurred in this case without the sanction
of a judicial officer and based on nothing more than the “reasonable suspicion” of low-ranking
investigative officers that something might be amiss? The Court today concludes that the Fourth
Amendment grants such sweeping and unmonitored authority to customs officials. It reasons
that “[t]he permissibility of a particular law enforcement practice is judged by ‘balancing its
intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate
governmental interests.’” The Court goes on to assert that the “balance of reasonableness is
qualitatively different at the international border,” and that searches and seizures in these
circumstances may therefore be conducted without probable cause or a warrant. Thus a traveler
at the Nation’s border may be detained for criminal investigation merely if the authorities
“reasonably suspect that the traveler is smuggling contraband.” There are no “hard-and-fast time
limits” for such investigative detentions, because “‘common sense and ordinary human
experience must govern over rigid criteria.’” Applying this “reasonableness” test to the instant
case, the Court concludes that the “[r]espondent alone was responsible for much of the duration
and discomfort of the seizure.”
I dissent. Indefinite involuntary incommunicado detentions “for investigation” are the hallmark
of a police state, not a free society. In my opinion, Government officials may no more confine a
person at the border under such circumstances for purposes of criminal investigation than they
Chapter 14 — Page 321

may within the interior of the country. The nature and duration of the detention here may well
have been tolerable for spoiled meat or diseased animals, but not for human beings held on
simple suspicion of criminal activity. I believe such indefinite detentions can be “reasonable”
under the Fourth Amendment only with the approval of a magistrate. I also believe that such
approval can be given only upon a showing of probable cause.
At some point [] further investigation involves such severe intrusions on the values the Fourth
Amendment protects that more stringent safeguards are required. For example, the length and
nature of a detention may, at least when conducted for criminal-investigative purposes, ripen
into something approximating a full-scale custodial arrest—indeed, the arrestee, unlike the
detainee in cases such as this, is at least given such basic rights as a telephone call, warnings, a
bed, a prompt hearing before the nearest federal magistrate, an appointed attorney, and
consideration of bail. In addition, border detentions may involve the use of such highly intrusive
investigative techniques as body-cavity searches, x-ray searches, and stomach-pumping.
I believe that detentions and searches falling into these more intrusive categories are
presumptively “reasonable” within the meaning of the Fourth Amendment only if authorized by
a judicial officer. We have, to be sure, held that executive officials need not obtain prior judicial
authorization where exigent circumstances would make such authorization impractical and
counterproductive. In so holding, however, we have reaffirmed the general rule that “the police
must, whenever practicable, obtain advance judicial approval of searches and seizures through
the warrant procedure.” And even where a person has permissibly been taken into custody
without a warrant, we have held that a prompt probable-cause determination by a detached
magistrate is a constitutional “prerequisite to extended restraint of liberty following arrest.”
There is no persuasive reason not to apply these principles to lengthy and intrusive criminalinvestigative detentions occurring at the Nation’s border. To be sure, the Court today invokes
precedent stating that neither probable cause nor a warrant ever have been required for border
searches. If this is the law as a general matter, I believe it is time that we reexamine its
foundations.
Something has gone fundamentally awry in our constitutional jurisprudence when a neutral and
detached magistrate’s authorization is required before the authorities may inspect “the
plumbing, heating, ventilation, gas, and electrical systems” in a person’s home, investigate the
back rooms of his workplace, or poke through the charred remains of his gutted garage, but not
before they may hold him in indefinite involuntary isolation at the Nation’s border to investigate
whether he might be engaged in criminal wrongdoing. No less than those who conduct
administrative searches, those charged with investigative duties at the border “should not be the
sole judges of when to utilize constitutionally sensitive means in pursuing their tasks,” because
“unreviewed executive discretion may yield too readily to pressures to obtain incriminating
evidence and overlook potential invasions of privacy.” And unlike administrative searches, which
typically involve “relatively limited invasion[s]” of individual privacy interests, many border
searches carry grave potential for “arbitrary and oppressive interference by enforcement officials
with the privacy and personal security of individuals.” The conditions of De Hernandez’
detention in this case—indefinite confinement in a squalid back room cut off from the outside
world, the absence of basic amenities that would have been provided to even the vilest of
hardened criminals, repeated strip searches—in many ways surpassed the conditions of a full
Chapter 14 — Page 322

custodial arrest. Although the Court previously has declined to require a warrant for border
searches involving “minor interference with privacy resulting from the mere stop for
questioning,” surely there is no parallel between such “minor” intrusions and the extreme
invasion of personal privacy and dignity that occurs in detentions and searches such as that
before us today.
The Court argues [] that the length and “discomfort” of De Hernandez’ detention “resulted solely
from the method by which she chose to smuggle illicit drugs into this country,” and it speculates
that only her “‘heroic’” efforts prevented the detention from being brief and to the point.
Although we now know that De Hernandez was indeed guilty of smuggling drugs internally, such
post hoc rationalizations have no place in our Fourth Amendment jurisprudence, which
demands that we “prevent hindsight from coloring the evaluation of the reasonableness of a
search or seizure.” At the time the authorities simply had, at most, a reasonable suspicion that
De Hernandez might be engaged in such smuggling. Neither the law of the land nor the law of
nature supports the notion that petty government officials can require people to excrete on
command; indeed, the Court relies elsewhere on “[t]he rudimentary knowledge of the human
body” in sanctioning the “much longer than ... typical” duration of detentions such as this. And,
with all respect to the Court, it is not “‘unrealistic second-guessing,’” to predict that an innocent
traveler, locked away in incommunicado detention in unfamiliar surroundings in a foreign land,
might well be so frightened and exhausted as to be unable so to “cooperate” with the authorities.
The Court further appears to believe that such investigative practices are “reasonable,” however,
on the premise that a traveler’s “expectation of privacy [is] less at the border than in the interior.”
This may well be so with respect to routine border inspections, but I do not imagine that decent
and law-abiding international travelers have yet reached the point where they “expect” to be
thrown into locked rooms and ordered to excrete into wastebaskets, held incommunicado until
they cooperate, or led away in handcuffs to the nearest hospital for exposure to various medical
procedures—all on nothing more than the “reasonable” suspicions of low-ranking enforcement
agents. In fact, many people from around the world travel to our borders precisely to escape such
unchecked executive investigatory discretion. What a curious first lesson in American liberty
awaits them on their arrival.
In my opinion, allowing the Government to hold someone in indefinite, involuntary,
incommunicado isolation without probable cause and a judicial warrant violates our
constitutional charter whether the purpose is to extract ransom or to investigate suspected
criminal activity. Nothing in the Fourth Amendment permits an exception for such actions at the
Nation’s border. It is tempting, of course, to look the other way in a case that so graphically
illustrates the “veritable national crisis” caused by narcotics trafficking. But if there is one
enduring lesson in the long struggle to balance individual rights against society’s need to defend
itself against lawlessness, it is that “[i]t is easy to make light of insistence on scrupulous regard
for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History
bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first,
then stealthily, and brazenly in the end.”
I dissent.

Chapter 14 — Page 323

Notes, Comments, and Questions
Students should be aware of three ongoing controversies related to border enforcement: (1) the
existence and significance of an “extended border” and areas known as the “functional
equivalent” of the border, (2) the treatment of electronic devices crossing the border, and (3) the
treatment of persons crossing the border seeking asylum or otherwise fleeing persecution and
poverty.
The Functional Border and Extended Border
International airports and the land immediately surrounding those airports are treated as the
“functional equivalent” of the border. Accordingly, a traveler flying from England to St. Louis
could be subjected to the same searches permissible at the border itself.
More controversially, federal officials have argued that they possess search and seizure authority
within 100 miles of international borders in an area known as the “extended border.” See, e.g.,
8 C.F.R. § 287.1. If all authority granted to law enforcement at the physical border exists
throughout the extended border, then people in New York City, Los Angeles, Houston, New
Orleans, Seattle, Washington, D.C., and all of Florida could be subjected to suspicionless
searches of their persons and effects at will. Civil libertarian organizations have accordingly
decried the concept of the extended border, calling it an unlawful “Constitution-Free Zone.”
The map below illustrates the ACLU’s take on the extended border:

It is not clear precisely what authority federal officials claim to possess in the extended border—
official guidance documents differ, and actual practice can diverge from such documents—nor is
there robust judicial guidance. In an era of increasingly-vigorous immigration enforcement, this
issue is attracting more attention.
Chapter 14 — Page 324

Electronic Devices at or Near the Border
Referring to Supreme Court cases granting border officials wide discretion to search persons and
effects entering and leaving the United States, federal officials have claimed to have authority to
inspect electronic devices at the border. Privacy advocates have argued that searches conducted
under this purported authority violate the Fourth Amendment.
Although some caselaw exists on this question, see, e.g., United States v. Cotterman, 709 F.3d
952 (9th Cir. 2013) (en banc) (holding that reasonable suspicion is necessary to search electronic
devices at border in certain cases); Alasaad v. McAleenan, 1:17-cv-11730-DJC (D. Mass. Nov. 12,
2019) (applying rule to larger class of searches); United States v. Ickes, 393 F.3d 501 (4th Cir.
2005) (allowing suspicionless searches), the law is not clear. Further litigation is ongoing.
In response to the risk of searches (which could expose lawful information such as trade secrets,
personal correspondence, and embarrassing literature to inspection), some international
travelers have begun wiping data from their computers and other devices before entering the
United States; they can then download data from the cloud after clearing immigration and
customs.
Treatment of Refugees, Asylum Seekers, and Other Migrants
The treatment of border crossers has received significant news coverage recently. In particular,
the question of how the United States may treat migrants who claim to be fleeing persecution—
especially migrants entering the United States with children—has inspired intense debate. For
example, U.S. Senator Kamala Harris visited the Otay Mesa Detention Facility 4 near San Diego
in June 2018 and called the treatment of detainees “a crime against humanity that is being
committed by the United States government.” As one might expect, Immigration and Customs
Enforcement and Department of Homeland Security officials have disagreed with such
assessments and have defended current practices as lawful exercises of the executive’s authority
to enforce laws at the border. Immigration law and refugee policy are beyond the scope of this
course. Students might nonetheless consider whether the Court’s decisions on how the Fourth
Amendment restricts (or does not restrict) executive discretion with respect to searches and
seizures at the border shed light on what other border enforcement tactics are and are not (and
should be or should not be) lawful.

4 Otay Mesa was the port of entry through which Manuel Flores-Montano’s gas tank entered the United States.

Chapter 14 — Page 325

THE FOURTH AMENDMENT
Chapter 15
The Warrant Requirement: Exceptions (Part 7)
Warrant Exception: Checkpoints
In this chapter, we consider two situations in which the Court has authorized warrantless
searches: (1) checkpoints, generally aimed at protecting the public from intoxicated drivers, and
(2) “protective sweeps” that police may conduct in association with an arrest. Note that sweeps
are distinct from searches incident to lawful arrest and are governed by different rules.
We begin with vehicle checkpoints. Checkpoints involve stopping cars randomly—or otherwise
selecting cars to stop without any specific reason to believe that the drivers are intoxicated or
otherwise breaking the law or transporting items subject to seizure. Accordingly, vehicle
checkpoints can be permissible only if the Court allows police seizures of persons and property
without even reasonable suspicion, much less probable cause. The question is whether such
seizures are “reasonable” under the Fourth Amendment.
Supreme Court of the United States
Michigan State Police v. Rick Sitz
Decided June 14, 1990 – 496 U.S. 444
Chief Justice REHNQUIST delivered the opinion of the Court.
This case poses the question whether a State’s use of highway sobriety checkpoints violates the
Fourth and Fourteenth Amendments to the United States Constitution. We hold that it does not
and therefore reverse the contrary holding of the Court of Appeals of Michigan.
Petitioners, the Michigan Department of State Police and its director, established a sobriety
checkpoint pilot program in early 1986. The director appointed a Sobriety Checkpoint Advisory
Committee comprising representatives of the State Police force, local police forces, state
prosecutors, and the University of Michigan Transportation Research Institute. Pursuant to its
charge, the advisory committee created guidelines setting forth procedures governing
checkpoint operations, site selection, and publicity.
Under the guidelines, checkpoints would be set up at selected sites along state roads. All vehicles
passing through a checkpoint would be stopped and their drivers briefly examined for signs of
intoxication. In cases where a checkpoint officer detected signs of intoxication, the motorist
would be directed to a location out of the traffic flow where an officer would check the motorist’s
driver’s license and car registration and, if warranted, conduct further sobriety tests. Should the
field tests and the officer’s observations suggest that the driver was intoxicated, an arrest would
be made. All other drivers would be permitted to resume their journey immediately.

Chapter 15 — Page 326

The first—and to date the only—sobriety checkpoint operated under the program was conducted
in Saginaw County with the assistance of the Saginaw County Sheriff’s Department. During the
75-minute duration of the checkpoint’s operation, 126 vehicles passed through the checkpoint.
The average delay for each vehicle was approximately 25 seconds. Two drivers were detained for
field sobriety testing, and one of the two was arrested for driving under the influence of alcohol.
A third driver who drove through without stopping was pulled over by an officer in an
observation vehicle and arrested for driving under the influence.
On the day before the operation of the Saginaw County checkpoint, respondents filed a complaint
in the Circuit Court of Wayne County seeking declaratory and injunctive relief from potential
subjection to the checkpoints. Each of the respondents “is a licensed driver in the State of
Michigan ... who regularly travels throughout the State in his automobile.” During pretrial
proceedings, petitioners agreed to delay further implementation of the checkpoint program
pending the outcome of this litigation.
After the trial, at which the court heard extensive testimony concerning, inter alia, the
“effectiveness” of highway sobriety checkpoint programs, the court ruled that the Michigan
program violated the Fourth Amendment. On appeal, the Michigan Court of Appeals affirmed
the holding. After the Michigan Supreme Court denied petitioners’ application for leave to
appeal, we granted certiorari.
Petitioners concede, correctly in our view, that a Fourth Amendment “seizure” occurs when a
vehicle is stopped at a checkpoint. The question thus becomes whether such seizures are
“reasonable” under the Fourth Amendment.
It is important to recognize what our inquiry is not about. No allegations are before us of
unreasonable treatment of any person after an actual detention at a particular checkpoint. As
pursued in the lower courts, the instant action challenges only the use of sobriety checkpoints
generally. We address only the initial stop of each motorist passing through a checkpoint and
the associated preliminary questioning and observation by checkpoint officers. Detention of
particular motorists for more extensive field sobriety testing may require satisfaction of an
individualized suspicion standard.
No one can seriously dispute the magnitude of the drunken driving problem or the States’
interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s
roads are legion. The anecdotal is confirmed by the statistical. “Drunk drivers cause an annual
death toll of over 25,000 and in the same time span cause nearly one million personal injuries
and more than five billion dollars in property damage.”
Conversely, the weight bearing on the other scale—the measure of the intrusion on motorists
stopped briefly at sobriety checkpoints—is slight. We reached a similar conclusion as to the
intrusion on motorists subjected to a brief stop at a highway checkpoint for detecting illegal
aliens. We see virtually no difference between the levels of intrusion on law-abiding motorists
from the brief stops necessary to the effectuation of these two types of checkpoints, which to the
average motorist would seem identical save for the nature of the questions the checkpoint
officers might ask. The trial court and the Court of Appeals, thus, accurately gauged the
Chapter 15 — Page 327

“objective” intrusion, measured by the duration of the seizure and the intensity of the
investigation, as minimal.
With respect to what it perceived to be the “subjective” intrusion on motorists, however, the
Court of Appeals found such intrusion substantial. The court first affirmed the trial court’s
finding that the guidelines governing checkpoint operation minimize the discretion of the
officers on the scene. But the court also agreed with the trial court’s conclusion that the
checkpoints have the potential to generate fear and surprise in motorists. This was so because
the record failed to demonstrate that approaching motorists would be aware of their option to
make U-turns or turnoffs to avoid the checkpoints. On that basis, the court deemed the subjective
intrusion from the checkpoints unreasonable.
We believe the Michigan courts misread our cases concerning the degree of “subjective
intrusion” and the potential for generating fear and surprise. The “fear and surprise” to be
considered are not the natural fear of one who has been drinking over the prospect of being
stopped at a sobriety checkpoint but, rather, the fear and surprise engendered in law-abiding
motorists by the nature of the stop. This was made clear in Martinez-Fuerte.
Here, checkpoints are selected pursuant to the guidelines, and uniformed police officers stop
every approaching vehicle. The intrusion resulting from the brief stop at the sobriety checkpoint
is for constitutional purposes indistinguishable from the checkpoint stops we upheld in
Martinez-Fuerte.
In sum, the balance of the State’s interest in preventing drunken driving, the extent to which this
system can reasonably be said to advance that interest, and the degree of intrusion upon
individual motorists who are briefly stopped, weighs in favor of the state program. We therefore
hold that it is consistent with the Fourth Amendment. The judgment of the Michigan Court of
Appeals is accordingly reversed, and the cause is remanded for further proceedings not
inconsistent with this opinion.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
Today, the Court rejects a Fourth Amendment challenge to a sobriety checkpoint policy in which
police stop all cars and inspect all drivers for signs of intoxication without any individualized
suspicion that a specific driver is intoxicated. The Court does so by balancing “the State’s interest
in preventing drunken driving, the extent to which this system can reasonably be said to advance
that interest, and the degree of intrusion upon individual motorists who are briefly stopped.”
[T]he Court misapplies that test by undervaluing the nature of the intrusion and exaggerating
the law enforcement need to use the roadblocks to prevent drunken driving.
I do not dispute the immense social cost caused by drunken drivers, nor do I slight the
government’s efforts to prevent such tragic losses. Indeed, I would hazard a guess that today’s
opinion will be received favorably by a majority of our society, who would willingly suffer the
minimal intrusion of a sobriety checkpoint stop in order to prevent drunken driving. But
consensus that a particular law enforcement technique serves a laudable purpose has never been
the touchstone of constitutional analysis.

Chapter 15 — Page 328

“The Fourth Amendment was designed not merely to protect against official intrusions whose
social utility was less as measured by some ‘balancing test’ than its intrusion on individual
privacy; it was designed in addition to grant the individual a zone of privacy whose protections
could be breached only where the ‘reasonable’ requirements of the probable-cause standard were
met. Moved by whatever momentary evil has aroused their fears, officials—perhaps even
supported by a majority of citizens—may be tempted to conduct searches that sacrifice the liberty
of each citizen to assuage the perceived evil. But the Fourth Amendment rests on the principle
that a true balance between the individual and society depends on the recognition of ‘the right
to be let alone—the most comprehensive of rights and the right most valued by civilized men.’”
In the face of the “momentary evil” of drunken driving, the Court today abdicates its role as the
protector of that fundamental right. I respectfully dissent.
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join as to Parts I and
II, dissenting.
A sobriety checkpoint is usually operated at night at an unannounced location. Surprise is crucial
to its method. The test operation conducted by the Michigan State Police and the Saginaw County
Sheriff’s Department began shortly after midnight and lasted until about 1 a.m. During that
period, the 19 officers participating in the operation made two arrests and stopped and
questioned 124 other unsuspecting and innocent drivers. It is, of course, not known how many
arrests would have been made during that period if those officers had been engaged in normal
patrol activities. However, the findings of the trial court, based on an extensive record and
affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints
on traffic safety is infinitesimal and possibly negative.
Indeed, the record in this case makes clear that a decision holding these suspicionless seizures
unconstitutional would not impede the law enforcement community’s remarkable progress in
reducing the death toll on our highways. Because the Michigan program was patterned after an
older program in Maryland, the trial judge gave special attention to that State’s experience. Over
a period of several years, Maryland operated 125 checkpoints; of the 41,000 motorists passing
through those checkpoints, only 143 persons (0.3%) were arrested. The number of man-hours
devoted to these operations is not in the record, but it seems inconceivable that a higher arrest
rate could not have been achieved by more conventional means. Yet, even if the 143 checkpoint
arrests were assumed to involve a net increase in the number of drunken driving arrests per year,
the figure would still be insignificant by comparison to the 71,000 such arrests made by Michigan
State Police without checkpoints in 1984 alone.
Any relationship between sobriety checkpoints and an actual reduction in highway fatalities is
even less substantial than the minimal impact on arrest rates. In light of these considerations, it
seems evident that the Court today misapplies the balancing test. The Court overvalues the law
enforcement interest in using sobriety checkpoints, undervalues the citizen’s interest in freedom
from random, unannounced investigatory seizures, and mistakenly assumes that there is
“virtually no difference” between a routine stop at a permanent, fixed checkpoint and a surprise
stop at a sobriety checkpoint.

Chapter 15 — Page 329

This is a case that is driven by nothing more than symbolic state action—an insufficient
justification for an otherwise unreasonable program of random seizures. Unfortunately, the
Court is transfixed by the wrong symbol—the illusory prospect of punishing countless
intoxicated motorists—when it should keep its eyes on the road plainly marked by the
Constitution.
I respectfully dissent.
*

*

*

In the next case, the Court considered whether the holding of Michigan v. Sitz allows police to
conduct random (suspicionless) stops of vehicles to check whether they contain illegal drugs.
While a checkpoint for “drugged” drivers would almost surely have been permissible for the
same reasons that the Court permitted drunk driving checkpoints, the question of a checkpoint
for contraband or other evidence of crime proved more controversial.
Supreme Court of the United States
City of Indianapolis v. James Edmond
Decided Nov. 28, 2000 – 531 U.S. 32
Justice O’CONNOR delivered the opinion of the Court.
In Michigan Dept. of State Police v. Sitz and United States v. Martinez-Fuerte, we held that
brief, suspicionless seizures at highway checkpoints for the purposes of combating drunk driving
and intercepting illegal immigrants were constitutional. We now consider the constitutionality
of a highway checkpoint program whose primary purpose is the discovery and interdiction of
illegal narcotics.
I
In August 1998, the city of Indianapolis began to operate vehicle checkpoints on Indianapolis
roads in an effort to interdict unlawful drugs. The city conducted six such roadblocks between
August and November that year, stopping 1,161 vehicles and arresting 104 motorists. Fifty-five
arrests were for drug-related crimes, while 49 were for offenses unrelated to drugs. The overall
“hit rate” of the program was thus approximately nine percent.
The parties stipulated to the facts concerning the operation of the checkpoints by the
Indianapolis Police Department (IPD) for purposes of the preliminary injunction proceedings
instituted below. At each checkpoint location, the police stop a predetermined number of
vehicles. Approximately 30 officers are stationed at the checkpoint. Pursuant to written
directives issued by the chief of police, at least one officer approaches the vehicle, advises the
driver that he or she is being stopped briefly at a drug checkpoint, and asks the driver to produce
a license and registration. The officer also looks for signs of impairment and conducts an openview examination of the vehicle from the outside. A narcotics-detection dog walks around the
outside of each stopped vehicle.
Chapter 15 — Page 330

The directives instruct the officers that they may conduct a search only by consent or based on
the appropriate quantum of particularized suspicion. The officers must conduct each stop in the
same manner until particularized suspicion develops, and the officers have no discretion to stop
any vehicle out of sequence. The city agreed in the stipulation to operate the checkpoints in such
a way as to ensure that the total duration of each stop, absent reasonable suspicion or probable
cause, would be five minutes or less.
Respondents James Edmond and Joell Palmer were each stopped at a narcotics checkpoint in
late September 1998. Respondents then filed a lawsuit on behalf of themselves and the class of
all motorists who had been stopped or were subject to being stopped in the future at the
Indianapolis drug checkpoints. Respondents claimed that the roadblocks violated the Fourth
Amendment of the United States Constitution and the search and seizure provision of the
Indiana Constitution. Respondents requested declaratory and injunctive relief for the class, as
well as damages and attorney’s fees for themselves.
Respondents then moved for a preliminary injunction. Although respondents alleged that the
officers who stopped them did not follow the written directives, they agreed to the stipulation
concerning the operation of the checkpoints for purposes of the preliminary injunction
proceedings. The parties also stipulated to certification of the plaintiff class. The United States
District Court for the Southern District of Indiana agreed to class certification and denied the
motion for a preliminary injunction, holding that the checkpoint program did not violate the
Fourth Amendment. A divided panel of the United States Court of Appeals for the Seventh
Circuit reversed, holding that the checkpoints contravened the Fourth Amendment. The panel
denied rehearing. We granted certiorari and now affirm.
II
The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure
is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. While such
suspicion is not an “irreducible” component of reasonableness, we have recognized only limited
circumstances in which the usual rule does not apply. We have [] upheld brief, suspicionless
seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens and
at a sobriety checkpoint aimed at removing drunk drivers from the road. In addition we [have]
suggested that a similar type of roadblock with the purpose of verifying drivers’ licenses and
vehicle registrations would be permissible. In none of these cases, however, did we indicate
approval of a checkpoint program whose primary purpose was to detect evidence of ordinary
criminal wrongdoing.
III
It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the
meaning of the Fourth Amendment. The fact that officers walk a narcotics-detection dog around
the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a
search. Just as in Place,1 an exterior sniff of an automobile does not require entry into the car
and is not designed to disclose any information other than the presence or absence of narcotics.
1 [Citation by editors] United States v. Place, 462 U.S. 696 (1983) (assigned for Chapter 5).

Chapter 15 — Page 331

Like the dog sniff in Place, a sniff by a dog that simply walks around a car is “much less intrusive
than a typical search.” Rather, what principally distinguishes these checkpoints from those we
have previously approved is their primary purpose.
As petitioners concede, the Indianapolis checkpoint program unquestionably has the primary
purpose of interdicting illegal narcotics. In their stipulation of facts, the parties repeatedly refer
to the checkpoints as “drug checkpoints” and describe them as “being operated by the City of
Indianapolis in an effort to interdict unlawful drugs in Indianapolis.” In addition, the first
document attached to the parties’ stipulation is entitled “DRUG CHECKPOINT CONTACT
OFFICER DIRECTIVES BY ORDER OF THE CHIEF OF POLICE.” These directives instruct
officers to “[a]dvise the citizen that they are being stopped briefly at a drug checkpoint.” The
second document attached to the stipulation is entitled “1998 Drug Road Blocks” and contains a
statistical breakdown of information relating to the checkpoints conducted. Further, according
to Sergeant DePew, the checkpoints are identified with lighted signs reading, “‘NARCOTICS
CHECKPOINT ___ MILE AHEAD, NARCOTICS K–9 IN USE, BE PREPARED TO STOP.’”
Finally, both the District Court and the Court of Appeals recognized that the primary purpose of
the roadblocks is the interdiction of narcotics.
We have never approved a checkpoint program whose primary purpose was to detect evidence
of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited
exceptions to the general rule that a seizure must be accompanied by some measure of
individualized suspicion. [E]ach of the checkpoint programs that we have approved was
designed primarily to serve purposes closely related to the problems of policing the border or the
necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics
checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program
contravenes the Fourth Amendment.
Petitioners propose several ways in which the narcotics-detection purpose of the instant
checkpoint program may instead resemble the primary purposes of the checkpoints in Sitz and
Martinez-Fuerte. Petitioners state that the checkpoints in those cases had the same ultimate
purpose of arresting those suspected of committing crimes. Securing the border and
apprehending drunk drivers are, of course, law enforcement activities, and law enforcement
officers employ arrests and criminal prosecutions in pursuit of these goals. If we were to rest the
case at this high level of generality, there would be little check on the ability of the authorities to
construct roadblocks for almost any conceivable law enforcement purpose. Without drawing the
line at roadblocks designed primarily to serve the general interest in crime control, the Fourth
Amendment would do little to prevent such intrusions from becoming a routine part of American
life.
Petitioners also emphasize the severe and intractable nature of the drug problem as justification
for the checkpoint program. There is no doubt that traffic in illegal narcotics creates social harms
of the first magnitude. The law enforcement problems that the drug trade creates likewise remain
daunting and complex, particularly in light of the myriad forms of spin-off crime that it spawns.
The same can be said of various other illegal activities, if only to a lesser degree. But the gravity
of the threat alone cannot be dispositive of questions concerning what means law enforcement
officers may employ to pursue a given purpose. Rather, in determining whether individualized
suspicion is required, we must consider the nature of the interests threatened and their
Chapter 15 — Page 332

connection to the particular law enforcement practices at issue. We are particularly reluctant to
recognize exceptions to the general rule of individualized suspicion where governmental
authorities primarily pursue their general crime control ends.
Nor can the narcotics-interdiction purpose of the checkpoints be rationalized in terms of a
highway safety concern similar to that present in Sitz. The detection and punishment of almost
any criminal offense serves broadly the safety of the community, and our streets would no doubt
be safer but for the scourge of illegal drugs. Only with respect to a smaller class of offenses,
however, is society confronted with the type of immediate, vehicle-bound threat to life and limb
that the sobriety checkpoint in Sitz was designed to eliminate.
The primary purpose of the Indianapolis narcotics checkpoints is in the end to advance “the
general interest in crime control.” We decline to suspend the usual requirement of individualized
suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of
investigating crimes. We cannot sanction stops justified only by the generalized and ever-present
possibility that interrogation and inspection may reveal that any given motorist has committed
some crime.
Of course, there are circumstances that may justify a law enforcement checkpoint where the
primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For
example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit
an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a
dangerous criminal who is likely to flee by way of a particular route. The exigencies created by
these scenarios are far removed from the circumstances under which authorities might simply
stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction.
While we do not limit the purposes that may justify a checkpoint program to any rigid set of
categories, we decline to approve a program whose primary purpose is ultimately
indistinguishable from the general interest in crime control.
Petitioners argue that the Indianapolis checkpoint program is justified by its lawful secondary
purposes of keeping impaired motorists off the road and verifying licenses and registrations. If
this were the case, however, law enforcement authorities would be able to establish checkpoints
for virtually any purpose so long as they also included a license or sobriety check. For this reason,
we examine the available evidence to determine the primary purpose of the checkpoint program.
While we recognize the challenges inherent in a purpose inquiry, courts routinely engage in this
enterprise in many areas of constitutional jurisprudence as a means of sifting abusive
governmental conduct from that which is lawful. As a result, a program driven by an
impermissible purpose may be proscribed while a program impelled by licit purposes is
permitted, even though the challenged conduct may be outwardly similar. While reasonableness
under the Fourth Amendment is predominantly an objective inquiry, our special needs and
administrative search cases demonstrate that purpose is often relevant when suspicionless
intrusions pursuant to a general scheme are at issue.
It goes without saying that our holding today does nothing to alter the constitutional status of
the sobriety and border checkpoints that we approved in Sitz and Martinez-Fuerte. The
constitutionality of such checkpoint programs still depends on a balancing of the competing
interests at stake and the effectiveness of the program. When law enforcement authorities pursue
Chapter 15 — Page 333

primarily general crime control purposes at checkpoints such as here, however, stops can only
be justified by some quantum of individualized suspicion.
Our holding also does not affect the validity of border searches or searches at places like airports
and government buildings, where the need for such measures to ensure public safety can be
particularly acute. Nor does our opinion speak to other intrusions aimed primarily at purposes
beyond the general interest in crime control. Our holding also does not impair the ability of
police officers to act appropriately upon information that they properly learn during a
checkpoint stop justified by a lawful primary purpose, even where such action may result in the
arrest of a motorist for an offense unrelated to that purpose. Finally, we caution that the purpose
inquiry in this context is to be conducted only at the programmatic level and is not an invitation
to probe the minds of individual officers acting at the scene.
Because the primary purpose of the Indianapolis checkpoint program is ultimately
indistinguishable from the general interest in crime control, the checkpoints violate the Fourth
Amendment. The judgment of the Court of Appeals is, accordingly, affirmed.
Chief Justice REHNQUIST, with whom Justice THOMAS joins, and with whom Justice SCALIA
joins as to Part I, dissenting.
The State’s use of a drug-sniffing dog, according to the Court’s holding, annuls what is otherwise
plainly constitutional under our Fourth Amendment jurisprudence: brief, standardized,
discretionless, roadblock seizures of automobiles, seizures which effectively serve a weighty state
interest with only minimal intrusion on the privacy of their occupants. Because these seizures
serve the State’s accepted and significant interests of preventing drunken driving and checking
for driver’s licenses and vehicle registrations, and because there is nothing in the record to
indicate that the addition of the dog sniff lengthens these otherwise legitimate seizures, I dissent.
As it is nowhere to be found in the Court’s opinion, I begin with blackletter roadblock seizure
law. “The principal protection of Fourth Amendment rights at checkpoints lies in appropriate
limitations on the scope of the stop.” Roadblock seizures are consistent with the Fourth
Amendment if they are “carried out pursuant to a plan embodying explicit, neutral limitations
on the conduct of individual officers.” Specifically, the constitutionality of a seizure turns upon
“a weighing of the gravity of the public concerns served by the seizure, the degree to which the
seizure advances the public interest, and the severity of the interference with individual liberty.”
We first applied these principles in Martinez-Fuerte, which approved highway checkpoints for
detecting illegal aliens. In Michigan Dept. of State Police v. Sitz, we upheld the State’s use of a
highway sobriety checkpoint after applying the framework set out in Martinez-Fuerte. This case
follows naturally from Martinez-Fuerte and Sitz. Petitioners acknowledge that the “primary
purpose” of these roadblocks is to interdict illegal drugs, but this fact should not be controlling.
Even accepting the Court’s conclusion that the checkpoints at issue in Martinez-Fuerte and Sitz
were not primarily related to criminal law enforcement, the question whether a law enforcement
purpose could support a roadblock seizure is not presented in this case. The District Court found
that another “purpose of the checkpoints is to check driver’s licenses and vehicle registrations,”
and the written directives state that the police officers are to “[l]ook for signs of impairment.”
The use of roadblocks to look for signs of impairment was validated by Sitz, and the use of
Chapter 15 — Page 334

roadblocks to check for driver’s licenses and vehicle registrations was expressly recognized in
Delaware v. Prouse, 440 U.S.648 (1979). That the roadblocks serve these legitimate state
interests cannot be seriously disputed, as the 49 people arrested for offenses unrelated to drugs
can attest. And it would be speculative to conclude—given the District Court’s findings, the
written directives, and the actual arrests—that petitioners would not have operated these
roadblocks but for the State’s interest in interdicting drugs.
Because of the valid reasons for conducting these roadblock seizures, it is constitutionally
irrelevant that petitioners also hoped to interdict drugs. Once the constitutional requirements
for a particular seizure are satisfied, the subjective expectations of those responsible for it, be it
police officers or members of a city council, are irrelevant. It is the objective effect of the State’s
actions on the privacy of the individual that animates the Fourth Amendment. Because the
objective intrusion of a valid seizure does not turn upon anyone’s subjective thoughts, neither
should our constitutional analysis.
With these checkpoints serving two important state interests, the remaining prongs of the
balancing test are easily met. The seizure is objectively reasonable as it lasts, on average, two to
three minutes and does not involve a search. The subjective intrusion is likewise limited as the
checkpoints are clearly marked and operated by uniformed officers who are directed to stop
every vehicle in the same manner. The only difference between this case and Sitz is the presence
of the dog. We have already held, however, that a “sniff test” by a trained narcotics dog is not a
“search” within the meaning of the Fourth Amendment because it does not require physical
intrusion of the object being sniffed and it does not expose anything other than the contraband
items. And there is nothing in the record to indicate that the dog sniff lengthens the stop. Finally,
the checkpoints’ success rate—49 arrests for offenses unrelated to drugs—only confirms the
State’s legitimate interests in preventing drunken driving and ensuring the proper licensing of
drivers and registration of their vehicles.
These stops effectively serve the State’s legitimate interests; they are executed in a regularized
and neutral manner; and they only minimally intrude upon the privacy of the motorists. They
should therefore be constitutional.
*

*

*

In the next case, the Court considered a police checkpoint designed to find witnesses of a recent
crime—a hit-and-run crash. Like Indianapolis v. Edmond, and unlike Michigan v. Sitz, the case
involved stopping vehicles without any purpose of protecting the public from immediate hazards
presented by their drivers. However, unlike Edmond, police did not hope to find evidence of
wrongdoing by the drivers; instead, they hoped to learn whether the drivers had seen
wrongdoing by someone else.

Chapter 15 — Page 335

Supreme Court of the United States
Illinois v. Robert S. Lidster
Decided Jan. 13, 2004 – 540 U.S. 419
Justice BREYER delivered the opinion of the Court.
This Fourth Amendment case focuses upon a highway checkpoint where police stopped
motorists to ask them for information about a recent hit-and-run accident. We hold that the
police stops were reasonable, hence, constitutional.
I
The relevant background is as follows: On Saturday, August 23, 1997, just after midnight, an
unknown motorist traveling eastbound on a highway in Lombard, Illinois, struck and killed a
70–year–old bicyclist. The motorist drove off without identifying himself. About one week later
at about the same time of night and at about the same place, local police set up a highway
checkpoint designed to obtain more information about the accident from the motoring public.
Police cars with flashing lights partially blocked the eastbound lanes of the highway. The
blockage forced traffic to slow down, leading to lines of up to 15 cars in each lane. As each vehicle
drew up to the checkpoint, an officer would stop it for 10 to 15 seconds, ask the occupants
whether they had seen anything happen there the previous weekend, and hand each driver a
flyer. The flyer said “ALERT ... FATAL HIT & RUN ACCIDENT” and requested “ASSISTANCE
IN IDENTIFYING THE VEHICLE AND DRIVER INVOLVED IN THIS ACCIDENT WHICH
KILLED A 70 YEAR OLD BICYCLIST.”
Robert Lidster, the respondent, drove a minivan toward the checkpoint. As he approached the
checkpoint, his van swerved, nearly hitting one of the officers. The officer smelled alcohol on
Lidster’s breath. He directed Lidster to a side street where another officer administered a
sobriety test and then arrested Lidster. Lidster was tried and convicted in Illinois state court of
driving under the influence of alcohol.
Lidster challenged the lawfulness of his arrest and conviction on the ground that the government
had obtained much of the relevant evidence through use of a checkpoint stop that violated the
Fourth Amendment. The trial court rejected that challenge. But an Illinois appellate court
reached the opposite conclusion. The Illinois Supreme Court agreed with the appellate court.
[W]e granted certiorari. We now reverse the Illinois Supreme Court’s determination.
II
The Illinois Supreme Court basically held that our decision in Edmond governs the outcome of
this case. We do not agree. Edmond involved a checkpoint at which police stopped vehicles to
look for evidence of drug crimes committed by occupants of those vehicles.
The checkpoint stop here differs significantly from that in Edmond. The stop’s primary law
enforcement purpose was not to determine whether a vehicle’s occupants were committing a
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crime, but to ask vehicle occupants, as members of the public, for their help in providing
information about a crime in all likelihood committed by others. The police expected the
information elicited to help them apprehend, not the vehicle’s occupants, but other individuals.
Edmond’s language, as well as its context, makes clear that the constitutionality of this latter,
information-seeking kind of stop was not then before the Court. Neither do we believe, Edmond
aside, that the Fourth Amendment would have us apply an Edmond-type rule of automatic
unconstitutionality to brief, information-seeking highway stops of the kind now before us. For
one thing, the fact that such stops normally lack individualized suspicion cannot by itself
determine the constitutional outcome. As in Edmond, the stop here at issue involves a motorist.
The Fourth Amendment does not treat a motorist’s car as his castle. And special law enforcement
concerns will sometimes justify highway stops without individualized suspicion. Moreover,
unlike Edmond, the context here (seeking information from the public) is one in which, by
definition, the concept of individualized suspicion has little role to play. Like certain other forms
of police activity, say, crowd control or public safety, an information-seeking stop is not the kind
of event that involves suspicion, or lack of suspicion, of the relevant individual.
For another thing, information-seeking highway stops are less likely to provoke anxiety or to
prove intrusive. The stops are likely brief. The police are not likely to ask questions designed to
elicit self-incriminating information. And citizens will often react positively when police simply
ask for their help as “responsible citizen[s]” to “give whatever information they may have to aid
in law enforcement.”
Further, the law ordinarily permits police to seek the voluntary cooperation of members of the
public in the investigation of a crime. “[L]aw enforcement officers do not violate the Fourth
Amendment by merely approaching an individual on the street or in another public place, by
asking him if he is willing to answer some questions, [or] by putting questions to him if the
person is willing to listen.” That, in part, is because voluntary requests play a vital role in police
investigatory work.
The importance of soliciting the public’s assistance is offset to some degree by the need to stop a
motorist to obtain that help—a need less likely present where a pedestrian, not a motorist, is
involved. The difference is significant in light of our determinations that such an involuntary
stop amounts to a “seizure” in Fourth Amendment terms. That difference, however, is not
important enough to justify an Edmond-type rule here. After all, as we have said, the motorist
stop will likely be brief. Any accompanying traffic delay should prove no more onerous than
many that typically accompany normal traffic congestion. And the resulting voluntary
questioning of a motorist is as likely to prove important for police investigation as is the
questioning of a pedestrian. Given these considerations, it would seem anomalous were the law
(1) ordinarily to allow police freely to seek the voluntary cooperation of pedestrians but (2)
ordinarily to forbid police to seek similar voluntary cooperation from motorists.

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Finally, we do not believe that an Edmond-type rule is needed to prevent an unreasonable
proliferation of police checkpoints. Practical considerations—namely, limited police resources
and community hostility to related traffic tieups—seem likely to inhibit any such proliferation.
And, of course, the Fourth Amendment’s normal insistence that the stop be reasonable in context
will still provide an important legal limitation on police use of this kind of information-seeking
checkpoint.
These considerations, taken together, convince us that an Edmond-type presumptive rule of
unconstitutionality does not apply here. That does not mean the stop is automatically, or even
presumptively, constitutional. It simply means that we must judge its reasonableness, hence, its
constitutionality, on the basis of the individual circumstances. And as this Court said in Brown
v. Texas, 443 U.S.47 (1979), in judging reasonableness, we look to “the gravity of the public
concerns served by the seizure, the degree to which the seizure advances the public interest, and
the severity of the interference with individual liberty.”
III
We now consider the reasonableness of the checkpoint stop before us in light of the factors just
mentioned, an issue that, in our view, has been fully argued here. We hold that the stop was
constitutional.
The relevant public concern was grave. Police were investigating a crime that had resulted in a
human death. No one denies the police’s need to obtain more information at that time. And the
stop’s objective was to help find the perpetrator of a specific and known crime, not of unknown
crimes of a general sort.
The stop advanced this grave public concern to a significant degree. The police appropriately
tailored their checkpoint stops to fit important criminal investigatory needs. The stops took place
about one week after the hit-and-run accident, on the same highway near the location of the
accident, and at about the same time of night. And police used the stops to obtain information
from drivers, some of whom might well have been in the vicinity of the crime at the time it
occurred.
Most importantly, the stops interfered only minimally with liberty of the sort the Fourth
Amendment seeks to protect. Viewed objectively, each stop required only a brief wait in line—a
very few minutes at most. Contact with the police lasted only a few seconds. Police contact
consisted simply of a request for information and the distribution of a flyer. Viewed subjectively,
the contact provided little reason for anxiety or alarm. The police stopped all vehicles
systematically. And there is no allegation here that the police acted in a discriminatory or
otherwise unlawful manner while questioning motorists during stops.
For these reasons we conclude that the checkpoint stop was constitutional.
The judgment of the Illinois Supreme Court is [r]eversed.

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Notes, Comments, and Questions
The Court made clear in Indianapolis v. Edmond that police may not establish checkpoints to
investigate whether drivers are transporting illegal drugs. Consider a department that responds
as follows:
Police post signs with text like “Drug Checkpoint Ahead” on public highways. Then, after
observing drivers who promptly exit the highway after passing the sign, officers investigate the
drivers for drug activity. Lawful? Why or why not?
See, e.g., United States v. Williams, 359 F.3d 1019 (8th Cir. 2004) (holding that because “there
was no checkpoint,” Edmond did not apply); United States v. Neff, 681 F.3d 1134 (10th Cir. 2012)
(holding that the fake-checkpoint ruse was lawful but that “standing alone,” a driver’s choice to
exit after seeing the sign “is insufficient to justify even a brief investigatory detention of a
vehicle”); compare State v. Mack, 66 S.W.3d 706 (Mo. 2002) (finding that “it is reasonable to
conclude that drivers with drugs would ‘take the bait’ and exit” and holding that stop was
reasonable in part because “the checkpoint was set up in an isolated and sparsely populated area
offering no services to motorists and was conducted on an evening that would otherwise have
little traffic”); with id. at 710 (Stith, J., dissenting) (arguing that seizure was unreasonable under
Edmond).
If a driver exiting the highway immediately after passing a “drug checkpoint ahead” sign is not
sufficient to provide reasonable suspicion to justify a vehicle stop (as the Tenth Circuit held),
what else should be necessary to justify the stop? In other words, what else must an officer
observe after the car exits?
This tactic has attracted attention from the surveilled community. See, e.g., Steve Elliot, “Cops
Set Up Fake ‘Drug Checkpoint’ Signs; Detain and Search Drivers Who React,” Toke Signals (Jan.
28, 2014); TJ Green, “Fake Drug Checkpoints Are Becoming More Devious,” Weed Blog (May 3,
2012).
Warrant Exception: Protective Sweeps
Our final case for this chapter concerns “protective sweeps,” which police may conduct along
with an arrest to protect themselves and others from potential attackers who may be lying in
wait. Students should carefully note how the protective sweeps doctrine differs from that
regulating searches incident to lawful arrests.

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Supreme Court of the United States
Maryland v. Jerome Edward Buie
Decided Feb. 28, 1990 – 494 U.S. 325
Justice WHITE delivered the opinion of the Court.
A “protective sweep” is a quick and limited search of premises, incident to an arrest and
conducted to protect the safety of police officers or others. It is narrowly confined to a cursory
visual inspection of those places in which a person might be hiding. In this case we must decide
what level of justification is required by the Fourth and Fourteenth Amendments before police
officers, while effecting the arrest of a suspect in his home pursuant to an arrest warrant, may
conduct a warrantless protective sweep of all or part of the premises. The Court of Appeals of
Maryland held that a running suit seized in plain view during such a protective sweep should
have been suppressed at respondent’s armed robbery trial because the officer who conducted the
sweep did not have probable cause to believe that a serious and demonstrable potentiality for
danger existed. We conclude that the Fourth Amendment would permit the protective sweep
undertaken here if the searching officer “possesse[d] a reasonable belief based on ‘specific and
articulable facts which, taken together with the rational inferences from those facts, reasonably
warrant[ed]’ the officer in believing” that the area swept harbored an individual posing a danger
to the officer or others. We accordingly vacate the judgment below and remand for application
of this standard.
I
On February 3, 1986, two men committed an armed robbery of a Godfather’s Pizza restaurant in
Prince George’s County, Maryland. One of the robbers was wearing a red running suit. That same
day, Prince George’s County police obtained arrest warrants for respondent Jerome Edward Buie
and his suspected accomplice in the robbery, Lloyd Allen. Buie’s house was placed under police
surveillance.
On February 5, the police executed the arrest warrant for Buie. They first had a police
department secretary telephone Buie’s house to verify that he was home. The secretary spoke to
a female first, then to Buie himself. Six or seven officers proceeded to Buie’s house. Once inside,
the officers fanned out through the first and second floors. Corporal James Rozar announced
that he would “freeze” the basement so that no one could come up and surprise the officers. With
his service revolver drawn, Rozar twice shouted into the basement, ordering anyone down there
to come out. When a voice asked who was calling, Rozar announced three times: “this is the
police, show me your hands.” Eventually, a pair of hands appeared around the bottom of the
stairwell and Buie emerged from the basement. He was arrested, searched, and handcuffed by
Rozar. Thereafter, Detective Joseph Frolich entered the basement “in case there was someone
else” down there. He noticed a red running suit lying in plain view on a stack of clothing and
seized it.
The trial court denied Buie’s motion to suppress the running suit, stating in part: “The man
comes out from a basement, the police don’t know how many other people are down there. He is
charged with a serious offense.” The State introduced the running suit into evidence at Buie’s
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trial. A jury convicted Buie of robbery with a deadly weapon and using a handgun in the
commission of a felony.
The Court of Special Appeals of Maryland affirmed the trial court’s denial of the suppression
motion. The court stated that Detective Frolich did not go into the basement to search for
evidence, but to look for the suspected accomplice or anyone else who might pose a threat to the
officers on the scene.
The Court of Appeals of Maryland reversed by a 4-to-3 vote. The court acknowledged that “when
the intrusion is slight, as in the case of a brief stop and frisk on a public street, and the public
interest in prevention of crime is substantial, reasonable articulable suspicion may be enough to
pass constitutional muster.” The court, however, stated that when the sanctity of the home is
involved, the exceptions to the warrant requirement are few, and held: “[T]o justify a protective
sweep of a home, the government must show that there is probable cause to believe that ‘“a
serious and demonstrable potentiality for danger”’ exists.” The court went on to find that the
State had not satisfied that probable-cause requirement.
II
It is not disputed that until the point of Buie’s arrest the police had the right, based on the
authority of the arrest warrant, to search anywhere in the house that Buie might have been found,
including the basement. “If there is sufficient evidence of a citizen’s participation in a felony to
persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require
him to open his doors to the officers of the law.” There is also no dispute that if Detective Frolich’s
entry into the basement was lawful, the seizure of the red running suit, which was in plain view
and which the officer had probable cause to believe was evidence of a crime, was also lawful
under the Fourth Amendment. The issue in this case is what level of justification the Fourth
Amendment required before Detective Frolich could legally enter the basement to see if someone
else was there.
Petitioner, the State of Maryland, argues that, under a general reasonableness balancing test,
police should be permitted to conduct a protective sweep whenever they make an in-home arrest
for a violent crime.
III
It goes without saying that the Fourth Amendment bars only unreasonable searches and
seizures. Our cases show that in determining reasonableness, we have balanced the intrusion on
the individual’s Fourth Amendment interests against its promotion of legitimate governmental
interests. Under this test, a search of the house or office is generally not reasonable without a
warrant issued on probable cause. There are other contexts, however, where the public interest
is such that neither a warrant nor probable cause is required.
Possessing an arrest warrant and probable cause to believe Buie was in his home, the officers
were entitled to enter and to search anywhere in the house in which Buie might be found. Once
he was found, however, the search for him was over, and there was no longer that particular
justification for entering any rooms that had not yet been searched.
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That Buie had an expectation of privacy in those remaining areas of his house, however, does not
mean such rooms were immune from entry. In the instant case, there is an [] interest of the
officers in taking steps to assure themselves that the house in which a suspect is being, or has
just been, arrested is not harboring other persons who are dangerous and who could
unexpectedly launch an attack. The risk of danger in the context of an arrest in the home is as
great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A
protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into
custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the
street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his
adversary’s “turf.” An ambush in a confined setting of unknown configuration is more to be
feared than it is in open, more familiar surroundings.
We agree with the State, as did the court below, that a warrant was not required. We also hold
that as an incident to the arrest the officers could, as a precautionary matter and without
probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining
the place of arrest from which an attack could be immediately launched. Beyond that, however,
we hold that there must be articulable facts which, taken together with the rational inferences
from those facts, would warrant a reasonably prudent officer in believing that the area to be
swept harbors an individual posing a danger to those on the arrest scene. This is no more and no
less than was required in Terry and Long, and as in those cases, we think this balance is the
proper one.2
We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if
justified by the circumstances, is nevertheless not a full search of the premises, but may extend
only to a cursory inspection of those spaces where a person may be found. The sweep lasts no
longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer
than it takes to complete the arrest and depart the premises.
IV
The type of search we authorize today is far removed from the “top-to-bottom” search involved
in Chimel; moreover, it is decidedly not “automati[c],” but may be conducted only when justified
by a reasonable, articulable suspicion that the house is harboring a person posing a danger to
those on the arrest scene.
V
We conclude that by requiring a protective sweep to be justified by probable cause to believe that
a serious and demonstrable potentiality for danger existed, the Court of Appeals of Maryland
applied an unnecessarily strict Fourth Amendment standard. The Fourth Amendment permits a
properly limited protective sweep in conjunction with an in-home arrest when the searching
officer possesses a reasonable belief based on specific and articulable facts that the area to be
swept harbors an individual posing a danger to those on the arrest scene. We therefore vacate
2 [Footnote by editors] Terry v. Ohio, 392 U.S.1 (1968), and Michigan v. Long, 463 U.S.1032 (1983) concern

searches permitted under the “stop-and-frisk” doctrine, which we will cover later in the course.
Chapter 15 — Page 342

the judgment below and remand this case to the Court of Appeals of Maryland for further
proceedings not inconsistent with this opinion.
Justice STEVENS, concurring.
Today the Court holds that reasonable suspicion, rather than probable cause, is necessary to
support a protective sweep while an arrest is in progress. I agree with that holding and with the
Court’s opinion, but I believe it is important to emphasize that the standard applies only to
protective sweeps. Officers conducting such a sweep must have a reasonable basis for believing
that their search will reduce the danger of harm to themselves or of violent interference with
their mission; in short, the search must be protective.
In this case, to justify Officer Frolich’s entry into the basement, it is the State’s burden to
demonstrate that the officers had a reasonable basis for believing not only that someone in the
basement might attack them or otherwise try to interfere with the arrest, but also that it would
be safer to go down the stairs instead of simply guarding them from above until respondent had
been removed from the house. The fact that respondent offered no resistance when he emerged
from the basement is somewhat inconsistent with the hypothesis that the danger of an attack by
a hidden confederate persisted after the arrest. Moreover, Officer Rozar testified that he was not
worried about any possible danger when he arrested Buie.
Indeed, were the officers concerned about safety, one would expect them to do what Officer
Rozar did before the arrest: guard the basement door to prevent surprise attacks. As the Court
indicates, Officer Frolich might, at the time of the arrest, reasonably have “look[ed] in” the
already open basement door to ensure that no accomplice had followed Buie to the stairwell. But
Officer Frolich did not merely “look in” the basement; he entered it. That strategy is sensible if
one wishes to search the basement. It is a surprising choice for an officer, worried about safety,
who need not risk entering the stairwell at all.
The State may thus face a formidable task on remand. However, the Maryland courts are better
equipped than are we to review the record.
Justice KENNEDY, concurring.
The Court adopts the prudent course of explaining the general rule and permitting the state court
to apply it in the first instance. The concurrence by JUSTICE STEVENS, however, makes the
gratuitous observation that the State has a formidable task on remand. My view is quite to the
contrary. Based on my present understanding of the record, I should think the officers’ conduct
here was in full accord with standard police safety procedure, and that the officers would have
been remiss if they had not taken these precautions. This comment is necessary, lest by
acquiescence the impression be left that JUSTICE STEVENS’ views can be interpreted as
authoritative guidance for application of our ruling to the facts of the case.

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Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
While the Fourth Amendment protects a person’s privacy interests in a variety of settings,
“physical entry of the home is the chief evil against which the wording of the Fourth Amendment
is directed.” The Court discounts the nature of the intrusion because it believes that the scope of
the intrusion is limited. The Court explains that a protective sweep’s scope is “narrowly confined
to a cursory visual inspection of those places in which a person might be hiding” and confined in
duration to a period “no longer than is necessary to dispel the reasonable suspicion of danger
and in any event no longer than it takes to complete the arrest and depart the premises.” But
these spatial and temporal restrictions are not particularly limiting. A protective sweep would
bring within police purview virtually all personal possessions within the house not hidden from
view in a small enclosed space. Police officers searching for potential ambushers might enter
every room including basements and attics; open up closets, lockers, chests, wardrobes, and
cars; and peer under beds and behind furniture. The officers will view letters, documents, and
personal effects that are on tables or desks or are visible inside open drawers; books, records,
tapes, and pictures on shelves; and clothing, medicines, toiletries and other paraphernalia not
carefully stored in dresser drawers or bathroom cupboards. While perhaps not a “full-blown” or
“top-to-bottom” search, a protective sweep is much closer to it than to a “limited patdown for
weapons” or a “‘frisk’ of an automobile.”
In light of the special sanctity of a private residence and the highly intrusive nature of a protective
sweep, I firmly believe that police officers must have probable cause to fear that their personal
safety is threatened by a hidden confederate of an arrestee before they may sweep through the
entire home. Given the state-court determination that the officers searching Buie’s home lacked
probable cause to perceive such a danger and therefore were not lawfully present in the
basement, I would affirm the state court’s decision to suppress the incriminating evidence. I
respectfully dissent.
Notes, Comments, and Questions
When comparing lawful “protective sweeps” with searches incident to lawful arrest, students
should note (1) the physical scope of a protective sweep will often extend beyond the area in
which a SILA is permissible, (2) because sweeps are permitted only to protect against dangers to
those present during the arrest, police may search only areas in which an officer may reasonably
suspect a person could be found, and (3) the searches must be “cursory inspections” of those
spaces.
An open question related to prospective sweeps concerns whether police may conduct them upon
entering a house with consent—or in other contexts unrelated to arrests.3 Federal courts have
reached divergent results.
Imagine police are investigating a brutal murder of a gang member and suspect that a rival gang
is responsible. They obtain consent to enter the home of a witness in a “high-crime”
neighborhood. May they “sweep” the house upon entry? Why or why not?
3 The authors thank Rachel Mitchell, who raised this issue while enrolled in Criminal Procedure at the University

of Missouri School of Law during fall of 2018.

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Consider a slightly modified version of the problem presented above. Here, police are
investigating an allegation of insider trading that violates federal securities law. They obtain
consent to enter the home of a witness in an exclusive gated community. May they “sweep” the
house upon entry? Why or why not?
For courts permitting sweeps absent arrests, see, e.g., United States v. Fadual, 16 F. Supp. 3d
270 (S.D.N.Y. 2014) (holding that “under certain circumstances, law enforcement officers may
engage in a protective sweep where they gained entry through consent in the first instance” but
that the sweep at issue was not lawful); United States v. Miller, 430 F.3d 93, 95 (2d Cir. 2005)
(allowing sweeps made by the police pursuant to “lawful process, such as an order permitting or
directing the officer to enter for the purpose of protecting a third party”); United States v. Gould,
364 F.3d 578 (5th Cir. 2004) (allowing sweep of mobile home entered by police with consent).
For courts holding sweeps unlawful absent an arrest, see, e.g., United States v. Torres-Castro,
470 F.3d 992 (10th Cir. 2006) (“Following Buie, we held that such ‘protective sweeps’ are only
permitted incident to an arrest.”); United States v. Waldner, 425 F.3d 514, 517 (8th Cir.
2005) (declining the invitation to “extend Buie further”); United States v. Reid, 226 F.3d 1020,
1027 (9th Cir. 2000) (holding search cannot be justified as protective sweep because when it
occurred suspect “was not under arrest”).

Chapter 15 — Page 345

THE FOURTH AMENDMENT
Chapter 16
The Warrant Requirement: Exceptions (Part 8)
Warrant Exception: Searches of Students & Public Employees
Although law enforcement officers conduct the bulk of the searches and seizures covered in this
book, other government agents also perform searches and seizures outside the context of normal
policing. In this chapter, we consider searches of public school students and public employees.
In public schools, teachers and other school officials must conduct searches to promote safety
and to foster an environment conducive to education. Yet students do not forfeit all rights at
school, and some searches of students and their effects are unreasonable. (Note that because the
Fourth Amendment regulates only state actors, private school students are not protected against
“unreasonable” school searches, unless the government is somehow involved.)
Supreme Court of the United States
New Jersey v. T.L.O.
Decided Jan. 15, 1985 – 469 U.S. 325
Justice WHITE delivered the opinion of the Court.
We granted certiorari in this case to examine the appropriateness of the exclusionary rule as a
remedy for searches carried out in violation of the Fourth Amendment by public school
authorities. Our consideration of the proper application of the Fourth Amendment to the public
schools, however, has led us to conclude that the search that gave rise to the case now before us
did not violate the Fourth Amendment. Accordingly, we here address only the questions of the
proper standard for assessing the legality of searches conducted by public school officials and
the application of that standard to the facts of this case.
I
On March 7, 1980, a teacher at Piscataway High School in Middlesex County, N.J., discovered
two girls smoking in a lavatory. One of the two girls was the respondent T.L.O., who at that time
was a 14-year-old high school freshman. Because smoking in the lavatory was a violation of a
school rule, the teacher took the two girls to the Principal’s office, where they met with Assistant
Vice Principal Theodore Choplick. In response to questioning by Mr. Choplick, T.L.O.’s
companion admitted that she had violated the rule. T.L.O., however, denied that she had been
smoking in the lavatory and claimed that she did not smoke at all.
Mr. Choplick asked T.L.O. to come into his private office and demanded to see her purse.
Opening the purse, he found a pack of cigarettes, which he removed from the purse and held
before T.L.O. as he accused her of having lied to him. As he reached into the purse for the
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cigarettes, Mr. Choplick also noticed a package of cigarette rolling papers. In his experience,
possession of rolling papers by high school students was closely associated with the use of
marihuana. Suspecting that a closer examination of the purse might yield further evidence of
drug use, Mr. Choplick proceeded to search the purse thoroughly. The search revealed a small
amount of marihuana, a pipe, a number of empty plastic bags, a substantial quantity of money
in one-dollar bills, an index card that appeared to be a list of students who owed T.L.O. money,
and two letters that implicated T.L.O. in marihuana dealing.
Mr. Choplick notified T.L.O.’s mother and the police, and turned the evidence of drug dealing
over to the police. At the request of the police, T.L.O.’s mother took her daughter to police
headquarters, where T.L.O. confessed that she had been selling marihuana at the high school.
On the basis of the confession and the evidence seized by Mr. Choplick, the State brought
delinquency charges against T.L.O. in the Juvenile and Domestic Relations Court of Middlesex
County. Contending that Mr. Choplick’s search of her purse violated the Fourth Amendment,
T.L.O. moved to suppress the evidence found in her purse as well as her confession, which, she
argued, was tainted by the allegedly unlawful search. The Juvenile Court denied the motion to
suppress. Although the court concluded that the Fourth Amendment did apply to searches
carried out by school officials, ... the court concluded that the search conducted by Mr. Choplick
was a reasonable one. The initial decision to open the purse was justified by Mr. Choplick’s wellfounded suspicion that T.L.O. had violated the rule forbidding smoking in the lavatory. Once the
purse was open, evidence of marihuana violations was in plain view, and Mr. Choplick was
entitled to conduct a thorough search to determine the nature and extent of T.L.O.'s drug-related
activities. Having denied the motion to suppress, the court on March 23, 1981, found T.L.O. to
be a delinquent and on January 8, 1982, sentenced her to a year’s probation.
On appeal from the final judgment of the Juvenile Court, a divided Appellate Division affirmed
the trial court’s finding that there had been no Fourth Amendment violation. T.L.O. appealed
the Fourth Amendment ruling, and the Supreme Court of New Jersey reversed the judgment of
the Appellate Division and ordered the suppression of the evidence found in T.L.O.’s purse.
We granted the State of New Jersey’s petition for certiorari. Although we originally granted
certiorari to decide the issue of the appropriate remedy in juvenile court proceedings for
unlawful school searches, our doubts regarding the wisdom of deciding that question in isolation
from the broader question of what limits, if any, the Fourth Amendment places on the activities
of school authorities prompted us to order reargument on that question. Having heard argument
on the legality of the search of T.L.O.’s purse, we are satisfied that the search did not violate the
Fourth Amendment.
II
In determining whether the search at issue in this case violated the Fourth Amendment, we are
faced initially with the question whether that Amendment’s prohibition on unreasonable
searches and seizures applies to searches conducted by public school officials. We hold that it
does.

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It is now beyond dispute that “the Federal Constitution, by virtue of the Fourteenth Amendment,
prohibits unreasonable searches and seizures by state officers.” Equally indisputable is the
proposition that the Fourteenth Amendment protects the rights of students against
encroachment by public school officials.
These two propositions—that the Fourth Amendment applies to the States through the
Fourteenth Amendment, and that the actions of public school officials are subject to the limits
placed on state action by the Fourteenth Amendment—might appear sufficient to answer the
suggestion that the Fourth Amendment does not proscribe unreasonable searches by school
officials. On reargument, however, the State of New Jersey has argued that the history of the
Fourth Amendment indicates that the Amendment was intended to regulate only searches and
seizures carried out by law enforcement officers; accordingly, although public school officials are
concededly state agents for purposes of the Fourteenth Amendment, the Fourth Amendment
creates no rights enforceable against them.
[T]his Court has never limited the Amendment’s prohibition on unreasonable searches and
seizures to operations conducted by the police. Rather, the Court has long spoken of the Fourth
Amendment’s strictures as restraints imposed upon “governmental action”—that is, “upon the
activities of sovereign authority.” Accordingly, we have held the Fourth Amendment applicable
to the activities of civil as well as criminal authorities: building inspectors, Occupational Safety
and Health Act inspectors, and even firemen entering privately owned premises to battle a fire,
are all subject to the restraints imposed by the Fourth Amendment. Because the individual’s
interest in privacy and personal security “suffers whether the government’s motivation is to
investigate violations of criminal laws or breaches of other statutory or regulatory standards,” it
would be “anomalous to say that the individual and his private property are fully protected by
the Fourth Amendment only when the individual is suspected of criminal behavior.”
Notwithstanding the general applicability of the Fourth Amendment to the activities of civil
authorities, a few courts have concluded that school officials are exempt from the dictates of the
Fourth Amendment by virtue of the special nature of their authority over schoolchildren.
Teachers and school administrators, it is said, act in loco parentis in their dealings with students:
their authority is that of the parent, not the State, and is therefore not subject to the limits of the
Fourth Amendment.
Such reasoning is in tension with contemporary reality and the teachings of this Court. We have
held school officials subject to the commands of the First Amendment, and the Due Process
Clause of the Fourteenth Amendment. If school authorities are state actors for purposes of the
constitutional guarantees of freedom of expression and due process, it is difficult to understand
why they should be deemed to be exercising parental rather than public authority when
conducting searches of their students. More generally, the Court has recognized that “the
concept of parental delegation” as a source of school authority is not entirely “consonant with
compulsory education laws.” Today’s public school officials do not merely exercise authority
voluntarily conferred on them by individual parents; rather, they act in furtherance of publicly
mandated educational and disciplinary policies. In carrying out searches and other disciplinary
functions pursuant to such policies, school officials act as representatives of the State, not merely
as surrogates for the parents, and they cannot claim the parents’ immunity from the strictures
of the Fourth Amendment.
Chapter 16 — Page 348

III
To hold that the Fourth Amendment applies to searches conducted by school authorities is only
to begin the inquiry into the standards governing such searches. Although the underlying
command of the Fourth Amendment is always that searches and seizures be reasonable, what is
reasonable depends on the context within which a search takes place. The determination of the
standard of reasonableness governing any specific class of searches requires “balancing the need
to search against the invasion which the search entails.” On one side of the balance are arrayed
the individual’s legitimate expectations of privacy and personal security; on the other, the
government’s need for effective methods to deal with breaches of public order.
We have recognized that even a limited search of the person is a substantial invasion of privacy.
We have also recognized that searches of closed items of personal luggage are intrusions on
protected privacy interests, for “the Fourth Amendment provides protection to the owner of
every container that conceals its contents from plain view.” A search of a child’s person or of a
closed purse or other bag carried on her person, no less than a similar search carried out on an
adult, is undoubtedly a severe violation of subjective expectations of privacy.
Of course, the Fourth Amendment does not protect subjective expectations of privacy that are
unreasonable or otherwise “illegitimate.” To receive the protection of the Fourth Amendment,
an expectation of privacy must be one that society is “prepared to recognize as legitimate.” The
State of New Jersey has argued that because of the pervasive supervision to which children in
the schools are necessarily subject, a child has virtually no legitimate expectation of privacy in
articles of personal property “unnecessarily” carried into a school. This argument has two factual
premises: (1) the fundamental incompatibility of expectations of privacy with the maintenance
of a sound educational environment; and (2) the minimal interest of the child in bringing any
items of personal property into the school. Both premises are severely flawed.
Although this Court may take notice of the difficulty of maintaining discipline in the public
schools today, the situation is not so dire that students in the schools may claim no legitimate
expectations of privacy. We have recently recognized that the need to maintain order in a prison
is such that prisoners retain no legitimate expectations of privacy in their cells, but it goes almost
without saying that “[t]he prisoner and the schoolchild stand in wholly different circumstances,
separated by the harsh facts of criminal conviction and incarceration.” We are not yet ready to
hold that the schools and the prisons need be equated for purposes of the Fourth Amendment.
Nor does the State’s suggestion that children have no legitimate need to bring personal property
into the schools seem well anchored in reality. Students at a minimum must bring to school not
only the supplies needed for their studies, but also keys, money, and the necessaries of personal
hygiene and grooming. In addition, students may carry on their persons or in purses or wallets
such nondisruptive yet highly personal items as photographs, letters, and diaries. Finally,
students may have perfectly legitimate reasons to carry with them articles of property needed in
connection with extracurricular or recreational activities. In short, schoolchildren may find it
necessary to carry with them a variety of legitimate, noncontraband items, and there is no reason
to conclude that they have necessarily waived all rights to privacy in such items merely by
bringing them onto school grounds.
Chapter 16 — Page 349

Against the child’s interest in privacy must be set the substantial interest of teachers and
administrators in maintaining discipline in the classroom and on school grounds. Maintaining
order in the classroom has never been easy, but in recent years, school disorder has often taken
particularly ugly forms: drug use and violent crime in the schools have become major social
problems. Even in schools that have been spared the most severe disciplinary problems, the
preservation of order and a proper educational environment requires close supervision of
schoolchildren, as well as the enforcement of rules against conduct that would be perfectly
permissible if undertaken by an adult. “Events calling for discipline are frequent occurrences
and sometimes require immediate, effective action.” Accordingly, we have recognized that
maintaining security and order in the schools requires a certain degree of flexibility in school
disciplinary procedures, and we have respected the value of preserving the informality of the
student-teacher relationship.
How, then, should we strike the balance between the schoolchild’s legitimate expectations of
privacy and the school’s equally legitimate need to maintain an environment in which learning
can take place? It is evident that the school setting requires some easing of the restrictions to
which searches by public authorities are ordinarily subject. The warrant requirement, in
particular, is unsuited to the school environment: requiring a teacher to obtain a warrant before
searching a child suspected of an infraction of school rules (or of the criminal law) would unduly
interfere with the maintenance of the swift and informal disciplinary procedures needed in the
schools. Just as we have in other cases dispensed with the warrant requirement when “the
burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search,”
we hold today that school officials need not obtain a warrant before searching a student who is
under their authority.
The school setting also requires some modification of the level of suspicion of illicit activity
needed to justify a search. Ordinarily, a search—even one that may permissibly be carried out
without a warrant—must be based upon “probable cause” to believe that a violation of the law
has occurred. However, “probable cause” is not an irreducible requirement of a valid search. The
fundamental command of the Fourth Amendment is that searches and seizures be reasonable,
and although “both the concept of probable cause and the requirement of a warrant bear on the
reasonableness of a search, ... in certain limited circumstances neither is required.” Thus, we
have in a number of cases recognized the legality of searches and seizures based on suspicions
that, although “reasonable,” do not rise to the level of probable cause. Where a careful balancing
of governmental and private interests suggests that the public interest is best served by a Fourth
Amendment standard of reasonableness that stops short of probable cause, we have not
hesitated to adopt such a standard.
We join the majority of courts that have examined this issue in concluding that the
accommodation of the privacy interests of schoolchildren with the substantial need of teachers
and administrators for freedom to maintain order in the schools does not require strict
adherence to the requirement that searches be based on probable cause to believe that the
subject of the search has violated or is violating the law. Rather, the legality of a search of a
student should depend simply on the reasonableness, under all the circumstances, of the search.
Determining the reasonableness of any search involves a twofold inquiry: first, one must
consider “whether the ... action was justified at its inception[;]” second, one must determine
whether the search as actually conducted “was reasonably related in scope to the circumstances
Chapter 16 — Page 350

which justified the interference in the first place.” Under ordinary circumstances, a search of a
student by a teacher or other school official will be “justified at its inception” when there are
reasonable grounds for suspecting that the search will turn up evidence that the student has
violated or is violating either the law or the rules of the school. Such a search will be permissible
in its scope when the measures adopted are reasonably related to the objectives of the search and
not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
This standard will, we trust, neither unduly burden the efforts of school authorities to maintain
order in their schools nor authorize unrestrained intrusions upon the privacy of schoolchildren.
By focusing attention on the question of reasonableness, the standard will spare teachers and
school administrators the necessity of schooling themselves in the niceties of probable cause and
permit them to regulate their conduct according to the dictates of reason and common sense. At
the same time, the reasonableness standard should ensure that the interests of students will be
invaded no more than is necessary to achieve the legitimate end of preserving order in the
schools.
IV
There remains the question of the legality of the search in this case. Our review of the facts
surrounding the search leads us to conclude that the search was in no sense unreasonable for
Fourth Amendment purposes.
The incident that gave rise to this case actually involved two separate searches, with the first—
the search for cigarettes—providing the suspicion that gave rise to the second the search for
marihuana. Although it is the fruits of the second search that are at issue here, the validity of the
search for marihuana must depend on the reasonableness of the initial search for cigarettes, as
there would have been no reason to suspect that T.L.O. possessed marihuana had the first search
not taken place. Accordingly, it is to the search for cigarettes that we first turn our attention.
The New Jersey Supreme Court pointed to two grounds for its holding that the search for
cigarettes was unreasonable. First, the court observed that possession of cigarettes was not in
itself illegal or a violation of school rules. Because the contents of T.L.O.’s purse would therefore
have “no direct bearing on the infraction” of which she was accused (smoking in a lavatory where
smoking was prohibited), there was no reason to search her purse. Second, even assuming that
a search of T.L.O.’s purse might under some circumstances be reasonable in light of the
accusation made against T.L.O., the New Jersey court concluded that Mr. Choplick in this
particular case had no reasonable grounds to suspect that T.L.O. had cigarettes in her purse. At
best, according to the court, Mr. Choplick had “a good hunch.”
Both these conclusions are implausible. T.L.O. had been accused of smoking, and had denied the
accusation in the strongest possible terms when she stated that she did not smoke at all. Surely
it cannot be said that under these circumstances, T.L.O.’s possession of cigarettes would be
irrelevant to the charges against her or to her response to those charges. T.L.O.’s possession of
cigarettes, once it was discovered, would both corroborate the report that she had been smoking
and undermine the credibility of her defense to the charge of smoking. To be sure, the discovery
of the cigarettes would not prove that T.L.O. had been smoking in the lavatory; nor would it,
strictly speaking, necessarily be inconsistent with her claim that she did not smoke at all. But it
Chapter 16 — Page 351

is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove
the ultimate fact in issue, but only have “any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it would
be without the evidence.” The relevance of T.L.O.’s possession of cigarettes to the question
whether she had been smoking and to the credibility of her denial that she smoked supplied the
necessary “nexus” between the item searched for and the infraction under investigation. Thus, if
Mr. Choplick in fact had a reasonable suspicion that T.L.O. had cigarettes in her purse, the search
was justified despite the fact that the cigarettes, if found, would constitute “mere evidence” of a
violation.
Of course, the New Jersey Supreme Court also held that Mr. Choplick had no reasonable
suspicion that the purse would contain cigarettes. This conclusion is puzzling. A teacher had
reported that T.L.O. was smoking in the lavatory. Certainly this report gave Mr. Choplick reason
to suspect that T.L.O. was carrying cigarettes with her; and if she did have cigarettes, her purse
was the obvious place in which to find them. Mr. Choplick’s suspicion that there were cigarettes
in the purse was not an “inchoate and unparticularized suspicion or ‘hunch[;]’” rather, it was the
sort of “common-sense conclusio[n] about human behavior” upon which “practical people”—
including government officials—are entitled to rely. Of course, even if the teacher’s report were
true, T.L.O. might not have had a pack of cigarettes with her; she might have borrowed a cigarette
from someone else or have been sharing a cigarette with another student. But the requirement
of reasonable suspicion is not a requirement of absolute certainty: “sufficient probability, not
certainty, is the touchstone of reasonableness under the Fourth Amendment ....” Because the
hypothesis that T.L.O. was carrying cigarettes in her purse was itself not unreasonable, it is
irrelevant that other hypotheses were also consistent with the teacher’s accusation. Accordingly,
it cannot be said that Mr. Choplick acted unreasonably when he examined T.L.O.’s purse to see
if it contained cigarettes.
Our conclusion that Mr. Choplick’s decision to open T.L.O.’s purse was reasonable brings us to
the question of the further search for marihuana once the pack of cigarettes was located. The
suspicion upon which the search for marihuana was founded was provided when Mr. Choplick
observed a package of rolling papers in the purse as he removed the pack of cigarettes. Although
T.L.O. does not dispute the reasonableness of Mr. Choplick’s belief that the rolling papers
indicated the presence of marihuana, she does contend that the scope of the search Mr. Choplick
conducted exceeded permissible bounds when he seized and read certain letters that implicated
T.L.O. in drug dealing. This argument, too, is unpersuasive. The discovery of the rolling papers
concededly gave rise to a reasonable suspicion that T.L.O. was carrying marihuana as well as
cigarettes in her purse. This suspicion justified further exploration of T.L.O.’s purse, which
turned up more evidence of drug-related activities: a pipe, a number of plastic bags of the type
commonly used to store marihuana, a small quantity of marihuana, and a fairly substantial
amount of money. Under these circumstances, it was not unreasonable to extend the search to a
separate zippered compartment of the purse; and when a search of that compartment revealed
an index card containing a list of “people who owe me money” as well as two letters, the inference
that T.L.O. was involved in marihuana trafficking was substantial enough to justify Mr. Choplick
in examining the letters to determine whether they contained any further evidence. In short, we
cannot conclude that the search for marihuana was unreasonable in any respect.
Chapter 16 — Page 352

Because the search resulting in the discovery of the evidence of marihuana dealing by T.L.O. was
reasonable, the New Jersey Supreme Court’s decision to exclude that evidence from T.L.O.’s
juvenile delinquency proceedings on Fourth Amendment grounds was erroneous. Accordingly,
the judgment of the Supreme Court of New Jersey is [r]eversed.
Justice BRENNAN, with whom Justice MARSHALL joins, concurring in part and dissenting in
part.
I fully agree with Part II of the Court’s opinion. Teachers, like all other government officials,
must conform their conduct to the Fourth Amendment’s protections of personal privacy and
personal security. [T]his principle is of particular importance when applied to schoolteachers,
for children learn as much by example as by exposition. It would be incongruous and futile to
charge teachers with the task of embuing their students with an understanding of our system of
constitutional democracy, while at the same time immunizing those same teachers from the need
to respect constitutional protections.
I do not, however, otherwise join the Court’s opinion. Today’s decision sanctions school officials
to conduct full-scale searches on a “reasonableness” standard whose only definite content is that
it is not the same test as the “probable cause” standard found in the text of the Fourth
Amendment. In adopting this unclear, unprecedented, and unnecessary departure from
generally applicable Fourth Amendment standards, the Court carves out a broad exception to
standards that this Court has developed over years of considering Fourth Amendment problems.
Its decision is supported neither by precedent nor even by a fair application of the “balancing
test” it proclaims in this very opinion.
I emphatically disagree with the Court’s decision to cast aside the constitutional probable-cause
standard when assessing the constitutional validity of a schoolhouse search. The Court’s decision
jettisons the probable-cause standard—the only standard that finds support in the text of the
Fourth Amendment—on the basis of its Rohrschach-like “balancing test.” Use of such a
“balancing test” to determine the standard for evaluating the validity of a full-scale search
represents a sizable innovation in Fourth Amendment analysis. This innovation finds support
neither in precedent nor policy and portends a dangerous weakening of the purpose of the
Fourth Amendment to protect the privacy and security of our citizens. Moreover, even if this
Court’s historic understanding of the Fourth Amendment were mistaken and a balancing test of
some kind were appropriate, any such test that gave adequate weight to the privacy and security
interests protected by the Fourth Amendment would not reach the preordained result the Court’s
conclusory analysis reaches today. Therefore, because I believe that the balancing test used by
the Court today is flawed both in its inception and in its execution, I respectfully dissent.
In the past several Terms, this Court has produced a succession of Fourth Amendment opinions
in which “balancing tests” have been applied to resolve various questions concerning the proper
scope of official searches. The Court has begun to apply a “balancing test” to determine whether
a particular category of searches intrudes upon expectations of privacy that merit Fourth
Amendment protection. It applies a “balancing test” to determine whether a warrant is necessary
to conduct a search. In today’s opinion, it employs a “balancing test” to determine what standard
should govern the constitutionality of a given category of searches.
Chapter 16 — Page 353

All of these “balancing tests” amount to brief nods by the Court in the direction of a neutral
utilitarian calculus while the Court in fact engages in an unanalyzed exercise of judicial will.
Perhaps this doctrinally destructive nihilism is merely a convenient umbrella under which a
majority that cannot agree on a genuine rationale can conceal its differences. And it may be that
the real force underlying today’s decision is the belief that the Court purports to reject—the belief
that the unique role served by the schools justifies an exception to the Fourth Amendment on
their behalf. If so, the methodology of today’s decision may turn out to have as little influence in
future cases as will its result, and the Court’s departure from traditional Fourth Amendment
doctrine will be confined to the schools.
On my view, the presence of the word “unreasonable” in the text of the Fourth Amendment does
not grant a shifting majority of this Court the authority to answer all Fourth Amendment
questions by consulting its momentary vision of the social good. Full-scale searches
unaccompanied by probable cause violate the Fourth Amendment. I do not pretend that our
traditional Fourth Amendment doctrine automatically answers all of the difficult legal questions
that occasionally arise. I do contend, however, that this Court has an obligation to provide some
coherent framework to resolve such questions on the basis of more than a conclusory recitation
of the results of a “balancing test.” The Fourth Amendment itself supplies that framework and,
because the Court today fails to heed its message, I must respectfully dissent.
*

*

*

In 2009, the Court applied the rule of New Jersey v. T.L.O. to a substantially more unpleasant
set of facts.
Supreme Court of the United States
Safford Unified School District #1 v. April Redding
Decided June 25, 2009 – 557 U.S. 364
Justice SOUTER delivered the opinion of the Court.
The issue here is whether a 13–year–old student’s Fourth Amendment right was violated when
she was subjected to a search of her bra and underpants by school officials acting on reasonable
suspicion that she had brought forbidden prescription and over-the-counter drugs to school.
Because there were no reasons to suspect the drugs presented a danger or were concealed in her
underwear, we hold that the search did violate the Constitution.
I
The events immediately prior to the search in question began in 13–year–old Savana Redding’s
math class at Safford Middle School one October day in 2003. The assistant principal of the
school, Kerry Wilson, came into the room and asked Savana to go to his office. There, he showed
her a day planner, unzipped and open flat on his desk, in which there were several knives,
lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner was
hers; she said it was, but that a few days before she had lent it to her friend, Marissa Glines.
Savana stated that none of the items in the planner belonged to her.
Chapter 16 — Page 354

Wilson then showed Savana four white prescription-strength ibuprofen 400–mg pills, and one
over-the-counter blue naproxen 200–mg pill, all used for pain and inflammation but banned
under school rules without advance permission. He asked Savana if she knew anything about the
pills. Savana answered that she did not. Wilson then told Savana that he had received a report
that she was giving these pills to fellow students; Savana denied it and agreed to let Wilson search
her belongings. Helen Romero, an administrative assistant, came into the office, and together
with Wilson they searched Savana’s backpack, finding nothing.
At that point, Wilson instructed Romero to take Savana to the school nurse’s office to search her
clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove her jacket,
socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she
was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake
it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to
some degree. No pills were found.
Savana’s mother filed suit against Safford Unified School District # 1, Wilson, Romero, and
Schwallier for conducting a strip search in violation of Savana’s Fourth Amendment rights. The
individuals (hereinafter petitioners) moved for summary judgment, raising a defense of qualified
immunity. The District Court for the District of Arizona granted the motion on the ground that
there was no Fourth Amendment violation, and a panel of the Ninth Circuit affirmed. A closely
divided Circuit sitting en banc, however, reversed. We granted certiorari and now affirm in part,
reverse in part, and remand.
II
The Fourth Amendment “right of the people to be secure in their persons ... against unreasonable
searches and seizures” generally requires a law enforcement officer to have probable cause for
conducting a search.
In T.L.O., we recognized that the school setting “requires some modification of the level of
suspicion of illicit activity needed to justify a search” and held that for searches by school officials
“a careful balancing of governmental and private interests suggests that the public interest is
best served by a Fourth Amendment standard of reasonableness that stops short of probable
cause.” We have thus applied a standard of reasonable suspicion to determine the legality of a
school administrator’s search of a student and have held that a school search “will be permissible
in its scope when the measures adopted are reasonably related to the objectives of the search and
not excessively intrusive in light of the age and sex of the student and the nature of the
infraction.”
Perhaps the best that can be said generally about the required knowledge component of probable
cause for a law enforcement officer’s evidence search is that it raise a “fair probability” or a
“substantial chance” of discovering evidence of criminal activity. The lesser standard for school
searches could as readily be described as a moderate chance of finding evidence of wrongdoing.

Chapter 16 — Page 355

III
A
In this case, the school’s policies strictly prohibit the nonmedical use, possession, or sale of any
drug on school grounds, including “‘[a]ny prescription or over-the-counter drug, except those
for which permission to use in school has been granted pursuant to Board policy.’” A week before
Savana was searched, another student, Jordan Romero (no relation of the school’s
administrative assistant), told the principal and Assistant Principal Wilson that “certain students
were bringing drugs and weapons on campus,” and that he had been sick after taking some pills
that “he got from a classmate.” On the morning of October 8, the same boy handed Wilson a
white pill that he said Marissa Glines had given him. He told Wilson that students were planning
to take the pills at lunch.
Wilson learned from Peggy Schwallier, the school nurse, that the pill was Ibuprofen 400 mg,
available only by prescription. Wilson then called Marissa out of class. Outside the classroom,
Marissa’s teacher handed Wilson the day planner, found within Marissa’s reach, containing
various contraband items. Wilson escorted Marissa back to his office.
In the presence of Helen Romero, Wilson requested Marissa to turn out her pockets and open
her wallet. Marissa produced a blue pill, several white ones, and a razor blade. Wilson asked
where the blue pill came from, and Marissa answered, “‘I guess it slipped in when she gave me
the IBU 400s.’” When Wilson asked whom she meant, Marissa replied, “‘Savana Redding.’”
Wilson then enquired about the day planner and its contents; Marissa denied knowing anything
about them. Wilson did not ask Marissa any followup questions to determine whether there was
any likelihood that Savana presently had pills: neither asking when Marissa received the pills
from Savana nor where Savana might be hiding them.
Schwallier did not immediately recognize the blue pill, but information provided through a
poison control hotline indicated that the pill was a 200-mg dose of an anti-inflammatory drug,
generically called naproxen, available over the counter. At Wilson’s direction, Marissa was then
subjected to a search of her bra and underpants by Romero and Schwallier, as Savana was later
on. The search revealed no additional pills.
It was at this juncture that Wilson called Savana into his office and showed her the day planner.
Their conversation established that Savana and Marissa were on friendly terms: while she denied
knowledge of the contraband, Savana admitted that the day planner was hers and that she had
lent it to Marissa. Wilson had other reports of their friendship from staff members, who had
identified Savana and Marissa as part of an unusually rowdy group at the school’s opening dance
in August, during which alcohol and cigarettes were found in the girls’ bathroom. Wilson had
reason to connect the girls with this contraband, for Wilson knew that Jordan Romero had told
the principal that before the dance, he had been at a party at Savana’s house where alcohol was
served. Marissa’s statement that the pills came from Savana was thus sufficiently plausible to
warrant suspicion that Savana was involved in pill distribution.

Chapter 16 — Page 356

This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer
clothing. If a student is reasonably suspected of giving out contraband pills, she is reasonably
suspected of carrying them on her person and in the carryall that has become an item of student
uniform in most places today. If Wilson’s reasonable suspicion of pill distribution were not
understood to support searches of outer clothes and backpack, it would not justify any search
worth making. And the look into Savana’s bag, in her presence and in the relative privacy of
Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her
outer clothing.
B
Here it is that the parties part company, with Savana’s claim that extending the search at
Wilson’s behest to the point of making her pull out her underwear was constitutionally
unreasonable. The exact label for this final step in the intrusion is not important, though strip
search is a fair way to speak of it. Romero and Schwallier directed Savana to remove her clothes
down to her underwear, and then “pull out” her bra and the elastic band on her underpants.
Although Romero and Schwallier stated that they did not see anything when Savana followed
their instructions, we would not define strip search and its Fourth Amendment consequences in
a way that would guarantee litigation about who was looking and how much was seen. The very
fact of Savana’s pulling her underwear away from her body in the presence of the two officials
who were able to see her necessarily exposed her breasts and pelvic area to some degree, and
both subjective and reasonable societal expectations of personal privacy support the treatment
of such a search as categorically distinct, requiring distinct elements of justification on the part
of school authorities for going beyond a search of outer clothing and belongings.
Savana’s subjective expectation of privacy against such a search is inherent in her account of it
as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required
by the Fourth Amendment standard) is indicated by the consistent experiences of other young
people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of
the exposure. The common reaction of these adolescents simply registers the obviously different
meaning of a search exposing the body from the experience of nakedness or near undress in
other school circumstances. Changing for gym is getting ready for play; exposing for a search is
responding to an accusation reserved for suspected wrongdoers and fairly understood as so
degrading that a number of communities have decided that strip searches in schools are never
reasonable and have banned them no matter what the facts may be.
The indignity of the search does not, of course, outlaw it, but it does implicate the rule of
reasonableness as stated in T.L.O., that “the search as actually conducted [be] reasonably related
in scope to the circumstances which justified the interference in the first place.” The scope will
be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the
student and the nature of the infraction.”
Here, the content of the suspicion failed to match the degree of intrusion. Wilson knew
beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen,
common pain relievers equivalent to two Advil, or one Aleve. He must have been aware of the
nature and limited threat of the specific drugs he was searching for, and while just about
anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that
Chapter 16 — Page 357

large amounts of the drugs were being passed around, or that individual students were receiving
great numbers of pills.
Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear.
Petitioners suggest, as a truth universally acknowledged, that “students ... hid[e] contraband in
or under their clothing” and cite a smattering of cases of students with contraband in their
underwear. But when the categorically extreme intrusiveness of a search down to the body of an
adolescent requires some justification in suspected facts, general background possibilities fall
short; a reasonable search that extensive calls for suspicion that it will pay off. But nondangerous
school contraband does not raise the specter of stashes in intimate places, and there is no
evidence in the record of any general practice among Safford Middle School students of hiding
that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was
doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson
never even determined when Marissa had received the pills from Savana; if it had been a few
days before, that would weigh heavily against any reasonable conclusion that Savana presently
had the pills on her person, much less in her underwear.
In sum, what was missing from the suspected facts that pointed to Savana was any indication of
danger to the students from the power of the drugs or their quantity, and any reason to suppose
that Savana was carrying pills in her underwear. We think that the combination of these
deficiencies was fatal to finding the search reasonable.
In so holding, we mean to cast no ill reflection on the assistant principal, for the record raises no
doubt that his motive throughout was to eliminate drugs from his school and protect students
from what Jordan Romero had gone through. Parents are known to overreact to protect their
children from danger, and a school official with responsibility for safety may tend to do the same.
The difference is that the Fourth Amendment places limits on the official, even with the high
degree of deference that courts must pay to the educator’s professional judgment.
We do mean, though, to make it clear that the T.L.O. concern to limit a school search to
reasonable scope requires the support of reasonable suspicion of danger or of resort to
underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum
leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a
search, and the degradation its subject may reasonably feel, place a search that intrusive in a
category of its own demanding its own specific suspicions.
[The Court found qualified immunity warranted for Wilson, Romero, and Schwallier because
“the cases viewing school strip searches differently from the way we see them are numerous
enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were
sufficiently clear in the prior statement of law.” The case was remanded for resolution of the
question of liability for the school district.]
Justice THOMAS, concurring in the judgment in part and dissenting in part.
By declaring the search unreasonable in this case, the majority has “‘surrender[ed] control of the
American public school system to public school students’” by invalidating school policies that
treat all drugs equally and by second-guessing swift disciplinary decisions made by school
officials. The Court’s interference in these matters of great concern to teachers, parents, and
Chapter 16 — Page 358

students illustrates why the most constitutionally sound approach to the question of applying
the Fourth Amendment in local public schools would in fact be the complete restoration of the
common-law doctrine of in loco parentis.
“[I]n the early years of public schooling,” courts applied the doctrine of in loco parentis to
transfer to teachers the authority of a parent to “‘command obedience, to control stubbornness,
to quicken diligence, and to reform bad habits.’” So empowered, schoolteachers and
administrators had almost complete discretion to establish and enforce the rules they believed
were necessary to maintain control over their classrooms. The perils of judicial policymaking
inherent in applying Fourth Amendment protections to public schools counsel in favor of a
return to the understanding that existed in this Nation’s first public schools, which gave teachers
discretion to craft the rules needed to carry out the disciplinary responsibilities delegated to
them by parents.
If the common-law view that parents delegate to teachers their authority to discipline and
maintain order were to be applied in this case, the search of Redding would stand. There can be
no doubt that a parent would have had the authority to conduct the search at issue in this case.
Parents have “immunity from the strictures of the Fourth Amendment” when it comes to
searches of a child or that child’s belongings.
Restoring the common-law doctrine of in loco parentis would not, however, leave public schools
entirely free to impose any rule they choose. “If parents do not like the rules imposed by those
schools, they can seek redress in school boards or legislatures; they can send their children to
private schools or home school them; or they can simply move.” Indeed, parents and local
government officials have proved themselves quite capable of challenging overly harsh school
rules or the enforcement of sensible rules in insensible ways.
In the end, the task of implementing and amending public school policies is beyond this Court’s
function. Parents, teachers, school administrators, local politicians, and state officials are all
better suited than judges to determine the appropriate limits on searches conducted by school
officials. Preservation of order, discipline, and safety in public schools is simply not the domain
of the Constitution. And, common sense is not a judicial monopoly or a Constitutional
imperative.
Only then will teachers again be able to “‘govern the[ir] pupils, quicken the slothful, spur the
indolent, restrain the impetuous, and control the stubborn’” by making “‘rules, giv[ing]
commands, and punish[ing] disobedience’” without interference from judges. By deciding that
it is better equipped to decide what behavior should be permitted in schools, the Court has
undercut student safety and undermined the authority of school administrators and local
officials. Even more troubling, it has done so in a case in which the underlying response by school
administrators was reasonable and justified. I cannot join this regrettable decision. I, therefore,
respectfully dissent from the Court’s determination that this search violated the Fourth
Amendment.

Chapter 16 — Page 359

Notes, Comments, and Questions
April Redding sued the Safford Unified school district on behalf of her daughter, Savana. During
the oral argument, some of the Justices asked questions that betrayed their lack of knowledge
about modern middle school life. Justice Scalia, for example, inquired about some of the items
classified as contraband at Savana’s school. He said learning that a “black marker pencil” was
contraband “astounded” him. Told by counsel that students use such markers “for sniffing,”
Justice Scalia replied, “Oh, is that what they do? … They sniff them? … Really?”
Justice Breyer, after trying to pin down the facts concerning how Savana was searched—and after
suggesting that underwear might be a sensible place to hide pills—reminisced on his own school
days.
“In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once
a day, we changed for gym, okay?”
He continued, “And in my experience, too, people did sometimes stick things in my underwear.”
The audience burst into laughter, and he clarified: “Or not my underwear. Whatever. … I was the
one who did it? I don’t know.”
Dahlia Lithwick, who covered the case for Slate, predicted as follows after the oral argument:
“When constitutional historians sit down someday to compile the definitive Supreme Court
Concordance of Not Getting It, the entry directly next to Lilly Ledbetter (‘Court fails utterly to
understand realities of gender pay discrimination’) will be Savana Redding (‘Court compares
strip searches of 13-year-old girls to American Pie-style locker-room hijinks’). After today’s
argument, it’s plain the court will overturn a 9th Circuit Court of Appeals opinion finding a
school’s decision to strip-search a 13-year-old girl unconstitutional. That the school in question
was looking for a prescription pill with the mind-altering force of a pair of Advil—and couldn’t
be bothered to call the child’s mother first—hardly matters.”
Having read the Court’s opinion, we know that Lithwick’s prediction was not correct. Justice
Breyer, he of the hijinks memories, joined an eight-Justice majority finding that the school’s
behavior violated the Fourth Amendment. Although there was broad consensus for finding a
violation, a smaller majority of Justices denied Savana money damages, holding that the school
officials were protected by “qualified immunity,” a doctrine discussed in Chapter 35.
Based on the standards set forth in T.L.O. and Redding, consider these potential actions by a
school district:
May a school search the mobile phone of a student who was caught texting in class? Does it
matter if the teachers search only to see who else was texting with the student or instead search
the photos and other data on the phone? See Amy Vorenberg, Indecent Exposure: Do
Warrantless Searches of a Student’s Cell Phone Violate the Fourth Amendment?, 17 Berkeley J.
Crim. L. 62 (2012).
Chapter 16 — Page 360

What about random locker searches aimed at finding drugs? What about requiring students to
use clear backpacks or to walk through metal detectors when entering the school building?
We now turn to searches of public employees. Supervisors of public employees have a duty to
monitor the work of subordinates for the public interest. Beyond reducing waste, fraud, and
abuse, supervisors have the day-to-day responsibility of managing staff so that offices
accomplish their goals. It remains unclear what privacy rights public employees maintain at
work.
In the context of a public employee whose electronic communications were searched by
supervisors, the Court in 2010 avoided resolving important questions about public employee
privacy. The Court found the searches at issue “reasonable,” in part, because the employee’s
behavior was egregious and the response of the employer unsurprising. Students should note
what issues are not decided by the Court, in addition to noting the holdings.
Supreme Court of the United States
City of Ontario, California v. Jeff Quon
Decided June 17, 2010 – 560 U.S. 746
Justice KENNEDY delivered the opinion of the Court.
This case involves the assertion by a government employer of the right, in circumstances to be
described, to read text messages sent and received on a pager the employer owned and issued to
an employee. The employee contends that the privacy of the messages is protected by the ban on
“unreasonable searches and seizures” found in the Fourth Amendment to the United States
Constitution, made applicable to the States by the Due Process Clause of the Fourteenth
Amendment. Though the case touches issues of farreaching significance, the Court concludes it
can be resolved by settled principles determining when a search is reasonable.
I
A
The City of Ontario (City) is a political subdivision of the State of California. The case arose out
of incidents in 2001 and 2002 when respondent Jeff Quon was employed by the Ontario Police
Department (OPD). He was a police sergeant and member of OPD’s Special Weapons and Tactics
(SWAT) Team. The City, OPD, and OPD’s Chief, Lloyd Scharf, are petitioners here. As will be
discussed, two respondents share the last name Quon. In this opinion “Quon” refers to Jeff Quon,
for the relevant events mostly revolve around him.
In October 2001, the City acquired 20 alphanumeric pagers capable of sending and receiving
text messages. Arch Wireless Operating Company provided wireless service for the pagers.
Under the City’s service contract with Arch Wireless, each pager was allotted a limited number
of characters sent or received each month. Usage in excess of that amount would result in an
additional fee. The City issued pagers to Quon and other SWAT Team members in order to help
the SWAT Team mobilize and respond to emergency situations.
Chapter 16 — Page 361

Before acquiring the pagers, the City announced a “Computer Usage, Internet and E–Mail
Policy” (Computer Policy) that applied to all employees. Among other provisions, it specified
that the City “reserves the right to monitor and log all network activity including e-mail and
Internet use, with or without notice. Users should have no expectation of privacy or
confidentiality when using these resources.” In March 2000, Quon signed a statement
acknowledging that he had read and understood the Computer Policy.
The Computer Policy did not apply, on its face, to text messaging. Text messages share
similarities with e-mails, but the two differ in an important way. In this case, for instance, an email sent on a City computer was transmitted through the City’s own data servers, but a text
message sent on one of the City’s pagers was transmitted using wireless radio frequencies from
an individual pager to a receiving station owned by Arch Wireless. It was routed through Arch
Wireless’ computer network, where it remained until the recipient’s pager or cellular telephone
was ready to receive the message, at which point Arch Wireless transmitted the message from
the transmitting station nearest to the recipient. After delivery, Arch Wireless retained a copy on
its computer servers. The message did not pass through computers owned by the City.
Although the Computer Policy did not cover text messages by its explicit terms, the City made
clear to employees, including Quon, that the City would treat text messages the same way as it
treated e-mails. At an April 18, 2002, staff meeting at which Quon was present, Lieutenant
Steven Duke, the OPD officer responsible for the City’s contract with Arch Wireless, told officers
that messages sent on the pagers “are considered e-mail messages. This means that [text]
messages would fall under the City’s policy as public information and [would be] eligible for
auditing.” Duke’s comments were put in writing in a memorandum sent on April 29, 2002, by
Chief Scharf to Quon and other City personnel.
Within the first or second billing cycle after the pagers were distributed, Quon exceeded his
monthly text message character allotment. Duke told Quon about the overage, and reminded
him that messages sent on the pagers were “considered e-mail and could be audited.” Duke said,
however, that “it was not his intent to audit [an] employee’s text messages to see if the overage
[was] due to work related transmissions.” Duke suggested that Quon could reimburse the City
for the overage fee rather than have Duke audit the messages. Quon wrote a check to the City for
the overage. Duke offered the same arrangement to other employees who incurred overage fees.
Over the next few months, Quon exceeded his character limit three or four times. Each time he
reimbursed the City. Quon and another officer again incurred overage fees for their pager usage
in August 2002. At a meeting in October, Duke told Scharf that he had become “‘tired of being a
bill collector.’” Scharf decided to determine whether the existing character limit was too low—
that is, whether officers such as Quon were having to pay fees for sending work-related
messages—or if the overages were for personal messages. Scharf told Duke to request transcripts
of text messages sent in August and September by Quon and the other employee who had
exceeded the character allowance.
At Duke’s request, an administrative assistant employed by OPD contacted Arch Wireless. After
verifying that the City was the subscriber on the accounts, Arch Wireless provided the desired
transcripts. Duke reviewed the transcripts and discovered that many of the messages sent and
received on Quon’s pager were not work related, and some were sexually explicit. Duke reported
Chapter 16 — Page 362

his findings to Scharf, who, along with Quon’s immediate supervisor, reviewed the transcripts
himself. After his review, Scharf referred the matter to OPD’s internal affairs division for an
investigation into whether Quon was violating OPD rules by pursuing personal matters while on
duty.
The officer in charge of the internal affairs review was Sergeant Patrick McMahon. Before
conducting a review, McMahon used Quon’s work schedule to redact the transcripts in order to
eliminate any messages Quon sent while off duty. He then reviewed the content of the messages
Quon sent during work hours. McMahon’s report noted that Quon sent or received 456 messages
during work hours in the month of August 2002, of which no more than 57 were work related;
he sent as many as 80 messages during a single day at work; and on an average workday, Quon
sent or received 28 messages, of which only 3 were related to police business. The report
concluded that Quon had violated OPD rules. Quon was allegedly disciplined.
B
Quon filed suit against petitioners in the United States District Court for the Central District of
California. Among the allegations in the complaint was that petitioners violated respondent[’s]
Fourth Amendment rights by obtaining and reviewing the transcript of Jeff Quon’s pager
messages.
The parties filed cross-motions for summary judgment. The District Court denied petitioners’
motion for summary judgment on the Fourth Amendment claims. The jury concluded that
Scharf ordered the audit to determine the efficacy of the character limits. The District Court
accordingly held that petitioners did not violate the Fourth Amendment. It entered judgment in
their favor.
The United States Court of Appeals for the Ninth Circuit reversed in part. The panel agreed with
the District Court that Jeff Quon had a reasonable expectation of privacy in his text messages
but disagreed with the District Court about whether the search was reasonable. The Ninth Circuit
denied a petition for rehearing en banc.
This Court granted the petition for certiorari filed by the City, OPD, and Chief Scharf challenging
the Court of Appeals’ holding that they violated the Fourth Amendment.
II
It is well settled that the Fourth Amendment’s protection extends beyond the sphere of criminal
investigations. “The Amendment guarantees the privacy, dignity, and security of persons against
certain arbitrary and invasive acts by officers of the Government,” without regard to whether the
government actor is investigating crime or performing another function. The Fourth
Amendment applies as well when the Government acts in its capacity as an employer.
The Court discussed this principle in O’Connor [v. Ortega, 480 U.S. 709 (1987)]. All Members
of the Court agreed with the general principle that “[i]ndividuals do not lose Fourth Amendment
rights merely because they work for the government instead of a private employer.” A majority
Chapter 16 — Page 363

of the Court further agreed that “‘special needs, beyond the normal need for law enforcement,’”
make the warrant and probable-cause requirement impracticable for government employers.
The O’Connor Court did disagree on the proper analytical framework for Fourth Amendment
claims against government employers. A four-Justice plurality concluded that the correct
analysis has two steps. First, because “some government offices may be so open to fellow
employees or the public that no expectation of privacy is reasonable,” a court must consider
“[t]he operational realities of the workplace” in order to determine whether an employee’s
Fourth Amendment rights are implicated. On this view, “the question whether an employee has
a reasonable expectation of privacy must be addressed on a case-by-case basis.” Next, where an
employee has a legitimate privacy expectation, an employer’s intrusion on that expectation “for
noninvestigatory, work-related purposes, as well as for investigations of work-related
misconduct, should be judged by the standard of reasonableness under all the circumstances.”
Justice SCALIA, concurring in the judgment, outlined a different approach. His opinion would
have dispensed with an inquiry into “operational realities” and would conclude “that the offices
of government employees ... are covered by Fourth Amendment protections as a general matter.”
But he would also have held “that government searches to retrieve work-related materials or to
investigate violations of workplace rules—searches of the sort that are regarded as reasonable
and normal in the private-employer context—do not violate the Fourth Amendment.”
Later, in the Von Raab decision, [Treasury Employees v. Von Raab, 489 U.S. 656 (1989)], the
Court explained that “operational realities” could diminish an employee’s privacy expectations,
and that this diminution could be taken into consideration when assessing the reasonableness
of a workplace search. In the two decades since O’Connor, however, the threshold test for
determining the scope of an employee’s Fourth Amendment rights has not been clarified further.
Here, though they disagree on whether Quon had a reasonable expectation of privacy, both
petitioners and respondents start from the premise that the O’Connor plurality controls. It is not
necessary to resolve whether that premise is correct. The case can be decided by determining
that the search was reasonable even assuming Quon had a reasonable expectation of privacy.
The two O’Connor approaches—the plurality’s and Justice SCALIA’s—therefore lead to the same
result here.
III
A
Before turning to the reasonableness of the search, it is instructive to note the parties’
disagreement over whether Quon had a reasonable expectation of privacy. The Court must
proceed with care when considering the whole concept of privacy expectations in
communications made on electronic equipment owned by a government employer. The judiciary
risks error by elaborating too fully on the Fourth Amendment implications of emerging
technology before its role in society has become clear. In Katz, the Court relied on its own
knowledge and experience to conclude that there is a reasonable expectation of privacy in a
telephone booth. It is not so clear that courts at present are on so sure a ground. Prudence
counsels caution before the facts in the instant case are used to establish far-reaching premises
Chapter 16 — Page 364

that define the existence, and extent, of privacy expectations enjoyed by employees when using
employer-provided communication devices.
Rapid changes in the dynamics of communication and information transmission are evident not
just in the technology itself but in what society accepts as proper behavior. As one amici brief
notes, many employers expect or at least tolerate personal use of such equipment by employees
because it often increases worker efficiency. Another amicus points out that the law is beginning
to respond to these developments, as some States have recently passed statutes requiring
employers to notify employees when monitoring their electronic communications. At present, it
is uncertain how workplace norms, and the law’s treatment of them, will evolve.
[T]he Court [will] have difficulty predicting how employees’ privacy expectations will be shaped
by those changes or the degree to which society will be prepared to recognize those expectations
as reasonable. Cell phone and text message communications are so pervasive that some persons
may consider them to be essential means or necessary instruments for self-expression, even selfidentification. That might strengthen the case for an expectation of privacy. On the other hand,
the ubiquity of those devices has made them generally affordable, so one could counter that
employees who need cell phones or similar devices for personal matters can purchase and pay
for their own. And employer policies concerning communications will of course shape the
reasonable expectations of their employees, especially to the extent that such policies are clearly
communicated.
A broad holding concerning employees’ privacy expectations vis–à-vis employer-provided
technological equipment might have implications for future cases that cannot be predicted. It is
preferable to dispose of this case on narrower grounds. For present purposes we assume several
propositions arguendo: First, Quon had a reasonable expectation of privacy in the text messages
sent on the pager provided to him by the City; second, petitioners’ review of the transcript
constituted a search within the meaning of the Fourth Amendment; and third, the principles
applicable to a government employer’s search of an employee’s physical office apply with at least
the same force when the employer intrudes on the employee’s privacy in the electronic sphere.
B
Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not
necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although
as a general matter, warrantless searches “are per se unreasonable under the Fourth
Amendment,” there are “a few specifically established and well-delineated exceptions” to that
general rule. The Court has held that the “‘special needs’” of the workplace justify one such
exception.
Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, workrelated purpos[e]” or for the “investigatio[n] of work-related misconduct,” a government
employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the
measures adopted are reasonably related to the objectives of the search and not excessively
intrusive in light of’” the circumstances giving rise to the search. The search here satisfied the
standard of the O’Connor plurality and was reasonable under that approach.
Chapter 16 — Page 365

The search was justified at its inception because there were “reasonable grounds for suspecting
that the search [was] necessary for a noninvestigatory work-related purpose.” As a jury found,
Chief Scharf ordered the search in order to determine whether the character limit on the City’s
contract with Arch Wireless was sufficient to meet the City’s needs. This was, as the Ninth Circuit
noted, a “legitimate work-related rationale.” The City and OPD had a legitimate interest in
ensuring that employees were not being forced to pay out of their own pockets for work-related
expenses, or on the other hand that the City was not paying for extensive personal
communications.
As for the scope of the search, reviewing the transcripts was reasonable because it was an
efficient and expedient way to determine whether Quon’s overages were the result of workrelated messaging or personal use. The review was also not “‘excessively intrusive.’” Although
Quon had gone over his monthly allotment a number of times, OPD requested transcripts for
only the months of August and September 2002. While it may have been reasonable as well for
OPD to review transcripts of all the months in which Quon exceeded his allowance, it was
certainly reasonable for OPD to review messages for just two months in order to obtain a large
enough sample to decide whether the character limits were efficacious. And it is worth noting
that during his internal affairs investigation, McMahon redacted all messages Quon sent while
off duty, a measure which reduced the intrusiveness of any further review of the transcripts.
Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy
in the contents of his messages, the extent of an expectation is relevant to assessing whether the
search was too intrusive. Even if he could assume some level of privacy would inhere in his
messages, it would not have been reasonable for Quon to conclude that his messages were in all
circumstances immune from scrutiny. Quon was told that his messages were subject to auditing.
As a law enforcement officer, he would or should have known that his actions were likely to come
under legal scrutiny, and that this might entail an analysis of his on-the-job communications.
Under the circumstances, a reasonable employee would be aware that sound management
principles might require the audit of messages to determine whether the pager was being
appropriately used. Given that the City issued the pagers to Quon and other SWAT Team
members in order to help them more quickly respond to crises—and given that Quon had
received no assurances of privacy—Quon could have anticipated that it might be necessary for
the City to audit pager messages to assess the SWAT Team’s performance in particular
emergency situations.
From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with
boundaries that we need not here explore, lessened the risk that the review would intrude on
highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager
was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on
his home phone line, would have been. That the search did reveal intimate details of Quon’s life
does not make it unreasonable, for under the circumstances a reasonable employer would not
expect that such a review would intrude on such matters. The search was permissible in its scope.
The Court of Appeals erred in finding the search unreasonable. It pointed to a “host of simple
ways to verify the efficacy of the 25,000 character limit ... without intruding on [respondents’]
Fourth Amendment rights.” The panel suggested that Scharf “could have warned Quon that for
the month of September he was forbidden from using his pager for personal communications,
Chapter 16 — Page 366

and that the contents of all his messages would be reviewed to ensure the pager was used only
for work-related purposes during that time frame. Alternatively, if [OPD] wanted to review past
usage, it could have asked Quon to count the characters himself, or asked him to redact personal
messages and grant permission to [OPD] to review the redacted transcript.”
This approach was inconsistent with controlling precedents. This Court has “repeatedly refused
to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth
Amendment.” That rationale “could raise insuperable barriers to the exercise of virtually all
search-and-seizure powers,” because “judges engaged in post hoc evaluations of government
conduct can almost always imagine some alternative means by which the objectives of the
government might have been accomplished.” The analytic errors of the Court of Appeals in this
case illustrate the necessity of this principle. Even assuming there were ways that OPD could
have performed the search that would have been less intrusive, it does not follow that the search
as conducted was unreasonable.
Because the search was motivated by a legitimate work-related purpose, and because it was not
excessive in scope, the search was reasonable under the approach of the O’Connor plurality. For
these same reasons—that the employer had a legitimate reason for the search, and that the
search was not excessively intrusive in light of that justification—the Court also concludes that
the search would be “regarded as reasonable and normal in the private-employer context” and
would satisfy the approach of Justice SCALIA’s concurrence. The search was reasonable, and the
Court of Appeals erred by holding to the contrary. Petitioners did not violate Quon’s Fourth
Amendment rights.
The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.
*

*

*

A recurring Fourth Amendment question for public employees and public school students is
the permissibility of drug testing by employers and school officials. We consider that issue in
our next chapter.

Chapter 16 — Page 367

THE FOURTH AMENDMENT
Chapter 17
The Warrant Requirement: Exceptions (Part 9)
In this chapter, we continue our discussion of searches of public school students and public
employees. First, we review when the Court has allowed for public employers and public schools
to require that employees and students submit to drug tests. Then, we consider the question of
when public hospitals may conduct drug tests of patients without consent.
Drug Testing of Public Employees
The next case concerns a government regulation providing for the drug testing of certain railroad
employees after certain accidents.
Supreme Court of the United States
Samuel K. Skinner v. Railway Labor Executives’ Association
Decided March 21, 1989 – 489 U.S. 602
Justice KENNEDY delivered the opinion of the Court.
The Federal Railroad Safety Act of 1970 authorizes the Secretary of Transportation to “prescribe,
as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad
safety.” Finding that alcohol and drug abuse by railroad employees poses a serious threat to
safety, the Federal Railroad Administration (FRA) has promulgated regulations that mandate
blood and urine tests of employees who are involved in certain train accidents. The FRA also has
adopted regulations that do not require, but do authorize, railroads to administer breath and
urine tests to employees who violate certain safety rules. The question presented by this case is
whether these regulations violate the Fourth Amendment.
I
The regulations prohibit covered employees from using or possessing alcohol or any controlled
substance. The regulations further prohibit those employees from reporting for covered service
while under the influence of, or impaired by, alcohol, while having a blood alcohol concentration
of .04 or more, or while under the influence of, or impaired by, any controlled substance. To the
extent pertinent here, two subparts of the regulations relate to testing. Subpart C, which is
entitled “Post-Accident Toxicological Testing,” is mandatory. It provides that railroads “shall
take all practicable steps to assure that all covered employees of the railroad directly involved ...
provide blood and urine samples for toxicological testing by FRA” upon the occurrence of certain
specified events. Toxicological testing is required following a “major train accident,” which is
defined as any train accident that involves (i) a fatality, (ii) the release of hazardous material
accompanied by an evacuation or a reportable injury, or (iii) damage to railroad property of
$500,000 or more. The railroad has the further duty of collecting blood and urine samples for
Chapter 17 – Page 368

testing after an “impact accident,” which is defined as a collision that results in a reportable
injury, or in damage to railroad property of $50,000 or more. Finally, the railroad is also
obligated to test after “[a]ny train incident that involves a fatality to any on-duty railroad
employee.”
After occurrence of an event which activates its duty to test, the railroad must transport all crew
members and other covered employees directly involved in the accident or incident to an
independent medical facility, where both blood and urine samples must be obtained from each
employee. After the samples have been collected, the railroad is required to ship them by prepaid
air freight to the FRA laboratory for analysis. The FRA proposes to place primary reliance on
analysis of blood samples, as blood is “the only available body fluid ... that can provide a clear
indication not only of the presence of alcohol and drugs but also their current impairment
effects.” Urine samples are also necessary, however, because drug traces remain in the urine
longer than in blood, and in some cases it will not be possible to transport employees to a medical
facility before the time it takes for certain drugs to be eliminated from the bloodstream. In those
instances, a “positive urine test, taken with specific information on the pattern of elimination for
the particular drug and other information on the behavior of the employee and the circumstances
of the accident, may be crucial to the determination of” the cause of an accident.
The regulations require that the FRA notify employees of the results of the tests and afford them
an opportunity to respond in writing before preparation of any final investigative report.
Employees who refuse to provide required blood or urine samples may not perform covered
service for nine months, but they are entitled to a hearing concerning their refusal to take the
test.
Subpart D of the regulations, which is entitled “Authorization to Test for Cause,” is permissive.
It authorizes railroads to require covered employees to submit to breath or urine tests in certain
circumstances not addressed by Subpart C. Breath or urine tests, or both, may be ordered (1)
after a reportable accident or incident, where a supervisor has a “reasonable suspicion” that an
employee’s acts or omissions contributed to the occurrence or severity of the accident or
incident; or (2) in the event of certain specific rule violations, including noncompliance with a
signal and excessive speeding. A railroad also may require breath tests where a supervisor has a
“reasonable suspicion” that an employee is under the influence of alcohol, based upon specific,
personal observations concerning the appearance, behavior, speech, or body odors of the
employee. Where impairment is suspected, a railroad, in addition, may require urine tests, but
only if two supervisors make the appropriate determination and where the supervisors suspect
impairment due to a substance other than alcohol, at least one of those supervisors must have
received specialized training in detecting the signs of drug intoxication.
Subpart D further provides that whenever the results of either breath or urine tests are intended
for use in a disciplinary proceeding, the employee must be given the opportunity to provide a
blood sample for analysis at an independent medical facility. If an employee declines to give a
blood sample, the railroad may presume impairment, absent persuasive evidence to the
contrary, from a positive showing of controlled substance residues in the urine. The railroad
must, however, provide detailed notice of this presumption to its employees, and advise them of
their right to provide a contemporaneous blood sample. As in the case of samples procured under
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Subpart C, the regulations set forth procedures for the collection of samples, and require that
samples “be analyzed by a method that is reliable within known tolerances.”
Respondents brought the instant suit in the United States District Court for the Northern District
of California, seeking to enjoin the FRA’s regulations on various statutory and constitutional
grounds. In a ruling from the bench, the District Court granted summary judgment in
petitioners’ favor. A divided panel of the Court of Appeals for the Ninth Circuit reversed. We
granted the federal parties’ petition for a writ of certiorari to consider whether the regulations
invalidated by the Court of Appeals violate the Fourth Amendment. We now reverse.
II
[The Court first determined that the drug testing regulation could be challenged under the
Fourth Amendment even though the tests at issue were conducted by private railroads. The
Court also found that the tests amounted to “searches.”]
III
A
[T]he Fourth Amendment does not proscribe all searches and seizures, but only those that are
unreasonable. What is reasonable, of course, “depends on all of the circumstances surrounding
the search or seizure and the nature of the search or seizure itself.” Thus, the permissibility of a
particular practice “is judged by balancing its intrusion on the individual’s Fourth Amendment
interests against its promotion of legitimate governmental interests.”
We have recognized exceptions to [the warrant requirement] “when ‘special needs, beyond the
normal need for law enforcement, make the warrant and probable-cause requirement
impracticable.’” When faced with such special needs, we have not hesitated to balance the
governmental and privacy interests to assess the practicality of the warrant and probable-cause
requirements in the particular context.
The Government’s interest in regulating the conduct of railroad employees to ensure safety, like
its supervision of probationers or regulated industries, or its operation of a government office,
school, or prison, “likewise presents ‘special needs’ beyond normal law enforcement that may
justify departures from the usual warrant and probable-cause requirements.” It is undisputed
that [] covered employees are engaged in safety-sensitive tasks. The FRA so found, and
respondents conceded the point at oral argument.
The FRA has prescribed toxicological tests, not to assist in the prosecution of employees, but
rather “to prevent accidents and casualties in railroad operations that result from impairment of
employees by alcohol or drugs.” This governmental interest in ensuring the safety of the traveling
public and of the employees themselves plainly justifies prohibiting covered employees from
using alcohol or drugs on duty, or while subject to being called for duty. This interest also
“require[s] and justif[ies] the exercise of supervision to assure that the restrictions are in fact
observed.” The question that remains, then, is whether the Government’s need to monitor
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compliance with these restrictions justifies the privacy intrusions at issue absent a warrant or
individualized suspicion.
B
Both the circumstances justifying toxicological testing and the permissible limits of such
intrusions are defined narrowly and specifically in the regulations that authorize them, and
doubtless are well known to covered employees. Indeed, in light of the standardized nature of
the tests and the minimal discretion vested in those charged with administering the program,
there are virtually no facts for a neutral magistrate to evaluate.
We have recognized, moreover, that the government’s interest in dispensing with the warrant
requirement is at its strongest when, as here, “the burden of obtaining a warrant is likely to
frustrate the governmental purpose behind the search.” As the FRA recognized, alcohol and
other drugs are eliminated from the bloodstream at a constant rate, and blood and breath
samples taken to measure whether these substances were in the bloodstream when a triggering
event occurred must be obtained as soon as possible.
The Government’s need to rely on private railroads to set the testing process in motion also
indicates that insistence on a warrant requirement would impede the achievement of the
Government’s objective. Railroad supervisors are not in the business of investigating violations
of the criminal laws or enforcing administrative codes, and otherwise have little occasion to
become familiar with the intricacies of this Court’s Fourth Amendment jurisprudence.
“Imposing unwieldy warrant procedures ... upon supervisors, who would otherwise have no
reason to be familiar with such procedures, is simply unreasonable.”
In sum, imposing a warrant requirement in the present context would add little to the assurances
of certainty and regularity already afforded by the regulations, while significantly hindering, and
in many cases frustrating, the objectives of the Government’s testing program. We do not believe
that a warrant is essential to render the intrusions here at issue reasonable under the Fourth
Amendment.
Our cases indicate that even a search that may be performed without a warrant must be based,
as a general matter, on probable cause to believe that the person to be searched has violated the
law. When the balance of interests precludes insistence on a showing of probable cause, we have
usually required “some quantum of individualized suspicion” before concluding that a search is
reasonable. We made it clear, however, that a showing of individualized suspicion is not a
constitutional floor, below which a search must be presumed unreasonable. In limited
circumstances, where the privacy interests implicated by the search are minimal, and where an
important governmental interest furthered by the intrusion would be placed in jeopardy by a
requirement of individualized suspicion, a search may be reasonable despite the absence of such
suspicion. We believe this is true of the intrusions in question here.
By and large, intrusions on privacy under the FRA regulations are limited. The breath tests
authorized by Subpart D of the regulations are even less intrusive than the blood tests prescribed
by Subpart C. Unlike blood tests, breath tests do not require piercing the skin and may be
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conducted safely outside a hospital environment and with a minimum of inconvenience or
embarrassment. Like the blood-testing procedures mandated by Subpart C, which can be used
only to ascertain the presence of alcohol or controlled substances in the bloodstream, breath
tests reveal no other facts in which the employee has a substantial privacy interest. In all the
circumstances, we cannot conclude that the administration of a breath test implicates significant
privacy concerns.
A more difficult question is presented by urine tests. Like breath tests, urine tests are not invasive
of the body and, under the regulations, may not be used as an occasion for inquiring into private
facts unrelated to alcohol or drug use. We recognize, however, that the procedures for collecting
the necessary samples, which require employees to perform an excretory function traditionally
shielded by great privacy, raise concerns not implicated by blood or breath tests. While we would
not characterize these additional privacy concerns as minimal in most contexts, we note that the
regulations endeavor to reduce the intrusiveness of the collection process. The regulations do
not require that samples be furnished under the direct observation of a monitor, despite the
desirability of such a procedure to ensure the integrity of the sample. The sample is also collected
in a medical environment, by personnel unrelated to the railroad employer, and is thus not
unlike similar procedures encountered often in the context of a regular physical examination.
More importantly, the expectations of privacy of covered employees are diminished by reason of
their participation in an industry that is regulated pervasively to ensure safety, a goal dependent,
in substantial part, on the health and fitness of covered employees. We do not suggest, of course,
that the interest in bodily security enjoyed by those employed in a regulated industry must
always be considered minimal. Here, however, the covered employees have long been a principal
focus of regulatory concern. As the dissenting judge below noted: “The reason is obvious. An idle
locomotive, sitting in the roundhouse, is harmless. It becomes lethal when operated negligently
by persons who are under the influence of alcohol or drugs.” We conclude, therefore, that the
testing procedures contemplated by Subparts C and D pose only limited threats to the justifiable
expectations of privacy of covered employees.
By contrast, the Government interest in testing without a showing of individualized suspicion is
compelling. Employees subject to the tests discharge duties fraught with such risks of injury to
others that even a momentary lapse of attention can have disastrous consequences. Much like
persons who have routine access to dangerous nuclear power facilities, employees who are
subject to testing under the FRA regulations can cause great human loss before any signs of
impairment become noticeable to supervisors or others. An impaired employee, the FRA found,
will seldom display any outward “signs detectable by the lay person or, in many cases, even the
physician.” Indeed, while respondents posit that impaired employees might be detected without
alcohol or drug testing, the premise of respondents’ lawsuit is that even the occurrence of a major
calamity will not give rise to a suspicion of impairment with respect to any particular employee.
While no procedure can identify all impaired employees with ease and perfect accuracy, the FRA
regulations supply an effective means of deterring employees engaged in safety-sensitive tasks
from using controlled substances or alcohol in the first place. By ensuring that employees in
safety-sensitive positions know they will be tested upon the occurrence of a triggering event, the
timing of which no employee can predict with certainty, the regulations significantly increase
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the deterrent effect of the administrative penalties associated with the prohibited conduct,
concomitantly increasing the likelihood that employees will forgo using drugs or alcohol while
subject to being called for duty.
The testing procedures contemplated by Subpart C also help railroads obtain invaluable
information about the causes of major accidents and to take appropriate measures to safeguard
the general public. Positive test results would point toward drug or alcohol impairment on the
part of members of the crew as a possible cause of an accident, and may help to establish whether
a particular accident, otherwise not drug related, was made worse by the inability of impaired
employees to respond appropriately. Negative test results would likewise furnish invaluable
clues, for eliminating drug impairment as a potential cause or contributing factor would help
establish the significance of equipment failure, inadequate training, or other potential causes,
and suggest a more thorough examination of these alternatives. Tests performed following the
rule violations specified in Subpart D likewise can provide valuable information respecting the
causes of those transgressions, which the FRA found to involve “the potential for a serious train
accident or grave personal injury, or both.”
A requirement of particularized suspicion of drug or alcohol use would seriously impede an
employer’s ability to obtain this information, despite its obvious importance. Experience
confirms the FRA’s judgment that the scene of a serious rail accident is chaotic. Investigators
who arrive at the scene shortly after a major accident has occurred may find it difficult to
determine which members of a train crew contributed to its occurrence. Obtaining evidence that
might give rise to the suspicion that a particular employee is impaired, a difficult endeavor in the
best of circumstances, is most impracticable in the aftermath of a serious accident. While events
following the rule violations that activate the testing authority of Subpart D may be less chaotic,
objective indicia of impairment are absent in these instances as well. Indeed, any attempt to
gather evidence relating to the possible impairment of particular employees likely would result
in the loss or deterioration of the evidence furnished by the tests. It would be unrealistic, and
inimical to the Government’s goal of ensuring safety in rail transportation, to require a showing
of individualized suspicion in these circumstances.
We conclude that the compelling Government interests served by the FRA’s regulations would
be significantly hindered if railroads were required to point to specific facts giving rise to a
reasonable suspicion of impairment before testing a given employee. In view of our conclusion
that, on the present record, the toxicological testing contemplated by the regulations is not an
undue infringement on the justifiable expectations of privacy of covered employees, the
Government’s compelling interests outweigh privacy concerns.
IV
The possession of unlawful drugs is a criminal offense that the Government may punish, but it
is a separate and far more dangerous wrong to perform certain sensitive tasks while under the
influence of those substances. Performing those tasks while impaired by alcohol is, of course,
equally dangerous, though consumption of alcohol is legal in most other contexts. The
Government may take all necessary and reasonable regulatory steps to prevent or deter that
hazardous conduct, and since the gravamen of the evil is performing certain functions while
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concealing the substance in the body, it may be necessary, as in the case before us, to examine
the body or its fluids to accomplish the regulatory purpose. The necessity to perform that
regulatory function with respect to railroad employees engaged in safety-sensitive tasks, and the
reasonableness of the system for doing so, have been established in this case.
In light of the limited discretion exercised by the railroad employers under the regulations, the
surpassing safety interests served by toxicological tests in this context, and the diminished
expectation of privacy that attaches to information pertaining to the fitness of covered
employees, we believe that it is reasonable to conduct such tests in the absence of a warrant or
reasonable suspicion that any particular employee may be impaired. We hold that the alcohol
and drug tests contemplated by Subparts C and D of the FRA’s regulations are reasonable within
the meaning of the Fourth Amendment. The judgment of the Court of Appeals is accordingly
reversed.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
The issue in this case is not whether declaring a war on illegal drugs is good public policy. The
importance of ridding our society of such drugs is, by now, apparent to all. Rather, the issue here
is whether the Government’s deployment in that war of a particularly Draconian weapon—the
compulsory collection and chemical testing of railroad workers’ blood and urine—comports with
the Fourth Amendment. Precisely because the need for action against the drug scourge is
manifest, the need for vigilance against unconstitutional excess is great. History teaches that
grave threats to liberty often come in times of urgency, when constitutional rights seem too
extravagant to endure. [W]hen we allow fundamental freedoms to be sacrificed in the name of
real or perceived exigency, we invariably come to regret it.
In permitting the Government to force entire railroad crews to submit to invasive blood and
urine tests, even when it lacks any evidence of drug or alcohol use or other wrongdoing, the
majority today joins those shortsighted courts which have allowed basic constitutional rights to
fall prey to momentary emergencies. The majority purports to limit its decision to postaccident
testing of workers in “safety-sensitive” jobs. But the damage done to the Fourth Amendment is
not so easily cabined. The majority’s acceptance of dragnet blood and urine testing ensures that
the first, and worst, casualty of the war on drugs will be the precious liberties of our citizens. I
therefore dissent.
Notes, Comments, and Questions
On the same day as Skinner, the Court decided National Treasury Employees Union v. Von
Raab, 489 U.S. 656 (1989), another case about drug testing public employees. A U.S. Customs
Service program required drug testing of employees who sought promotion to jobs involving
seizing illegal drugs or which required employees to carry firearms or handle classified materials.
Again, the Court found the collection of urine samples to be a “search.” Again, the Court upheld
the policy, holding that it was “reasonable” for the government to mandate the tests because of
its “compelling interest in ensuring that front-line interdiction personnel are physically fit, and
have unimpeachable integrity and judgment.” Comparing the practice to hypothetical searches
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of workers at “the United States Mint … when they leave the workplace every day,” the Court
concluded that the “operational realities” of the Customs Service justified the testing.
By contrast, in Chandler v. Miller, 520 U.S. 305 (1997), the Court struck down a Georgia law
requiring that candidates for certain state offices submit to drug tests. The state stressed “the
incompatibility of unlawful drug use with holding high state office” and argued that “the use of
illegal drugs draws into question an official’s judgment and integrity; jeopardizes the discharge
of public functions, including antidrug law enforcement efforts; and undermines public
confidence and trust in elected officials.” The Court was not persuaded, concluding, “[n]othing
in the record hints that the hazards respondents broadly describe are real and not simply
hypothetical for Georgia’s polity.” The Court noted that political candidates “are subject to
relentless scrutiny—by their peers, the public, and the press.” The Justices stated that the
suspicionless searches needed to track lower-profile employees—like those approved in Skinner
and Von Raab—were not necessary for voters to vet candidates for election.
Drug Testing of Public School Students
The Court has repeatedly applied the reasoning of Skinner and Von Raab to public school
policies that mandate the drug testing of certain students.
Supreme Court of the United States
Vernonia School District 47J v. Wayne Acton
Decided June 26, 1995 – 515 U.S. 646
Justice SCALIA delivered the opinion of the Court.
The Student Athlete Drug Policy adopted by School District 47J in the town of Vernonia, Oregon,
authorizes random urinalysis drug testing of students who participate in the District’s school
athletics programs. We granted certiorari to decide whether this violates the Fourth and
Fourteenth Amendments to the United States Constitution.
I
A
Petitioner Vernonia School District 47J (District) operates one high school and three grade
schools in the logging community of Vernonia, Oregon. As elsewhere in small-town America,
school sports play a prominent role in the town’s life, and student athletes are admired in their
schools and in the community.
Drugs had not been a major problem in Vernonia schools. In the mid-to-late 1980’s, however,
teachers and administrators observed a sharp increase in drug use. Students began to speak out
about their attraction to the drug culture, and to boast that there was nothing the school could
do about it. Along with more drugs came more disciplinary problems. Between 1988 and 1989
the number of disciplinary referrals in Vernonia schools rose to more than twice the number
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reported in the early 1980’s, and several students were suspended. Students became increasingly
rude during class; outbursts of profane language became common.
Not only were student athletes included among the drug users but, as the District Court found,
athletes were the leaders of the drug culture. This caused the District’s administrators particular
concern, since drug use increases the risk of sports-related injury. The high school football and
wrestling coach witnessed a severe sternum injury suffered by a wrestler, and various omissions
of safety procedures and misexecutions by football players, all attributable in his belief to the
effects of drug use.
Initially, the District responded to the drug problem by offering special classes, speakers, and
presentations designed to deter drug use. It even brought in a specially trained dog to detect
drugs, but the drug problem persisted. At that point, District officials began considering a drugtesting program. They held a parent “input night” to discuss the proposed Student Athlete Drug
Policy (Policy), and the parents in attendance gave their unanimous approval. The school board
approved the Policy for implementation in the fall of 1989. Its expressed purpose is to prevent
student athletes from using drugs, to protect their health and safety, and to provide drug users
with assistance programs.
B
The Policy applies to all students participating in interscholastic athletics. Students wishing to
play sports must sign a form consenting to the testing and must obtain the written consent of
their parents. Athletes are tested at the beginning of the season for their sport. In addition, once
each week of the season the names of the athletes are placed in a “pool” from which a student,
with the supervision of two adults, blindly draws the names of 10% of the athletes for random
testing. Those selected are notified and tested that same day, if possible.
The student to be tested completes a specimen control form which bears an assigned number.
Prescription medications that the student is taking must be identified by providing a copy of the
prescription or a doctor’s authorization. The student then enters an empty locker room
accompanied by an adult monitor of the same sex. Each boy selected produces a sample at a
urinal, remaining fully clothed with his back to the monitor, who stands approximately 12 to 15
feet behind the student. Monitors may (though do not always) watch the student while he
produces the sample, and they listen for normal sounds of urination. Girls produce samples in
an enclosed bathroom stall, so that they can be heard but not observed. After the sample is
produced, it is given to the monitor, who checks it for temperature and tampering and then
transfers it to a vial.
The samples are sent to an independent laboratory, which routinely tests them for
amphetamines, cocaine, and marijuana. Other drugs, such as LSD, may be screened at the
request of the District, but the identity of a particular student does not determine which drugs
will be tested. The laboratory’s procedures are 99.94% accurate. The District follows strict
procedures regarding the chain of custody and access to test results. The laboratory does not
know the identity of the students whose samples it tests. It is authorized to mail written test
reports only to the superintendent and to provide test results to District personnel by telephone
only after the requesting official recites a code confirming his authority. Only the
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superintendent, principals, vice-principals, and athletic directors have access to test results, and
the results are not kept for more than one year.
If a sample tests positive, a second test is administered as soon as possible to confirm the result.
If the second test is negative, no further action is taken. If the second test is positive, the athlete’s
parents are notified, and the school principal convenes a meeting with the student and his
parents, at which the student is given the option of (1) participating for six weeks in an assistance
program that includes weekly urinalysis, or (2) suffering suspension from athletics for the
remainder of the current season and the next athletic season. The student is then retested prior
to the start of the next athletic season for which he or she is eligible. The Policy states that a
second offense results in automatic imposition of option (2); a third offense in suspension for
the remainder of the current season and the next two athletic seasons.
C
In the fall of 1991, respondent James Acton, then a seventh grader, signed up to play football at
one of the District’s grade schools. He was denied participation, however, because he and his
parents refused to sign the testing consent forms. The Actons filed suit, seeking declaratory and
injunctive relief from enforcement of the Policy on the grounds that it violated the Fourth and
Fourteenth Amendments to the United States Constitution. After a bench trial, the District Court
entered an order denying the claims on the merits and dismissing the action. The United States
Court of Appeals for the Ninth Circuit reversed, holding that the Policy violated both the Fourth
and Fourteenth Amendments. We granted certiorari.
II
As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of
a governmental search is “reasonableness.” [W]hether a particular search meets the
reasonableness standard “‘is judged by balancing its intrusion on the individual’s Fourth
Amendment interests against its promotion of legitimate governmental interests.’” Where a
search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing,
this Court has said that reasonableness generally requires the obtaining of a judicial warrant
[supported by probable cause]. A search unsupported by probable cause can be constitutional,
we have said, “when special needs, beyond the normal need for law enforcement, make the
warrant and probable-cause requirement impracticable.”

III
The first factor to be considered is the nature of the privacy interest upon which the search here
at issue intrudes. Central, in our view, to the present case is the fact that the subjects of the Policy
are (1) children, who (2) have been committed to the temporary custody of the State as
schoolmaster.

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Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different
in public schools than elsewhere; the “reasonableness” inquiry cannot disregard the schools’
custodial and tutelary responsibility for children. For their own good and that of their
classmates, public school children are routinely required to submit to various physical
examinations, and to be vaccinated against various diseases.
Legitimate privacy expectations are even less with regard to student athletes. School sports are
not for the bashful. They require “suiting up” before each practice or event, and showering and
changing afterwards. Public school locker rooms, the usual sites for these activities, are not
notable for the privacy they afford. The locker rooms in Vernonia are typical: No individual
dressing rooms are provided; shower heads are lined up along a wall, unseparated by any sort of
partition or curtain; not even all the toilet stalls have doors. As the United States Court of Appeals
for the Seventh Circuit has noted, there is “an element of ‘communal undress’ inherent in athletic
participation.”
There is an additional respect in which school athletes have a reduced expectation of privacy. By
choosing to “go out for the team,” they voluntarily subject themselves to a degree of regulation
even higher than that imposed on students generally. In Vernonia’s public schools, they must
submit to a preseason physical exam (James testified that his included the giving of a urine
sample), they must acquire adequate insurance coverage or sign an insurance waiver, maintain
a minimum grade point average, and comply with any “rules of conduct, dress, training hours
and related matters as may be established for each sport by the head coach and athletic director
with the principal’s approval.” Somewhat like adults who choose to participate in a “closely
regulated industry,” students who voluntarily participate in school athletics have reason to
expect intrusions upon normal rights and privileges, including privacy.
IV
Having considered the scope of the legitimate expectation of privacy at issue here, we turn next
to the character of the intrusion that is complained of. We recognized in Skinner that collecting
the samples for urinalysis intrudes upon “an excretory function traditionally shielded by great
privacy.” We noted, however, that the degree of intrusion depends upon the manner in which
production of the urine sample is monitored. Under the District’s Policy, male students produce
samples at a urinal along a wall. They remain fully clothed and are only observed from behind,
if at all. Female students produce samples in an enclosed stall, with a female monitor standing
outside listening only for sounds of tampering. These conditions are nearly identical to those
typically encountered in public restrooms, which men, women, and especially schoolchildren use
daily. Under such conditions, the privacy interests compromised by the process of obtaining the
urine sample are in our view negligible.
The other privacy-invasive aspect of urinalysis is, of course, the information it discloses
concerning the state of the subject’s body, and the materials he has ingested. In this regard it is
significant that the tests at issue here look only for drugs, and not for whether the student is, for
example, epileptic, pregnant, or diabetic. Moreover, the drugs for which the samples are
screened are standard, and do not vary according to the identity of the student. And finally, the
results of the tests are disclosed only to a limited class of school personnel who have a need to
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know; and they are not turned over to law enforcement authorities or used for any internal
disciplinary function.
V
Finally, we turn to consider the nature and immediacy of the governmental concern at issue here,
and the efficacy of this means for meeting it. [T]he District Court held that because the District’s
program also called for drug testing in the absence of individualized suspicion, the District “must
demonstrate a ‘compelling need’ for the program.” The Court of Appeals appears to have agreed
with this view. It is a mistake, however, to think that the phrase “compelling state interest,” in
the Fourth Amendment context, describes a fixed, minimum quantum of governmental concern,
so that one can dispose of a case by answering in isolation the question: Is there a compelling
state interest here? Rather, the phrase describes an interest that appears important enough to
justify the particular search at hand, in light of other factors that show the search to be relatively
intrusive upon a genuine expectation of privacy. Whether that relatively high degree of
government concern is necessary in this case or not, we think it is met.
That the nature of the concern is important—indeed, perhaps compelling—can hardly be
doubted. School years are the time when the physical, psychological, and addictive effects of
drugs are most severe. “Maturing nervous systems are more critically impaired by intoxicants
than mature ones are; childhood losses in learning are lifelong and profound”; “children grow
chemically dependent more quickly than adults, and their record of recovery is depressingly
poor.” And of course the effects of a drug-infested school are visited not just upon the users, but
upon the entire student body and faculty, as the educational process is disrupted. In the present
case, moreover, the necessity for the State to act is magnified by the fact that this evil is being
visited not just upon individuals at large, but upon children for whom it has undertaken a special
responsibility of care and direction. Finally, it must not be lost sight of that this program is
directed more narrowly to drug use by school athletes, where the risk of immediate physical
harm to the drug user or those with whom he is playing his sport is particularly high. Apart from
psychological effects, which include impairment of judgment, slow reaction time, and a lessening
of the perception of pain, the particular drugs screened by the District’s Policy have been
demonstrated to pose substantial physical risks to athletes. Amphetamines produce an
“artificially induced heart rate increase, [p]eripheral vasoconstriction, [b]lood pressure increase,
and [m]asking of the normal fatigue response,” making them a “very dangerous drug when used
during exercise of any type.” Marijuana causes “[i]rregular blood pressure responses during
changes in body position,” “[r]eduction in the oxygen-carrying capacity of the blood,” and
“[i]nhibition of the normal sweating responses resulting in increased body temperature.”
Cocaine produces “[v]asoconstriction[,] [e]levated blood pressure,” and “[p]ossible coronary
artery spasms and myocardial infarction.”
As for the immediacy of the District’s concerns: We are not inclined to question—indeed, we
could not possibly find clearly erroneous—the District Court’s conclusion that “a large segment
of the student body, particularly those involved in interscholastic athletics, was in a state of
rebellion,” that “[d]isciplinary actions had reached ‘epidemic proportions,’” and that “the
rebellion was being fueled by alcohol and drug abuse as well as by the student’s misperceptions
about the drug culture.” That is an immediate crisis of greater proportions than existed in
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Skinner, where we upheld the Government’s drug-testing program based on findings of drug use
by railroad employees nationwide, without proof that a problem existed on the particular
railroads whose employees were subject to the test. And of much greater proportions than
existed in Von Raab, where there was no documented history of drug use by any customs
officials.
As to the efficacy of this means for addressing the problem: It seems to us self-evident that a
drug problem largely fueled by the “role model” effect of athletes’ drug use, and of particular
danger to athletes, is effectively addressed by making sure that athletes do not use drugs.
Respondents argue that a “less intrusive means to the same end” was available, namely, “drug
testing on suspicion of drug use.” We have repeatedly refused to declare that only the “least
intrusive” search practicable can be reasonable under the Fourth Amendment. Respondents’
alternative entails substantial difficulties—if it is indeed practicable at all. It may be
impracticable, for one thing, simply because the parents who are willing to accept random drug
testing for athletes are not willing to accept accusatory drug testing for all students, which
transforms the process into a badge of shame. Respondents’ proposal brings the risk that
teachers will impose testing arbitrarily upon troublesome but not drug-likely students. It
generates the expense of defending lawsuits that charge such arbitrary imposition, or that simply
demand greater process before accusatory drug testing is imposed. And not least of all, it adds
to the ever-expanding diversionary duties of schoolteachers the new function of spotting and
bringing to account drug abuse, a task for which they are ill prepared, and which is not readily
compatible with their vocation. In many respects, we think, testing based on “suspicion” of drug
use would not be better, but worse.
VI
Taking into account all the factors we have considered above—the decreased expectation of
privacy, the relative unobtrusiveness of the search, and the severity of the need met by the
search—we conclude Vernonia’s Policy is reasonable and hence constitutional.
We caution against the assumption that suspicionless drug testing will readily pass
constitutional muster in other contexts. The most significant element in this case is the first we
discussed: that the Policy was undertaken in furtherance of the government’s responsibilities,
under a public school system, as guardian and tutor of children entrusted to its care. Just as
when the government conducts a search in its capacity as employer (a warrantless search of an
absent employee’s desk to obtain an urgently needed file, for example), the relevant question is
whether that intrusion upon privacy is one that a reasonable employer might engage in; so also
when the government acts as guardian and tutor the relevant question is whether the search is
one that a reasonable guardian and tutor might undertake. Given the findings of need made by
the District Court, we conclude that in the present case it is.

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We may note that the primary guardians of Vernonia’s schoolchildren appear to agree. The
record shows no objection to this districtwide program by any parents other than the couple
before us here—even though, as we have described, a public meeting was held to obtain parents’
views. We find insufficient basis to contradict the judgment of Vernonia’s parents, its school
board, and the District Court, as to what was reasonably in the interest of these children under
the circumstances.
We [] vacate the judgment, and remand the case to the Court of Appeals for further proceedings
consistent with this opinion.
Justice O’CONNOR, with whom Justice STEVENS and Justice SOUTER join, dissenting.
The population of our Nation’s public schools, grades 7 through 12, numbers around 18 million.
By the reasoning of today’s decision, the millions of these students who participate in
interscholastic sports, an overwhelming majority of whom have given school officials no reason
whatsoever to suspect they use drugs at school, are open to an intrusive bodily search.
In justifying this result, the Court dispenses with a requirement of individualized suspicion on
considered policy grounds. First, it explains that precisely because every student athlete is being
tested, there is no concern that school officials might act arbitrarily in choosing whom to test.
Second, a broad-based search regime, the Court reasons, dilutes the accusatory nature of the
search. In making these policy arguments, of course, the Court sidesteps powerful,
countervailing privacy concerns. Blanket searches, because they can involve “thousands or
millions” of searches, “pos[e] a greater threat to liberty” than do suspicion-based ones, which
“affec[t] one person at a time.” Searches based on individualized suspicion also afford potential
targets considerable control over whether they will, in fact, be searched because a person can
avoid such a search by not acting in an objectively suspicious way. And given that the surest way
to avoid acting suspiciously is to avoid the underlying wrongdoing, the costs of such a regime,
one would think, are minimal.
But whether a blanket search is “better” than a regime based on individualized suspicion is not
a debate in which we should engage. In my view, it is not open to judges or government officials
to decide on policy grounds which is better and which is worse. For most of our constitutional
history, mass, suspicionless searches have been generally considered per se unreasonable within
the meaning of the Fourth Amendment. And we have allowed exceptions in recent years only
where it has been clear that a suspicion-based regime would be ineffectual. Because that is not
the case here, I dissent.
*

*

*

Seven years after deciding Vernonia, the Court considered a public school drug testing program
that went beyond athletes and included participants in activities such as the debate team, band,
and Future Farmers of America. While the district policy stated that students involved in any
extracurricular activity could be tested, the record reflected that in practice testing was limited
to participants in “competitive extracurricular activities.”
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Supreme Court of the United States
Board of Education of Independent School District No. 92 of Pottawatomie
County v. Lindsay Earls
Decided June 27, 2002 – 536 U.S. 822
[In Earls, the Court applied the principles of Vernonia and upheld a suspicionless drug testing
policy that required all students who participated in “competitive extracurricular activities”—a
term with broad definition—to submit to drug testing. In an opinion by Justice Thomas, the fiveJustice majority found no meaningful difference between the policies challenged in Earls and in
Vernonia in the character of intrusion (based on a similar urine collection method) or the nature
and immediacy of the government’s concerns (based on the national drug problem and the
factual findings about local conditions).
With respect to the students’ privacy interest, the Court was untroubled by the application of
Vernonia to a broader category of student activities. The Court noted that required physicals
and communal undress common to athletes were not essential to its finding of a negligible
privacy interest in Vernonia, and it concluded the interest remained negligible in Earls because
the students “who participate[d] in competitive extracurricular activities voluntarily subject[ed]
themselves to many of the same intrusions on their privacy as do athletes.” The Court’s analysis
of the efficacy of the Policy’s approach broadened Vernonia’s holding:
“Finally, we find that testing students who participate in extracurricular activities is a reasonably
effective means of addressing the School District’s legitimate concerns in preventing, deterring,
and detecting drug use. While in Vernonia there might have been a closer fit between the testing
of athletes and the trial court’s finding that the drug problem was “fueled by the ‘role model’
effect of athletes’ drug use,” such a finding was not essential to the holding. Vernonia did not
require the school to test the group of students most likely to use drugs, but rather considered
the constitutionality of the program in the context of the public school’s custodial
responsibilities. Evaluating the Policy in this context, we conclude that the drug testing of
Tecumseh students who participate in extracurricular activities effectively serves the School
District’s interest in protecting the safety and health of its students.”
Four Justices sharply disagreed with the result:]
Justice GINSBURG, with whom Justice STEVENS, JUSTICE O’CONNOR, and Justice SOUTER
join, dissenting.
The particular testing program upheld today is not reasonable; it is capricious, even perverse:
Petitioners’ policy targets for testing a student population least likely to be at risk from illicit
drugs and their damaging effects. I therefore dissent.
Vernonia cannot be read to endorse invasive and suspicionless drug testing of all students upon
any evidence of drug use, solely because drugs jeopardize the life and health of those who use
them. Had the Vernonia Court agreed that public school attendance, in and of itself, permitted
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the State to test each student’s blood or urine for drugs, the opinion in Vernonia could have
saved many words.
Enrollment in a public school, and election to participate in school activities beyond the bare
minimum that the curriculum requires, are indeed factors relevant to reasonableness, but they
do not on their own justify intrusive, suspicionless searches. Vernonia, accordingly, did not rest
upon these factors; instead, the Court performed what today’s majority aptly describes as a “factspecific balancing,” Balancing of that order, applied to the facts now before the Court, should
yield a result other than the one the Court announces today.
At the margins, of course, no policy of random drug testing is perfectly tailored to the harms it
seeks to address. The School District cites the dangers faced by members of the band, who must
“perform extremely precise routines with heavy equipment and instruments in close proximity
to other students,” and by Future Farmers of America, who “are required to individually control
and restrain animals as large as 1500 pounds.” Notwithstanding nightmarish images of out-ofcontrol flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of
Tecumseh, the great majority of students the School District seeks to test in truth are engaged in
activities that are not safety sensitive to an unusual degree. There is a difference between
imperfect tailoring and no tailoring at all.
The Vernonia district, in sum, had two good reasons for testing athletes: Sports team members
faced special health risks and they “were the leaders of the drug culture.” No similar reason, and
no other tenable justification, explains Tecumseh’s decision to target for testing all participants
in every competitive extracurricular activity.
Nationwide, students who participate in extracurricular activities are significantly less likely to
develop substance abuse problems than are their less-involved peers. Even if students might be
deterred from drug use in order to preserve their extracurricular eligibility, it is at least as likely
that other students might forgo their extracurricular involvement in order to avoid detection of
their drug use. Tecumseh’s policy thus falls short doubly if deterrence is its aim: It invades the
privacy of students who need deterrence least, and risks steering students at greatest risk for
substance abuse away from extracurricular involvement that potentially may palliate drug
problems.
Notes, Comments, and Questions
Since the Court decided Vernonia and Earls, public schools have continued to explore how much
of the student population can be subjected to mandatory drug testing. Although courts have not
yet approved a policy mandating the testing of all students at a public school, school districts
have been largely successful in requiring testing of broad portions of the student population.

Chapter 17 – Page 383

Consider these examples:
Some schools have required students to submit to drug testing if they wish to park on school
grounds. See, e.g., Joy v. Penn-Harris-Madison School Corp., 212 F.3d 1052 (7th Cir. 2000).
Lawful? Why or why not?
A public technical college adopted a policy requiring that all students at the college submit to
drug tests. See Kittle-Aikeley v. Strong, 844 F.3d 727 (8th Cir. 2016) (en banc). Lawful? Why or
why not? What if the policy applied only to students in certain academic programs?
In the case of the technical college, the Eighth Circuit upheld mandatory drug testing of students
enrolled in “safety-sensitive programs.” Dissenting judges would have allowed testing of all
students because there was no reason “to assume that [the college’s] students pursuing an
education in its non-safety-sensitive programs are not likewise fully impacted by the same illicit
drug-abuse crisis” that justified the testing of students in safety-sensitive programs. Other courts
could reach different results in similar cases.
According to a national survey of school districts, many public schools operate drug testing
programs that involve random testing of all students, seemingly in excess of what the Court has
allowed. See Chris Ringwalt et al., “Random Drug Testing in US Public School Districts,” 98 Am.
J. Pub. Health 826 (May 2008) (“28% randomly tested all students”). Further litigation on this
issue seems likely.
Drug Testing of Public Hospital Patients
In Ferguson v. City of Charleston, the Court considered a public hospital’s practice of testing
patient urine for drugs to learn whether pregnant women were using cocaine. It applied the
reasoning of the public employee and public school student drug test cases to the program.
Supreme Court of the United States
Crystal M. Ferguson v. City of Charleston
Decided March 21, 2001 – 532 U.S. 67
Justice STEVENS delivered the opinion of the Court.
In this case, we must decide whether a state hospital’s performance of a diagnostic test to obtain
evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search
if the patient has not consented to the procedure. More narrowly, the question is whether the
interest in using the threat of criminal sanctions to deter pregnant women from using cocaine
can justify a departure from the general rule that an official nonconsensual search is
unconstitutional if not authorized by a valid warrant.

Chapter 17 – Page 384

I
In the fall of 1988, staff members at the public hospital operated in the city of Charleston by the
Medical University of South Carolina (MUSC) became concerned about an apparent increase in
the use of cocaine by patients who were receiving prenatal treatment. 1 In response to this
perceived increase, as of April 1989, MUSC began to order drug screens to be performed on urine
samples from maternity patients who were suspected of using cocaine. If a patient tested
positive, she was then referred by MUSC staff to the county substance abuse commission for
counseling and treatment. However, despite the referrals, the incidence of cocaine use among
the patients at MUSC did not appear to change.
Some four months later, Nurse Shirley Brown, the case manager for the MUSC obstetrics
department, heard a news broadcast reporting that the police in Greenville, South Carolina, were
arresting pregnant users of cocaine on the theory that such use harmed the fetus and was
therefore child abuse. Nurse Brown discussed the story with MUSC’s general counsel, Joseph C.
Good, Jr., who then contacted Charleston Solicitor Charles Condon in order to offer MUSC’s
cooperation in prosecuting mothers whose children tested positive for drugs at birth.
After receiving Good’s letter, Solicitor Condon took the first steps in developing the policy at
issue in this case. He organized the initial meetings, decided who would participate, and issued
the invitations, in which he described his plan to prosecute women who tested positive for
cocaine while pregnant. The task force that Condon formed included representatives of MUSC,
the police, the County Substance Abuse Commission and the Department of Social Services.
Their deliberations led to MUSC’s adoption of a 12-page document entitled “POLICY M-7,”
dealing with the subject of “Management of Drug Abuse During Pregnancy.”
The first three pages of Policy M-7 set forth the procedure to be followed by the hospital staff to
“identify/assist pregnant patients suspected of drug abuse.” The first section, entitled the
“Identification of Drug Abusers,” provided that a patient should be tested for cocaine through a
urine drug screen if she met one or more of nine criteria. 2 It also stated that a chain of custody
should be followed when obtaining and testing urine samples, presumably to make sure that the
results could be used in subsequent criminal proceedings. The policy also provided for education
and referral to a substance abuse clinic for patients who tested positive. Most important, it added
the threat of law enforcement intervention that “provided the necessary ‘leverage’ to make the
[p]olicy effective.” That threat was, as respondents candidly acknowledge, essential to the
program’s success in getting women into treatment and keeping them there.
The threat of law enforcement involvement was set forth in two protocols, the first dealing with
the identification of drug use during pregnancy, and the second with identification of drug use
1 [Footnote 1 by the Court] As several witnesses testified at trial, the problem of “crack babies” was widely perceived

in the late 1980’s as a national epidemic, prompting considerable concern both in the medical community and
among the general populace.
2 [Footnote by editors] In a footnote here, the Court listed the nine criteria, which included “No prenatal care,”

“Previously known drug or alcohol abuse,” and “Unexplained congenital anomalies.”
Chapter 17 – Page 385

after labor. Under the latter protocol, the police were to be notified without delay and the patient
promptly arrested. Under the former, after the initial positive drug test, the police were to be
notified (and the patient arrested) only if the patient tested positive for cocaine a second time or
if she missed an appointment with a substance abuse counselor. In 1990, however, the policy
was modified at the behest of the solicitor’s office to give the patient who tested positive during
labor, like the patient who tested positive during a prenatal care visit, an opportunity to avoid
arrest by consenting to substance abuse treatment.
The last six pages of the policy contained forms for the patients to sign, as well as procedures for
the police to follow when a patient was arrested. The policy also prescribed in detail the precise
offenses with which a woman could be charged, depending on the stage of her pregnancy. If the
pregnancy was 27 weeks or less, the patient was to be charged with simple possession. If it was
28 weeks or more, she was to be charged with possession and distribution to a person under the
age of 18—in this case, the fetus. If she delivered “while testing positive for illegal drugs,” she
was also to be charged with unlawful neglect of a child. Under the policy, the police were
instructed to interrogate the arrestee in order “to ascertain the identity of the subject who
provided illegal drugs to the suspect.” Other than the provisions describing the substance abuse
treatment to be offered to women who tested positive, the policy made no mention of any change
in the prenatal care of such patients, nor did it prescribe any special treatment for the newborns.
II
Petitioners are 10 women who received obstetrical care at MUSC and who were arrested after
testing positive for cocaine. Four of them were arrested during the initial implementation of the
policy; they were not offered the opportunity to receive drug treatment as an alternative to arrest.
The others were arrested after the policy was modified in 1990; they either failed to comply with
the terms of the drug treatment program or tested positive for a second time. Respondents
include the city of Charleston, law enforcement officials who helped develop and enforce the
policy, and representatives of MUSC.
Petitioners’ complaint challenged the validity of the policy. The jury found for respondents.
Petitioners appealed [and] [t]he Court of Appeals for the Fourth Circuit affirmed. We granted
certiorari to review the appellate court’s holding on the “special needs” issue. 3 We conclude that
the judgment should be reversed and the case remanded for a decision on the consent issue.
III
Because MUSC is a state hospital, the members of its staff are government actors, subject to the
strictures of the Fourth Amendment. Moreover, the urine tests conducted by those staff
members were indisputably searches within the meaning of the Fourth Amendment. Neither the
District Court nor the Court of Appeals concluded that any of the nine criteria used to identify
3 [Footnote by editors] The “special needs” doctrine has been invoked to permit searches “in those exceptional

circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and
probable-cause requirement impracticable.” One example is public school searches. Another is the search of the
home of someone on probation, which is covered in our next chapter.
Chapter 17 – Page 386

the women to be searched provided either probable cause to believe that they were using cocaine,
or even the basis for a reasonable suspicion of such use. Furthermore, given the posture in which
the case comes to us, we must assume for purposes of our decision that the tests were performed
without the informed consent of the patients.
Because the hospital seeks to justify its authority to conduct drug tests and to turn the results
over to law enforcement agents without the knowledge or consent of the patients, this case differs
from the four previous cases in which we have considered whether comparable drug tests “fit
within the closely guarded category of constitutionally permissible suspicionless searches.”
In each of those cases, we employed a balancing test that weighed the intrusion on the
individual’s interest in privacy against the “special needs” that supported the program. As an
initial matter, we note that the invasion of privacy in this case is far more substantial than in
those cases. In the previous four cases, there was no misunderstanding about the purpose of the
test or the potential use of the test results, and there were protections against the dissemination
of the results to third parties. The use of an adverse test result to disqualify one from eligibility
for a particular benefit, such as a promotion or an opportunity to participate in an extracurricular
activity, involves a less serious intrusion on privacy than the unauthorized dissemination of such
results to third parties. The reasonable expectation of privacy enjoyed by the typical patient
undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with
nonmedical personnel without her consent. In none of our prior cases was there any intrusion
upon that kind of expectation.
The critical difference between those four drug-testing cases and this one, however, lies in the
nature of the “special need” asserted as justification for the warrantless searches. In each of those
earlier cases, the “special need” that was advanced as a justification for the absence of a warrant
or individualized suspicion was one divorced from the State’s general interest in law
enforcement. In this case, however, the central and indispensable feature of the policy from its
inception was the use of law enforcement to coerce the patients into substance abuse treatment.
This fact distinguishes this case from circumstances in which physicians or psychologists, in the
course of ordinary medical procedures aimed at helping the patient herself, come across
information that under rules of law or ethics is subject to reporting requirements, which no one
has challenged here.
Respondents argue in essence that their ultimate purpose—namely, protecting the health of both
mother and child—is a beneficent one. [A] review of the M-7 policy plainly reveals that the
purpose actually served by the MUSC searches “is ultimately indistinguishable from the general
interest in crime control.”
In looking to the programmatic purpose, we consider all the available evidence in order to
determine the relevant primary purpose. In this case, as Judge Blake put it in her dissent below,
“it ... is clear from the record that an initial and continuing focus of the policy was on the arrest
and prosecution of drug-abusing mothers....” Tellingly, the document codifying the policy
incorporates the police’s operational guidelines. It devotes its attention to the chain of custody,
the range of possible criminal charges, and the logistics of police notification and arrests.
Nowhere, however, does the document discuss different courses of medical treatment for either
Chapter 17 – Page 387

mother or infant, aside from treatment for the mother’s addiction. Moreover, throughout the
development and application of the policy, the Charleston prosecutors and police were
extensively involved in the day-to-day administration of the policy.
While the ultimate goal of the program may well have been to get the women in question into
substance abuse treatment and off of drugs, the immediate objective of the searches was to
generate evidence for law enforcement purposes in order to reach that goal. The threat of law
enforcement may ultimately have been intended as a means to an end, but the direct and primary
purpose of MUSC’s policy was to ensure the use of those means. In our opinion, this distinction
is critical. Because law enforcement involvement always serves some broader social purpose or
objective, under respondents’ view, virtually any nonconsensual suspicionless search could be
immunized under the special needs doctrine by defining the search solely in terms of its ultimate,
rather than immediate, purpose. Such an approach is inconsistent with the Fourth Amendment.
Given the primary purpose of the Charleston program, which was to use the threat of arrest and
prosecution in order to force women into treatment, and given the extensive involvement of law
enforcement officials at every stage of the policy, this case simply does not fit within the closely
guarded category of “special needs.”
The fact that positive test results were turned over to the police does not merely provide a basis
for distinguishing our prior cases applying the “special needs” balancing approach to the
determination of drug use. It also provides an affirmative reason for enforcing the strictures of
the Fourth Amendment. While state hospital employees, like other citizens, may have a duty to
provide the police with evidence of criminal conduct that they inadvertently acquire in the course
of routine treatment, when they undertake to obtain such evidence from their patients for the
specific purpose of incriminating those patients, they have a special obligation to make sure that
the patients are fully informed about their constitutional rights, as standards of knowing waiver
require.
As respondents have repeatedly insisted, their motive was benign rather than punitive. Such a
motive, however, cannot justify a departure from Fourth Amendment protections, given the
pervasive involvement of law enforcement with the development and application of the MUSC
policy. The stark and unique fact that characterizes this case is that Policy M-7 was designed to
obtain evidence of criminal conduct by the tested patients that would be turned over to the police
and that could be admissible in subsequent criminal prosecutions. While respondents are correct
that drug abuse both was and is a serious problem, “the gravity of the threat alone cannot be
dispositive of questions concerning what means law enforcement officers may employ to pursue
a given purpose.” The Fourth Amendment’s general prohibition against nonconsensual,
warrantless, and suspicionless searches necessarily applies to such a policy.
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for
further proceedings consistent with this opinion.
[In a dissent joined by Chief Justice Roberts and Justice Thomas, Justice Scalia attacked the
majority opinion on multiple fronts. First, he disputed whether any Fourth Amendment “search”
had occurred, arguing that eliminated urine is abandoned and should be treated like the garbage
at issue in California v. Greenwood (Chapter 3). Second, he argued that patients consented to
Chapter 17 – Page 388

the collection of urine by hospital officials. Finally he argued that even if somehow the hospital’s
collection of urine were a search to which patients did not consent, the “special-needs doctrine”
would easily justify the drug testing to “protect both mother and unborn child.”]
Notes, Comments, and Questions
Although no one today would recommend use of crack cocaine by pregnant women, it turns out
that much of the science behind the so-called “crack baby” epidemic has been debunked.
Predictions like that of “a bio-underclass, a generation of physically damaged cocaine babies
whose biological inferiority is stamped at birth”—from a 1989 column in the Washington Post—
or a flood of 4 million kids whose “neurological, emotional and learning problems will severely
test teachers and schools”—from a 1990 article in the New York Times—appear alarmist in
hindsight. See Vann R. Newkirk II, “What the ‘Crack Baby’ Panic Reveals about the Opioid
Epidemic,” Atlantic (July 16, 2017) (noting the greater empathy extended to pregnant women
using opiates than was shown to crack-addicted mothers). Legal scholars noted that in the late
1980s, a trend emerged wherein prosecutors used laws previously used to punish abuse of
children after birth—such as involuntary manslaughter and delivery of drugs to a minor—to
prosecute pregnant drug users. See, e.g., Doretta Massardo McGinnis, Comment, “Prosecution
of Mothers of Drug-Exposed Babies: Constitutional and Criminal Theory,” 139 U. Pa. L. Rev. 505
(1990).
Had Ferguson v. City of Charleston been decided in 1991 instead of 2001, the Court might well
have reached a different result. The concerns raised by Justice Scalia in his dissent—the need to
“protect both mother and unborn child”—echo comments of pundits and of policy makers from
the height of the crack-baby scare.
In our next chapter, we consider our final selection of exceptions to the warrant requirement.

Chapter 17 – Page 389

THE FOURTH AMENDMENT
Chapter 18
The Warrant Requirement: Exceptions (Part 10)
In this chapter, we conclude our review of exceptions to the warrant requirement. In particular,
we will examine: (1) searches of persons in jails, (2) searches of persons on probation and parole,
(3) inventory searches, (4) administrative searches, and (5) DNA tests of arrested persons.
Warrant Exception: Searches of Persons in Jails and Prisons
To maintain order and safety in jails and prisons, correctional officers must conduct searches of
inmates and their effects. The next case explores the limits of this authority, as well as whether
the offense for which someone is jailed affects what searches are reasonable.
Supreme Court of the United States
Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington
Decided April 2, 2012 — 566 U.S. 318
Justice KENNEDY delivered the opinion of the Court, except as to Part IV.1
I
In 1998, seven years before the incidents at issue, petitioner Albert Florence was arrested after
fleeing from police officers in Essex County, New Jersey. He was charged with obstruction of
justice and use of a deadly weapon. Petitioner entered a plea of guilty to two lesser offenses and
was sentenced to pay a fine in monthly installments. In 2003, after he fell behind on his
payments and failed to appear at an enforcement hearing, a bench warrant was issued for his
arrest. He paid the outstanding balance less than a week later; but, for some unexplained reason,
the warrant remained in a statewide computer database.
Two years later, in Burlington County, New Jersey, petitioner and his wife were stopped in their
automobile by a state trooper. Based on the outstanding warrant in the computer system, the
officer arrested petitioner and took him to the Burlington County Detention Center. He was held
there for six days and then was transferred to the Essex County Correctional Facility. It is not
the arrest or confinement but the search process at each jail that gives rise to the claims before
the Court.
Burlington County jail procedures required every arrestee to shower with a delousing agent.
Officers would check arrestees for scars, marks, gang tattoos, and contraband as they disrobed.
Petitioner claims he was also instructed to open his mouth, lift his tongue, hold out his arms,
turn around, and lift his genitals. (It is not clear whether this last step was part of the normal
1 [Footnote by editors] Only three Justices joined Justice Kennedy in Part IV; that Part did not command a majority

of votes. For the remainder of his opinion, four Justices joined Justice Kennedy, providing a majority.
Chapter 18 — Page 390

practice.) Petitioner shared a cell with at least one other person and interacted with other
inmates following his admission to the jail.
When petitioner was transferred [to the Essex County facility], all arriving detainees passed
through a metal detector and waited in a group holding cell for a more thorough search. When
they left the holding cell, they were instructed to remove their clothing while an officer looked
for body markings, wounds, and contraband. Apparently without touching the detainees, an
officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other
body openings. This policy applied regardless of the circumstances of the arrest, the suspected
offense, or the detainee’s behavior, demeanor, or criminal history. Petitioner alleges he was
required to lift his genitals, turn around, and cough in a squatting position as part of the process.
After a mandatory shower, during which his clothes were inspected, petitioner was admitted to
the facility. He was released the next day, when the charges against him were dismissed.
Petitioner sued the governmental entities that operated the jails, one of the wardens, and certain
other defendants. Seeking relief under 42 U.S.C. § 1983 for violations of his Fourth and
Fourteenth Amendment rights, petitioner maintained that persons arrested for a minor offense
could not be required to remove their clothing and expose the most private areas of their bodies
to close visual inspection as a routine part of the intake process. The District Court certified a
class of individuals who were charged with a nonindictable offense under New Jersey law,
processed at either the Burlington County or Essex County jail, and directed to strip naked even
though an officer had not articulated any reasonable suspicion they were concealing contraband.
After discovery, the court granted petitioner’s motion for summary judgment on the unlawful
search claim. A divided panel of the United States Court of Appeals for the Third Circuit reversed.
This Court granted certiorari.
II
The difficulties of operating a detention center must not be underestimated by the courts. Jails
(in the stricter sense of the term, excluding prison facilities) admit more than 13 million inmates
a year. The largest facilities process hundreds of people every day; smaller jails may be crowded
on weekend nights, after a large police operation, or because of detainees arriving from other
jurisdictions. Maintaining safety and order at these institutions requires the expertise of
correctional officials, who must have substantial discretion to devise reasonable solutions to the
problems they face. The Court has confirmed the importance of deference to correctional officials
and explained that a regulation impinging on an inmate’s constitutional rights must be upheld
“if it is reasonably related to legitimate penological interests.”
The Court has [] recognized that deterring the possession of contraband depends in part on the
ability to conduct searches without predictable exceptions. [C]orrectional officials must be
permitted to devise reasonable search policies to detect and deter the possession of contraband
in their facilities. The task of determining whether a policy is reasonably related to legitimate
security interests is “peculiarly within the province and professional expertise of corrections
officials.”

Chapter 18 — Page 391

In many jails officials seek to improve security by requiring some kind of strip search of everyone
who is to be detained. Persons arrested for minor offenses may be among the detainees
processed at these facilities.
III
The question here is whether undoubted security imperatives involved in jail supervision
override the assertion that some detainees must be exempt from the more invasive search
procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. The
Court has held that deference must be given to the officials in charge of the jail unless there is
“substantial evidence” demonstrating their response to the situation is exaggerated. Petitioner
has not met this standard, and the record provides full justifications for the procedures used.
A
Correctional officials have a significant interest in conducting a thorough search as a standard
part of the intake process. The admission of inmates creates numerous risks for facility staff, for
the existing detainee population, and for a new detainee himself or herself. The danger of
introducing lice or contagious infections, for example, is well documented. The Federal Bureau
of Prisons recommends that staff screen new detainees for these conditions. Persons just
arrested may have wounds or other injuries requiring immediate medical attention. It may be
difficult to identify and treat these problems until detainees remove their clothes for a visual
inspection.
Jails and prisons also face grave threats posed by the increasing number of gang members who
go through the intake process. “Gang rivalries spawn a climate of tension, violence, and
coercion.” The groups recruit new members by force, engage in assaults against staff, and give
other inmates a reason to arm themselves. Fights among feuding gangs can be deadly, and the
officers who must maintain order are put in harm’s way. These considerations provide a
reasonable basis to justify a visual inspection for certain tattoos and other signs of gang
affiliation as part of the intake process. The identification and isolation of gang members before
they are admitted protects everyone in the facility.
Detecting contraband concealed by new detainees, furthermore, is a most serious responsibility.
Weapons, drugs, and alcohol all disrupt the safe operation of a jail. Correctional officers have
had to confront arrestees concealing knives, scissors, razor blades, glass shards, and other
prohibited items on their person, including in their body cavities. They have also found crack,
heroin, and marijuana. The use of drugs can embolden inmates in aggression toward officers or
each other; and, even apart from their use, the trade in these substances can lead to violent
confrontations.
Contraband creates additional problems because scarce items, including currency, have value in
a jail’s culture and underground economy. Correctional officials inform us “[t]he competition ...
for such goods begets violence, extortion, and disorder.” They “orchestrate thefts, commit
assaults, and approach inmates in packs to take the contraband from the weak.” This puts the
entire facility, including detainees being held for a brief term for a minor offense, at risk. Gangs
do coerce inmates who have access to the outside world, such as people serving their time on the
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weekends, to sneak things into the jail. These inmates, who might be thought to pose the least
risk, have been caught smuggling prohibited items into jail.
It is not surprising that correctional officials have sought to perform thorough searches at intake
for disease, gang affiliation, and contraband. Jails are often crowded, unsanitary, and dangerous
places. There is a substantial interest in preventing any new inmate, either of his own will or as
a result of coercion, from putting all who live or work at these institutions at even greater risk
when he is admitted to the general population.
B
Petitioner acknowledges that correctional officials must be allowed to conduct an effective search
during the intake process and that this will require at least some detainees to lift their genitals
or cough in a squatting position. These procedures [] are designed to uncover contraband that
can go undetected by a patdown, metal detector, and other less invasive searches. Petitioner
maintains there is little benefit to conducting these more invasive steps on a new detainee who
has not been arrested for a serious crime or for any offense involving a weapon or drugs. In his
view these detainees should be exempt from this process unless they give officers a particular
reason to suspect them of hiding contraband. It is reasonable, however, for correctional officials
to conclude this standard would be unworkable.
Experience shows that people arrested for minor offenses have tried to smuggle prohibited items
into jail, sometimes by using their rectal cavities or genitals for the concealment. They may have
some of the same incentives as a serious criminal to hide contraband. A detainee might risk
carrying cash, cigarettes, or a penknife to survive in jail. Others may make a quick decision to
hide unlawful substances to avoid getting in more trouble at the time of their arrest.
Even if people arrested for a minor offense do not themselves wish to introduce contraband into
a jail, they may be coerced into doing so by others. This could happen any time detainees are
held in the same area, including in a van on the way to the station or in the holding cell of the
jail. If, for example, a person arrested and detained for unpaid traffic citations is not subject to
the same search as others, this will be well known to other detainees with jail experience. A
hardened criminal or gang member can, in just a few minutes, approach the person and coerce
him into hiding the fruits of a crime, a weapon, or some other contraband. As an expert in this
case explained, “the interaction and mingling between misdemeanants and felons will only
increase the amount of contraband in the facility if the jail can only conduct admission searches
on felons.” Exempting people arrested for minor offenses from a standard search protocol thus
may put them at greater risk and result in more contraband being brought into the detention
facility. This is a substantial reason not to mandate the exception petitioner seeks as a matter of
constitutional law.
It also may be difficult, as a practical matter, to classify inmates by their current and prior
offenses before the intake search. Jails can be even more dangerous than prisons because
officials there know so little about the people they admit at the outset. An arrestee may be
carrying a false ID or lie about his identity. The officers who conduct an initial search often do
not have access to criminal history records.
Chapter 18 — Page 393

IV
This case does not require the Court to rule on the types of searches that would be reasonable in
instances where, for example, a detainee will be held without assignment to the general jail
population and without substantial contact with other detainees. Petitioner’s amici raise
concerns about instances of officers engaging in intentional humiliation and other abusive
practices. There also may be legitimate concerns about the invasiveness of searches that involve
the touching of detainees. These issues are not implicated on the facts of this case, however, and
it is unnecessary to consider them here.
V
Even assuming all the facts in favor of petitioner, the search procedures at the Burlington County
Detention Center and the Essex County Correctional Facility struck a reasonable balance
between inmate privacy and the needs of the institutions. The Fourth and Fourteenth
Amendments do not require adoption of the framework of rules petitioner proposes.
The judgment of the Court of Appeals for the Third Circuit is affirmed.
Justice ALITO, concurring.
I join the opinion of the Court but emphasize the limits of today’s holding. It is important to note
[] that the Court does not hold that it is always reasonable to conduct a full strip search of an
arrestee whose detention has not been reviewed by a judicial officer and who could be held in
available facilities apart from the general population. Most of those arrested for minor offenses
are not dangerous, and most are released from custody prior to or at the time of their initial
appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are
released either on their own recognizance or on minimal bail. In the end, few are sentenced to
incarceration. For these persons, admission to the general jail population, with the concomitant
humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is
feasible. For example, the Federal Bureau of Prisons (BOP) and possibly even some local jails
appear to segregate temporary detainees who are minor offenders from the general population.
The Court does not address whether it is always reasonable, without regard to the offense or the
reason for detention, to strip search an arrestee before the arrestee’s detention has been reviewed
by a judicial officer. The lead opinion explicitly reserves judgment on that question. In light of
that limitation, I join the opinion of the Court in full.
Justice BREYER, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN
join, dissenting.
The petition for certiorari asks us to decide “[w]hether the Fourth Amendment permits a ...
suspicionless strip search of every individual arrested for any minor offense....” This question is
phrased more broadly than what is at issue. The case is limited to strip searches of those arrestees
entering a jail’s general population. And the kind of strip search in question involves more than
undressing and taking a shower (even if guards monitor the shower area for threatened
disorder). Rather, the searches here involve close observation of the private areas of a person’s
Chapter 18 — Page 394

body and for that reason constitute a far more serious invasion of that person’s privacy.
In my view, such a search of an individual arrested for a minor offense that does not involve
drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any
other such misdemeanor—is an “unreasonable searc[h]” forbidden by the Fourth Amendment,
unless prison authorities have reasonable suspicion to believe that the individual possesses
drugs or other contraband. And I dissent from the Court’s contrary determination.
A strip search that involves a stranger peering without consent at a naked individual, and in
particular at the most private portions of that person’s body, is a serious invasion of privacy.
Even when carried out in a respectful manner, and even absent any physical touching, such
searches are inherently harmful, humiliating, and degrading. And the harm to privacy interests
would seem particularly acute where the person searched may well have no expectation of being
subject to such a search, say, because she had simply received a traffic ticket for failing to buckle
a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a
minor trespass.
I doubt that we seriously disagree about the nature of the strip search or about the serious affront
to human dignity and to individual privacy that it presents. The basic question before us is
whether such a search is nonetheless justified when an individual arrested for a minor offense is
involuntarily placed in the general jail or prison population.
The majority, like the respondents, argues that strip searches are needed (1) to detect injuries or
diseases, such as lice, that might spread in confinement, (2) to identify gang tattoos, which might
reflect a need for special housing to avoid violence, and (3) to detect contraband, including drugs,
guns, knives, and even pens or chewing gum, which might prove harmful or dangerous in prison.
Nonetheless, the “particular” invasion of interests must be “‘reasonably related’” to the justifying
“penological interest” and the need must not be “‘exaggerated.’” It is at this point that I must
part company with the majority. I have found no convincing reason indicating that, in the
absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses
are necessary in order to further the penal interests mentioned. And there are strong reasons to
believe they are not justified.
The lack of justification is fairly obvious with respect to the first two penological interests
advanced. The searches already employed at Essex and Burlington include: (a) pat-frisking all
inmates; (b) making inmates go through metal detectors (including the Body Orifice Screening
System (BOSS) chair used at Essex County Correctional Facility that identifies metal hidden
within the body); (c) making inmates shower and use particular delousing agents or bathing
supplies; and (d) searching inmates’ clothing. In addition, petitioner concedes that detainees
could be lawfully subject to being viewed in their undergarments by jail officers or during
showering (for security purposes). No one here has offered any reason, example, or empirical
evidence suggesting the inadequacy of such practices for detecting injuries, diseases, or tattoos.
In particular, there is no connection between the genital lift and the “squat and cough” that
Florence was allegedly subjected to and health or gang concerns.

Chapter 18 — Page 395

The lack of justification for such a strip search is less obvious but no less real in respect to the
third interest, namely that of detecting contraband. The information demonstrating the lack of
justification is of three kinds. First, there are empirically based conclusions reached in specific
cases. The New York Federal District Court [] conducted a study of 23,000 persons admitted to
the Orange County correctional facility between 1999 and 2003. These 23,000 persons
underwent a strip search of the kind described. Of these 23,000 persons, the court wrote, “the
County encountered three incidents of drugs recovered from an inmate’s anal cavity and two
incidents of drugs falling from an inmate’s underwear during the course of a strip search.” The
court added that in four of these five instances there may have been “reasonable suspicion” to
search, leaving only one instance in 23,000 in which the strip search policy “arguably” detected
additional contraband.
Second, there is the plethora of recommendations of professional bodies, such as correctional
associations, that have studied and thoughtfully considered the matter. The American
Correctional Association (ACA)—an association that informs our view of “what is obtainable and
what is acceptable in corrections philosophy”—has promulgated a standard that forbids
suspicionless strip searches. And it has done so after consultation with the American Jail
Association, National Sheriff’s Association, National Institute of Corrections of the Department
of Justice, and Federal Bureau of Prisons. Moreover, many correctional facilities apply a
reasonable suspicion standard before strip searching inmates entering the general jail
population, including the U.S. Marshals Service, the Immigration and Customs Service, and the
Bureau of Indian Affairs.
Third, there is general experience in areas where the law has forbidden here-relevant
suspicionless searches. Laws in at least 10 States prohibit suspicionless strip searches. At the
same time at least seven Courts of Appeals have considered the question and have required
reasonable suspicion that an arrestee is concealing weapons or contraband before a strip search
of one arrested for a minor offense can take place. Respondents have not presented convincing
grounds to believe that administration of these legal standards has increased the smuggling of
contraband into prison. The majority is left with the word of prison officials in support of its
contrary proposition. And though that word is important, it cannot be sufficient.
For the reasons set forth, I cannot find justification for the strip search policy at issue here—a
policy that would subject those arrested for minor offenses to serious invasions of their personal
privacy. I consequently dissent.
Notes, Comments, and Questions
The Court in Florence did not conclude that the challenged jail policy was in keeping with best
correctional practices. Indeed, organizations of officials who run jails and prisons recommend
against the kind of strip searches at issue in the case, and the Court was fully aware of this
opposition. Why then did the Court find against Florence?

Chapter 18 — Page 396

The dissenting Justices mention the Body Orifice Screening System (BOSS) chair, which allows
jail officials to search inmates for hidden contraband without the sort of invasive physical contact
complained of by Florence. More information about these scanners is available at the XECU
Corporation website: https://bodyorificescanner.com/
Compare how the Court treats searches in jail with those of public school students.
Unsurprisingly, the Court is more receptive to privacy claims from school children than from jail
inmates. Yet in both contexts, the Court tends to defer to public officials.
Warrant Exception: Searches of Probationers and Parolees
Although persons on probation and parole are not subjected to the sort of control and scrutiny
experienced by jail and prison inmates, probationers and parolees must submit to searches that
would be “unreasonable” if required of other persons.
Because probationers and parolees by definition have been convicted of crimes, they are often
known to police and may be suspected of ongoing criminal activity. In United States v. Knights,
534 U.S. 112 (2001), the Court considered the search of a probationer’s house. When Mark
Knights was convicted of a drug crime, his probation order included what is sometimes described
as a “search condition.” The order stated that he would: “[s]ubmit his ... person, property, place
of residence, vehicle, personal effects, to search at anytime, with or without a search warrant,
warrant of arrest or reasonable cause by any probation officer or law enforcement officer.”
Soon afterward, police investigating a series of arsons suspected Knights and a partner of
involvement in the crimes, and an officer searched Knights’s apartment. Evidence found during
the search would have helped prosecutors convict him of federal crimes, and he challenged the
searches as unreasonable under the Fourth Amendment. The trial court suppressed the evidence
“on the ground that the search was for ‘investigatory’ rather than ‘probationary’ purposes,” and
the Ninth Circuit affirmed. The Supreme Court reversed, holding that the searches were
reasonable. The Court noted that “nothing in the condition of probation suggests that it was
confined to searches bearing upon probationary status and nothing more.”
Previously, in Griffin v. Wisconsin, 483 U.S. 868 (1987), the Court had upheld the search of a
probationer under a state law allowing “any probation officer to search a probationer’s home
without a warrant as long as his supervisor approves and as long as there are ‘reasonable
grounds’ to believe the presence of contraband.” Knights argued that searches of probationers
are allowed only if, as in Griffin, they are “special needs” searches conducted to verify whether
the probationer is obeying conditions of probation, such as abstaining from drug use. The
Knights Court disagreed, holding that the search condition reduced Knights’s reasonable
expectation of privacy. That reduction, combined with the reasonable suspicion police had of his
involvement in the arsons under investigation, justified the search of his residence. The Court
explicitly declined to decide whether his acceptance of the search condition was a form of
“consent” that would have made the search lawful under the holdings of Schneckloth v.
Bustamonte, 412 U.S. 218 (1973) (Chapter 11), and similar cases.
Then, in Samson v. California, 547 U.S. 843 (2006), the Court approved the suspicionless search
of a parolee on the street. The case concerned a “California law provid[ing] that every prisoner
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eligible for release on state parole ‘shall agree in writing to be subject to search or seizure by a
parole officer or other peace officer at any time of the day or night, with or without a search
warrant and with or without cause.’” Upon seeing Donald Samson on the street, an officer
searched him “based solely on petitioner’s status as a parolee,” and the search revealed
methamphetamine. Samson challenged the search as unreasonable, and the Court disagreed.
Relying on Knights, the Court again declined to consider whether the “consent” exception to the
warrant requirement applied. The Court held instead that the search of parolees is reasonable
because (1) awareness of the state law authorizing such searches lowers a parolee’s reasonable
expectation of privacy, and (2) the state has substantial interest in monitoring convicted
criminals released on parole because they “are more likely to commit future criminal offenses”
than the general population.
In a dissent joined by Justices Souter and Breyer, Justice Stevens argued that
“neither Knights nor Griffin supports a regime of suspicionless searches, conducted pursuant to
a blanket grant of discretion untethered by any procedural safeguards, by law enforcement
personnel who have no special interest in the welfare of the parolee or probationer.”
Although the Court has not formally relied upon the “consent” exception when approving
searches of probationers (with reasonable suspicion) and parolees (with no individualized
suspicion at all), it is hard to ignore the Court’s reliance on the searched person’s knowledge of
and acceptance of the search conditions. Probation and parole are alternatives to imprisonment,
and convicted defendants generally prefer probation to incarceration, just as inmates generally
prefer parole to continued confinement. The Court’s opinions in Knights and Samson seem
based, in part, on the idea that someone who is unhappy with the state’s parole or probation
system can choose not to participate. The dissenters in Samson attacked this theory and rejected
the state’s argument that participation is a form of consent. They wrote that a convict “has no
‘choice’ concerning the search condition” and argued that equating acquiescence with consent
“is sophistry.”
For a handful of lower court cases examining searches of parolees and probationers,
see: https://casetext.com/analysis/search-and-seizure-probationer-parolee-pretrial-release
Note that there is a circuit split about whether an officer may (consistent with the Fourth
Amendment) search a probationer’s home without a warrant even without a search condition.
See https://legal-forum.uchicago.edu/publication/fourth-amendment-rights-probationerslack-explicit-probation-conditions-and-warrantless
Warrant Exception: Inventory Searches
When police impound an illegally parked car, they may tow it to a government parking lot.
Similarly, police may tow the car of a driver who is arrested for a traffic violation. These are just
two of the many ways in which government agents can lawfully take possession of property.
Another common scenario arises when police store the effects of a person who is jailed, keeping
them until the person is released. The Court has held that government officials may search
property that comes into their possession in circumstances such as these, as long as they follow
proper procedures.
Chapter 18 — Page 398

Supreme Court of the United States
South Dakota v. Donald Opperman
Decided July 6, 1976 – 428 U.S. 364
Mr. Chief Justice BURGER delivered the opinion of the Court.
We review the judgment of the Supreme Court of South Dakota, holding that local police violated
the Fourth Amendment to the Federal Constitution, as applicable to the States under the
Fourteenth Amendment, when they conducted a routine inventory search of an automobile
lawfully impounded by police for violations of municipal parking ordinances.
(1)
Local ordinances prohibit parking in certain areas of downtown Vermillion, S.D., between the
hours of 2 a.m. and 6 a.m. During the early morning hours of December 10, 1973, a Vermillion
police officer observed respondent’s unoccupied vehicle illegally parked in the restricted zone.
At approximately 3 a.m., the officer issued an overtime parking ticket and placed it on the car’s
windshield. The citation warned: “Vehicles in violation of any parking ordinance may be towed
from the area.”
At approximately 10 o’clock on the same morning, another officer issued a second ticket for an
overtime parking violation. These circumstances were routinely reported to police headquarters,
and after the vehicle was inspected, the car was towed to the city impound lot.
From outside the car at the impound lot, a police officer observed a watch on the dashboard and
other items of personal property located on the back seat and back floorboard. At the officer’s
direction, the car door was then unlocked and, using a standard inventory form pursuant to
standard police procedures, the officer inventoried the contents of the car, including the contents
of the glove compartment which was unlocked. There he found marihuana contained in a plastic
bag. All items, including the contraband, were removed to the police department for safekeeping.
During the late afternoon of December 10, respondent appeared at the police department to
claim his property. The marihuana was retained by police.
Respondent was subsequently arrested on charges of possession of marihuana. His motion to
suppress the evidence yielded by the inventory search was denied; he was convicted after a jury
trial and sentenced to a fine of $100 and 14 days’ incarceration in the county jail. On appeal, the
Supreme Court of South Dakota reversed the conviction. We granted certiorari and we reverse.
(2)
This Court has traditionally drawn a distinction between automobiles and homes or offices in
relation to the Fourth Amendment. Although automobiles are “effects” and thus within the reach
of the Fourth Amendment, warrantless examinations of automobiles have been upheld in
circumstances in which a search of a home or office would not.
[T]he expectation of privacy with respect to one’s automobile is significantly less than that
relating to one’s home or office. In discharging their varied responsibilities for ensuring the
public safety, law enforcement officials are necessarily brought into frequent contact with
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automobiles. Most of this contact is distinctly noncriminal in nature. Automobiles, unlike
homes, are subjected to pervasive and continuing governmental regulation and controls,
including periodic inspection and licensing requirements. As an everyday occurrence, police stop
and examine vehicles when license plates or inspection stickers have expired, or if other
violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety
equipment are not in proper working order.
In the interests of public safety and as part of what the Court has called “community caretaking
functions,” automobiles are frequently taken into police custody. Vehicle accidents present one
such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve
evidence, disabled or damaged vehicles will often be removed from the highways or streets at
the behest of police engaged solely in caretaking and traffic-control activities. Police will also
frequently remove and impound automobiles which violate parking ordinances and which
thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The
authority of police to seize and remove from the streets vehicles impeding traffic or threatening
public safety and convenience is beyond challenge.
When vehicles are impounded, local police departments generally follow a routine practice of
securing and inventorying the automobiles’ contents. These procedures developed in response
to three distinct needs: the protection of the owner’s property while it remains in police custody;
the protection of the police against claims or disputes over lost or stolen property; and the
protection of the police from potential danger. The practice has been viewed as essential to
respond to incidents of theft or vandalism. In addition, police frequently attempt to determine
whether a vehicle has been stolen and thereafter abandoned.
(3)
In applying the reasonableness standard adopted by the Framers, this Court has consistently
sustained police intrusions into automobiles impounded or otherwise in lawful police custody
where the process is aimed at securing or protecting the car and its contents. [Our prior holdings]
point the way to the correct resolution of this case.
The Vermillion police were indisputably engaged in a caretaking search of a lawfully impounded
automobile. The inventory was conducted only after the car had been impounded for multiple
parking violations. The owner, having left his car illegally parked for an extended period, and
thus subject to impoundment, was not present to make other arrangements for the safekeeping
of his belongings. The inventory itself was prompted by the presence in plain view of a number
of valuables inside the car. [T]here is no suggestion [] that this standard procedure, essentially
like that followed throughout the country, was a pretext concealing an investigatory police
motive.
On this record we conclude that in following standard police procedures, prevailing throughout
the country and approved by the overwhelming majority of courts, the conduct of the police was
not “unreasonable” under the Fourth Amendment.
The judgment of the South Dakota Supreme Court is therefore reversed, and the case is
remanded for further proceedings not inconsistent with this opinion.
Chapter 18 — Page 400

Notes, Comments, and Questions
In Illinois v. Lafayette, 462 U.S. 640 (1983), the Court applied Opperman to a police search of
the “purse-type shoulder bag” of “an arrested person [who] arrive[d] at a police station.” Because
the search could not be deemed “incident” to the arrest, the Court considered “whether,
consistent with the Fourth Amendment, it is reasonable for police to search the personal effects
of a person under lawful arrest as part of the routine administrative procedure at a police
stationhouse incident to booking and jailing the suspect.” The Court found the question fairly
straightforward and resolved it as follows:
“At the stationhouse, it is entirely proper for police to remove and list or inventory property
found on the person or in the possession of an arrested person who is to be jailed. A range of
governmental interests support an inventory process. It is not unheard of for persons employed
in police activities to steal property taken from arrested persons; similarly, arrested persons have
been known to make false claims regarding what was taken from their possession at the
stationhouse. A standardized procedure for making a list or inventory as soon as reasonable after
reaching the stationhouse not only deters false claims but also inhibits theft or careless handling
of articles taken from the arrested person. Arrested persons have also been known to injure
themselves—or others—with belts, knives, drugs or other items on their person while being
detained. Dangerous instrumentalities—such as razor blades, bombs, or weapons—can be
concealed in innocent-looking articles taken from the arrestee’s possession. The bare recital of
these mundane realities justifies reasonable measures by police to limit these risks—either while
the items are in police possession or at the time they are returned to the arrestee upon his
release.”
Because the Court found such searches to be reasonable regardless of whether officials feared
any particular bag possessed by an arrestee, the Court held that neither probable cause or any
other form of individualized suspicion was needed for inventory searches of an arrestee’s
belongings prior to incarceration, “in accordance with established inventory procedures.”
By contrast, in Florida v. Wells, 495 U.S. 1 (1990), the Court found that because the highway
patrol lacked “standardized criteria” or an “established routine” with respect to opening closed
containers while inventorying a car, officers violated the Fourth Amendment when opening a
locked suitcase found in the trunk of an impounded car. The Court said such criteria were needed
because of “the principle that an inventory search must not be a ruse for a general rummaging
in order to discover incriminating evidence.” In sum, departments have wide latitude to set
inventory policies and to search cars, bags, and other items pursuant to such policies. But
without a preexisting policy, searches lose the presumption of reasonableness.
A former student of your authors once told a story about Gant drawn from the student’s
experience as a police officer.2 He began by describing how police reacted to the Court’s decision
in Gant.

2 The authors thank Clinton Sinclair for permission to include his story in this book.

Chapter 18 — Page 401

“Post-Gant, law enforcement agencies scurried to train officers on search of automobiles
incident to lawful arrest. A tool once frequently and heavily relied on, [SILA] was no longer an
option for officers looking to get into vehicles without the availability of the automobile exception
outlined in Carroll. This was particularly frustrating on pretext stops where officers would arrest
local drug dealers and criminals for driver’s license violations or other mundane crimes to get
into vehicles where evidence of the more serious, and sometimes violent, crimes were
concealed.”
Police adjusted their tactics: “The response was shoring up vehicle tow, impound, and inventory
policies.” In other words, because police could not search nearly as many cars incident to arrest,
police increased the number of cars they decided to tow after arrests.
Here is where the story gets exciting: “In 2010, Officers … stopped a vehicle after complaints of
careless and imprudent driving. The driver, 20, did not have a driver’s license. Officer attempts
to contact the vehicle owner to remove it from the side of the road were unsuccessful. Pursuant
to department policy, officers contacted a tow truck and conducted an inventory search where
they located the owner of the vehicle, mother of the driver, dead in the trunk.”
As the student summed up, “Sometimes there IS a body in the trunk.”
Warrant Exception: Administrative Searches
Our next warrant exception concerns “administrative searches,” which involve government
functions largely (if not entirely) unknown when the Fourth Amendment was ratified. For
example, fire code and housing code inspections are important to the safety of densely populated
cities. On the other hand, some might question whether inspectors should be allowed to search
their homes without a warrant, perhaps even without probable cause.
Supreme Court of the United States
Roland Camara v. Municipal Court of the City and County of San Francisco
Decided June 5, 1967 – 387 U.S. 523
Mr. Justice WHITE delivered the opinion of the Court.
Appellant brought this action in a California Superior Court alleging that he was awaiting trial
on a criminal charge of violating the San Francisco Housing Code by refusing to permit a
warrantless inspection of his residence, and that a writ of prohibition should issue to the criminal
court because the ordinance authorizing such inspections is unconstitutional on its face. The
Superior Court denied the writ, the District Court of Appeal affirmed, and the Supreme Court of
California denied a petition for hearing. Appellant properly raised and had considered by the
California courts the federal constitutional questions he now presents to this Court.
Though there were no judicial findings of fact in this prohibition proceeding, we shall set forth
the parties’ factual allegations. On November 6, 1963, an inspector of the Division of Housing
Inspection of the San Francisco Department of Public Health entered an apartment building to
make a routine annual inspection for possible violations of the city’s Housing Code. The
building’s manager informed the inspector that appellant, lessee of the ground floor, was using
Chapter 18 — Page 402

the rear of his leasehold as a personal residence. Claiming that the building’s occupancy permit
did not allow residential use of the ground floor, the inspector confronted appellant and
demanded that he permit an inspection of the premises. Appellant refused to allow the
inspection because the inspector lacked a search warrant.
The inspector returned on November 8, again without a warrant, and appellant again refused to
allow an inspection. A citation was then mailed ordering appellant to appear at the district
attorney’s office. When appellant failed to appear, two inspectors returned to his apartment on
November 22. They informed appellant that he was required by law to permit an inspection
under § 503 of the Housing Code.
Appellant nevertheless refused the inspectors access to his apartment without a search warrant.
Thereafter, a complaint was filed charging him with refusing to permit a lawful inspection in
violation of § 507 of the Code. Appellant was arrested on December 2 and released on bail. When
his demurrer to the criminal complaint was denied, appellant filed this petition for a writ of
prohibition.
Appellant has argued throughout this litigation that § 503 is contrary to the Fourth and
Fourteenth Amendments in that it authorizes municipal officials to enter a private dwelling
without a search warrant and without probable cause to believe that a violation of the Housing
Code exists therein. Consequently, appellant contends, he may not be prosecuted under § 507
for refusing to permit an inspection unconstitutionally authorized by § 503. [T]he District Court
of Appeal held that § 503 does not violate Fourth Amendment rights because it “is part of a
regulatory scheme which is essentially civil rather than criminal in nature, inasmuch as that
section creates a right of inspection which is limited in scope and may not be exercised under
unreasonable conditions.” [W]e reverse.
I
Though there has been general agreement as to the fundamental purpose of the Fourth
Amendment, translation of the abstract prohibition against “unreasonable searches and
seizures” into workable guidelines for the decision of particular cases is a difficult task which has
for many years divided the members of this Court. Nevertheless, one governing principle,
justified by history and by current experience, has consistently been followed: except in certain
carefully defined classes of cases, a search of private property without proper consent is
“unreasonable” unless it has been authorized by a valid search warrant.
In Frank v. State of Maryland, [359 U.S. 360 (1959),] this Court upheld the conviction of one
who refused to permit a warrantless inspection of private premises for the purposes of locating
and abating a suspected public nuisance. Although Frank can arguably be distinguished from
this case on its facts, the Frank opinion has generally been interpreted as carving out an
additional exception to the rule that warrantless searches are unreasonable under the Fourth
Amendment. The District Court of Appeal so interpreted Frank in this case, and that ruling is
the core of appellant’s challenge here. We proceed to a re-examination of the factors which
persuaded the Frank majority to adopt this construction of the Fourth Amendment’s prohibition
against unreasonable searches.

Chapter 18 — Page 403

We may agree that a routine inspection of the physical condition of private property is a less
hostile intrusion than the typical policeman’s search for the fruits and instrumentalities of crime.
For this reason alone, Frank differed from the great bulk of Fourth Amendment cases which
have been considered by this Court. But we cannot agree that the Fourth Amendment interests
at stake in these inspection cases are merely “peripheral.” It is surely anomalous to say that the
individual and his private property are fully protected by the Fourth Amendment only when the
individual is suspected of criminal behavior. [A]s this case demonstrates, refusal to permit an
inspection is itself a crime, punishable by fine or even by jail sentence.
[W]e hold that administrative searches of the kind at issue here are significant intrusions upon
the interests protected by the Fourth Amendment, that such searches when authorized and
conducted without a warrant procedure lack the traditional safeguards which the Fourth
Amendment guarantees to the individual, and that the reasons put forth in Frank v. State of
Maryland and in other cases for upholding these warrantless searches are insufficient to justify
so substantial a weakening of the Fourth Amendment’s protections. Because of the nature of the
municipal programs under consideration, however, these conclusions must be the beginning,
not the end, of our inquiry. The Frank majority gave recognition to the unique character of these
inspection programs by refusing to require search warrants; to reject that disposition does not
justify ignoring the question whether some other accommodation between public need and
individual rights is essential.
II
The Fourth Amendment provides that, “no Warrants shall issue, but upon probable cause.”
Borrowing from more typical Fourth Amendment cases, appellant argues not only that code
enforcement inspection programs must be circumscribed by a warrant procedure, but also that
warrants should issue only when the inspector possesses probable cause to believe that a
particular dwelling contains violations of the minimum standards prescribed by the code being
enforced. We disagree.
In cases in which the Fourth Amendment requires that a warrant to search be obtained,
“probable cause” is the standard by which a particular decision to search is tested against the
constitutional mandate of reasonableness. Unlike the search pursuant to a criminal
investigation, the inspection programs at issue here are aimed at securing city-wide compliance
with minimum physical standards for private property. The primary governmental interest at
stake is to prevent even the unintentional development of conditions which are hazardous to
public health and safety. In determining whether a particular inspection is reasonable—and thus
in determining whether there is probable cause to issue a warrant for that inspection—the need
for the inspection must be weighed in terms of these reasonable goals of code enforcement.
There is unanimous agreement among those most familiar with this field that the only effective
way to seek universal compliance with the minimum standards required by municipal codes is
through routine periodic inspections of all structures. It is here that the probable cause debate
is focused, for the agency’s decision to conduct an area inspection is unavoidably based on its
appraisal of conditions in the area as a whole, not on its knowledge of conditions in each
particular building.
Chapter 18 — Page 404

“Where considerations of health and safety are involved, the facts that would justify an inference
of ‘probable cause’ to make an inspection are clearly different from those that would justify such
an inference where a criminal investigation has been undertaken. Experience may show the need
for periodic inspections of certain facilities without a further showing of cause to believe that
substandard conditions dangerous to the public are being maintained. The passage of a certain
period without inspection might of itself be sufficient in a given situation to justify the issuance
of warrant. The test of ‘probable cause’ required by the Fourth Amendment can take into account
the nature of the search that is being sought.”
III
Since our holding emphasizes the controlling standard of reasonableness, nothing we say today
is intended to foreclose prompt inspections, even without a warrant, that the law has
traditionally upheld in emergency situations.
IV
In this case, appellant has been charged with a crime for his refusal to permit housing inspectors
to enter his leasehold without a warrant. There was no emergency demanding immediate access;
in fact, the inspectors made three trips to the building in an attempt to obtain appellant’s consent
to search. Yet no warrant was obtained and thus appellant was unable to verify either the need
for or the appropriate limits of the inspection. Assuming the facts to be as the parties have
alleged, we therefore conclude that appellant had a constitutional right to insist that the
inspectors obtain a warrant to search and that appellant may not constitutionally be convicted
for refusing to consent to the inspection. It appears from the opinion of the District Court of
Appeal that under these circumstances a writ of prohibition will issue to the criminal court under
California law.
The judgment is vacated and the case is remanded for further proceedings not inconsistent with
this opinion.
Notes, Comments, and Questions
What are the differences between the general warrant proposed in Camera and the disfavored
general warrant? What other types of searches might fall under the “inspection” umbrella?
Consider a city zoning law that restricts who may live in a certain residence on the basis of family
status. For example, the city code might state that no more than three unrelated persons may
live in a house zoned for “single-family” occupancy.3 In such a house, an adult could live with
her four children, but four unrelated roommates could not share the house (even though the four
roomates would constitute one fewer total person than the alternative group of occupants). In a
neighborhood near a university campus, students might occasionally rent houses (with two or
three names on a lease) and use them in a way that violates the code (for example, six students
living together). If a neighborhood busybody—concerned with a perceived threat to property
3 For a discussion of how such zoning affects “nontraditional” families, see Rigel Oliveri, Single-Family Zoning,

Intimate Association, and the Right to Choose Household Companions, 67 Fla. L. Rev. 1401 (2016).
Chapter 18 — Page 405

values or simply interested in policing how neighbors behave—calls city officials with vague
reports of overoccupancy, may a judge issue a warrant allowing city officials to inspect every
house in the neighborhood to see who lives there and whether they are related to one another?
May such warrants issue every year—allowing searches of houses in “single-family”
neighborhoods near campus—even if no one complains?
In See v. City of Seattle, 387 U.S. 541 (1967), decided the same day as Camara, the Court held
that the rule of Camara applied to commercial warehouses. “As we explained in Camara, a
search of private houses is presumptively unreasonable if conducted without a warrant. The
businessman, like the occupant of a residence, has a constitutional right to go about his business
free from unreasonable official entries upon his private commercial property.”
Two decades later, however, the Court was less protective of a business owner’s right to avoid
warrantless administrative searches. In New York v. Burger, 482 U.S. 691 (1987), the Court
considered a different kind of business premises—a junkyard. After stating (somewhat
implausibly) that the junkyard was a “closely regulated industry,” the Court held that proprietors
of such businesses have lowered expectations of privacy. That finding, combined with the state
interest in supervising such industries (in this case, to combat car theft by preventing stolen
parts from being bought and sold at junkyards), made the warrantless search reasonable.
Students should note that the Burger Court went even further than the Court’s decision in
Camara. In Camara, the Court required inspectors to obtain a warrant, which if suspiciously
similar to the detested “general warrants” of old was at least issued by a judge. In Burger, the
Court held that New York’s statute allowing for the inspection of junkyards was a
“constitutionally adequate substitute for a warrant.”
In a dissent joined in full by Justice Marshall and in part by Justice O’Connor, Justice Brennan
argued that “Burger’s vehicle-dismantling business is not closely regulated (unless most New
York City businesses are).” Objecting to the Court’s acceptance of the New York statute in lieu of
a warrant, he argued that “the Court also perceives careful guidance and control of police
discretion in a statute that is patently insufficient to eliminate the need for a warrant.”
Accordingly, he concluded that the decision “renders virtually meaningless the general rule that
a warrant is required for administrative searches of commercial property.”
The Court revisited administrative searches in City of Los Angeles v. Patel, 135 S. Ct. 2443
(2015), deciding by a 5-4 vote that certain regulations of Los Angeles hotels violated the Fourth
Amendment. In particular, the city required “hotel operators to record and keep specific
information about their guests on the premises for a 90-day period” and to make the records
“available to any officer of the Los Angeles Police Department for inspection ... at a time and in
a manner that minimizes any interference with the operation of the business.” Refusal to make
the records available was a crime. Hotel operators brought a facial challenge to the regulation
and prevailed.
The majority noted that it did not strike down the provisions of the regulation requiring that the
records be kept, nor did it prevent officers from viewing the records by consent or by obtaining
a proper administrative warrant (or with some other exception to the warrant requirement).
Instead, the Court struck down only the provision forcing hotel owners to show the records on
demand to any officer without a warrant, on pain of criminal prosecution—without even the
Chapter 18 — Page 406

opportunity for a precompliance judicial review. The Court rejected the city’s argument that the
regulation was valid under prior precedents related to “closely regulated industries.” Perhaps
retreating a bit from the broad definition of such industries in Burger, the Patel Court stated,
“Over the past 45 years, the Court has identified only four industries that ‘have such a history of
government oversight that no reasonable expectation of privacy ... could exist for a proprietor
over the stock of such an enterprise.’” Those industries are “liquor sales,” “firearms dealing,”
“mining,” and—of course—“running an automobile junkyard.”
In a dissent joined by Chief Justice Roberts and Justice Thomas, Justice Scalia wrote: “[T]he
Court today concludes that Los Angeles’s ordinance is ‘unreasonable’ inasmuch as it permits
police to flip through a guest register to ensure it is being filled out without first providing an
opportunity for the motel operator to seek judicial review. Because I believe that such a limited
inspection of a guest register is eminently reasonable under the circumstances presented, I
dissent.” He noted “that the motel operators who conspire with drug dealers and procurers may
demand precompliance judicial review simply as a pretext to buy time for making fraudulent
entries in their guest registers.”
Justice Alito dissented as well, joined by Justice Thomas. Objecting in particular to the Court’s
finding that the regulation was facially invalid—as opposed to invalid in limited cases—he
presented five examples of circumstances in which he believed it would be reasonable for the city
to enforce the law as written. Here is one:
“Example Two. A murderer has kidnapped a woman with the intent to rape and kill her and there
is reason to believe he is holed up in a certain motel. The Fourth Amendment’s reasonableness
standard accounts for exigent circumstances. When the police arrive, the motel operator folds
her arms and says the register is locked in a safe. Invoking [the challenged regulation], the police
order the operator to turn over the register. She refuses. The Fourth Amendment does not
protect her from arrest.”
*

*

*

DNA Tests of Arrestees
We conclude with a case challenging a Maryland policy under which police collected DNA from
arrestees as part of “routine booking procedure.”
Supreme Court of the United States
Maryland v. Alonzo Jay King
Decided June 3, 2013 – 569 U.S. 435
Justice KENNEDY delivered the opinion of the Court.
In 2003 a man concealing his face and armed with a gun broke into a woman’s home in Salisbury,
Maryland. He raped her. The police were unable to identify or apprehend the assailant based on
any detailed description or other evidence they then had, but they did obtain from the victim a
sample of the perpetrator’s DNA.
Chapter 18 — Page 407

In 2009 Alonzo King was arrested in Wicomico County, Maryland, and charged with first- and
second-degree assault for menacing a group of people with a shotgun. As part of a routine
booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or
filter paper—known as a buccal swab—to the inside of his cheeks. The DNA was found to match
the DNA taken from the Salisbury rape victim. King was tried and convicted for the rape.
Additional DNA samples were taken from him and used in the rape trial, but there seems to be
no doubt that it was the DNA from the cheek sample taken at the time he was booked in 2009
that led to his first having been linked to the rape and charged with its commission.
On July 13, 2009, King’s DNA record was uploaded to the Maryland DNA database, and three
weeks later, on August 4, 2009, his DNA profile was matched to the DNA sample collected in the
unsolved 2003 rape case. Once the DNA was matched to King, detectives presented the forensic
evidence to a grand jury, which indicted him for the rape. Detectives obtained a search warrant
and took a second sample of DNA from King, which again matched the evidence from the rape.
He moved to suppress the DNA match on the grounds that Maryland’s DNA collection law
violated the Fourth Amendment. The Circuit Court Judge upheld the statute as constitutional.
King pleaded not guilty to the rape charges but was convicted and sentenced to life in prison
without the possibility of parole. The Court of Appeals of Maryland, on review of King’s rape
conviction, ruled that the DNA taken when King was booked for the 2009 charge was an unlawful
seizure because obtaining and using the cheek swab was an unreasonable search of the person.
It set the rape conviction aside. This Court granted certiorari and now reverses the judgment of
the Maryland court.
II
A
The Act authorizes Maryland law enforcement authorities to collect DNA samples from “an
individual who is charged with ... a crime of violence or an attempt to commit a crime of violence;
or ... burglary or an attempt to commit burglary.” Maryland law defines a crime of violence to
include murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other
serious crimes. Once taken, a DNA sample may not be processed or placed in a database before
the individual is arraigned (unless the individual consents). It is at this point that a judicial
officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense.
If “all qualifying criminal charges are determined to be unsupported by probable cause ... the
DNA sample shall be immediately destroyed.” DNA samples are also destroyed if “a criminal
action begun against the individual ... does not result in a conviction,” “the conviction is finally
reversed or vacated and no new trial is permitted,” or “the individual is granted an unconditional
pardon.”
The Act also limits the information added to a DNA database and how it may be used.
Specifically, “[o]nly DNA records that directly relate to the identification of individuals shall be
collected and stored.” No purpose other than identification is permissible: “A person may not
willfully test a DNA sample for information that does not relate to the identification of
individuals as specified in this subtitle.” Tests for familial matches are also prohibited. The
officers involved in taking and analyzing respondent’s DNA sample complied with the Act in all
respects.
Chapter 18 — Page 408

Respondent’s DNA was collected in this case using a common procedure known as a “buccal
swab.” “Buccal cell collection involves wiping a small piece of filter paper or a cotton swab similar
to a Q-tip against the inside cheek of an individual’s mouth to collect some skin cells.” The
procedure is quick and painless. The swab touches inside an arrestee’s mouth, but it requires no
“surgical intrusio[n] beneath the skin,” and it poses no “threa[t] to the health or safety” of
arrestees.
B
Respondent’s identification as the rapist resulted in part through the operation of a national
project to standardize collection and storage of DNA profiles. Authorized by Congress and
supervised by the Federal Bureau of Investigation, the Combined DNA Index System (CODIS)
connects DNA laboratories at the local, state, and national level. All 50 States require the
collection of DNA from felony convicts, and respondent does not dispute the validity of that
practice. Twenty-eight States and the Federal Government have adopted laws similar to the
Maryland Act authorizing the collection of DNA from some or all arrestees. At issue is a standard,
expanding technology already in widespread use throughout the Nation.
III
It can be agreed that using a buccal swab on the inner tissues of a person’s cheek in order to
obtain DNA samples is a search. Virtually any “intrusio[n] into the human body” will work an
invasion of “‘cherished personal security’ that is subject to constitutional scrutiny.” The fact than
an intrusion is negligible is of central relevance to determining reasonableness, although it is
still a search as the law defines that term.
To say that the Fourth Amendment applies here is the beginning point, not the end of the
analysis. “[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions
as such, but against intrusions which are not justified in the circumstances, or which are made
in an improper manner.” “As the text of the Fourth Amendment indicates, the ultimate measure
of the constitutionality of a governmental search is ‘reasonableness.’” In giving content to the
inquiry whether an intrusion is reasonable, the Court has preferred “some quantum of
individualized suspicion ... [as] a prerequisite to a constitutional search or seizure. But the
Fourth Amendment imposes no irreducible requirement of such suspicion.”
The Maryland DNA Collection Act provides that, in order to obtain a DNA sample, all arrestees
charged with serious crimes must furnish the sample on a buccal swab applied, as noted, to the
inside of the cheeks. The arrestee is already in valid police custody for a serious offense supported
by probable cause. The DNA collection is not subject to the judgment of officers whose
perspective might be “colored by their primary involvement in ‘the often competitive enterprise
of ferreting out crime.’” “[T]here are virtually no facts for a neutral magistrate to evaluate.” Here,
the search effected by the buccal swab of respondent falls within the category of cases this Court
has analyzed by reference to the proposition that the “touchstone of the Fourth Amendment is
reasonableness, not individualized suspicion.”

Chapter 18 — Page 409

Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must
be reasonable in its scope and manner of execution. Urgent government interests are not a
license for indiscriminate police behavior. To say that no warrant is required is merely to
acknowledge that “rather than employing a per se rule of unreasonableness, we balance the
privacy-related and law enforcement-related concerns to determine if the intrusion was
reasonable.” This application of “traditional standards of reasonableness” requires a court to
weigh “the promotion of legitimate governmental interests” against “the degree to which [the
search] intrudes upon an individual’s privacy.” An assessment of reasonableness to determine
the lawfulness of requiring this class of arrestees to provide a DNA sample is central to the
instant case.
IV
A
The legitimate government interest served by the Maryland DNA Collection Act is one that is
well established: the need for law enforcement officers in a safe and accurate way to process and
identify the persons and possessions they must take into custody. It is beyond dispute that
“probable cause provides legal justification for arresting a person suspected of crime, and for a
brief period of detention to take the administrative steps incident to arrest.” Also uncontested is
the “right on the part of the Government, always recognized under English and American law, to
search the person of the accused when legally arrested.” When probable cause exists to remove
an individual from the normal channels of society and hold him in legal custody, DNA
identification plays a critical role in serving those interests.
First, “[i]n every criminal case, it is known and must be known who has been arrested and who
is being tried.” An individual’s identity is more than just his name or Social Security number,
and the government’s interest in identification goes beyond ensuring that the proper name is
typed on the indictment. Identity has never been considered limited to the name on the arrestee’s
birth certificate. An “arrestee may be carrying a false ID or lie about his identity,” and “criminal
history records ... can be inaccurate or incomplete.”
A suspect’s criminal history is a critical part of his identity that officers should know when
processing him for detention. Police already seek this crucial identifying information. They use
routine and accepted means as varied as comparing the suspect’s booking photograph to sketch
artists’ depictions of persons of interest, showing his mugshot to potential witnesses, and of
course making a computerized comparison of the arrestee’s fingerprints against electronic
databases of known criminals and unsolved crimes. In this respect the only difference between
DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA
provides.
The task of identification necessarily entails searching public and police records based on the
identifying information provided by the arrestee to see what is already known about him. A DNA
profile is useful to the police because it gives them a form of identification to search the records
already in their valid possession. In this respect the use of DNA for identification is no different
than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or
Chapter 18 — Page 410

matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the
arrestee’s fingerprints to those recovered from a crime scene. Finding occurrences of the
arrestee’s CODIS profile in outstanding cases is consistent with this common practice. It uses a
different form of identification than a name or fingerprint, but its function is the same.
Second, law enforcement officers bear a responsibility for ensuring that the custody of an
arrestee does not create inordinate “risks for facility staff, for the existing detainee population,
and for a new detainee.” DNA identification can provide untainted information to those charged
with detaining suspects and detaining the property of any felon. For these purposes officers must
know the type of person whom they are detaining, and DNA allows them to make critical choices
about how to proceed.
Third, looking forward to future stages of criminal prosecution, “the Government has a
substantial interest in ensuring that persons accused of crimes are available for trials.” Fourth,
an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and
this will inform a court’s determination whether the individual should be released on bail.
Knowing that the defendant is wanted for a previous violent crime based on DNA identification
is especially probative of the court’s consideration of “the danger of the defendant to the alleged
victim, another person, or the community.”
Present capabilities make it possible to complete a DNA identification that provides information
essential to determining whether a detained suspect can be released pending trial. The facts of
this case are illustrative. Though the record is not clear, if some thought were being given to
releasing the respondent on bail on the gun charge, a release that would take weeks or months
in any event, when the DNA report linked him to the prior rape, it would be relevant to the
conditions of his release. The same would be true with a supplemental fingerprint report.
Finally, in the interests of justice, the identification of an arrestee as the perpetrator of some
heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the
same offense. “[P]rompt [DNA] testing ... would speed up apprehension of criminals before they
commit additional crimes, and prevent the grotesque detention of ... innocent people.”
Because proper processing of arrestees is so important and has consequences for every stage of
the criminal process, the Court has recognized that the “governmental interests underlying a
station-house search of the arrestee’s person and possessions may in some circumstances be
even greater than those supporting a search immediately following arrest.”
B
DNA identification represents an important advance in the techniques used by law enforcement
to serve legitimate police concerns for as long as there have been arrests. Law enforcement
agencies routinely have used scientific advancements in their standard procedures for the
identification of arrestees. “Police had been using photography to capture the faces of criminals
almost since its invention.” By the time that it had become “the daily practice of the police officers
and detectives of crime to use photographic pictures for the discovery and identification of
criminals,” the courts likewise had come to the conclusion that “it would be [a] matter of regret
to have its use unduly restricted upon any fanciful theory or constitutional privilege.”
Chapter 18 — Page 411

Beginning in 1887, some police adopted more exacting means to identify arrestees, using the
system of precise physical measurements pioneered by the French anthropologist Alphonse
Bertillon. Bertillon identification consisted of 10 measurements of the arrestee’s body, along with
a “scientific analysis of the features of the face and an exact anatomical localization of the various
scars, marks, &c., of the body.” As in the present case, the point of taking this information about
each arrestee was not limited to verifying that the proper name was on the indictment. These
procedures were used to “facilitate the recapture of escaped prisoners,” to aid “the investigation
of their past records and personal history,” and “to preserve the means of identification for ...
future supervision after discharge.”
Perhaps the most direct historical analogue to the DNA technology used to identify respondent
is the familiar practice of fingerprinting arrestees. From the advent of this technique, courts had
no trouble determining that fingerprinting was a natural part of “the administrative steps
incident to arrest.” By the middle of the 20th century, it was considered “elementary that a
person in lawful custody may be required to submit to photographing and fingerprinting as part
of routine identification processes.”
DNA identification is an advanced technique superior to fingerprinting in many ways, so much
so that to insist on fingerprints as the norm would make little sense to either the forensic expert
or a layperson. The additional intrusion upon the arrestee’s privacy beyond that associated with
fingerprinting is not significant, and DNA is a markedly more accurate form of identifying
arrestees. A suspect who has changed his facial features to evade photographic identification or
even one who has undertaken the more arduous task of altering his fingerprints cannot escape
the revealing power of his DNA.
In sum, there can be little reason to question “the legitimate interest of the government in
knowing for an absolute certainty the identity of the person arrested, in knowing whether he is
wanted elsewhere, and in ensuring his identification in the event he flees prosecution.” To that
end, courts have confirmed that the Fourth Amendment allows police to take certain routine
“administrative steps incident to arrest—i.e., ... book[ing], photograph[ing], and
fingerprint[ing].” DNA identification of arrestees, of the type approved by the Maryland statute
here at issue, is “no more than an extension of methods of identification long used in dealing
with persons under arrest.” In the balance of reasonableness required by the Fourth
Amendment, therefore, the Court must give great weight both to the significant government
interest at stake in the identification of arrestees and to the unmatched potential of DNA
identification to serve that interest.
V
A
By comparison to this substantial government interest and the unique effectiveness of DNA
identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal one.
The reasonableness of any search must be considered in the context of the person’s legitimate
expectations of privacy. The expectations of privacy of an individual taken into police custody
Chapter 18 — Page 412

“necessarily [are] of a diminished scope.” A search of the detainee’s person when he is booked
into custody may “‘involve a relatively extensive exploration,’” including “requir[ing] at least
some detainees to lift their genitals or cough in a squatting position.”
In this critical respect, the search here at issue differs from the sort of programmatic searches of
either the public at large or a particular class of regulated but otherwise law-abiding citizens that
the Court has previously labeled as “‘special needs’” searches. Once an individual has been
arrested on probable cause for a dangerous offense that may require detention before trial [] his
or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification
like that at issue here thus does not require consideration of any unique needs that would be
required to justify searching the average citizen.
The reasonableness inquiry here considers two other circumstances in which the Court has held
that particularized suspicion is not categorically required: “diminished expectations of privacy
[and] minimal intrusions.” This is not to suggest that any search is acceptable solely because a
person is in custody. Some searches, such as invasive surgery or a search of the arrestee’s home,
involve either greater intrusions or higher expectations of privacy than are present in this case.
A brief intrusion of an arrestee’s person is subject to the Fourth Amendment, but a swab of this
nature does not increase the indignity already attendant to normal incidents of arrest.
B
In addition the processing of respondent’s DNA sample’s 13 CODIS loci did not intrude on
respondent’s privacy in a way that would make his DNA identification unconstitutional. In light
of the scientific and statutory safeguards, once respondent’s DNA was lawfully collected the STR
analysis of respondent’s DNA pursuant to CODIS procedures did not amount to a significant
invasion of privacy that would render the DNA identification impermissible under the Fourth
Amendment.
In light of the context of a valid arrest supported by probable cause respondent’s expectations of
privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that
same context of arrest gives rise to significant state interests in identifying respondent not only
so that the proper name can be attached to his charges but also so that the criminal justice system
can make informed decisions concerning pretrial custody. Upon these considerations the Court
concludes that DNA identification of arrestees is a reasonable search that can be considered part
of a routine booking procedure. When officers make an arrest supported by probable cause to
hold for a serious offense and they bring the suspect to the station to be detained in custody,
taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and
photographing, a legitimate police booking procedure that is reasonable under the Fourth
Amendment.
The judgment of the Court of Appeals of Maryland is reversed.

Chapter 18 — Page 413

Justice SCALIA, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN
join, dissenting.
The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis
for believing the person is guilty of the crime or is in possession of incriminating evidence. That
prohibition is categorical and without exception; it lies at the very heart of the Fourth
Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a
justifying motive apart from the investigation of crime.
It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that
DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the
credulity of the credulous. [T]he Court elaborates at length the ways that the search here served
the special purpose of “identifying” King. But that seems to me quite wrong—unless what one
means by “identifying” someone is “searching for evidence that he has committed crimes
unrelated to the crime of his arrest.”
[I]f anything was “identified” at the moment that the DNA database returned a match, it was not
King—his identity was already known. (The docket for the original criminal charges lists his full
name, his race, his sex, his height, his weight, his date of birth, and his address.) Rather, what
the August 4 match “identified” was the previously-taken sample from the earlier crime. That
sample was genuinely mysterious to Maryland. King was not identified by his association with
the sample; rather, the sample was identified by its association with King. The Court effectively
destroys its own “identification” theory when it acknowledges that the object of this search was
“to see what [was] already known about [King].” No minimally competent speaker of English
would say, upon noticing a known arrestee’s similarity “to a wanted poster of a previously
unidentified suspect,” that the arrestee had thereby been identified. It was the previously
unidentified suspect who had been identified—just as, here, it was the previously unidentified
rapist.
That taking DNA samples from arrestees has nothing to do with identifying them is confirmed
not just by actual practice (which the Court ignores) but by the enabling statute itself (which the
Court also ignores). The Maryland Act at issue has a section helpfully entitled “Purpose of
collecting and testing DNA samples.” (One would expect such a section to play a somewhat larger
role in the Court’s analysis of the Act’s purpose—which is to say, at least some role.) That
provision lists five purposes for which DNA samples may be tested. By this point, it will not
surprise the reader to learn that the Court’s imagined purpose is not among them.
So, to review: DNA testing does not even begin until after arraignment and bail decisions are
already made. The samples sit in storage for months, and take weeks to test. When they are
tested, they are checked against the Unsolved Crimes Collection—rather than the Convict and
Arrestee Collection, which could be used to identify them. The Act forbids the Court’s purpose
(identification), but prescribes as its purpose what our suspicionless-search cases forbid
(“official investigation into a crime”). Against all of that, it is safe to say that if the Court’s
identification theory is not wrong, there is no such thing as error.
I therefore dissent, and hope that today’s incursion upon the Fourth Amendment [] will some
day be repudiated.
Chapter 18 — Page 414

Notes, Comments, and Questions
The dissent points out that the police did not really use the DNA to identify King; they used it to
identify the source of sample obtained elsewhere; that is, they used the DNA test of King to match
him to the pre-existing sample. In recent years, police have used DNA evidence to create profiles
and search for family matches in ancestry DNA databases. What outcome under the Fourth
Amendment?
Imagine a small community where two children are murdered. Police believe they have a serial
killer and obtain a confession for one of the murders from a local boy with developmental
disabilities. DNA evidence proves the two victims had the same killer, but the evidence also
exonerates the boy. The police want to obtain DNA samples from every male resident in the small
town to find the murderer. What outcome under the Fourth Amendment? What if the police
convince the entire male population to consent to giving DNA evidence; one man has a friend
give DNA evidence on his behalf. Then later the friend comes forward to confess the subterfuge.
Analyze whether the police can require a DNA test from the man who sent the friend in his place.
(Note: This question is based on a real case from England, in which Colin Pitchfork was
eventually proven to have murdered two victims: Lynda Mann and Dawn Ashworth.)
This marks the end of our review of exceptions to the warrant requirement, as well as of searches
more generally. While questions about unlawful searches will arise again during the semester—
for example, when we consider what remedies are appropriate for different kinds of
constitutional violations—we are now ready to shift our view to seizures and arrests, to which we
will devote our next few chapters.
After that, the remainder of the course materials will focus on rights enumerated in the Fifth,
Sixth, and Fourteenth Amendments, with the regulation of interrogations receiving particular
attention.

Chapter 18 — Page 415

THE FOURTH AMENDMENT
Chapter 19
Seizures and Arrests
In this chapter, we consider the Court’s definition of “seizure” for Fourth Amendment purposes.
The common meaning of “seizure”—to take possession of a thing or person by force or by legal
process—provides some insight to the term’s meaning in constitutional law. But as is true for
other terms of art, such as “search,” the dictionary definition is not identical to the doctrinal
meaning. We also consider when police may conduct arrests.
What Is a Seizure?
Just as something cannot be an “unreasonable search” without being a “search,” something
cannot be an “unreasonable seizure” without being a “seizure.” Arrests are easily deemed
“seizures” of the persons arrested. A variety of less invasive police tactics, however, have required
more subtle analysis.
Supreme Court of the United States
United States v. Sylvia L. Mendenhall
Decided May 27, 1980 – 446 U.S. 544
Mr. Justice STEWART announced the judgment of the Court and delivered an opinion, in which
Mr. Justice REHNQUIST joined.1
The respondent was brought to trial in the United States District Court for the Eastern District
of Michigan on a charge of possessing heroin with intent to distribute it. She moved to suppress
the introduction at trial of the heroin as evidence against her on the ground that it had been
acquired from her through an unconstitutional search and seizure by agents of the Drug
Enforcement Administration (DEA). The District Court denied the respondent’s motion, and she
was convicted after a trial upon stipulated facts. The Court of Appeals reversed. We granted
certiorari.
I
At the hearing in the trial court on the respondent’s motion to suppress, it was established how
the heroin she was charged with possessing had been obtained from her. The respondent arrived
at the Detroit Metropolitan Airport on a commercial airline flight from Los Angeles early in the
morning on February 10, 1976. As she disembarked from the airplane, she was observed by two
agents of the DEA, who were present at the airport for the purpose of detecting unlawful traffic
in narcotics. After observing the respondent’s conduct, which appeared to the agents to be
characteristic of persons unlawfully carrying narcotics, the agents approached her as she was
walking through the concourse, identified themselves as federal agents, and asked to see her
1 [Footnote ** by the Court] THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice POWELL also join all

but Part II-A of this opinion.

Chapter 19 — Page 416

identification and airline ticket. The respondent produced her driver’s license, which was in the
name of Sylvia Mendenhall, and, in answer to a question of one of the agents, stated that she
resided at the address appearing on the license. The airline ticket was issued in the name of
“Annette Ford.” When asked why the ticket bore a name different from her own, the respondent
stated that she “just felt like using that name.” In response to a further question, the respondent
indicated that she had been in California only two days. Agent Anderson then specifically
identified himself as a federal narcotics agent and, according to his testimony, the respondent
“became quite shaken, extremely nervous. She had a hard time speaking.”
After returning the airline ticket and driver’s license to her, Agent Anderson asked the
respondent if she would accompany him to the airport DEA office for further questions. She did
so, although the record does not indicate a verbal response to the request. The office, which was
located up one flight of stairs about 50 feet from where the respondent had first been
approached, consisted of a reception area adjoined by three other rooms. At the office the agent
asked the respondent if she would allow a search of her person and handbag and told her that
she had the right to decline the search if she desired. She responded: “Go ahead.” She then
handed Agent Anderson her purse, which contained a receipt for an airline ticket that had been
issued to “F. Bush” three days earlier for a flight from Pittsburgh through Chicago to Los Angeles.
The agent asked whether this was the ticket that she had used for her flight to California, and the
respondent stated that it was.
A female police officer then arrived to conduct the search of the respondent’s person. She asked
the agents if the respondent had consented to be searched. The agents said that she had, and the
respondent followed the policewoman into a private room. There the policewoman again asked
the respondent if she consented to the search, and the respondent replied that she did. The
policewoman explained that the search would require that the respondent remove her clothing.
The respondent stated that she had a plane to catch and was assured by the policewoman that if
she were carrying no narcotics, there would be no problem. The respondent then began to
disrobe without further comment. As the respondent removed her clothing, she took from her
undergarments two small packages, one of which appeared to contain heroin, and handed both
to the policewoman. The agents then arrested the respondent for possessing heroin.
II
Here the Government concedes that its agents had neither a warrant nor probable cause to
believe that the respondent was carrying narcotics when the agents conducted a search of the
respondent’s person. It is the Government’s position, however, that the search was conducted
pursuant to the respondent’s consent, and thus was excepted from the requirements of both a
warrant and probable cause. Evidently, the Court of Appeals concluded that the respondent’s
apparent consent to the search was in fact not voluntarily given and was in any event the product
of earlier official conduct violative of the Fourth Amendment. We must first consider, therefore,
whether such conduct occurred, either on the concourse or in the DEA office at the airport.

Chapter 19 — Page 417

A2
[I]f the respondent was “seized” when the DEA agents approached her on the concourse and
asked questions of her, the agents’ conduct in doing so was constitutional only if they reasonably
suspected the respondent of wrongdoing. But “[o]bviously, not all personal intercourse between
policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical
force or show of authority, has in some way restrained the liberty of a citizen may we conclude
that a ‘seizure’ has occurred.”
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only
if, in view of all of the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave. Examples of circumstances that might indicate a seizure,
even where the person did not attempt to leave, would be the threatening presence of several
officers, the display of a weapon by an officer, some physical touching of the person of the citizen,
or the use of language or tone of voice indicating that compliance with the officer’s request might
be compelled. In the absence of some such evidence, otherwise inoffensive contact between a
member of the public and the police cannot, as a matter of law, amount to a seizure of that
person.
On the facts of this case, no “seizure” of the respondent occurred. The events took place in the
public concourse. The agents wore no uniforms and displayed no weapons. They did not
summon the respondent to their presence, but instead approached her and identified themselves
as federal agents. They requested, but did not demand to see the respondent’s identification and
ticket. Such conduct without more, did not amount to an intrusion upon any constitutionally
protected interest. The respondent was not seized simply by reason of the fact that the agents
approached her, asked her if she would show them her ticket and identification, and posed to
her a few questions. Nor was it enough to establish a seizure that the person asking the questions
was a law enforcement official. In short, nothing in the record suggests that the respondent had
any objective reason to believe that she was not free to end the conversation in the concourse
and proceed on her way, and for that reason we conclude that the agents’ initial approach to her
was not a seizure.
Our conclusion that no seizure occurred is not affected by the fact that the respondent was not
expressly told by the agents that she was free to decline to cooperate with their inquiry, for the
voluntariness of her responses does not depend upon her having been so informed. We also
reject the argument that the only inference to be drawn from the fact that the respondent acted
in a manner so contrary to her self-interest is that she was compelled to answer the agents’
questions. It may happen that a person makes statements to law enforcement officials that he
later regrets, but the issue in such cases is not whether the statement was self-protective, but
rather whether it was made voluntarily.
B
Although we have concluded that the initial encounter between the DEA agents and the
respondent on the concourse at the Detroit Airport did not constitute an unlawful seizure, it is
2 [Footnote by editors] Only Justices Stewart and Rehnquist signed on to Part II-A of the opinion.

Chapter 19 — Page 418

still arguable that the respondent’s Fourth Amendment protections were violated when she went
from the concourse to the DEA office. Such a violation might in turn infect the subsequent search
of the respondent’s person.
The question whether the respondent’s consent to accompany the agents was in fact voluntary
or was the product of duress or coercion, express or implied, is to be determined by the totality
of all the circumstances and is a matter which the Government has the burden of proving. The
respondent herself did not testify at the hearing. The Government’s evidence showed that the
respondent was not told that she had to go to the office, but was simply asked if she would
accompany the officers. There were neither threats nor any show of force. The respondent had
been questioned only briefly, and her ticket and identification were returned to her before she
was asked to accompany the officers.
On the other hand, it is argued that the incident would reasonably have appeared coercive to the
respondent, who was 22 years old and had not been graduated from high school. It is additionally
suggested that the respondent, a female and a Negro, may have felt unusually threatened by the
officers, who were white males. While these factors were not irrelevant, neither were they
decisive, and the totality of the evidence in this case was plainly adequate to support the District
Court’s finding that the respondent voluntarily consented to accompany the officers to the DEA
office.
III
We conclude that the District Court’s determination that the respondent consented to the search
of her person “freely and voluntarily” was sustained by the evidence and that the Court of
Appeals was, therefore, in error in setting it aside. Accordingly, the judgment of the Court of
Appeals is reversed, and the case is remanded to that court for further proceedings.
[In a concurrence joined by Chief Justice Burger and Justice Blackmun, Justice Powell wrote
that the Court should not decide whether the agents “seized” Mendenhall because the courts
below had not considered it. Further, he argued that if the encounter did constitute a seizure, it
was justified because the circumstances provided “reasonable suspicion.”]
Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr.
Justice STEVENS join, dissenting.
The Court today concludes that agents of the Drug Enforcement Administration (DEA) acted
lawfully in stopping a traveler changing planes in an airport terminal and escorting her to a DEA
office for a strip-search of her person. This result is particularly curious because a majority of
the Members of the Court refuse to reject the conclusion that Ms. Mendenhall was “seized,” while
a separate majority decline to hold that there were reasonable grounds to justify a seizure. Mr.
Justice STEWART concludes that the DEA agents acted lawfully, regardless of whether there
were any reasonable grounds for suspecting Ms. Mendenhall of criminal activity, because he
finds that Ms. Mendenhall was not “seized” by the DEA agents, even though throughout the
proceedings below the Government never questioned the fact that a seizure had occurred
necessitating a showing of antecedent reasonable suspicion. Mr. Justice POWELL’s opinion
concludes that even though Ms. Mendenhall may have been “seized,” the seizure was lawful
Chapter 19 — Page 419

because her behavior while changing planes in the airport provided reasonable suspicion that
she was engaging in criminal activity. The Court then concludes, based on the absence of
evidence that Ms. Mendenhall resisted her detention, that she voluntarily consented to being
taken to the DEA office, even though she in fact had no choice in the matter. This conclusion is
inconsistent with our recognition that consent cannot be presumed from a showing of
acquiescence to authority.
Whatever doubt there may be concerning whether Ms. Mendenhall’s Fourth Amendment
interests were implicated during the initial stages of her confrontation with the DEA agents, she
undoubtedly was “seized” within the meaning of the Fourth Amendment when the agents
escorted her from the public area of the terminal to the DEA office for questioning and a stripsearch of her person. [T]he nature of the intrusion to which Ms. Mendenhall was subjected when
she was escorted by DEA agents to their office and detained there for questioning and a stripsearch was so great that it “was in important respects indistinguishable from a traditional
arrest.” Although Ms. Mendenhall was not told that she was under arrest, she in fact was not free
to refuse to go to the DEA office and was not told that she was. Furthermore, once inside the
office, Ms. Mendenhall would not have been permitted to leave without submitting to a stripsearch.3
The Court recognizes that the Government has the burden of proving that Ms. Mendenhall
consented to accompany the officers, but it nevertheless holds that the “totality of evidence was
plainly adequate” to support a finding of consent. On the record before us, the Court’s conclusion
can only be based on the notion that consent can be assumed from the absence of proof that a
suspect resisted police authority.
Since the defendant was not present to testify at the suppression hearing, we can only speculate
about her state of mind as her encounter with the DEA agents progressed from surveillance, to
detention, to questioning, to seclusion in a private office, to the female officer’s command to
remove her clothing. Nevertheless, it is unbelievable that this sequence of events involved no
invasion of a citizen’s constitutionally protected interest in privacy. The rule of law requires a
different conclusion.

3 [Footnote by editors] In two footnotes hanging from this paragraph, the dissent quoted from testimony

indicating that, according to the officers, Mendenhall “was not free to leave” when officers asked her to accompany
them to the office and to submit to a search of her person. In other words, had she tried to leave, officers would
have detained her.
Chapter 19 — Page 420

Notes, Comments, and Questions
The Court in Mendenhall stated that a person is seized if “a reasonable person [in his situation]
would have believed that he was not free to leave.” As a result, lawyers and others have
recommended that if someone is approached by police and wishes either to avoid or to end the
encounter, a useful tactic is to ask, “Am I free to leave?” If the answer is “yes,” then the person
may leave without further discussion. If the answer is “no,” then the person should stay—a
reasonable person in the situation would not feel free to go. A person told “no” can later challenge
the interaction as an unlawful seizure. At a minimum the encounter should be considered a
“seizure;” the debate will be about its legality. (An equivalent tactic is to ask, “Am I being
detained?” An answer of “no” indicates permission to leave. “Yes” indicates a seizure.)
Consider the following scenario:
Police approach a suspect (who had recently parked his car) and ask to speak to him. The suspect
agrees. The officer asks for identification, and the suspect produces a driver’s license. Before
returning the license, the officer asks for and receives permission to search the suspect’s vehicle.
Is that search the product of valid consent given by a suspect who had not been “seized” during
the encounter? Or, instead, did the officer detain the suspect by retaining his driver’s license,
thereby creating a situation in which a reasonable person would not feel free to leave? See United
States v. De La Rosa, 922 F.2d 675, 678 (11th Cir. 1991); id. at 680-81 (Clark, J., dissenting on
this question).4
Now imagine a slightly different scenario: Police lawfully stop a car and ask the driver for his
license, which is provided. Before returning the license, officers ask for permission to search the
car. Is this scenario different from the prior one in any material way? See United States v.
Thompson, 712 F.2d 1356, 1360-61 (11th Cir. 1983).
The next case concerns a young suspect especially interested in avoiding an encounter with
police. The question is whether police efforts to stop him qualified as a “seizure.”
Supreme Court of the United States
California v. Hodari D.
Decided April 23, 1991 – 499 U.S. 621
Justice SCALIA delivered the opinion of the Court.
Late one evening in April 1988, Officers Brian McColgin and Jerry Pertoso were on patrol in a
high-crime area of Oakland, California. They were dressed in street clothes but wearing jackets
with “Police” embossed on both front and back. Their unmarked car proceeded west on Foothill
Boulevard, and turned south onto 63rd Avenue. As they rounded the corner, they saw four or
five youths huddled around a small red car parked at the curb. When the youths saw the officers’
car approaching they apparently panicked, and took flight. The respondent here, Hodari D., and
4 The authors thank former student Christopher Thompson for bringing this case to our attention.

Chapter 19 — Page 421

one companion ran west through an alley; the others fled south. The red car also headed south,
at a high rate of speed.
The officers were suspicious and gave chase. McColgin remained in the car and continued south
on 63rd Avenue; Pertoso left the car, ran back north along 63rd, then west on Foothill Boulevard,
and turned south on 62nd Avenue. Hodari, meanwhile, emerged from the alley onto 62nd and
ran north. Looking behind as he ran, he did not turn and see Pertoso until the officer was almost
upon him, whereupon he tossed away what appeared to be a small rock. A moment later, Pertoso
tackled Hodari, handcuffed him, and radioed for assistance. Hodari was found to be carrying
$130 in cash and a pager; and the rock he had discarded was found to be crack cocaine.
In the juvenile proceeding brought against him, Hodari moved to suppress the evidence relating
to the cocaine. The court denied the motion without opinion. The California Court of Appeal
reversed. The California Supreme Court denied the State’s application for review. We granted
certiorari.
As this case comes to us, the only issue presented is whether, at the time he dropped the drugs,
Hodari had been “seized” within the meaning of the Fourth Amendment.5 If so, respondent
argues, the drugs were the fruit of that seizure and the evidence concerning them was properly
excluded. If not, the drugs were abandoned by Hodari and lawfully recovered by the police, and
the evidence should have been admitted.
We have long understood that the Fourth Amendment’s protection against “unreasonable ...
seizures” includes seizure of the person. From the time of the founding to the present, the word
“seizure” has meant a “taking possession.” For most purposes at common law, the word connoted
not merely grasping, or applying physical force to, the animate or inanimate object in question,
but actually bringing it within physical control. A ship still fleeing, even though under attack,
would not be considered to have been seized as a war prize. To constitute an arrest, however—
the quintessential “seizure of the person” under our Fourth Amendment jurisprudence—the
mere grasping or application of physical force with lawful authority, whether or not it succeeded
in subduing the arrestee, was sufficient.
To say that an arrest is effected by the slightest application of physical force, despite the
arrestee’s escape, is not to say that for Fourth Amendment purposes there is a continuing arrest
during the period of fugitivity. If, for example, Pertoso had laid his hands upon Hodari to arrest
him, but Hodari had broken away and had then cast away the cocaine, it would hardly be realistic
to say that that disclosure had been made during the course of an arrest. The present case,
however, is even one step further removed. It does not involve the application of any physical
force; Hodari was untouched by Officer Pertoso at the time he discarded the cocaine. His defense
relies instead upon the proposition that a seizure occurs “when the officer, by means of physical
force or show of authority, has in some way restrained the liberty of a citizen.” Hodari contends
(and we accept as true for purposes of this decision) that Pertoso’s pursuit qualified as a “show
5 [Footnote 1 by the Court] California conceded below that Officer Pertoso did not have the “reasonable suspicion”

required to justify stopping Hodari. That it would be unreasonable to stop, for brief inquiry, young men who scatter
in panic upon the mere sighting of the police is not self-evident, and arguably contradicts proverbial common sense.
See Proverbs 28:1 (“The wicked flee when no man pursueth”). We do not decide that point here, but rely entirely
upon the State’s concession.
Chapter 19 — Page 422

of authority” calling upon Hodari to halt. The narrow question before us is whether, with respect
to a show of authority as with respect to application of physical force, a seizure occurs even
though the subject does not yield. We hold that it does not.
The language of the Fourth Amendment, of course, cannot sustain respondent’s contention. The
word “seizure” readily bears the meaning of a laying on of hands or application of physical force
to restrain movement, even when it is ultimately unsuccessful. It does not remotely apply,
however, to the prospect of a policeman yelling “Stop, in the name of the law!” at a fleeing form
that continues to flee. That is no seizure. Nor can the result respondent wishes to achieve be
produced—indirectly, as it were—by suggesting that Pertoso’s uncomplied-with show of
authority was a common-law arrest, and then appealing to the principle that all common-law
arrests are seizures. An arrest requires either physical force or, where that is absent, submission
to the assertion of authority.
We do not think it desirable, even as a policy matter, to stretch the Fourth Amendment beyond
its words and beyond the meaning of arrest, as respondent urges. Street pursuits always place
the public at some risk, and compliance with police orders to stop should therefore be
encouraged. Only a few of those orders, we must presume, will be without adequate basis, and
since the addressee has no ready means of identifying the deficient ones it almost invariably is
the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning
through the exclusionary rule those of them that are not obeyed. Since policemen do not
command “Stop!” expecting to be ignored, or give chase hoping to be outrun, it fully suffices to
apply the deterrent to their genuine, successful seizures.
In sum, assuming that Pertoso’s pursuit in the present case constituted a “show of authority”
enjoining Hodari to halt, since Hodari did not comply with that injunction he was not seized
until he was tackled. The cocaine abandoned while he was running was in this case not the fruit
of a seizure, and his motion to exclude evidence of it was properly denied. We reverse the
decision of the California Court of Appeal, and remand for further proceedings not inconsistent
with this opinion.
Justice STEVENS, with whom Justice MARSHALL joins, dissenting.
The Court’s narrow construction of the word “seizure” represents a significant, and in my view,
unfortunate, departure from prior case law construing the Fourth Amendment. [T]he Court now
adopts a definition of “seizure” that is unfaithful to a long line of Fourth Amendment cases. Even
if the Court were defining seizure for the first time, which it is not, the definition that it chooses
today is profoundly unwise. In its decision, the Court assumes, without acknowledging, that a
police officer may now fire his weapon at an innocent citizen and not implicate the Fourth
Amendment—as long as he misses his target.
Because the facts of this case are somewhat unusual, it is appropriate to note that the same issue
would arise if the show of force took the form of a command to “freeze,” a warning shot, or the
sound of sirens accompanied by a patrol car’s flashing lights. In any of these situations, there
may be a significant time interval between the initiation of the officer’s show of force and the
complete submission by the citizen. At least on the facts of this case, the Court concludes that
the timing of the seizure is governed by the citizen’s reaction, rather than by the officer’s conduct.
Chapter 19 — Page 423

One consequence of this conclusion is that the point at which the interaction between citizen and
police officer becomes a seizure occurs, not when a reasonable citizen believes he or she is no
longer free to go, but, rather, only after the officer exercises control over the citizen.
It is too early to know the consequences of the Court’s holding. If carried to its logical conclusion,
it will encourage unlawful displays of force that will frighten countless innocent citizens into
surrendering whatever privacy rights they may still have.
I respectfully dissent.
Notes, Comments, and Questions
Justice Scalia noted in a footnote that “California conceded below” that police did not have
reasonable suspicion to seize Hodari and, citing Scripture, stated that the Court would not decide
whether a stop would have been lawful. The dissent found the majority’s musings on the question
annoying:
“The Court’s gratuitous quotation from Proverbs 28:1 mistakenly assumes that innocent
residents have no reason to fear the sudden approach of strangers. We have previously
considered, and rejected, this ivory-towered analysis of the real world for it fails to describe the
experience of many residents, particularly if they are members of a minority. See generally
Johnson, Race and the Decision To Detain a Suspect, 93 Yale L.J. 214 (1983). It has long been
‘a matter of common knowledge that men who are entirely innocent do sometimes fly from the
scene of a crime through fear of being apprehended as the guilty parties, or from an
unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the
wicked flee when no man pursueth, but the righteous are as bold as a lion.’ Alberty v. United
States, 162 U.S. 499 (1896).”
We will reconsider the legal significance of flight from police when reading cases in which the
Court confronted the merits.
The Court in Hodari D. decided that an attempted seizure by police—ordering “stop” at a suspect
who ignores the command and runs—is not a “seizure” for purposes of the Fourth Amendment
to the Constitution of the United States. The Court did not, however, decide how state law might
regulate such police action. In New York, state courts have rejected the reasoning of Hodari D.
when interpreting the state constitution. See People v. Martinez, 606 N.E.2d 951 (N.Y. 1992);
People v. Hill, 150 A.D.3d 627, 634 & n.4 (N.Y. App. Div. 1st Dep’t 2017) (“In contrast [to New
York law], the United States Supreme Court rejected mere police pursuit as constituting a seizure
in California v. Hodari D.”). Students need not investigate the idiosyncrasies of New York
search and seizure law, much less of all the states. Instead, New York’s rejection of Hodari D. is
noted as an example of a larger principle: Under our federal system, states may not offer less
protection than the Court declares to be provided by the federal constitution. But states may, if
they wish, offer more protection. The Court’s decisions about federal constitutional law thereby
provide a floor—not a ceiling—for the protection of individual liberties. Would-be reformers of
the law may find greater success in the state courts and state legislatures than in the filing of
petitions for certiorari.
Chapter 19 — Page 424

Arrests
In previous chapters, we have seen that police are often allowed to conduct warrantless arrests
as long as they have probable cause to believe the arrestee has committed a crime. The leading
Supreme Court case affirming this principle is United States v. Watson, 423 U.S. 411 (1976).
The Watson Court summarized the facts as follows:
“The relevant events began on August 17, 1972, when an informant, one Khoury, telephoned a
postal inspector informing him that respondent Watson was in possession of a stolen credit card
and had asked Khoury to cooperate in using the card to their mutual advantage. On five to 10
previous occasions Khoury had provided the inspector with reliable information on postal
inspection matters, some involving Watson. Later that day Khoury delivered the card to the
inspector. On learning that Watson had agreed to furnish additional cards, the inspector asked
Khoury to arrange to meet with Watson. Khoury did so, a meeting being scheduled for August
22. Watson canceled that engagement, but at noon on August 23, Khoury met with Watson at a
restaurant designated by the latter. Khoury had been instructed that if Watson had additional
stolen credit cards, Khoury was to give a designated signal. The signal was given, the officers
closed in, and Watson was forthwith arrested.”
After his arrest, Watson consented to a search of his car that revealed incriminating evidence.
He later moved to suppress the evidence on the ground that his consent was obtained after an
unlawful arrest. The Court considered the arrest as follows:
“Contrary to the Court of Appeals’ view, Watson’s arrest was not invalid because executed
without a warrant. Title 18 U.S.C. § 3061(a)(3) expressly empowers the Board of Governors of
the Postal Service to authorize Postal Service officers and employees ‘performing duties related
to the inspection of postal matters’ to ‘make arrests without warrant for felonies cognizable
under the laws of the United States if they have reasonable grounds to believe that the person to
be arrested has committed or is committing such a felony.’ [T]he inspector and his subordinates,
in arresting Watson, were acting strictly in accordance with the governing statute and
regulations. The effect of the judgment of the Court of Appeals was to invalidate the statute as
applied in this case and as applied to all the situations where a court fails to find exigent
circumstances justifying a warrantless arrest. We reverse that judgment.”
“Section 3061 represents a judgment by Congress that it is not unreasonable under the Fourth
Amendment for postal inspectors to arrest without a warrant provided they have probable cause
to do so. This was not an isolated or quixotic judgment of the legislative branch. Other federal
law enforcement officers have been expressly authorized by statute for many years to make
felony arrests on probable cause but without a warrant. This is true of United States marshals,
and of agents of the Federal Bureau of Investigation, the Drug Enforcement Administration, the
Secret Service, and the Customs Service.”
“[T]here is nothing in the Court’s prior cases indicating that under the Fourth Amendment a
warrant is required to make a valid arrest for a felony. Indeed, the relevant prior decisions are
uniformly to the contrary.”

Chapter 19 — Page 425

“The cases construing the Fourth Amendment [] reflect the ancient common-law rule that a
peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed
in his presence as well as for a felony not committed in his presence if there was reasonable
ground for making the arrest.”
In a concurrence, Justice Powell noted the “anomaly” created by decisions requiring warrants
for searches absent exceptional circumstances—even when police have probable cause—and the
decision in Watson allowing warrantless arrests based upon probable cause. He wrote, “Logic
therefore would seem to dictate that arrests be subject to the warrant requirement at least to the
same extent as searches.” But he nonetheless joined the majority because of “history and
experience.” He explained as follows:
“The Court’s opinion emphasizes the historical sanction accorded warrantless felony arrests. In
the early days of the common law most felony arrests were made upon personal knowledge and
without warrants. So established were such arrests as the usual practice that Lord Coke seriously
questioned whether a justice of the peace, receiving his information secondhand instead of from
personal knowledge, even could authorize an arrest by warrant. By the late 18th century it had
been firmly established by Blackstone, with an intervening assist from Sir Matthew Hale, that
magistrates could issue arrest warrants upon information supplied by others. But recognition of
the warrant power cast no doubt upon the validity of warrantless felony arrests, which continued
to be practiced and upheld as before. There is no historical evidence that the Framers or
proponents of the Fourth Amendment, outspokenly opposed to the infamous general warrants
and writs of assistance, were at all concerned about warrantless arrests by local constables and
other peace officers.”
“The historical momentum for acceptance of warrantless arrests, already strong at the adoption
of the Fourth Amendment, has gained strength during the ensuing two centuries. Both the
judiciary and the legislative bodies of this Nation repeatedly have placed their imprimaturs upon
the practice and, as the Government emphasizes, law enforcement agencies have developed their
investigative and arrest procedures upon an assumption that warrantless arrests were valid so
long as based upon probable cause.”
Note that Justice Powell’s concurrence in Watson referred to “warrantless felony arrests,” and
the majority referred to “the ancient common-law rule that a peace officer was permitted to
arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a
felony not committed in his presence.” What about warrantless arrests for misdemeanors not
committed in the officer’s presence, about which the officer has probable cause to believe
suspects have committed? For example, if a shopkeeper describes a suspect in detail and reports
seeing him steal a candy bar, police would likely have probable cause to arrest the suspect for
larceny, and in many jurisdictions such minor theft would be a misdemeanor. May the officer
arrest the suspect without a warrant? Common law generally did not allow such arrests, but
states now have statutes allowing them (some for all misdemeanors, others only for certain
misdemeanors). Although the Supreme Court has not decided the question, the answer appears
to be that if states wish to, they may authorize their police to conduct such arrests. See, e.g.,
William A. Schroeder, Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 Mo.
L. Rev. 771, 811–17 (1993); State v. Walker, 138 P.3d 113, 120 (Wash. 2006) (“every federal
circuit court that has addressed the issue has found the Fourth Amendment does not require the
misdemeanor to occur in the officer’s presence in order for a warrantless arrest to be valid”).
Chapter 19 — Page 426

In the next case, the Court considered an officer who used the authority granted under United
States v. Watson—which allows warrantless arrests—in an arguably unreasonable manner. The
question was not whether the Justices approved of the challenged police behavior; they did not.
Instead, the Court decided whether warrantless arrests for certain minor criminal offenses are
“unreasonable” under the Fourth Amendment.
Supreme Court of the United States
Gail Atwater v. City of Lago Vista
Decided April 24, 2001 – 532 U.S. 318
Justice SOUTER delivered the opinion of the Court.
The question is whether the Fourth Amendment forbids a warrantless arrest for a minor criminal
offense, such as a misdemeanor seatbelt violation punishable only by a fine. We hold that it does
not.
I
A
In Texas, if a car is equipped with safety belts, a front-seat passenger must wear one, and the
driver must secure any small child riding in front. Violation of either provision is “a
misdemeanor punishable by a fine not less than $25 or more than $50.” Texas law expressly
authorizes “[a]ny peace officer [to] arrest without warrant a person found committing a
violation” of these seatbelt laws, although it permits police to issue citations in lieu of arrest.
In March 1997, petitioner Gail Atwater was driving her pickup truck in Lago Vista, Texas, with
her 3-year-old son and 5-year-old daughter in the front seat. None of them was wearing a
seatbelt. Respondent Bart Turek, a Lago Vista police officer at the time, observed the seatbelt
violations and pulled Atwater over. According to Atwater’s complaint (the allegations of which
we assume to be true for present purposes), Turek approached the truck and “yell[ed]”
something to the effect of “[w]e’ve met before” and “[y]ou’re going to jail.” He then called for
backup and asked to see Atwater’s driver’s license and insurance documentation, which state law
required her to carry. When Atwater told Turek that she did not have the papers because her
purse had been stolen the day before, Turek said that he had “heard that story two-hundred
times.”
Atwater asked to take her “frightened, upset, and crying” children to a friend’s house nearby, but
Turek told her, “[y]ou’re not going anywhere.” As it turned out, Atwater’s friend learned what
was going on and soon arrived to take charge of the children. Turek then handcuffed Atwater,
placed her in his squad car, and drove her to the local police station, where booking officers had
her remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took Atwater’s
“mug shot” and placed her, alone, in a jail cell for about one hour, after which she was taken
before a magistrate and released on $310 bond.

Chapter 19 — Page 427

Atwater was charged with driving without her seatbelt fastened, failing to secure her children in
seatbelts, driving without a license, and failing to provide proof of insurance. She ultimately
pleaded no contest to the misdemeanor seatbelt offenses and paid a $50 fine; the other charges
were dismissed.
B
Atwater and her husband, petitioner Michael Haas, filed suit in a Texas state court against Turek
and respondents City of Lago Vista and Chief of Police Frank Miller. So far as concerns us,
petitioners (whom we will simply call Atwater) alleged that respondents (for simplicity, the City)
had violated Atwater’s Fourth Amendment “right to be free from unreasonable seizure” and
sought compensatory and punitive damages.
The City removed the suit to the United States District Court for the Western District of Texas.
[T]he District Court ruled the Fourth Amendment claim “meritless” and granted the City’s
summary judgment motion. A panel of the United States Court of Appeals for the Fifth Circuit
reversed. Sitting en banc, the Court of Appeals vacated the panel’s decision and affirmed the
District Court’s summary judgment for the City. We granted certiorari to consider whether the
Fourth Amendment, either by incorporating common-law restrictions on misdemeanor arrests
or otherwise, limits police officers’ authority to arrest without warrant for minor criminal
offenses. We now affirm.
II
Atwater’s specific contention is that “founding-era common-law rules” forbade peace officers to
make warrantless misdemeanor arrests except in cases of “breach of the peace,” a category she
claims was then understood narrowly as covering only those nonfelony offenses “involving or
tending toward violence.” Although her historical argument is by no means insubstantial, it
ultimately fails.
A
[The Court engaged in a lengthy analysis of English legal history.] Having reviewed the relevant
English decisions, as well as English and colonial American legal treatises, legal dictionaries, and
procedure manuals, we simply are not convinced that Atwater’s is the correct, or even necessarily
the better, reading of the common-law history.
B
An examination of specifically American evidence is to the same effect. Neither the history of the
framing era nor subsequent legal development indicates that the Fourth Amendment was
originally understood, or has traditionally been read, to embrace Atwater’s position.
What we have here, then, is just the opposite of what we had in Wilson v. Arkansas [514 U.S.
927 (1995) (Chapter 7)]. There, we emphasized that during the founding era a number of States
had “enacted statutes specifically embracing” the common-law knock-and-announce rule; here,
by contrast, those very same States passed laws extending warrantless arrest authority to a host
Chapter 19 — Page 428

of nonviolent misdemeanors, and in so doing acted very much inconsistently with Atwater’s
claims about the Fourth Amendment’s object. We simply cannot conclude that the Fourth
Amendment, as originally understood, forbade peace officers to arrest without a warrant for
misdemeanors not amounting to or involving breach of the peace.
Nor does Atwater’s argument from tradition pick up any steam from the historical record as it
has unfolded since the framing, there being no indication that her claimed rule has ever become
“woven ... into the fabric” of American law. The story, on the contrary, is of two centuries of
uninterrupted (and largely unchallenged) state and federal practice permitting warrantless
arrests for misdemeanors not amounting to or involving breach of the peace.
Small wonder, then, that today statutes in all 50 States and the District of Columbia permit
warrantless misdemeanor arrests by at least some (if not all) peace officers without requiring
any breach of the peace, as do a host of congressional enactments. The American Law Institute
has long endorsed the validity of such legislation, and the consensus, as stated in the current
literature, is that statutes “remov[ing] the breach of the peace limitation and thereby
permit[ting] arrest without warrant for any misdemeanor committed in the arresting officer’s
presence” have “‘never been successfully challenged and stan[d] as the law of the land.’”
III
While it is true here that history, if not unequivocal, has expressed a decided, majority view that
the police need not obtain an arrest warrant merely because a misdemeanor stopped short of
violence or a threat of it, Atwater does not wager all on history. Instead, she asks us to mint a
new rule of constitutional law on the understanding that when historical practice fails to speak
conclusively to a claim grounded on the Fourth Amendment, courts are left to strike a current
balance between individual and societal interests by subjecting particular contemporary
circumstances to traditional standards of reasonableness. Atwater accordingly argues for a
modern arrest rule, one not necessarily requiring violent breach of the peace, but nonetheless
forbidding custodial arrest, even upon probable cause, when conviction could not ultimately
carry any jail time and when the government shows no compelling need for immediate detention.
If we were to derive a rule exclusively to address the uncontested facts of this case, Atwater might
well prevail. She was a known and established resident of Lago Vista with no place to hide and
no incentive to flee, and common sense says she would almost certainly have buckled up as a
condition of driving off with a citation. In her case, the physical incidents of arrest were merely
gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor
judgment. Atwater’s claim to live free of pointless indignity and confinement clearly outweighs
anything the City can raise against it specific to her case.
But we have traditionally recognized that a responsible Fourth Amendment balance is not well
served by standards requiring sensitive, case-by-case determinations of government need, lest
every discretionary judgment in the field be converted into an occasion for constitutional review.
Often enough, the Fourth Amendment has to be applied on the spur (and in the heat) of the
moment, and the object in implementing its command of reasonableness is to draw standards
sufficiently clear and simple to be applied with a fair prospect of surviving judicial secondguessing months and years after an arrest or search is made. Courts attempting to strike a
Chapter 19 — Page 429

reasonable Fourth Amendment balance thus credit the government’s side with an essential
interest in readily administrable rules.
[C]omplications arise the moment we begin to think about the possible applications of the
several criteria Atwater proposes for drawing a line between minor crimes with limited arrest
authority and others not so restricted.
One line, she suggests, might be between “jailable” and “fine-only” offenses, between those for
which conviction could result in commitment and those for which it could not. The trouble with
this distinction, of course, is that an officer on the street might not be able to tell. It is not merely
that we cannot expect every police officer to know the details of frequently complex penalty
schemes, but that penalties for ostensibly identical conduct can vary on account of facts difficult
(if not impossible) to know at the scene of an arrest. Is this the first offense or is the suspect a
repeat offender? Is the weight of the marijuana a gram above or a gram below the fine-only line?
Where conduct could implicate more than one criminal prohibition, which one will the district
attorney ultimately decide to charge? And so on.
But Atwater’s refinements would not end there. She represents that if the line were drawn at
nonjailable traffic offenses, her proposed limitation should be qualified by a proviso authorizing
warrantless arrests where “necessary for enforcement of the traffic laws or when [an] offense
would otherwise continue and pose a danger to others on the road.” The proviso only compounds
the difficulties. Would, for instance, either exception apply to speeding? At oral argument,
Atwater’s counsel said that “it would not be reasonable to arrest a driver for speeding unless the
speeding rose to the level of reckless driving.” But is it not fair to expect that the chronic speeder
will speed again despite a citation in his pocket, and should that not qualify as showing that the
“offense would ... continue” under Atwater’s rule? And why, as a constitutional matter, should
we assume that only reckless driving will “pose a danger to others on the road” while speeding
will not?
There is no need for more examples to show that Atwater’s general rule and limiting proviso
promise very little in the way of administrability. It is no answer that the police routinely make
judgments on grounds like risk of immediate repetition; they surely do and should. But there is
a world of difference between making that judgment in choosing between the discretionary
leniency of a summons in place of a clearly lawful arrest, and making the same judgment when
the question is the lawfulness of the warrantless arrest itself. It is the difference between no basis
for legal action challenging the discretionary judgment, on the one hand, and the prospect of
evidentiary exclusion or (as here) personal § 1983 liability for the misapplication of a
constitutional standard, on the other. Atwater’s rule therefore would not only place police in an
almost impossible spot but would guarantee increased litigation over many of the arrests that
would occur. For all these reasons, Atwater’s various distinctions between permissible and
impermissible arrests for minor crimes strike us as “very unsatisfactory line[s]” to require police
officers to draw on a moment’s notice.
Just how easily the costs could outweigh the benefits may be shown by asking, as one Member
of this Court did at oral argument, “how bad the problem is out there.” The very fact that the law
has never jelled the way Atwater would have it leads one to wonder whether warrantless
misdemeanor arrests need constitutional attention, and there is cause to think the answer is no.
Chapter 19 — Page 430

So far as such arrests might be thought to pose a threat to the probable-cause requirement,
anyone arrested for a crime without formal process, whether for felony or misdemeanor, is
entitled to a magistrate’s review of probable cause within 48 hours, and there is no reason to
think the procedure in this case atypical in giving the suspect a prompt opportunity to request
release. Many jurisdictions, moreover, have chosen to impose more restrictive safeguards
through statutes limiting warrantless arrests for minor offenses. It is of course easier to devise a
minor-offense limitation by statute than to derive one through the Constitution, simply because
the statute can let the arrest power turn on any sort of practical consideration without having to
subsume it under a broader principle. It is, in fact, only natural that States should resort to this
sort of legislative regulation, for it is in the interest of the police to limit petty-offense arrests,
which carry costs that are simply too great to incur without good reason. Finally, and
significantly, under current doctrine the preference for categorical treatment of Fourth
Amendment claims gives way to individualized review when a defendant makes a colorable
argument that an arrest, with or without a warrant, was “conducted in an extraordinary manner,
unusually harmful to [his] privacy or even physical interests.”
The upshot of all these influences, combined with the good sense (and, failing that, the political
accountability) of most local lawmakers and law-enforcement officials, is a dearth of horribles
demanding redress. Indeed, when Atwater’s counsel was asked at oral argument for any
indications of comparably foolish, warrantless misdemeanor arrests, he could offer only one. We
are sure that there are others, but just as surely the country is not confronting anything like an
epidemic of unnecessary minor-offense arrests. That fact caps the reasons for rejecting Atwater’s
request for the development of a new and distinct body of constitutional law.
Accordingly, we confirm today what our prior cases have intimated: the standard of probable
cause “applie[s] to all arrests, without the need to ‘balance’ the interests and circumstances
involved in particular situations.” If an officer has probable cause to believe that an individual
has committed even a very minor criminal offense in his presence, he may, without violating the
Fourth Amendment, arrest the offender.
IV
Atwater’s arrest satisfied constitutional requirements. There is no dispute that Officer Turek had
probable cause to believe that Atwater had committed a crime in his presence. She admits that
neither she nor her children were wearing seatbelts. Turek was accordingly authorized (not
required, but authorized) to make a custodial arrest without balancing costs and benefits or
determining whether or not Atwater’s arrest was in some sense necessary.
Nor was the arrest made in an “extraordinary manner, unusually harmful to [her] privacy or ...
physical interests.” Atwater’s arrest was surely “humiliating,” as she says in her brief, but it was
no more “harmful to ... privacy or ... physical interests” than the normal custodial arrest. She was
handcuffed, placed in a squad car, and taken to the local police station, where officers asked her
to remove her shoes, jewelry, and glasses, and to empty her pockets. They then took her
photograph and placed her in a cell, alone, for about an hour, after which she was taken before
a magistrate, and released on $310 bond. The arrest and booking were inconvenient and
embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment.
Chapter 19 — Page 431

The Court of Appeals’s en banc judgment is affirmed.
Justice O’CONNOR, with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER
join, dissenting.
The Court recognizes that the arrest of Gail Atwater was a “pointless indignity” that served no
discernible state interest and yet holds that her arrest was constitutionally permissible. Because
the Court’s position is inconsistent with the explicit guarantee of the Fourth Amendment, I
dissent.
A full custodial arrest, such as the one to which Ms. Atwater was subjected, is the quintessential
seizure. When a full custodial arrest is effected without a warrant, the plain language of the
Fourth Amendment requires that the arrest be reasonable.
A custodial arrest exacts an obvious toll on an individual’s liberty and privacy, even when the
period of custody is relatively brief. The arrestee is subject to a full search of her person and
confiscation of her possessions. If the arrestee is the occupant of a car, the entire passenger
compartment of the car, including packages therein, is subject to search as well. 6 The arrestee
may be detained for up to 48 hours without having a magistrate determine whether there in fact
was probable cause for the arrest. Because people arrested for all types of violent and nonviolent
offenses may be housed together awaiting such review, this detention period is potentially
dangerous. And once the period of custody is over, the fact of the arrest is a permanent part of
the public record.
We have said that “the penalty that may attach to any particular offense seems to provide the
clearest and most consistent indication of the State’s interest in arresting individuals suspected
of committing that offense.” If the State has decided that a fine, and not imprisonment, is the
appropriate punishment for an offense, the State’s interest in taking a person suspected of
committing that offense into custody is surely limited, at best. This is not to say that the State
will never have such an interest. A full custodial arrest may on occasion vindicate legitimate state
interests, even if the crime is punishable only by fine. Arrest is the surest way to abate criminal
conduct. It may also allow the police to verify the offender’s identity and, if the offender poses a
flight risk, to ensure her appearance at trial. But when such considerations are not present, a
citation or summons may serve the State’s remaining law enforcement interests every bit as
effectively as an arrest.
Because a full custodial arrest is such a severe intrusion on an individual’s liberty, its
reasonableness hinges on “the degree to which it is needed for the promotion of legitimate
governmental interests.” In light of the availability of citations to promote a State’s interests
when a fine-only offense has been committed, I cannot concur in a rule which deems a full
custodial arrest to be reasonable in every circumstance. Giving police officers constitutional carte
blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor
has been committed is irreconcilable with the Fourth Amendment’s command that seizures be
reasonable. Instead, I would require that when there is probable cause to believe that a fine-only
6 [Footnote by editors] The dissent’s discussion of searches incident to lawful arrest is no longer accurate. See

Arizona v. Gant, 556 U.S. 332 (2009) (Chapter 10).

Chapter 19 — Page 432

offense has been committed, the police officer should issue a citation unless the officer is “able
to point to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant [the additional] intrusion” of a full custodial arrest.
The record in this case makes it abundantly clear that Ms. Atwater’s arrest was constitutionally
unreasonable. Atwater readily admits—as she did when Officer Turek pulled her over—that she
violated Texas’ seatbelt law. While Turek was justified in stopping Atwater, neither law nor
reason supports his decision to arrest her instead of simply giving her a citation. The officer’s
actions cannot sensibly be viewed as a permissible means of balancing Atwater’s Fourth
Amendment interests with the State’s own legitimate interests.
The Court’s error [] does not merely affect the disposition of this case. The per se rule that the
Court creates has potentially serious consequences for the everyday lives of Americans. A broad
range of conduct falls into the category of fine-only misdemeanors.
To be sure, such laws are valid and wise exercises of the States’ power to protect the public health
and welfare. My concern lies not with the decision to enact or enforce these laws, but rather with
the manner in which they may be enforced. Under today’s holding, when a police officer has
probable cause to believe that a fine-only misdemeanor offense has occurred, that officer may
stop the suspect, issue a citation, and let the person continue on her way. Or, if a traffic violation,
the officer may stop the car, arrest the driver, search the driver, search the entire passenger
compartment of the car including any purse or package inside, and impound the car and
inventory all of its contents. Although the Fourth Amendment expressly requires that the latter
course be a reasonable and proportional response to the circumstances of the offense, the
majority gives officers unfettered discretion to choose that course without articulating a single
reason why such action is appropriate.
Such unbounded discretion carries with it grave potential for abuse. The majority takes comfort
in the lack of evidence of “an epidemic of unnecessary minor-offense arrests.” But the relatively
small number of published cases dealing with such arrests proves little and should provide little
solace. Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively
minor traffic infraction may often serve as an excuse for stopping and harassing an individual.
After today, the arsenal available to any officer extends to a full arrest and the searches
permissible concomitant to that arrest. An officer’s subjective motivations for making a traffic
stop are not relevant considerations in determining the reasonableness of the stop. But it is
precisely because these motivations are beyond our purview that we must vigilantly ensure that
officers’ poststop actions—which are properly within our reach—comport with the Fourth
Amendment’s guarantee of reasonableness.
The Court neglects the Fourth Amendment’s express command in the name of administrative
ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of
reasonableness. I respectfully dissent.

Chapter 19 — Page 433

Notes, Comments, and Questions
The result in Atwater may exemplify a maxim popularized by Justice Antonin Scalia, who once
observed during a speech, “A lot of stuff that’s stupid is not unconstitutional.” Justice Scalia
added that during a prior speech, he had proposed that all federal judges should receive a stamp
with the words “STUPID BUT CONSTITUTIONAL” that could be used on complaints; then
someone sent him one. Scalia, like others expressing similar sentiments, was known to argue
that if you wish to prohibit stupid (but constitutional) conduct, you should contact your
legislature, not federal judges.
If students encounter examples in this book of disagreeable police (or prosecutorial) conduct
that the Court has deemed constitutional, they may wish to ask themselves two questions: (1) Is
it plausible that a legislature can solve the problem that the Court has declined to solve, and (2)
what specific suggestions might I have for my legislator? Most students are far more likely to
become legislators than Supreme Court Justices.
After deciding in Atwater that the Fourth Amendment allows warrantless arrests even for minor
crimes, the Court faced an odd set of facts in Virginia v. Moore. There, the Court considered a
warrantless arrest conducted in violation of a state law. The issue was whether violating state
law made the arrest “unreasonable” under the Fourth Amendment.
Supreme Court of the United States
Virginia v. David Lee Moore
Decided April 23, 2008 – 553 U.S. 164
Justice SCALIA delivered the opinion of the Court.
We consider whether a police officer violates the Fourth Amendment by making an arrest based
on probable cause but prohibited by state law.
I
On February 20, 2003, two city of Portsmouth police officers stopped a car driven by David Lee
Moore. They had heard over the police radio that a person known as “Chubs” was driving with a
suspended license, and one of the officers knew Moore by that nickname. The officers
determined that Moore’s license was in fact suspended, and arrested him for the misdemeanor
of driving on a suspended license, which is punishable under Virginia law by a year in jail and a
$2,500 fine. The officers subsequently searched Moore and found that he was carrying 16 grams
of crack cocaine and $516 in cash.

Chapter 19 — Page 434

Under state law, the officers should have issued Moore a summons instead of arresting him.
Driving on a suspended license, like some other misdemeanors, is not an arrestable offense
except as to those who “fail or refuse to discontinue” the violation, and those whom the officer
reasonably believes to be likely to disregard a summons, or likely to harm themselves or others.
The intermediate appellate court found none of these circumstances applicable, and Virginia did
not appeal that determination.
Moore was charged with possessing cocaine with the intent to distribute it in violation of Virginia
law. He filed a pretrial motion to suppress the evidence from the arrest search. Virginia law does
not, as a general matter, require suppression of evidence obtained in violation of state law. Moore
argued, however, that suppression was required by the Fourth Amendment. The trial court
denied the motion, and after a bench trial found Moore guilty of the drug charge and sentenced
him to a 5-year prison term, with one year and six months of the sentence suspended. The
conviction was reversed by a panel of Virginia’s intermediate court on Fourth Amendment
grounds, reinstated by the intermediate court sitting en banc, and finally reversed again by the
Virginia Supreme Court. We granted certiorari.
III
A
When history has not provided a conclusive answer, we have analyzed a search or seizure in light
of traditional standards of reasonableness “by assessing, on the one hand, the degree to which it
intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.” That methodology provides no support for
Moore’s Fourth Amendment claim. In a long line of cases, we have said that when an officer has
probable cause to believe a person committed even a minor crime in his presence, the balancing
of private and public interests is not in doubt. The arrest is constitutionally reasonable.
Our decisions counsel against changing this calculus when a State chooses to protect privacy
beyond the level that the Fourth Amendment requires. We have treated additional protections
exclusively as matters of state law. We have applied the same principle in the seizure context.
We thought it obvious that the Fourth Amendment’s meaning did not change with local law
enforcement practices—even practices set by rule. While those practices “vary from place to place
and from time to time,” Fourth Amendment protections are not “so variable” and cannot “be
made to turn upon such trivialities.”
Some earlier [decisions] excluded evidence obtained in violation of state law, but those decisions
rested on our supervisory power over the federal courts, rather than the Constitution.
B
We are convinced that the approach of our prior cases is correct, because an arrest based on
probable cause serves interests that have long been seen as sufficient to justify the seizure. Arrest
ensures that a suspect appears to answer charges and does not continue a crime, and it
safeguards evidence and enables officers to conduct an in-custody investigation.
Chapter 19 — Page 435

Moore argues that a State has no interest in arrest when it has a policy against arresting for
certain crimes. That is not so, because arrest will still ensure a suspect’s appearance at trial,
prevent him from continuing his offense, and enable officers to investigate the incident more
thoroughly. State arrest restrictions are more accurately characterized as showing that the State
values its interests in forgoing arrests more highly than its interests in making them; or as
showing that the State places a higher premium on privacy than the Fourth Amendment
requires. A State is free to prefer one search-and-seizure policy among the range of
constitutionally permissible options, but its choice of a more restrictive option does not render
the less restrictive ones unreasonable, and hence unconstitutional.
If we concluded otherwise, we would often frustrate rather than further state policy. Virginia
chooses to protect individual privacy and dignity more than the Fourth Amendment requires,
but it also chooses not to attach to violations of its arrest rules the potent remedies that federal
courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily
exclude from criminal trials evidence obtained in violation of its statutes. Moore would allow
Virginia to accord enhanced protection against arrest only on pain of accompanying that
protection with federal remedies for Fourth Amendment violations, which often include the
exclusionary rule. States unwilling to lose control over the remedy would have to abandon
restrictions on arrest altogether. This is an odd consequence of a provision designed to protect
against searches and seizures.
Incorporating state-law arrest limitations into the Constitution would produce a constitutional
regime no less vague and unpredictable than the one we rejected in Atwater. The constitutional
standard would be only as easy to apply as the underlying state law, and state law can be
complicated indeed. The Virginia statute in this case, for example, calls on law enforcement
officers to weigh just the sort of case-specific factors that Atwater said would deter legitimate
arrests if made part of the constitutional inquiry. It would authorize arrest if a misdemeanor
suspect fails or refuses to discontinue the unlawful act, or if the officer believes the suspect to be
likely to disregard a summons. Atwater specifically noted the “extremely poor judgment”
displayed in arresting a local resident who would “almost certainly” have discontinued the
offense and who had “no place to hide and no incentive to flee.” It nonetheless declined to make
those considerations part of the constitutional calculus. Atwater differs from this case in only
one significant respect: It considered (and rejected) federal constitutional remedies for all
minor-misdemeanor arrests; Moore seeks them in only that subset of minor-misdemeanor
arrests in which there is the least to be gained—that is, where the State has already acted to
constrain officers’ discretion and prevent abuse. Here we confront fewer horribles than in
Atwater, and less of a need for redress.
Finally, linking Fourth Amendment protections to state law would cause them to “vary from
place to place and from time to time.” Even at the same place and time, the Fourth Amendment’s
protections might vary if federal officers were not subject to the same statutory constraints as
state officers.
We conclude that warrantless arrests for crimes committed in the presence of an arresting officer
are reasonable under the Constitution, and that while States are free to regulate such arrests
however they desire, state restrictions do not alter the Fourth Amendment’s protections.
Chapter 19 — Page 436

IV
Moore argues that even if the Constitution allowed his arrest, it did not allow the arresting
officers to search him. We have recognized, however, that officers may perform searches incident
to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. We
have described this rule as covering any “lawful arrest” with constitutional law as the reference
point. That is to say, we have equated a lawful arrest with an arrest based on probable cause: “A
custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth
Amendment; that intrusion being lawful, a search incident to the arrest requires no additional
justification.” Moore correctly notes that several important state-court decisions have defined
the lawfulness of arrest in terms of compliance with state law. But it is not surprising that States
have used “lawful” as shorthand for compliance with state law, while our constitutional decision
in Robinson [, 414 U.S. 218 (1973),] used “lawful” as shorthand for compliance with
constitutional constraints.
The Virginia Supreme Court may have concluded that Knowles [v. Iowa, 525 U.S. 113 (1998)]
required the exclusion of evidence seized from Moore because, under state law, the officers who
arrested Moore should have issued him a citation instead. This argument might have force if the
Constitution forbade Moore’s arrest, because we have sometimes excluded evidence obtained
through unconstitutional methods in order to deter constitutional violations. But the arrest rules
that the officers violated were those of state law alone, and as we have just concluded, it is not
the province of the Fourth Amendment to enforce state law. That Amendment does not require
the exclusion of evidence obtained from a constitutionally permissible arrest.
We reaffirm against a novel challenge what we have signaled for more than half a century. When
officers have probable cause to believe that a person has committed a crime in their presence,
the Fourth Amendment permits them to make an arrest, and to search the suspect in order to
safeguard evidence and ensure their own safety. The judgment of the Supreme Court of Virginia
is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice GINSBURG, concurring in the judgment.
The Fourth Amendment, today’s decision holds, does not put States to an all-or-nothing choice
in this regard. A State may accord protection against arrest beyond what the Fourth Amendment
requires, yet restrict the remedies available when police deny to persons they apprehend the
extra protection state law orders. Because I agree that the arrest and search Moore challenges
violated Virginia law, but did not violate the Fourth Amendment, I join the Court’s judgment.
*

*

*

In our next chapter, we consider a form of seizure less robust than an arrest—a “stop and frisk.”

Chapter 19 — Page 437

THE FOURTH AMENDMENT
Chapter 20
Stop & Frisk
This chapter concerns the law enforcement tactic known as “stop and frisk.” Although such
conduct is less invasive than an arrest, the “stop” is nonetheless a seizure that must be
“reasonable” to be lawful under the Fourth Amendment. The “frisk” is a search that also must be
reasonable to be lawful.
Our reading will review (1) the basic definition of “stop and frisk” and the Court’s justification
for allowing it absent probable cause, (2) the difference between a stop and frisk and a full arrest
(which requires probable cause), and (3) what police may do during a “Terry stop,” as these stops
and frisks have come to be known.
We begin with Terry v. Ohio, which sets forth the doctrine permitting “stop and frisk” in some
circumstances and which has given its name to the practice.
Supreme Court of the United States
John W. Terry v. State of Ohio
Decided June 10, 1968 – 392 U.S. 1
Mr. Chief Justice WARREN delivered the opinion of the Court.
This case presents serious questions concerning the role of the Fourth Amendment in the
confrontation on the street between the citizen and the policeman investigating suspicious
circumstances.
Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily
prescribed term of one to three years in the penitentiary. Following the denial of a pretrial
motion to suppress, the prosecution introduced in evidence two revolvers and a number of
bullets seized from Terry and a codefendant, Richard Chilton, by Cleveland Police Detective
Martin McFadden. At the hearing on the motion to suppress this evidence, Officer McFadden
testified that while he was patrolling in plain clothes in downtown Cleveland at approximately
2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and
Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men
before, and he was unable to say precisely what first drew his eye to them. However, he testified
that he had been a policeman for 39 years and a detective for 35 and that he had been assigned
to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He
explained that he had developed routine habits of observation over the years and that he would
“stand and watch people or walk and watch people at many intervals of the day.” He added:
“Now, in this case when I looked over they didn’t look right to me at the time.”
His interest aroused, Officer McFadden took up a post of observation in the entrance to a store
300 to 400 feet away from the two men. “I get more purpose to watch them when I seen their
movements,” he testified. He saw one of the men leave the other one and walk southwest on
Chapter 20 — Page 438

Huron Road, past some stores. The man paused for a moment and looked in a store window,
then walked on a short distance, turned around and walked back toward the corner, pausing
once again to look in the same store window. He rejoined his companion at the corner, and the
two conferred briefly. Then the second man went through the same series of motions, strolling
down Huron Road, looking in the same window, walking on a short distance, turning back,
peering in the store window again, and returning to confer with the first man at the corner. The
two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen
trips. At one point, while the two were standing together on the corner, a third man approached
them and engaged them briefly in conversation. This man then left the two others and walked
west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering and
conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading
west on Euclid Avenue, following the path taken earlier by the third man.
By this time Officer McFadden had become thoroughly suspicious. He testified that after
observing their elaborately casual and oft-repeated reconnaissance of the store window on
Huron Road, he suspected the two men of “casing a job, a stick-up,” and that he considered it
his duty as a police officer to investigate further. He added that he feared “they may have a gun.”
Thus, Officer McFadden followed Chilton and Terry and saw them stop in front of Zucker’s store
to talk to the same man who had conferred with them earlier on the street corner. Deciding that
the situation was ripe for direct action, Officer McFadden approached the three men, identified
himself as a police officer and asked for their names. At this point his knowledge was confined
to what he had observed. He was not acquainted with any of the three men by name or by sight,
and he had received no information concerning them from any other source. When the men
“mumbled something” in response to his inquiries, Officer McFadden grabbed petitioner Terry,
spun him around so that they were facing the other two, with Terry between McFadden and the
others, and patted down the outside of his clothing. In the left breast pocket of Terry’s overcoat
Officer McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to remove
the gun. At this point, keeping Terry between himself and the others, the officer ordered all three
men to enter Zucker’s store. As they went in, he removed Terry’s overcoat completely, removed
a .38-caliber revolver from the pocket and ordered all three men to face the wall with their hands
raised. Officer McFadden proceeded to pat down the outer clothing of Chilton and the third man,
Katz. He discovered another revolver in the outer pocket of Chilton’s overcoat, but no weapons
were found on Katz. The officer testified that he only patted the men down to see whether they
had weapons, and that he did not put his hands beneath the outer garments of either Terry or
Chilton until he felt their guns. So far as appears from the record, he never placed his hands
beneath Katz’ outer garments. Officer McFadden seized Chilton’s gun, asked the proprietor of
the store to call a police wagon, and took all three men to the station, where Chilton and Terry
were formally charged with carrying concealed weapons.
On the motion to suppress the guns the prosecution took the position that they had been seized
following a search incident to a lawful arrest. The trial court rejected this theory, stating that it
“would be stretching the facts beyond reasonable comprehension” to find that Officer McFadden
had had probable cause to arrest the men before he patted them down for weapons. However,
the court denied the defendants’ motion on the ground that Officer McFadden, on the basis of
his experience, “had reasonable cause to believe … that the defendants were conducting
themselves suspiciously, and some interrogation should be made of their action.” Purely for his
own protection, the court held, the officer had the right to pat down the outer clothing of these
Chapter 20 — Page 439

men, who he had reasonable cause to believe might be armed. The court distinguished between
an investigatory “stop” and an arrest, and between a “frisk” of the outer clothing for weapons
and a full-blown search for evidence of crime. The frisk, it held, was essential to the proper
performance of the officer's investigatory duties, for without it “the answer to the police officer
may be a bullet, and a loaded pistol discovered during the frisk is admissible.”
After the court denied their motion to suppress, Chilton and Terry waived jury trial and pleaded
not guilty. The court adjudged them guilty, and the Court of Appeals for the Eighth Judicial
District, Cuyahoga County, affirmed. The Supreme Court of Ohio dismissed their appeal. We
granted certiorari. We affirm the conviction.
I
The question is whether in all the circumstances of this on-the-street encounter, [Terry’s] right
to personal security was violated by an unreasonable search and seizure.
We would be less than candid if we did not acknowledge that this question thrusts to the fore
difficult and troublesome issues regarding a sensitive area of police activity—issues which have
never before been squarely presented to this Court. Reflective of the tensions involved are the
practical and constitutional arguments pressed with great vigor on both sides of the public
debate over the power of the police to “stop and frisk”—as it is sometimes euphemistically
termed—suspicious persons.
On the one hand, it is frequently argued that in dealing with the rapidly unfolding and often
dangerous situations on city streets the police are in need of an escalating set of flexible
responses, graduated in relation to the amount of information they possess. For this purpose it
is urged that distinctions should be made between a “stop” and an “arrest” (or a “seizure” of a
person), and between a “frisk” and a “search.”
On the other side the argument is made that the authority of the police must be strictly
circumscribed by the law of arrest and search. It is contended with some force that there is not—
and cannot be—a variety of police activity which does not depend solely upon the voluntary
cooperation of the citizen and yet which stops short of an arrest based upon probable cause to
make such an arrest.
In this context we approach the issues in this case mindful of the limitations of the judicial
function in controlling the myriad daily situations in which policemen and citizens confront each
other on the street. No judicial opinion can comprehend the protean variety of the street
encounter, and we can only judge the facts of the case before us. Nothing we say today is to be
taken as indicating approval of police conduct outside the legitimate investigative sphere. Under
our decision, courts still retain their traditional responsibility to guard against police conduct
which is over-bearing or harassing, or which trenches upon personal security without the
objective evidentiary justification which the Constitution requires.

Chapter 20 — Page 440

Having thus roughly sketched the perimeters of the constitutional debate over the limits on
police investigative conduct in general and the background against which this case presents
itself, we turn our attention to the quite narrow question posed by the facts before us: whether it
is always unreasonable for a policeman to seize a person and subject him to a limited search for
weapons unless there is probable cause for an arrest.
II
Our first task is to establish at what point in this encounter the Fourth Amendment becomes
relevant. That is, we must decide whether and when Officer McFadden “seized” Terry and
whether and when he conducted a “search.” There is some suggestion in the use of such terms
as “stop” and “frisk” that such police conduct is outside the purview of the Fourth Amendment
because neither action rises to the level of a “search” or “seizure” within the meaning of the
Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment
governs “seizures” of the person which do not eventuate in a trip to the station house and
prosecution for crime—“arrests” in traditional terminology. It must be recognized that whenever
a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that
person. And it is nothing less than sheer torture of the English language to suggest that a careful
exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to
find weapons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure
performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with
his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person,
which may inflict great indignity and arouse strong resentment, and it is not to be undertaken
lightly.
The danger in the logic which proceeds upon distinctions between a “stop” and an “arrest,” or
“seizure” of the person, and between a “frisk” and a “search” is twofold. It seeks to isolate from
constitutional scrutiny the initial stages of the contact between the policeman and the citizen.
And … it obscures the utility of limitations upon the scope, as well as the initiation, of police
action as a means of constitutional regulation. This Court has held in the past that a search which
is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable
intensity and scope. The scope of the search must be “strictly tied to and justified by” the
circumstances which rendered its initiation permissible.
The distinctions of classical “stop-and-frisk” theory thus serve to divert attention from the
central inquiry under the Fourth Amendment—the reasonableness in all the circumstances of
the particular governmental invasion of a citizen’s personal security. “Search” and “seizure” are
not talismans. We therefore reject the notions that the Fourth Amendment does not come into
play at all as a limitation upon police conduct if the officers stop short of something called a
“technical arrest” or a “full-blown search.”
In this case there can be no question, then, that Officer McFadden “seized” petitioner and
subjected him to a “search” when he took hold of him and patted down the outer surfaces of his
clothing. We must decide whether at that point it was reasonable for Officer McFadden to have
interfered with petitioner’s personal security as he did. And in determining whether the seizure
and search were “unreasonable” our inquiry is a dual one—whether the officer’s action was
justified at its inception, and whether it was reasonably related in scope to the circumstances
which justified the interference in the first place.
Chapter 20 — Page 441

III
If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we
would have to ascertain whether “probable cause” existed to justify the search and seizure which
took place. However, that is not the case. [W]e deal here with an entire rubric of police conduct—
necessarily swift action predicated upon the on-the-spot observations of the officer on the beat—
which historically has not been, and as a practical matter could not be, subjected to the warrant
procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s
general proscription against unreasonable searches and seizures.
In order to assess the reasonableness of Officer McFadden’s conduct as a general proposition, it
is necessary “first to focus upon the governmental interest which allegedly justifies official
intrusion upon the constitutionally protected interests of the private citizen,” for there is “no
ready test for determining reasonableness other than by balancing the need to search (or seize)
against the invasion which the search (or seizure) entails.” And in justifying the particular
intrusion the police officer must be able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that intrusion. [I]t is
imperative that the facts be judged against an objective standard: would the facts available to the
officer at the moment of the seizure or the search “warrant a man of reasonable caution in the
belief” that the action taken was appropriate? And simple “‘good faith on the part of the arresting
officer is not enough.’ If subjective good faith alone were the test, the protections of the Fourth
Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers
and effects,’ only in the discretion of the police.”
Applying these principles to this case, we consider first the nature and extent of the
governmental interests involved. One general interest is of course that of effective crime
prevention and detection. It was this legitimate investigative function Officer McFadden was
discharging when he decided to approach petitioner and his companions. He had observed
Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but
which taken together warranted further investigation.
The crux of this case, however, is not the propriety of Officer McFadden’s taking steps to
investigate petitioner’s suspicious behavior, but rather, whether there was justification for
McFadden’s invasion of Terry’s personal security by searching him for weapons in the course of
that investigation. We are now concerned with more than the governmental interest in
investigating crime; in addition, there is the more immediate interest of the police officer in
taking steps to assure himself that the person with whom he is dealing is not armed with a
weapon that could unexpectedly and fatally be used against him. Certainly it would be
unreasonable to require that police officers take unnecessary risks in the performance of their
duties.
[W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and
other prospective victims of violence in situations where they may lack probable cause for an
arrest. When an officer is justified in believing that the individual whose suspicious behavior he
is investigating at close range is armed and presently dangerous to the officer or to others, it
would appear to be clearly unreasonable to deny the officer the power to take necessary measures
to determine whether the person is in fact carrying a weapon and to neutralize the threat of
physical harm.
Chapter 20 — Page 442

We must still consider, however, the nature and quality of the intrusion on individual rights
which must be accepted if police officers are to be conceded the right to search for weapons in
situations where probable cause to arrest for crime is lacking. Even a limited search of the outer
clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal
security, and it must surely be an annoying, frightening, and perhaps humiliating experience.
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude
that there must be a narrowly drawn authority to permit a reasonable search for weapons for the
protection of the police officer, where he has reason to believe that he is dealing with an armed
and dangerous individual, regardless of whether he has probable cause to arrest the individual
for a crime. The officer need not be absolutely certain that the individual is armed; the issue is
whether a reasonably prudent man in the circumstances would be warranted in the belief that
his safety or that of others was in danger. And in determining whether the officer acted
reasonably in such circumstances, due weight must be given, not to his inchoate and
unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is
entitled to draw from the facts in light of his experience.
IV
We must now examine the conduct of Officer McFadden in this case to determine whether his
search and seizure of petitioner were reasonable, both at their inception and as conducted. He
had observed Terry, together with Chilton and another man, acting in a manner he took to be
preface to a “stick-up.” We think on the facts and circumstances Officer McFadden detailed
before the trial judge a reasonably prudent man would have been warranted in believing
petitioner was armed and thus presented a threat to the officer’s safety while he was investigating
his suspicious behavior. The actions of Terry and Chilton were consistent with McFadden’s
hypothesis that these men were contemplating a daylight robbery—which, it is reasonable to
assume, would be likely to involve the use of weapons—and nothing in their conduct from the
time he first noticed them until the time he confronted them and identified himself as a police
officer gave him sufficient reason to negate that hypothesis. Thus, when Officer McFadden
approached the three men gathered before the display window at Zucker’s store he had observed
enough to make it quite reasonable to fear that they were armed; and nothing in their response
to his hailing them, identifying himself as a police officer, and asking their names served to dispel
that reasonable belief. We cannot say his decision at that point to seize Terry and pat his clothing
for weapons was the product of a volatile or inventive imagination, or was undertaken simply as
an act of harassment; the record evidences the tempered act of a policeman who in the course of
an investigation had to make a quick decision as to how to protect himself and others from
possible danger, and took limited steps to do so.
We need not develop at length in this case, however, the limitations which the Fourth
Amendment places upon a protective seizure and search for weapons. These limitations will have
to be developed in the concrete factual circumstances of individual cases. Suffice it to note that
such a search, unlike a search without a warrant incident to a lawful arrest, is not justified by any
need to prevent the disappearance or destruction of evidence of crime. The sole justification of
the search in the present situation is the protection of the police officer and others nearby, and
it must therefore be confined in scope to an intrusion reasonably designed to discover guns,
knives, clubs, or other hidden instruments for the assault of the police officer.
Chapter 20 — Page 443

The scope of the search in this case presents no serious problem in light of these standards.
Officer McFadden patted down the outer clothing of petitioner and his two companions. He did
not place his hands in their pockets or under the outer surface of their garments until he had felt
weapons, and then he merely reached for and removed the guns. He never did invade Katz’
person beyond the outer surfaces of his clothes, since he discovered nothing in his patdown
which might have been a weapon. Officer McFadden confined his search strictly to what was
minimally necessary to learn whether the men were armed and to disarm them once he
discovered the weapons. He did not conduct a general exploratory search for whatever evidence
of criminal activity he might find.
V
We conclude that the revolver seized from Terry was properly admitted in evidence against him.
At the time he seized petitioner and searched him for weapons, Officer McFadden had
reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for
the protection of himself and others to take swift measures to discover the true facts and
neutralize the threat of harm if it materialized. The policeman carefully restricted his search to
what was appropriate to the discovery of the particular items which he sought. Each case of this
sort will, of course, have to be decided on its own facts. We merely hold today that where a police
officer observes unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with whom he is dealing may
be armed and presently dangerous, where in the course of investigating this behavior he
identifies himself as a policeman and makes reasonable inquiries, and where nothing in the
initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety,
he is entitled for the protection of himself and others in the area to conduct a carefully limited
search of the outer clothing of such persons in an attempt to discover weapons which might be
used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any
weapons seized may properly be introduced in evidence against the person from whom they were
taken.
Mr. Justice DOUGLAS, dissenting.
The opinion of the Court disclaims the existence of “probable cause.” If loitering were in issue
and that was the offense charged, there would be “probable cause” shown. But the crime here is
carrying concealed weapons; and there is no basis for concluding that the officer had “probable
cause” for believing that that crime was being committed. Had a warrant been sought, a
magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is
a showing of “probable cause.” We hold today that the police have greater authority to make a
“seizure” and conduct a “search” than a judge has to authorize such action. We have said
precisely the opposite over and over again.
[P]olice officers up to today have been permitted to effect arrests or searches without warrants
only when the facts within their personal knowledge would satisfy the constitutional standard of
probable cause. At the time of their “seizure” without a warrant they must possess facts
concerning the person arrested that would have satisfied a magistrate that “probable cause” was
indeed present. The term “probable cause” rings a bell of certainty that is not sounded by phrases
such as “reasonable suspicion.”
Chapter 20 — Page 444

To give the police greater power than a magistrate is to take a long step down the totalitarian
path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken,
it should be the deliberate choice of the people through a constitutional amendment.
There have been powerful hydraulic pressures throughout our history that bear heavily on the
Court to water down constitutional guarantees and give the police the upper hand. That
hydraulic pressure has probably never been greater than it is today.
Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do
not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new
regime. The decision to enter it should be made only after a full debate by the people of this
country.
*

*

*

Selections from opinions in the next case, United States v. Place, were included in the
assignment for Chapter 5. In that chapter, the case was presented to illustrate that dog sniffs in
public places—in and of themselves—do not constitute searches. In this chapter, we return to the
case to study what constitutes a permissible seizure of “effects.”
Supreme Court of the United States
United States v. Raymond J. Place
Decided June 20, 1983 – 462 U.S. 696
Justice O’CONNOR delivered the opinion of the Court.
This case presents the issue whether the Fourth Amendment prohibits law enforcement
authorities from temporarily detaining personal luggage for exposure to a trained narcotics
detection dog on the basis of reasonable suspicion that the luggage contains narcotics. Given the
enforcement problems associated with the detection of narcotics trafficking and the minimal
intrusion that a properly limited detention would entail, we conclude that the Fourth
Amendment does not prohibit such a detention. On the facts of this case, however, we hold that
the police conduct exceeded the bounds of a permissible investigative detention of the luggage.
I
Respondent Raymond J. Place’s behavior aroused the suspicions of law enforcement officers as
he waited in line at the Miami International Airport to purchase a ticket to New York’s LaGuardia
Airport. As Place proceeded to the gate for his flight, the agents approached him and requested
his airline ticket and some identification. Place complied with the request and consented to a
search of the two suitcases he had checked. Because his flight was about to depart, however, the
agents decided not to search the luggage.

Chapter 20 — Page 445

Prompted by Place’s parting remark that he had recognized that they were police, the agents
inspected the address tags on the checked luggage and noted discrepancies in the two street
addresses. Further investigation revealed that neither address existed and that the telephone
number Place had given the airline belonged to a third address on the same street. On the basis
of their encounter with Place and this information, the Miami agents called Drug Enforcement
Administration (DEA) authorities in New York to relay their information about Place.
Two DEA agents waited for Place at the arrival gate at LaGuardia Airport in New York. There
again, his behavior aroused the suspicion of the agents. After he had claimed his two bags and
called a limousine, the agents decided to approach him. They identified themselves as federal
narcotics agents, to which Place responded that he knew they were “cops” and had spotted them
as soon as he had deplaned. One of the agents informed Place that, based on their own
observations and information obtained from the Miami authorities, they believed that he might
be carrying narcotics. After identifying the bags as belonging to him, Place stated that a number
of police at the Miami Airport had surrounded him and searched his baggage. The agents
responded that their information was to the contrary. The agents requested and received
identification from Place—a New Jersey driver’s license, on which the agents later ran a
computer check that disclosed no offenses, and his airline ticket receipt. When Place refused to
consent to a search of his luggage, one of the agents told him that they were going to take the
luggage to a federal judge to try to obtain a search warrant and that Place was free to accompany
them. Place declined, but obtained from one of the agents telephone numbers at which the agents
could be reached.
The agents then took the bags to Kennedy Airport,1 where they subjected the bags to a “sniff test”
by a trained narcotics detection dog. The dog reacted positively to the smaller of the two bags
but ambiguously to the larger bag. Approximately 90 minutes had elapsed since the seizure of
respondent’s luggage. Because it was late on a Friday afternoon, the agents retained the luggage
until Monday morning, when they secured a search warrant from a magistrate for the smaller
bag. Upon opening that bag, the agents discovered 1,125 grams of cocaine.
Place was indicted for possession of cocaine with intent to distribute. In the District Court, Place
moved to suppress the contents of the luggage seized from him at LaGuardia Airport. The District
Court denied the motion. Place pleaded guilty to the possession charge, reserving the right to
appeal the denial of his motion to suppress. On appeal of the conviction, the United States Court
of Appeals for the Second Circuit reversed. We granted certiorari and now affirm.
II
In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable
within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial
warrant issued upon probable cause and particularly describing the items to be seized. Where
law enforcement authorities have probable cause to believe that a container holds contraband or
evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment
to permit seizure of the property, pending issuance of a warrant to examine its contents, if the
1 [Footnote by editors] Although the driving distance from LaGuardia airport to JFK is only about ten miles, those

familiar with New York traffic realize that taking someone’s luggage from one of those airports to the other is nearly
certain to cause significant inconvenience.
Chapter 20 — Page 446

exigencies of the circumstances demand it or some other recognized exception to the warrant
requirement is present.
In this case, the Government asks us to recognize the reasonableness under the Fourth
Amendment of warrantless seizures of personal luggage from the custody of the owner on the
basis of less than probable cause, for the purpose of pursuing a limited course of investigation,
short of opening the luggage, that would quickly confirm or dispel the authorities’ suspicion.
Specifically, we are asked to apply the principles of Terry v. Ohio to permit such seizures on the
basis of reasonable, articulable suspicion, premised on objective facts, that the luggage contains
contraband or evidence of a crime. In our view, such application is appropriate.
The exception to the probable-cause requirement for limited seizures of the person recognized
in Terry and its progeny rests on a balancing of the competing interests to determine the
reasonableness of the type of seizure involved within the meaning of “the Fourth Amendment’s
general proscription against unreasonable searches and seizures.” We must balance the nature
and quality of the intrusion on the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion. When the nature and
extent of the detention are minimally intrusive of the individual’s Fourth Amendment interests,
the opposing law enforcement interests can support a seizure based on less than probable cause.
We examine first the governmental interest offered as a justification for a brief seizure of luggage
from the suspect’s custody for the purpose of pursuing a limited course of investigation. The
Government contends that, where the authorities possess specific and articulable facts
warranting a reasonable belief that a traveler’s luggage contains narcotics, the governmental
interest in seizing the luggage briefly to pursue further investigation is substantial. We agree.
Against this strong governmental interest, we must weigh the nature and extent of the intrusion
upon the individual’s Fourth Amendment rights when the police briefly detain luggage for
limited investigative purposes. On this point, respondent Place urges that the rationale for a
Terry stop of the person is wholly inapplicable to investigative detentions of personality.
Specifically, the Terry exception to the probable-cause requirement is premised on the notion
that a Terry-type stop of the person is substantially less intrusive of a person’s liberty interests
than a formal arrest. In the property context, however, Place urges, there are no degrees of
intrusion. Once the owner’s property is seized, the dispossession is absolute.
We disagree. The intrusion on possessory interests occasioned by a seizure of one’s personal
effects can vary both in its nature and extent. The seizure may be made after the owner has
relinquished control of the property to a third party or, as here, from the immediate custody and
control of the owner. Moreover, the police may confine their investigation to an on-the-spot
inquiry—for example, immediate exposure of the luggage to a trained narcotics detection dog—
or transport the property to another location. Given the fact that seizures of property can vary in
intrusiveness, some brief detentions of personal effects may be so minimally intrusive of Fourth
Amendment interests that strong countervailing governmental interests will justify a seizure
based only on specific articulable facts that the property contains contraband or evidence of a
crime.

Chapter 20 — Page 447

In sum, we conclude that when an officer’s observations lead him reasonably to believe that a
traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would
permit the officer to detain the luggage briefly to investigate the circumstances that aroused his
suspicion, provided that the investigative detention is properly limited in scope.
The purpose for which respondent’s luggage was seized, of course, was to arrange its exposure
to a narcotics detection dog. Obviously, if this investigative procedure is itself a search requiring
probable cause, the initial seizure of respondent’s luggage for the purpose of subjecting it to the
sniff test—no matter how brief—could not be justified on less than probable cause.
[The Court then held that “exposure of respondent’s luggage, which was located in a public place,
to a trained canine—did not constitute a ‘search’ within the meaning of the Fourth
Amendment.”]
III
We [next] examine whether the agents’ conduct in this case was such as to place the seizure
within the general rule requiring probable cause for a seizure or within Terry’s exception to that
rule.
The precise type of detention we confront here is seizure of personal luggage from the immediate
possession of the suspect for the purpose of arranging exposure to a narcotics detection dog.
Particularly in the case of detention of luggage within the traveler’s immediate possession, the
police conduct intrudes on both the suspect’s possessory interest in his luggage as well as his
liberty interest in proceeding with his itinerary. The person whose luggage is detained is
technically still free to continue his travels or carry out other personal activities pending release
of the luggage. Moreover, he is not subjected to the coercive atmosphere of a custodial
confinement or to the public indignity of being personally detained. Nevertheless, such a seizure
can effectively restrain the person since he is subjected to the possible disruption of his travel
plans in order to remain with his luggage or to arrange for its return. Therefore, when the police
seize luggage from the suspect’s custody, we think the limitations applicable to investigative
detentions of the person should define the permissible scope of an investigative detention of the
person’s luggage on less than probable cause. Under this standard, it is clear that the police
conduct here exceeded the permissible limits of a Terry-type investigative stop.
The length of the detention of respondent’s luggage alone precludes the conclusion that the
seizure was reasonable in the absence of probable cause. [I]n assessing the effect of the length of
the detention, we take into account whether the police diligently pursue their investigation. We
note that here the New York agents knew the time of Place’s scheduled arrival at LaGuardia, had
ample time to arrange for their additional investigation at that location, and thereby could have
minimized the intrusion on respondent’s Fourth Amendment interests. Thus, although we
decline to adopt any outside time limitation for a permissible Terry stop, we have never
approved a seizure of the person for the prolonged 90-minute period involved here and cannot
do so on the facts presented by this case.

Chapter 20 — Page 448

Although the 90-minute detention of respondent’s luggage is sufficient to render the seizure
unreasonable, the violation was exacerbated by the failure of the agents to accurately inform
respondent of the place to which they were transporting his luggage, of the length of time he
might be dispossessed, and of what arrangements would be made for return of the luggage if the
investigation dispelled the suspicion. In short, we hold that the detention of respondent’s
luggage in this case went beyond the narrow authority possessed by police to detain briefly
luggage reasonably suspected to contain narcotics.
IV
We conclude that, under all of the circumstances of this case, the seizure of respondent’s luggage
was unreasonable under the Fourth Amendment. Consequently, the evidence obtained from the
subsequent search of his luggage was inadmissible, and Place’s conviction must be reversed. The
judgment of the Court of Appeals, accordingly, is affirmed.
*

*

*

The next case sheds further light on the permissible scope of investigatory stops based on
reasonable suspicion. In particular, it helps to illustrate how long a person may be detained for
a “Terry stop.”
Supreme Court of the United States
United States v. William Harris Sharpe
Decided March 20, 1985 – 470 U.S. 675
Chief Justice BURGER delivered the opinion of the Court.
We granted certiorari to decide whether an individual reasonably suspected of engaging in
criminal activity may be detained for a period of 20 minutes, when the detention is necessary for
law enforcement officers to conduct a limited investigation of the suspected criminal activity.
I
A
On the morning of June 9, 1978, Agent Cooke of the Drug Enforcement Administration (DEA)
was on patrol in an unmarked vehicle on a coastal road near Sunset Beach, North Carolina, an
area under surveillance for suspected drug trafficking. At approximately 6:30 a.m., Cooke
noticed a blue pickup truck with an attached camper shell traveling on the highway in tandem
with a blue Pontiac Bonneville. Respondent Savage was driving the pickup, and respondent
Sharpe was driving the Pontiac. The Pontiac also carried a passenger, Davis, the charges against
whom were later dropped. Observing that the truck was riding low in the rear and that the
camper did not bounce or sway appreciably when the truck drove over bumps or around curves,
Agent Cooke concluded that it was heavily loaded. A quilted material covered the rear and side
windows of the camper.
Chapter 20 — Page 449

Cooke’s suspicions were sufficiently aroused to follow the two vehicles for approximately 20
miles as they proceeded south into South Carolina. He then decided to make an “investigative
stop” and radioed the State Highway Patrol for assistance. Officer Thrasher, driving a marked
patrol car, responded to the call. Almost immediately after Thrasher caught up with the
procession, the Pontiac and the pickup turned off the highway and onto a campground road.
Cooke and Thrasher followed the two vehicles as the latter drove along the road at 55 to 60 miles
an hour, exceeding the speed limit of 35 miles an hour. The road eventually looped back to the
highway, onto which Savage and Sharpe turned and continued to drive south.
At this point, all four vehicles were in the middle lane of the three right-hand lanes of the
highway. Agent Cooke asked Officer Thrasher to signal both vehicles to stop. Thrasher pulled
alongside the Pontiac, which was in the lead, turned on his flashing light, and motioned for the
driver of the Pontiac to stop. As Sharpe moved the Pontiac into the right lane, the pickup truck
cut between the Pontiac and Thrasher’s patrol car, nearly hitting the patrol car, and continued
down the highway. Thrasher pursued the truck while Cooke pulled up behind the Pontiac.
Cooke approached the Pontiac and identified himself. He requested identification, and Sharpe
produced a Georgia driver’s license bearing the name of Raymond J. Pavlovich. Cooke then
attempted to radio Thrasher to determine whether he had been successful in stopping the pickup
truck, but he was unable to make contact for several minutes, apparently because Thrasher was
not in his patrol car. Cooke radioed the local police for assistance, and two officers from the
Myrtle Beach Police Department arrived about 10 minutes later. Asking the two officers to
“maintain the situation,” Cooke left to join Thrasher.
In the meantime, Thrasher had stopped the pickup truck about one-half mile down the road.
After stopping the truck, Thrasher had approached it with his revolver drawn, ordered the driver,
Savage, to get out and assume a “spread eagled” position against the side of the truck, and patted
him down. Thrasher then holstered his gun and asked Savage for his driver’s license and the
truck’s vehicle registration. Savage produced his own Florida driver’s license and a bill of sale for
the truck bearing the name of Pavlovich. In response to questions from Thrasher concerning the
ownership of the truck, Savage said that the truck belonged to a friend and that he was taking it
to have its shock absorbers repaired. When Thrasher told Savage that he would be held until the
arrival of Cooke, whom Thrasher identified as a DEA agent, Savage became nervous, said that
he wanted to leave, and requested the return of his driver’s license. Thrasher replied that Savage
was not free to leave at that time.
Agent Cooke arrived at the scene approximately 15 minutes after the truck had been stopped.
Thrasher handed Cooke Savage’s license and the bill of sale for the truck; Cooke noted that the
bill of sale bore the same name as Sharpe’s license. Cooke identified himself to Savage as a DEA
agent and said that he thought the truck was loaded with marihuana. Cooke twice sought
permission to search the camper, but Savage declined to give it, explaining that he was not the
owner of the truck. Cooke then stepped on the rear of the truck and, observing that it did not
sink any lower, confirmed his suspicion that it was probably overloaded. He put his nose
against the rear window, which was covered from the inside, and reported that he could smell
marihuana. Without seeking Savage’s permission, Cooke removed the keys from the ignition,
opened the rear of the camper, and observed a large number of burlap-wrapped bales
Chapter 20 — Page 450

resembling bales of marihuana that Cooke had seen in previous investigations. Agent Cooke
then placed Savage under arrest and left him with Thrasher.
Cooke returned to the Pontiac and arrested Sharpe and Davis. Approximately 30 to 40 minutes
had elapsed between the time Cooke stopped the Pontiac and the time he returned to arrest
Sharpe and Davis. Cooke assembled the various parties and vehicles and led them to the Myrtle
Beach police station. That evening, DEA agents took the truck to the Federal Building in
Charleston, South Carolina. Several days later, Cooke supervised the unloading of the truck,
which contained 43 bales weighing a total of 2,629 pounds. Acting without a search warrant,
Cooke had eight randomly selected bales opened and sampled. Chemical tests showed that the
samples were marihuana.
B
Sharpe and Savage were charged with possession of a controlled substance with intent to
distribute it. The United States District Court for the District of South Carolina denied
respondents’ motion to suppress the contraband, and respondents were convicted. A divided
panel of the Court of Appeals for the Fourth Circuit reversed the convictions. We granted the
petition, vacated the judgment of the Court of Appeals, and remanded the case for further
consideration. On remand, a divided panel of the Court of Appeals again reversed the
convictions. We granted certiorari and we reverse.
II
The only issue in this case [] is whether it was reasonable under the circumstances facing Agent
Cooke and Officer Thrasher to detain Savage, whose vehicle contained the challenged evidence,
for approximately 20 minutes.2 We conclude that the detention of Savage clearly meets the
Fourth Amendment’s standard of reasonableness.
Obviously, if an investigative stop continues indefinitely, at some point it can no longer be
justified as an investigative stop. But our cases impose no rigid time limitation on Terry stops.
While it is clear that “the brevity of the invasion of the individual’s Fourth Amendment interests
is an important factor in determining whether the seizure is so minimally intrusive as to be
justifiable on reasonable suspicion,” we have emphasized the need to consider the law
enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate
those purposes. Much as a “bright line” rule would be desirable, in evaluating whether an
investigative detention is unreasonable, common sense and ordinary human experience must
govern over rigid criteria.
In assessing whether a detention is too long in duration to be justified as an investigative stop,
we consider it appropriate to examine whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly, during which time it
was necessary to detain the defendant. A court making this assessment should take care to
consider whether the police are acting in a swiftly developing situation, and in such cases the
2 [Footnote by editors] If the

20-minute stop was lawful, then the search of the vehicle was justified by the
automobile exception because the odor of marijuana provided probable cause to believe drugs would be found.
Chapter 20 — Page 451

court should not indulge in unrealistic second-guessing. A creative judge engaged in post hoc
evaluation of police conduct can almost always imagine some alternative means by which the
objectives of the police might have been accomplished. But “[t]he fact that the protection of the
public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, itself,
render the search unreasonable.” The question is not simply whether some other alternative was
available, but whether the police acted unreasonably in failing to recognize or to pursue it.
We readily conclude that, given the circumstances facing him, Agent Cooke pursued his
investigation in a diligent and reasonable manner. During most of Savage’s 20-minute detention,
Cooke was attempting to contact Thrasher and enlisting the help of the local police who
remained with Sharpe while Cooke left to pursue Officer Thrasher and the pickup. Once Cooke
reached Officer Thrasher and Savage, he proceeded expeditiously: within the space of a few
minutes, he examined Savage’s driver’s license and the truck’s bill of sale, requested (and was
denied) permission to search the truck, stepped on the rear bumper and noted that the truck did
not move, confirming his suspicion that it was probably overloaded. He then detected the odor
of marihuana.
Clearly this case does not involve any delay unnecessary to the legitimate investigation of the law
enforcement officers. Respondents presented no evidence that the officers were dilatory in their
investigation. The delay in this case was attributable almost entirely to the evasive actions of
Savage, who sought to elude the police as Sharpe moved his Pontiac to the side of the road.
Except for Savage’s maneuvers, only a short and certainly permissible pre-arrest detention
would likely have taken place. The somewhat longer detention was simply the result of a
“graduate[d] ... respons[e] to the demands of [the] particular situation.”
We reject the contention that a 20-minute stop is unreasonable when the police have acted
diligently and a suspect’s actions contribute to the added delay about which he complains. The
judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings
consistent with this opinion.
Notes, Comments, and Questions
The Court decided in Illinois v. Caballes (Chapter 5) that when a motorist is lawfully held for a
traffic stop, police use of drug-sniffing dogs to investigate a vehicle is not a “search.” In
Rodriguez v. United States, 135 S. Ct. 1609 (2015), the Court considered whether police may
lengthen a traffic stop for the purpose of conducting such a dog sniff.
A police officer pulled over Dennys Rodriguez for driving on the shoulder of a Nebraska state
highway, which is unlawful. During the stop, the officer asked Rodriguez why he had driven on
the shoulder and, after receiving an answer, “gathered Rodriguez’s license, registration, and
proof of insurance.” He then ran “a records check on Rodriguez” before returning to question
Rodriguez and his passenger. Next, the officer returned to his car again, ran a records check on
the passenger, and “began writing a warning ticket for Rodriguez for driving on the shoulder of
the road.” Rodriguez made no objection to any of this conduct.

Chapter 20 — Page 452

After writing the warning ticket and presenting it to Rodriguez (along with other documents the
officer had collected during the stop), the officer asked Rodriguez for permission to walk a drug
dog around Rodriguez’s vehicle. Rodriguez declined, and the officer ordered Rodriguez to stay
put, which he did. The officer brought the dog, and when the dog “alerted to the presence of
drugs,” the officer searched the car and found “a large bag of methamphetamine.” Rodriguez was
eventually convicted of “possession with intent to distribute 50 grams or more of
methamphetamine.”
Rodriguez argued that the officer impermissibly extended the traffic stop—after it was essentially
finished—so that he could conduct the dog sniff. Rodriguez argued further that the extension
constituted an unlawful seizure. The Court agreed.
In an opinion by Justice Ginsburg, the Court wrote:
“A seizure for a traffic violation justifies a police investigation of that violation. ‘[A] relatively
brief encounter,’ a routine traffic stop is ‘more analogous to a so-called “Terry stop” ... than to a
formal arrest.’ Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop
context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted
the stop and attend to related safety concerns. Because addressing the infraction is the purpose
of the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.’ Authority for the
seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—
completed.”
The Court wrote that while activities related to traffic enforcement—such as checking a driver’s
license and registration—are permissible parts of a traffic stop, “[a] dog sniff, by contrast, is a
measure aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing.’ Candidly, the
Government acknowledged at oral argument that a dog sniff, unlike the routine measures just
mentioned, is not an ordinary incident of a traffic stop. Lacking the same close connection to
roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the
officer’s traffic mission.”
The Court rejected the prosecution’s argument that so long as the total length of the stop remains
reasonable, an officer may extend it to conduct a dog sniff.
“The Government argues that an officer may ‘incremental[ly]’ prolong a stop to conduct a dog
sniff so long as the officer is reasonably diligent in pursuing the traffic-related purpose of the
stop, and the overall duration of the stop remains reasonable in relation to the duration of other
traffic stops involving similar circumstances. The Government’s argument, in effect, is that by
completing all traffic-related tasks expeditiously, an officer can earn bonus time to pursue an
unrelated criminal investigation. The reasonableness of a seizure, however, depends on what the
police in fact do. In this regard, the Government acknowledges that ‘an officer always has to be
reasonably diligent.’ How could diligence be gauged other than by noting what the officer
actually did and how he did it? If an officer can complete traffic-based inquiries expeditiously,
then that is the amount of ‘time reasonably required to complete [the stop’s] mission.’ [A] traffic
stop ‘prolonged beyond’ that point is ‘unlawful.’ The critical question, then, is not whether the
dog sniff occurs before or after the officer issues a ticket but whether conducting the sniff
‘prolongs’—i.e., adds time to—‘the stop.’”
Chapter 20 — Page 453

In his dissent, Justice Alito first argued that the Court should have avoided the constitutional
question decided in the case because “the police officer did have reasonable suspicion [of illegal
drug activity], and, as a result, the officer was justified in detaining the occupants for the short
period of time (seven or eight minutes) that is at issue.”3 Then, he argued that the Court’s holding
was baseless and impractical, suggesting that officers will delay completing the permitted
activities of a traffic stop if they wish to conduct dog sniffs.
“The Court refuses to address the real Fourth Amendment question: whether the stop was
unreasonably prolonged. Instead, the Court latches onto the fact that Officer Struble delivered
the warning prior to the dog sniff and proclaims that the authority to detain based on a traffic
stop ends when a citation or warning is handed over to the driver. The Court thus holds that the
Fourth Amendment was violated, not because of the length of the stop, but simply because of the
sequence in which Officer Struble chose to perform his tasks.”
“The rule that the Court adopts will do little good going forward. It is unlikely to have any
appreciable effect on the length of future traffic stops. Most officers will learn the prescribed
sequence of events even if they cannot fathom the reason for that requirement.”
The next case concerns whether during a Terry stop, police may demand that a suspect identify
himself, under threat of prosecution if the suspect does not comply.
Supreme Court of the United States
Larry D. Hiibel v. Sixth Judicial District Court of Nevada
Decided June 21, 2004 – 542 U.S. 177
Justice KENNEDY delivered the opinion of the Court.
The petitioner was arrested and convicted for refusing to identify himself during a stop allowed
by Terry v. Ohio. He challenges his conviction under the Fourth and Fifth Amendments to the
United States Constitution, applicable to the States through the Fourteenth Amendment.
I
The sheriff’s department in Humboldt County, Nevada, received an afternoon telephone call
reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC
truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the
officer arrived at the scene, he found the truck parked on the side of the road. A man was standing
by the truck, and a young woman was sitting inside it. The officer observed skid marks in the
gravel behind the vehicle, leading him to believe it had come to a sudden stop.
The officer approached the man and explained that he was investigating a report of a fight. The
man appeared to be intoxicated. The officer asked him if he had “any identification on [him],”
3 [Footnote by editors] The Magistrate Judge found that detention for the dog sniff was not independently supported

by individualized suspicion. Because the Court of Appeals did not decide this question, the Supreme Court did not
address the question and wrote that it could be considered on remand.
Chapter 20 — Page 454

which we understand as a request to produce a driver’s license or some other form of written
identification. The man refused and asked why the officer wanted to see identification. The
officer responded that he was conducting an investigation and needed to see some identification.
The unidentified man became agitated and insisted he had done nothing wrong. The officer
explained that he wanted to find out who the man was and what he was doing there. After
continued refusals to comply with the officer’s request for identification, the man began to taunt
the officer by placing his hands behind his back and telling the officer to arrest him and take him
to jail. This routine kept up for several minutes: The officer asked for identification 11 times and
was refused each time. After warning the man that he would be arrested if he continued to refuse
to comply, the officer placed him under arrest.
We now know that the man arrested on Grass Valley Road is Larry Dudley Hiibel. Hiibel was
charged with “willfully resist[ing], delay[ing] or obstruct[ing] a public officer in discharging or
attempting to discharge any legal duty of his office.” The government reasoned that Hiibel had
obstructed the officer in carrying out his duties under § 171.123, a Nevada statute that defines
the legal rights and duties of a police officer in the context of an investigative stop. Section 171.123
provides in relevant part:
“1. Any peace officer may detain any person whom the officer encounters under circumstances
which reasonably indicate that the person has committed, is committing or is about to commit a
crime.
....
“3. The officer may detain the person pursuant to this section only to ascertain his identity and
the suspicious circumstances surrounding his presence abroad. Any person so detained shall
identify himself, but may not be compelled to answer any other inquiry of any peace officer.”
Hiibel was tried in the Justice Court of Union Township. The court agreed that Hiibel’s refusal
to identify himself as required by [Nevada Law] “obstructed and delayed Dove as a public officer
in attempting to discharge his duty.” Hiibel was convicted and fined $250. The Sixth Judicial
District Court affirmed. On review the Supreme Court of Nevada rejected the Fourth
Amendment challenge in a divided opinion. We granted certiorari.
II
NRS § 171.123(3) is an enactment sometimes referred to as a “stop and identify” statute. Stop
and identify statutes often combine elements of traditional vagrancy laws with provisions
intended to regulate police behavior in the course of investigatory stops. The statutes vary from
State to State, but all permit an officer to ask or require a suspect to disclose his identity.
Stop and identify statutes have their roots in early English vagrancy laws that required suspected
vagrants to face arrest unless they gave “a good Account of themselves.” The Court has
recognized [] constitutional limitations on the scope and operation of stop and identify statutes.
In Brown v. Texas, [443 U.S. 47 (1979)] the Court invalidated a conviction for violating a Texas
stop and identify statute on Fourth Amendment grounds. The Court ruled that the initial stop
was not based on specific, objective facts establishing reasonable suspicion to believe the suspect
Chapter 20 — Page 455

was involved in criminal activity. Four Terms later, the Court invalidated a modified stop and
identify statute on vagueness grounds. Th[at] law [] required a suspect to give an officer
“‘credible and reliable’” identification when asked to identify himself. The Court held that the
statute was void because it provided no standard for determining what a suspect must do to
comply with it, resulting in “‘virtually unrestrained power to arrest and charge persons with a
violation.’”
The present case begins where our prior cases left off. Here there is no question that the initial
stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted
in Brown. As we understand it, the statute does not require a suspect to give the officer a driver’s
license or any other document. Provided that the suspect either states his name or communicates
it to the officer by other means—a choice, we assume, that the suspect may make—the statute is
satisfied and no violation occurs.
III
Hiibel argues that his conviction cannot stand because the officer’s conduct violated his Fourth
Amendment rights. We disagree.
Asking questions is an essential part of police investigations. In the ordinary course a police
officer is free to ask a person for identification without implicating the Fourth Amendment.
“[I]nterrogation relating to one’s identity or a request for identification by the police does not,
by itself, constitute a Fourth Amendment seizure.” Beginning with Terry v. Ohio, the Court has
recognized that a law enforcement officer’s reasonable suspicion that a person may be involved
in criminal activity permits the officer to stop the person for a brief time and take additional
steps to investigate further. To ensure that the resulting seizure is constitutionally reasonable, a
Terry stop must be limited. The officer’s action must be “‘justified at its inception, and ...
reasonably related in scope to the circumstances which justified the interference in the first
place.’”
Our decisions make clear that questions concerning a suspect’s identity are a routine and
accepted part of many Terry stops. Obtaining a suspect’s name in the course of a Terry stop
serves important government interests. Knowledge of identity may inform an officer that a
suspect is wanted for another offense, or has a record of violence or mental disorder. On the
other hand, knowing identity may help clear a suspect and allow the police to concentrate their
efforts elsewhere. Identity may prove particularly important in cases such as this, where the
police are investigating what appears to be a domestic assault. Officers called to investigate
domestic disputes need to know whom they are dealing with in order to assess the situation,
the threat to their own safety, and possible danger to the potential victim.
Although it is well established that an officer may ask a suspect to identify himself in the course
of a Terry stop, it has been an open question whether the suspect can be arrested and prosecuted
for refusal to answer. [T]he Fourth Amendment does not impose obligations on the citizen but
instead provides rights against the government. As a result, the Fourth Amendment itself cannot
require a suspect to answer questions. This case concerns a different issue, however. Here, the
source of the legal obligation arises from Nevada state law, not the Fourth Amendment. Further,
the statutory obligation does not go beyond answering an officer’s request to disclose a name.
Chapter 20 — Page 456

The principles of Terry permit a State to require a suspect to disclose his name in the course of
a Terry stop. The reasonableness of a seizure under the Fourth Amendment is determined “by
balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of
legitimate government interests.” The Nevada statute satisfies that standard. The request for
identity has an immediate relation to the purpose, rationale, and practical demands of a Terry
stop. The threat of criminal sanction helps ensure that the request for identity does not become
a legal nullity. On the other hand, the Nevada statute does not alter the nature of the stop itself:
it does not change its duration or its location. A state law requiring a suspect to disclose his name
in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against
unreasonable searches and seizures.
It is clear in this case that the request for identification was “reasonably related in scope to the
circumstances which justified” the stop. The officer’s request was a commonsense inquiry, not
an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence.
The stop, the request, and the State’s requirement of a response did not contravene the
guarantees of the Fourth Amendment.
The judgment of the Nevada Supreme Court is [a]ffirmed.
Justice BREYER, with whom Justice SOUTER and Justice GINSBURG join, dissenting.
[T]his Court’s Fourth Amendment precedents make clear that police may conduct a Terry stop
only within circumscribed limits. And one of those limits invalidates laws that compel responses
to police questioning.
In Terry v. Ohio, the Court considered whether police, in the absence of probable cause, can
stop, question, or frisk an individual at all. The Court recognized that the Fourth Amendment
protects the “‘right of every individual to the possession and control of his own person.’” At the
same time, it recognized that in certain circumstances, public safety might require a limited
“seizure,” or stop, of an individual against his will. The Court consequently set forth conditions
circumscribing when and how the police might conduct a Terry stop. They include what has
become known as the “reasonable suspicion” standard. Justice White, in a separate concurring
opinion, set forth further conditions. Justice White wrote: “Of course, the person stopped is not
obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for
an arrest, although it may alert the officer to the need for continued observation.”
About 10 years later, the Court, in Brown v. Texas, held that police lacked “any reasonable
suspicion” to detain the particular petitioner and require him to identify himself. Then, five years
later, the Court wrote that an “officer may ask the [Terry] detainee a moderate number of
questions to determine his identity and to try to obtain information confirming or dispelling the
officer’s suspicions. But the detainee is not obliged to respond.” Berkemer v. McCarty, [468 U.S.
420 (1984)].
This lengthy history—of concurring opinions, of references, and of clear explicit statements—
means that the Court’s statement in Berkemer, while technically dicta, is the kind of strong dicta
that the legal community typically takes as a statement of the law. And that law has remained
Chapter 20 — Page 457

undisturbed for more than 20 years. There is no good reason now to reject this generation-old
statement of the law.
The majority presents no evidence that the rule enunciated by Justice White and then by the
Berkemer Court, which for nearly a generation has set forth a settled Terry stop condition, has
significantly interfered with law enforcement. Nor has the majority presented any other
convincing justification for change. I would not begin to erode a clear rule with special
exceptions.
I consequently dissent.
Notes, Comments, and Questions
Perceptions of Stop-and-Frisk
In Terry v. Ohio, the majority wrote, “When an officer is justified in believing that the individual
whose suspicious behavior he is investigating at close range is armed and presently dangerous
to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power
to take necessary measures to determine whether the person is in fact carrying a weapon and to
neutralize the threat of physical harm.” The Court held that the “reasonable suspicion” standard
struck a sensible compromise between individual liberty and law enforcement realities.
In dissent, Justice Douglas warned, “To give the police greater power than a magistrate is to take
a long step down the totalitarian path.” He argued that “if the individual is no longer to be
sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can
‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should
be made only after a full debate by the people of this country.”
In the subsequent half century, the debate over stop-and-frisk tactics has remained heated.
Opponents of the practice have argued that it visits humiliation on suspects for limited benefit
and that police apply the tactic in a racially biased manner. For example, a federal court in New
York found that the NYPD unconstitutionally focused disproportionately on black and Hispanic
suspects when stopping and frisking New Yorkers. See Floyd v. City of New York, 959 F. Supp.
2d 540 (S.D.N.Y. 2013). The Court of Appeals for the Second Circuit initially stayed the ruling of
the district court pending appeal, but the city dropped the appeal after the election of a mayor
who campaigned on a promise to comply with the district court. See J. David Goodman, “De
Blasio Drops Challenge to Law on Police Profiling,” N.Y. Times (March 5, 2014).
The case in favor of stop-and-frisk was articulated by Heidi Grossman, New York City’s lead
attorney in the Floyd trial. She said, “Our defense is that we go to where the crime is. And once
we go to where the crime is, we have our police officers keep their eyes open, make observations;
and only when they make observations, do they go and make reasonable suspicion stops.” She
added that when police conduct stop-and-frisk in areas with high minority populations, “the
majority of victims are black and Hispanics in the area. They are begging for help, and they want

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to be able to walk to and from work in a safe way. And so it is incumbent upon us to have our
officers go out there and do their job, and keep the city safe.” See “The Argument for Stop-andFrisk,” NPR (May 22, 2013).
For the perspective of some New Yorkers who have been repeatedly stopped and frisked and find
the experience intensely unpleasant, see Julie Dressner & Edwin Martinez, Op-Doc: Season 1,
“The Scars of Stop-and-Frisk,” N.Y. Times (June 12, 2012); Ross Tuttle & Erin Schneider,
“Stopped-and-Frisked: ‘For Being a F**king Mutt,’” The Nation (Oct. 8, 2012) (secret recording
by teen of himself being stopped, along with interview of anonymous police officer about
department practices).
What are the best (most convincing) arguments in favor of allowing police to stop and frisk
suspects without probable cause?
In our next chapter, we will study how the Court has defined “reasonable suspicion.” A more
demanding definition—vaguely close to probable cause—would narrow the set of situations in
which police may “stop and frisk” suspects. A less strict definition—something beyond a mere
hunch but not much further—would give greater discretion to police.

Chapter 20 — Page 459

THE FOURTH AMENDMENT
Chapter 21
Reasonable Suspicion
In this chapter we review the Court’s efforts to define “reasonable suspicion,” which is required
for stops and frisks under Terry v. Ohio. Critics of stop and frisk practices complain that the
Court has set too low a standard, thereby allowing law enforcement to stop pretty much anyone,
particularly in neighborhoods with high crime rates. Advocates for stop and frisk counter that a
stricter standard would undermine effective policework.
Supreme Court of the United States
United States v. Ralph Arvizu
Decided Jan. 15, 2002 – 534 U.S. 266
Chief Justice REHNQUIST delivered the opinion of the [unanimous] Court.
Respondent Ralph Arvizu was stopped by a border patrol agent while driving on an unpaved
road in a remote area of southeastern Arizona. A search of his vehicle turned up more than 100
pounds of marijuana.
On an afternoon in January 1998, Agent Clinton Stoddard was working at a border patrol
checkpoint along U.S. Highway 191 approximately 30 miles north of Douglas, Arizona. Douglas
has a population of about 13,000 and is situated on the United States-Mexico border in the
southeastern part of the State. Only two highways lead north from Douglas. Highway 191 leads
north to Interstate 10, which passes through Tucson and Phoenix. State Highway 80 heads
northeast through less populated areas toward New Mexico, skirting south and east of the
portion of the Coronado National Forest that lies approximately 20 miles northeast of Douglas.
The checkpoint is located at the intersection of 191 and Rucker Canyon Road, an unpaved eastwest road that connects 191 and the Coronado National Forest. When the checkpoint is
operational, border patrol agents stop the traffic on 191 as part of a coordinated effort to stem
the flow of illegal immigration and smuggling across the international border. Agents use roving
patrols to apprehend smugglers trying to circumvent the checkpoint by taking the backroads,
including those roads through the sparsely populated area between Douglas and the national
forest. Magnetic sensors, or “intrusion devices,” facilitate agents’ efforts in patrolling these areas.
Directionally sensitive, the sensors signal the passage of traffic that would be consistent with
smuggling activities.
Sensors are located along the only other northbound road from Douglas besides Highways 191
and 80: Leslie Canyon Road. Leslie Canyon Road runs roughly parallel to 191, about halfway
between 191 and the border of the Coronado National Forest, and ends when it intersects Rucker
Canyon Road. It is unpaved beyond the 10-mile stretch leading out of Douglas and is very rarely
traveled except for use by local ranchers and forest service personnel. Smugglers commonly try
to avoid the 191 checkpoint by heading west on Rucker Canyon Road from Leslie Canyon Road
Chapter 21 — Page 460

and thence to Kuykendall Cutoff Road, a primitive dirt road that leads north approximately 12
miles east of 191. From there, they can gain access to Tucson and Phoenix.
Around 2:15 p.m., Stoddard received a report via Douglas radio that a Leslie Canyon Road sensor
had been triggered. This was significant to Stoddard for two reasons. First, it suggested to him
that a vehicle might be trying to circumvent the checkpoint. Second, the timing coincided with
the point when agents begin heading back to the checkpoint for a shift change, which leaves the
area unpatrolled.
Stoddard drove eastbound on Rucker Canyon Road to investigate. As he did so, he received
another radio report of sensor activity. It indicated that the vehicle that had triggered the first
sensor was heading westbound on Rucker Canyon Road. He saw the dust trail of an approaching
vehicle about a half mile away. Stoddard had not seen any other vehicles and, based on the
timing, believed that this was the one that had tripped the sensors. He pulled off to the side of
the road at a slight slant so he could get a good look at the oncoming vehicle as it passed by.
It was a minivan, a type of automobile that Stoddard knew smugglers used. As it approached, it
slowed dramatically, from about 50-55 to 25-30 miles per hour. He saw five occupants inside.
An adult man was driving, an adult woman sat in the front passenger seat, and three children
were in the back. The driver appeared stiff and his posture very rigid. He did not look at Stoddard
and seemed to be trying to pretend that Stoddard was not there. Stoddard thought this
suspicious because in his experience on patrol most persons look over and see what is going on,
and in that area most drivers give border patrol agents a friendly wave. Stoddard noticed that
the knees of the two children sitting in the very back seat were unusually high, as if their feet
were propped up on some cargo on the floor.
At that point, Stoddard decided to get a closer look, so he began to follow the vehicle as it
continued westbound. Shortly thereafter, all of the children, though still facing forward, put their
hands up at the same time and began to wave at Stoddard in an abnormal pattern. It looked to
Stoddard as if the children were being instructed. Their odd waving continued on and off for
about four to five minutes.
Several hundred feet before the Kuykendall Cutoff Road intersection, the driver signaled that he
would turn. At one point, the driver turned the signal off, but just as he approached the
intersection he put it back on and abruptly turned north onto Kuykendall. The turn was
significant to Stoddard because it was made at the last place that would have allowed the minivan
to avoid the checkpoint. Also, Kuykendall, though passable by a sedan or van, is rougher than
either Rucker Canyon or Leslie Canyon Roads, and the normal traffic is four-wheel-drive
vehicles. Stoddard did not recognize the minivan as part of the local traffic agents encounter on
patrol, and he did not think it likely that the minivan was going to or coming from a picnic outing.
He was not aware of any picnic grounds on Turkey Creek, which could be reached by following
Kuykendall Cutoff all the way up. He knew of picnic grounds and a Boy Scout camp east of the
intersection of Rucker Canyon and Leslie Canyon Roads, but the minivan had turned west at that
intersection. And he had never seen anyone picnicking or sightseeing near where the first sensor
went off.

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Stoddard radioed for a registration check and learned that the minivan was registered to an
address in Douglas that was four blocks north of the border in an area notorious for alien and
narcotics smuggling. After receiving the information, Stoddard decided to make a vehicle stop.
He approached the driver and learned that his name was Ralph Arvizu. Stoddard asked if
respondent would mind if he looked inside and searched the vehicle. Respondent agreed, and
Stoddard discovered marijuana in a black duffel bag under the feet of the two children in the
back seat. Another bag containing marijuana was behind the rear seat. In all, the van contained
128.85 pounds of marijuana, worth an estimated $99,080.
Respondent was charged with possession with intent to distribute marijuana. He moved to
suppress the marijuana, arguing among other things that Stoddard did not have reasonable
suspicion to stop the vehicle as required by the Fourth Amendment. After holding a hearing
where Stoddard and respondent testified, the District Court for the District of Arizona ruled
otherwise. The Court of Appeals for the Ninth Circuit reversed. We granted certiorari to review
the decision of the Court of Appeals.
The Fourth Amendment prohibits “unreasonable searches and seizures” by the Government, and
its protections extend to brief investigatory stops of persons or vehicles that fall short of
traditional arrest. Because the “balance between the public interest and the individual’s right to
personal security” tilts in favor of a standard less than probable cause in such cases, the Fourth
Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that
criminal activity “‘may be afoot.’”
When discussing how reviewing courts should make reasonable-suspicion determinations, we
have said repeatedly that they must look at the “totality of the circumstances” of each case to see
whether the detaining officer has a “particularized and objective basis” for suspecting legal
wrongdoing. This process allows officers to draw on their own experience and specialized
training to make inferences from and deductions about the cumulative information available to
them that “might well elude an untrained person.” Although an officer’s reliance on a mere
“‘hunch’” is insufficient to justify a stop, the likelihood of criminal activity need not rise to the
level required for probable cause, and it falls considerably short of satisfying a preponderance of
the evidence standard.
Our cases have recognized that the concept of reasonable suspicion is somewhat abstract. But
we have deliberately avoided reducing it to “‘a neat set of legal rules.’” We think that the approach
taken by the Court of Appeals here departs sharply from the teachings of these cases. [It] does
not take into account the “totality of the circumstances,” as our cases have understood that
phrase. The court appeared to believe that each observation by Stoddard that was by itself readily
susceptible to an innocent explanation was entitled to “no weight.” Terry, however, precludes
this sort of divide-and-conquer analysis.
[T]he Court of Appeals’ approach would seriously undercut the “totality of the circumstances”
principle which governs the existence vel non of “reasonable suspicion.” Take, for example, the
court’s positions that respondent’s deceleration could not be considered because “slowing down
after spotting a law enforcement vehicle is an entirely normal response that is in no way
indicative of criminal activity” and that his failure to acknowledge Stoddard’s presence provided
no support because there were “no ‘special circumstances’ rendering ‘innocent avoidance ...
Chapter 21 — Page 462

improbable.’” We think it quite reasonable that a driver’s slowing down, stiffening of posture,
and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one
instance (such as a busy San Francisco highway) while quite unusual in another (such as a
remote portion of rural southeastern Arizona). Stoddard was entitled to make an assessment of
the situation in light of his specialized training and familiarity with the customs of the area’s
inhabitants. To the extent that a totality of the circumstances approach may render appellate
review less circumscribed by precedent than otherwise, it is the nature of the totality rule.
Having considered the totality of the circumstances and given due weight to the factual
inferences drawn by the law enforcement officer and District Court Judge, we hold that Stoddard
had reasonable suspicion to believe that respondent was engaged in illegal activity. It was
reasonable for Stoddard to infer from his observations, his registration check, and his experience
as a border patrol agent that respondent had set out from Douglas along a little-traveled route
used by smugglers to avoid the 191 checkpoint. Stoddard’s knowledge further supported a
commonsense inference that respondent intended to pass through the area at a time when
officers would be leaving their backroads patrols to change shifts. The likelihood that respondent
and his family were on a picnic outing was diminished by the fact that the minivan had turned
away from the known recreational areas. Corroborating this inference was the fact that
recreational areas farther to the north would have been easier to reach by taking 191, as opposed
to the 40-to-50–mile trip on unpaved and primitive roads. The children’s elevated knees
suggested the existence of concealed cargo in the passenger compartment. Finally, Stoddard’s
assessment of respondent’s reactions upon seeing him and the children’s mechanical-like
waving, which continued for a full four to five minutes, were entitled to some weight.
A determination that reasonable suspicion exists [] need not rule out the possibility of innocent
conduct. Undoubtedly, each of these factors alone is susceptible of innocent explanation, and
some factors are more probative than others. Taken together, we believe they sufficed to form a
particularized and objective basis for Stoddard’s stopping the vehicle, making the stop
reasonable within the meaning of the Fourth Amendment.
The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further
proceedings consistent with this opinion.
*

*

*

In California v. Hodari D. (Chapter 19), the majority speculated in a footnote whether “it would
be unreasonable to stop, for brief inquiry, young men who scatter in panic upon the mere
sighting of the police,” and the dissent retorted that innocent persons might flee police for a
variety of reasons. Because the question was not before the Court, the Justices did not decide
whether flight from police was sufficiently suspicious to justify—by itself—a Terry stop. In the
next case, the Court considered the merits of the question.

Chapter 21 — Page 463

Supreme Court of the United States
Illinois v. William aka Sam Wardlow
Decided Jan. 12, 2000 – 528 U.S. 119
Chief Justice REHNQUIST delivered the opinion of the Court.
Respondent Wardlow fled upon seeing police officers patrolling an area known for heavy
narcotics trafficking. Two of the officers caught up with him, stopped him and conducted a
protective patdown search for weapons. Discovering a .38-caliber handgun, the officers arrested
Wardlow. We hold that the officers’ stop did not violate the Fourth Amendment to the United
States Constitution.
On September 9, 1995, Officers Nolan and Harvey were working as uniformed officers in the
special operations section of the Chicago Police Department. The officers were driving the last
car of a four car caravan converging on an area known for heavy narcotics trafficking in order to
investigate drug transactions. The officers were traveling together because they expected to find
a crowd of people in the area, including lookouts and customers.
As the caravan passed 4035 West Van Buren, Officer Nolan observed respondent Wardlow
standing next to the building holding an opaque bag. Respondent looked in the direction of the
officers and fled. Nolan and Harvey turned their car southbound, watched him as he ran through
the gangway and an alley, and eventually cornered him on the street. Nolan then exited his car
and stopped respondent. He immediately conducted a protective patdown search for weapons
because in his experience it was common for there to be weapons in the near vicinity of narcotics
transactions. During the frisk, Officer Nolan squeezed the bag respondent was carrying and felt
a heavy, hard object similar to the shape of a gun. The officer then opened the bag and discovered
a .38-caliber handgun with five live rounds of ammunition. The officers arrested Wardlow.
The Illinois trial court denied respondent’s motion to suppress, finding the gun was recovered
during a lawful stop and frisk. The Illinois Appellate Court reversed Wardlow’s conviction,
concluding that the gun should have been suppressed. The Illinois Supreme Court held that the
stop and subsequent arrest violated the Fourth Amendment. We granted certiorari and now
reverse.
This case, involving a brief encounter between a citizen and a police officer on a public street, is
governed by the analysis we first applied in Terry. In Terry, we held that an officer may,
consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has
a reasonable, articulable suspicion that criminal activity is afoot. While “reasonable suspicion”
is a less demanding standard than probable cause and requires a showing considerably less than
preponderance of the evidence, the Fourth Amendment requires at least a minimal level of
objective justification for making the stop. The officer must be able to articulate more than an
“inchoate and unparticularized suspicion or ‘hunch’” of criminal activity.
Nolan and Harvey were among eight officers in a four-car caravan that was converging on an
area known for heavy narcotics trafficking, and the officers anticipated encountering a large
number of people in the area, including drug customers and individuals serving as lookouts. It
Chapter 21 — Page 464

was in this context that Officer Nolan decided to investigate Wardlow after observing him flee.
An individual’s presence in an area of expected criminal activity, standing alone, is not enough
to support a reasonable, particularized suspicion that the person is committing a crime. But
officers are not required to ignore the relevant characteristics of a location in determining
whether the circumstances are sufficiently suspicious to warrant further investigation.
Accordingly, we have previously noted the fact that the stop occurred in a “high crime area”
among the relevant contextual considerations in a Terry analysis.
In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics
trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the
police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in
determining reasonable suspicion. Headlong flight—wherever it occurs—is the consummate act
of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In
reviewing the propriety of an officer’s conduct, courts do not have available empirical studies
dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand
scientific certainty from judges or law enforcement officers where none exists. Thus, the
determination of reasonable suspicion must be based on commonsense judgments and
inferences about human behavior. We conclude Officer Nolan was justified in suspecting that
Wardlow was involved in criminal activity, and, therefore, in investigating further.
Such a holding is entirely consistent with our decision in Florida v. Royer, [460 U.S. 491 (1983)]
where we held that when an officer, without reasonable suspicion or probable cause, approaches
an individual, the individual has a right to ignore the police and go about his business. And any
“refusal to cooperate, without more, does not furnish the minimal level of objective justification
needed for a detention or seizure.” But unprovoked flight is simply not a mere refusal to
cooperate. Flight, by its very nature, is not “going about one’s business”; in fact, it is just the
opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further
is quite consistent with the individual’s right to go about his business or to stay put and remain
silent in the face of police questioning.
Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment
accepts that risk in connection with more drastic police action; persons arrested and detained
on probable cause to believe they have committed a crime may turn out to be innocent. The Terry
stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If
the officer does not learn facts rising to the level of probable cause, the individual must be
allowed to go on his way. But in this case the officers found respondent in possession of a
handgun, and arrested him for violation of an Illinois firearms statute. No question of the
propriety of the arrest itself is before us.
The judgment of the Supreme Court of Illinois is reversed, and the cause is remanded for further
proceedings not inconsistent with this opinion.

Chapter 21 — Page 465

Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG, and Justice BREYER join,
concurring in part and dissenting in part.
[The dissent agreed with the majority that flight from police could sometimes create cause for
suspicion and thereby “by itself, be sufficient to justify a temporary investigative stop of the kind
authorized by Terry.” It agreed too that the Court was correct in not “authorizing the temporary
detention of anyone who flees at the mere sight of a police officer.” In other words, sometimes
flight alone justifies a Terry stop, and sometimes it does not. “Given the diversity and frequency
of possible motivations for flight, it would be profoundly unwise to endorse either per se rule.”
The dissent differed from the majority in its discussion of why innocent persons might flee from
officers:]
Among some citizens, particularly minorities and those residing in high crime areas, there is also
the possibility that the fleeing person is entirely innocent, but, with or without justification,
believes that contact with the police can itself be dangerous, apart from any criminal activity
associated with the officer’s sudden presence. For such a person, unprovoked flight is neither
“aberrant” nor “abnormal.” Moreover, these concerns and fears are known to the police officers
themselves, and are validated by law enforcement investigations into their own practices.
Accordingly, the evidence supporting the reasonableness of these beliefs is too pervasive to be
dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficient.
[The dissent quoted from Alberty v. United States, 162 U.S. 499, 511 (1896), as follows:]
“[I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly
from the scene of a crime through fear of being apprehended as the guilty parties, or from an
unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the
wicked flee when no man pursueth, but the righteous are as bold as a lion.’ Innocent men
sometimes hesitate to confront a jury—not necessarily because they fear that the jury will not
protect them, but because they do not wish their names to appear in connection with criminal
acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or because
they do not wish to be put to the annoyance or expense of defending themselves.”
[The dissent then concluded “that in this case the brief testimony of the officer who seized
respondent does not justify the conclusion that he had reasonable suspicion to make the stop.”
The dissent argued that the officer’s testimony was vague and could not even demonstrate that
Wardlow’s “flight was related to his expectation of police focus on him.”]
Notes, Comments, and Questions
The Court in Wardlow announced that “unprovoked flight” in a “high crime area”—particularly
“an area of heavy narcotics trafficking”—justifies a Terry stop. It is not certain what other factors,
when combined with flight, are sufficient to constitute reasonable suspicion. It seems likely,
however, that once flight is part of the analysis, not much additional ground for suspicion is
needed to give officers discretion to stop a suspect.

Chapter 21 — Page 466

What guidance does the Court give on what a “high-crime area” is? What comes to your mind as
you think of high-crime areas? Would official statistics (for example, records of arrests organized
by neighborhood) provide an accurate picture of which neighborhoods have the most crime?
How do race and poverty play into our notions of high crime areas? Is a fraternity house (or a
neighborhood of such houses, nicknamed “Greektown”) a high-crime area? Why or why not?
Consider a college student fleeing a police officer who arrives at a fraternity party in response to
a noise complaint. May the officer chase the student down and conduct a Terry stop? Why or
why not?
Now imagine that same college student is walking in a high-poverty, primarily minority
neighborhood in the middle of an afternoon. He sees two police officers walking toward him, and
he runs in the other direction. Does this conduct justify Terry stop? Why or why not?
As students have likely already noticed, a great deal of Fourth Amendment cases result from
enforcement of laws banning the possession, manufacture, and sale of certain drugs. Because
police spend substantial time on drug enforcement, officers have come to recognize common
characteristics and behaviors of persons involved in the drug trade. The next case concerns the
relevance of such observations to a finding of reasonable suspicion.
Supreme Court of the United States
United States v. Andrew Sokolow
Decided April 3, 1989 – 490 U.S. 1
Chief Justice REHNQUIST delivered the opinion of the Court.
Respondent Andrew Sokolow was stopped by Drug Enforcement Administration (DEA) agents
upon his arrival at Honolulu International Airport. The agents found 1,063 grams of cocaine in
his carry-on luggage. When respondent was stopped, the agents knew, inter alia, that (1) he paid
$2,100 for two airplane tickets from a roll of $20 bills; (2) he traveled under a name that did not
match the name under which his telephone number was listed; (3) his original destination was
Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours, even though a
round-trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his
trip; and (6) he checked none of his luggage. A divided panel of the United States Court of
Appeals for the Ninth Circuit held that the DEA agents did not have a reasonable suspicion to
stop respondent, as required by the Fourth Amendment. We take the contrary view.
This case involves a typical attempt to smuggle drugs through one of the Nation’s airports. On a
Sunday in July 1984, respondent went to the United Airlines ticket counter at Honolulu Airport,
where he purchased two round-trip tickets for a flight to Miami leaving later that day. The tickets
were purchased in the names of “Andrew Kray” and “Janet Norian” and had open return dates.
Respondent paid $2,100 for the tickets from a large roll of $20 bills, which appeared to contain
a total of $4,000. He also gave the ticket agent his home telephone number. The ticket agent
noticed that respondent seemed nervous; he was about 25 years old; he was dressed in a black
jumpsuit and wore gold jewelry; and he was accompanied by a woman, who turned out to be
Janet Norian. Neither respondent nor his companion checked any of their four pieces of luggage.
Chapter 21 — Page 467

After the couple left for their flight, the ticket agent informed Officer John McCarthy of the
Honolulu Police Department of respondent’s cash purchase of tickets to Miami. Officer
McCarthy determined that the telephone number respondent gave to the ticket agent was
subscribed to a “Karl Herman,” who resided at 348-A Royal Hawaiian Avenue in Honolulu.
Unbeknownst to McCarthy (and later to the DEA agents), respondent was Herman’s roommate.
The ticket agent identified respondent’s voice on the answering machine at Herman’s number.
Officer McCarthy was unable to find any listing under the name “Andrew Kray” in Hawaii.
McCarthy subsequently learned that return reservations from Miami to Honolulu had been
made in the names of Kray and Norian, with their arrival scheduled for July 25, three days after
respondent and his companion had left. He also learned that Kray and Norian were scheduled
to make stopovers in Denver and Los Angeles.
On July 25, during the stopover in Los Angeles, DEA agents identified respondent. He “appeared
to be very nervous and was looking all around the waiting area.” Later that day, at 6:30 p.m.,
respondent and Norian arrived in Honolulu. As before, they had not checked their luggage.
Respondent was still wearing a black jumpsuit and gold jewelry. The couple proceeded directly
to the street and tried to hail a cab, where Agent Richard Kempshall and three other DEA agents
approached them. Kempshall displayed his credentials, grabbed respondent by the arm, and
moved him back onto the sidewalk. Kempshall asked respondent for his airline ticket and
identification; respondent said that he had neither. He told the agents that his name was
“Sokolow,” but that he was traveling under his mother’s maiden name, “Kray.”
Respondent and Norian were escorted to the DEA office at the airport. There, the couple’s
luggage was examined by “Donker,” a narcotics detector dog, which alerted on respondent’s
brown shoulder bag. The agents arrested respondent. He was advised of his constitutional rights
and declined to make any statements. The agents obtained a warrant to search the shoulder bag.
They found no illicit drugs, but the bag did contain several suspicious documents indicating
respondent’s involvement in drug trafficking. The agents had Donker reexamine the remaining
luggage, and this time the dog alerted on a medium-sized Louis Vuitton bag. By now, it was 9:30
p.m., too late for the agents to obtain a second warrant. They allowed respondent to leave for the
night, but kept his luggage. The next morning, after a second dog confirmed Donker’s alert, the
agents obtained a warrant and found 1,063 grams of cocaine inside the bag.
Respondent was indicted for possession with the intent to distribute cocaine. The United States
District Court for Hawaii denied his motion to suppress the cocaine and other evidence seized
from his luggage. Respondent then entered a conditional plea of guilty to the offense charged.
The United States Court of Appeals for the Ninth Circuit reversed respondent’s conviction by a
divided vote. We granted certiorari to review the decision of the Court of Appeals. We now
reverse.
The Court of Appeals held that the DEA agents seized respondent when they grabbed him by the
arm and moved him back onto the sidewalk. The Government does not challenge that
conclusion, and we assume—without deciding—that a stop occurred here. Our decision, then,
turns on whether the agents had a reasonable suspicion that respondent was engaged in
wrongdoing when they encountered him on the sidewalk.
Chapter 21 — Page 468

The concept of reasonable suspicion, like probable cause, is not “readily, or even usefully,
reduced to a neat set of legal rules.” We think the Court of Appeals’ effort to refine and elaborate
the requirements of “reasonable suspicion” in this case creates unnecessary difficulty in dealing
with one of the relatively simple concepts embodied in the Fourth Amendment. In evaluating
the validity of a stop such as this, we must consider “the totality of the circumstances—the whole
picture.”
The rule enunciated by the Court of Appeals, in which evidence available to an officer is divided
into evidence of “ongoing criminal behavior,” on the one hand, and “probabilistic” evidence, on
the other, is not in keeping with the [] statements from our decisions. It also seems to us to draw
a sharp line between types of evidence, the probative value of which varies only in degree. The
Court of Appeals classified evidence of traveling under an alias, or evidence that the suspect took
an evasive or erratic path through an airport, as meeting the test for showing “ongoing criminal
activity.” But certainly instances are conceivable in which traveling under an alias would not
reflect ongoing criminal activity: for example, a person who wished to travel to a hospital or clinic
for an operation and wished to conceal that fact. One taking an evasive path through an airport
might be seeking to avoid a confrontation with an angry acquaintance or with a creditor. This is
not to say that each of these types of evidence is not highly probative, but they do not have the
sort of ironclad significance attributed to them by the Court of Appeals.
On the other hand, the factors in this case that the Court of Appeals treated as merely
“probabilistic” also have probative significance. Paying $2,100 in cash for two airplane tickets is
out of the ordinary, and it is even more out of the ordinary to pay that sum from a roll of $20
bills containing nearly twice that amount of cash. Most business travelers, we feel confident,
purchase airline tickets by credit card or check so as to have a record for tax or business purposes,
and few vacationers carry with them thousands of dollars in $20 bills. We also think the agents
had a reasonable ground to believe that respondent was traveling under an alias; the evidence
was by no means conclusive, but it was sufficient to warrant consideration. While a trip from
Honolulu to Miami, standing alone, is not a cause for any sort of suspicion, here there was more:
surely few residents of Honolulu travel from that city for 20 hours to spend 48 hours in Miami
during the month of July. Any one of these factors is not by itself proof of any illegal conduct and
is quite consistent with innocent travel. But we think taken together they amount to reasonable
suspicion.
We do not agree with respondent that our analysis is somehow changed by the agents’ belief that
his behavior was consistent with one of the DEA’s “drug courier profiles.” A court sitting to
determine the existence of reasonable suspicion must require the agent to articulate the factors
leading to that conclusion, but the fact that these factors may be set forth in a “profile” does not
somehow detract from their evidentiary significance as seen by a trained agent.
We hold that the agents had a reasonable basis to suspect that respondent was transporting
illegal drugs on these facts. The judgment of the Court of Appeals is therefore reversed, and the
case is remanded for further proceedings consistent with our decision.

Chapter 21 — Page 469

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
Because the strongest advocates of Fourth Amendment rights are frequently criminals, it is easy
to forget that our interpretations of such rights apply to the innocent and the guilty alike. In the
present case, the chain of events set in motion when respondent Andrew Sokolow was stopped
by Drug Enforcement Administration (DEA) agents at Honolulu International Airport led to the
discovery of cocaine and, ultimately, to Sokolow’s conviction for drug trafficking. But in
sustaining this conviction on the ground that the agents reasonably suspected Sokolow of
ongoing criminal activity, the Court diminishes the rights of all citizens “to be secure in their
persons,” as they traverse the Nation’s airports. Finding this result constitutionally
impermissible, I dissent.
The Fourth Amendment cabins government’s authority to intrude on personal privacy and
security by requiring that searches and seizures usually be supported by a showing of probable
cause. The reasonable-suspicion standard is a derivation of the probable-cause command,
applicable only to those brief detentions which fall short of being full-scale searches and seizures
and which are necessitated by law enforcement exigencies such as the need to stop ongoing
crimes, to prevent imminent crimes, and to protect law enforcement officers in highly charged
situations. By requiring reasonable suspicion as a prerequisite to such seizures, the Fourth
Amendment protects innocent persons from being subjected to “overbearing or harassing”
police conduct carried out solely on the basis of imprecise stereotypes of what criminals look
like, or on the basis of irrelevant personal characteristics such as race.
To deter such egregious police behavior, we have held that a suspicion is not reasonable unless
officers have based it on “specific and articulable facts.” It is not enough to suspect that an
individual has committed crimes in the past, harbors unconsummated criminal designs, or has
the propensity to commit crimes. On the contrary, before detaining an individual, law
enforcement officers must reasonably suspect that he is engaged in, or poised to commit, a
criminal act at that moment.
In my view, a law enforcement officer’s mechanistic application of a formula of personal and
behavioral traits in deciding whom to detain can only dull the officer’s ability and determination
to make sensitive and fact-specific inferences “in light of his experience.” Reflexive reliance on a
profile of drug courier characteristics runs a far greater risk than does ordinary, case-by-case
police work of subjecting innocent individuals to unwarranted police harassment and detention.
This risk is enhanced by the profile’s “chameleon-like way of adapting to any particular set of
observations.” In asserting that it is not “somehow” relevant that the agents who stopped
Sokolow did so in reliance on a prefabricated profile of criminal characteristics, the majority thus
ducks serious issues relating to a questionable law enforcement practice, to address the validity
of which we granted certiorari in this case.
*

*

*

Chapter 21 — Page 470

Reasonable Suspicion Based on Tips
Police rely on information volunteered by persons outside of law enforcement to conduct
investigations. Witnesses to crimes, suspects themselves, and others willing to provide relevant
information to help officers do their work. The Court has decided a handful of cases concerning
how much a “tip” from an informant contributes to a finding of reasonable suspicion.
Supreme Court of the United States
Alabama v. Vanessa Rose White
Decided June 11, 1990 – 496 U.S. 325
Justice WHITE delivered the opinion of the Court.
Based on an anonymous telephone tip, police stopped respondent’s vehicle. A consensual search
of the car revealed drugs. The issue is whether the tip, as corroborated by independent police
work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the
investigatory stop. We hold that it did.
On April 22, 1987, at approximately 3 p.m., Corporal B.H. Davis of the Montgomery Police
Department received a telephone call from an anonymous person, stating that Vanessa White
would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth
station wagon with the right taillight lens broken, that she would be going to Dobey’s Motel, and
that she would be in possession of about an ounce of cocaine inside a brown attaché case.
Corporal Davis and his partner, Corporal P. A. Reynolds, proceeded to the Lynwood Terrace
Apartments. The officers saw a brown Plymouth station wagon with a broken right taillight in
the parking lot in front of the 235 building. The officers observed respondent leave the 235
building, carrying nothing in her hands, and enter the station wagon. They followed the vehicle
as it drove the most direct route to Dobey’s Motel. When the vehicle reached the Mobile
Highway, on which Dobey’s Motel is located, Corporal Reynolds requested a patrol unit to stop
the vehicle. The vehicle was stopped at approximately 4:18 p.m., just short of Dobey’s Motel.
Corporal Davis asked respondent to step to the rear of her car, where he informed her that she
had been stopped because she was suspected of carrying cocaine in the vehicle. He asked if they
could look for cocaine, and respondent said they could look. The officers found a locked brown
attaché case in the car, and, upon request, respondent provided the combination to the lock. The
officers found marijuana in the attaché case and placed respondent under arrest. During
processing at the station, the officers found three milligrams of cocaine in respondent’s purse.
Respondent was charged in Montgomery County Court with possession of marijuana and
possession of cocaine. The trial court denied respondent’s motion to suppress, and she pleaded
guilty to the charges, reserving the right to appeal the denial of her suppression motion. The
Court of Criminal Appeals of Alabama concluded that respondent’s motion to dismiss should
have been granted and reversed her conviction. The Supreme Court of Alabama denied the
State’s petition for writ of certiorari. [W]e granted the State’s petition for certiorari. We now
reverse.

Chapter 21 — Page 471

Reasonable suspicion is a less demanding standard than probable cause not only in the sense
that reasonable suspicion can be established with information that is different in quantity or
content than that required to establish probable cause, but also in the sense that reasonable
suspicion can arise from information that is less reliable than that required to show probable
cause. Reasonable suspicion, like probable cause, is dependent upon both the content of
information possessed by police and its degree of reliability. Both factors—quantity and quality—
are considered in the “totality of the circumstances—the whole picture” that must be taken into
account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low
degree of reliability, more information will be required to establish the requisite quantum of
suspicion than would be required if the tip were more reliable. The [Illinois v.] Gates Court
applied its totality-of-the-circumstances approach in this manner, taking into account the facts
known to the officers from personal observation, and giving the anonymous tip the weight it
deserved in light of its indicia of reliability as established through independent police work. The
same approach applies in the reasonable-suspicion context, the only difference being the level of
suspicion that must be established. Contrary to the court below, we conclude that when the
officers stopped respondent, the anonymous tip had been sufficiently corroborated to furnish
reasonable suspicion that respondent was engaged in criminal activity and that the investigative
stop therefore did not violate the Fourth Amendment.
It is true that not every detail mentioned by the tipster was verified, such as the name of the
woman leaving the building or the precise apartment from which she left; but the officers did
corroborate that a woman left the 235 building and got into the particular vehicle that was
described by the caller. With respect to the time of departure predicted by the informant,
Corporal Davis testified that the caller gave a particular time when the woman would be leaving,
but he did not state what that time was. He did testify that, after the call, he and his partner
proceeded to the Lynwood Terrace Apartments to put the 235 building under surveillance. Given
the fact that the officers proceeded to the indicated address immediately after the call and that
respondent emerged not too long thereafter, it appears from the record before us that
respondent’s departure from the building was within the timeframe predicted by the caller. As
for the caller’s prediction of respondent’s destination, it is true that the officers stopped her just
short of Dobey’s Motel and did not know whether she would have pulled in or continued past it.
But given that the 4-mile route driven by respondent was the most direct route possible to
Dobey’s Motel but nevertheless involved several turns, we think respondent’s destination was
significantly corroborated.
The Court’s opinion in Gates gave credit to the proposition that because an informant is shown
to be right about some things, he is probably right about other facts that he has alleged, including
the claim that the object of the tip is engaged in criminal activity. Thus, it is not unreasonable to
conclude in this case that the independent corroboration by the police of significant aspects of
the informer’s predictions imparted some degree of reliability to the other allegations made by
the caller.
We think it also important that, as in Gates, “the anonymous [tip] contained a range of details
relating not just to easily obtained facts and conditions existing at the time of the tip, but to
future actions of third parties ordinarily not easily predicted.” The fact that the officers found a
car precisely matching the caller’s description in front of the 235 building is an example of the
former. Anyone could have “predicted” that fact because it was a condition presumably existing
Chapter 21 — Page 472

at the time of the call. What was important was the caller’s ability to predict respondent’s future
behavior, because it demonstrated inside information—a special familiarity with respondent’s
affairs. The general public would have had no way of knowing that respondent would shortly
leave the building, get in the described car, and drive the most direct route to Dobey’s Motel.
Because only a small number of people are generally privy to an individual’s itinerary, it is
reasonable for police to believe that a person with access to such information is likely to also
have access to reliable information about that individual’s illegal activities. When significant
aspects of the caller’s predictions were verified, there was reason to believe not only that the
caller was honest but also that he was well informed, at least well enough to justify the stop.
Although it is a close case, we conclude that under the totality of the circumstances the
anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the
investigatory stop of respondent’s car. We therefore reverse the judgment of the Court of
Criminal Appeals of Alabama and remand the case for further proceedings not inconsistent with
this opinion.
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
Millions of people leave their apartments at about the same time every day carrying an attaché
case and heading for a destination known to their neighbors. Usually, however, the neighbors do
not know what the briefcase contains. An anonymous neighbor’s prediction about somebody’s
time of departure and probable destination is anything but a reliable basis for assuming that the
commuter is in possession of an illegal substance—particularly when the person is not even
carrying the attaché case described by the tipster.
The record in this case does not tell us how often respondent drove from the Lynwood Terrace
Apartments to Dobey’s Motel; for all we know, she may have been a room clerk or telephone
operator working the evening shift. It does not tell us whether Officer Davis made any effort to
ascertain the informer’s identity, his reason for calling, or the basis of his prediction about
respondent’s destination. Indeed, for all that this record tells us, the tipster may well have been
another police officer who had a “hunch” that respondent might have cocaine in her attaché case.
Anybody with enough knowledge about a given person to make her the target of a prank, or to
harbor a grudge against her, will certainly be able to formulate a tip about her like the one
predicting Vanessa White’s excursion. In addition, under the Court’s holding, every citizen is
subject to being seized and questioned by any officer who is prepared to testify that the
warrantless stop was based on an anonymous tip predicting whatever conduct the officer just
observed. Fortunately, the vast majority of those in our law enforcement community would not
adopt such a practice. But the Fourth Amendment was intended to protect the citizen from the
overzealous and unscrupulous officer as well as from those who are conscientious and truthful.
This decision makes a mockery of that protection.
I respectfully dissent.
*

*

*

Chapter 21 — Page 473

The stop in White was made upon reasonable suspicion; then the suspect consented to the
automobile search. Without consent, could the officer search the car? Why or why not?
In the next case, the Court distinguished Alabama v. White and found that the information
provided by a tipster did not justify a Terry stop.
Supreme Court of the United States
Florida v. J.L.
Decided March 28, 2000 – 529 U.S. 266
Justice GINSBURG delivered the opinion of the [unanimous] Court.
The question presented in this case is whether an anonymous tip that a person is carrying a gun
is, without more, sufficient to justify a police officer’s stop and frisk of that person. We hold that
it is not.
I
On October 13, 1995, an anonymous caller reported to the Miami-Dade Police that a young black
male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. So far as the
record reveals, there is no audio recording of the tip, and nothing is known about the informant.
Sometime after the police received the tip—the record does not say how long—two officers were
instructed to respond. They arrived at the bus stop about six minutes later and saw three black
males “just hanging out [there].” One of the three, respondent J.L., was wearing a plaid shirt.
Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The
officers did not see a firearm, and J.L. made no threatening or otherwise unusual movements.
One of the officers approached J.L., told him to put his hands up on the bus stop, frisked him,
and seized a gun from J.L.’s pocket. The second officer frisked the other two individuals, against
whom no allegations had been made, and found nothing.
J.L., who was at the time of the frisk “10 days shy of his 16th birth[day],” was charged under state
law with carrying a concealed firearm without a license and possessing a firearm while under the
age of 18. He moved to suppress the gun as the fruit of an unlawful search, and the trial court
granted his motion. The intermediate appellate court reversed, but the Supreme Court of Florida
quashed that decision and held the search invalid under the Fourth Amendment. We granted
certiorari and now affirm the judgment of the Florida Supreme Court.
II
Our “stop and frisk” decisions begin with Terry v. Ohio. In the instant case, the officers’ suspicion
that J.L. was carrying a weapon arose not from any observations of their own but solely from a
call made from an unknown location by an unknown caller. Unlike a tip from a known informant
whose reputation can be assessed and who can be held responsible if her allegations turn out to
be fabricated, “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge
or veracity.” As we have recognized, however, there are situations in which an anonymous tip,
suitably corroborated, exhibits “sufficient indicia of reliability to provide reasonable suspicion
Chapter 21 — Page 474

to make the investigatory stop.” The question we here confront is whether the tip pointing to J.L.
had those indicia of reliability.
The tip in the instant case lacked the moderate indicia of reliability present in [Alabama v.]
White and essential to the Court’s decision in that case. The anonymous call concerning J.L.
provided no predictive information and therefore left the police without means to test the
informant’s knowledge or credibility. That the allegation about the gun turned out to be correct
does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L.
of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by
what the officers knew before they conducted their search. All the police had to go on in this case
was the bare report of an unknown, unaccountable informant who neither explained how he
knew about the gun nor supplied any basis for believing he had inside information about J.L. If
White was a close case on the reliability of anonymous tips, this one surely falls on the other side
of the line.
Florida contends that the tip was reliable because its description of the suspect’s visible
attributes proved accurate: There really was a young black male wearing a plaid shirt at the bus
stop. The United States as amicus curiae makes a similar argument, proposing that a stop and
frisk should be permitted “when (1) an anonymous tip provides a description of a particular
person at a particular location illegally carrying a concealed firearm, (2) police promptly verify
the pertinent details of the tip except the existence of the firearm, and (3) there are no factors
that cast doubt on the reliability of the tip....” These contentions misapprehend the reliability
needed for a tip to justify a Terry stop.
An accurate description of a subject’s readily observable location and appearance is of course
reliable in this limited sense: It will help the police correctly identify the person whom the tipster
means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed
criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its
assertion of illegality, not just in its tendency to identify a determinate person.
A second major argument advanced by Florida and the United States as amicus is, in essence,
that the standard Terry analysis should be modified to license a “firearm exception.” Under such
an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation
would fail standard pre-search reliability testing. We decline to adopt this position.
Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our
decisions recognize the serious threat that armed criminals pose to public safety; Terry’s rule,
which permits protective police searches on the basis of reasonable suspicion rather than
demanding that officers meet the higher standard of probable cause, responds to this very
concern. But an automatic firearm exception to our established reliability analysis would rove
too far. Such an exception would enable any person seeking to harass another to set in motion
an intrusive, embarrassing police search of the targeted person simply by placing an anonymous
call falsely reporting the target’s unlawful carriage of a gun. Nor could one securely confine such
an exception to allegations involving firearms. If police officers may properly conduct Terry
frisks on the basis of bare-boned tips about guns, it would be reasonable to maintain [] that the
police should similarly have discretion to frisk based on bare-boned tips about narcotics. As we
clarified when we made indicia of reliability critical in Adams [v. Williams, 407 U.S.143 (1972),]
Chapter 21 — Page 475

and White, the Fourth Amendment is not so easily satisfied.
The facts of this case do not require us to speculate about the circumstances under which the
danger alleged in an anonymous tip might be so great as to justify a search even without a
showing of reliability. We do not say, for example, that a report of a person carrying a bomb need
bear the indicia of reliability we demand for a report of a person carrying a firearm before the
police can constitutionally conduct a frisk. Nor do we hold that public safety officials in quarters
where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports
and schools, cannot conduct protective searches on the basis of information insufficient to justify
searches elsewhere.
Finally, the requirement that an anonymous tip bear standard indicia of reliability in order to
justify a stop in no way diminishes a police officer’s prerogative, in accord with Terry, to conduct
a protective search of a person who has already been legitimately stopped. We speak in today’s
decision only of cases in which the officer’s authority to make the initial stop is at issue. In that
context, we hold that an anonymous tip lacking indicia of reliability of the kind contemplated in
Adams and White does not justify a stop and frisk whenever and however it alleges the illegal
possession of a firearm.
The judgment of the Florida Supreme Court is affirmed.
*

*

*

Look closely at the tips in White and J.L. Is there a good basis for distinguishing the two? Would
you be able to predict when an officer should (and should not) form reasonable suspicion from
a tip?
In 2014, the Court applied White and J.L. to a tip concerning a dangerous driver on a California
highway. As the caustic dissent indicates, the Court’s decision in Navarette v. California has
been widely read as lowering the amount of evidence necessary to support a finding of reasonable
suspicion.
Supreme Court of the United States
Lorenzo Prado Navarette v. California
Decided April 22, 2014 – 572 U.S. 393
Justice THOMAS delivered the opinion of the Court.
After a 911 caller reported that a vehicle had run her off the road, a police officer located the
vehicle she identified during the call and executed a traffic stop. We hold that the stop complied
with the Fourth Amendment because, under the totality of the circumstances, the officer had
reasonable suspicion that the driver was intoxicated.

Chapter 21 — Page 476

I
On August 23, 2008, a Mendocino County 911 dispatch team for the California Highway Patrol
(CHP) received a call from another CHP dispatcher in neighboring Humboldt County. The
Humboldt County dispatcher relayed a tip from a 911 caller, which the Mendocino County team
recorded as follows: “‘Showing southbound Highway 1 at mile marker 88, Silver Ford 150 pickup.
Plate of 8-David-94925. Ran the reporting party off the roadway and was last seen approximately
five [minutes] ago.’” The Mendocino County team then broadcast that information to CHP
officers at 3:47 p.m.
A CHP officer heading northbound toward the reported vehicle responded to the broadcast. At
4:00 p.m., the officer passed the truck near mile marker 69. At about 4:05 p.m., after making a
U-turn, he pulled the truck over. A second officer, who had separately responded to the
broadcast, also arrived on the scene. As the two officers approached the truck, they smelled
marijuana. A search of the truck bed revealed 30 pounds of marijuana. The officers arrested the
driver, petitioner Lorenzo Prado Navarette, and the passenger, petitioner José Prado Navarette.
Petitioners moved to suppress the evidence, arguing that the traffic stop violated the Fourth
Amendment because the officer lacked reasonable suspicion of criminal activity. Both the
magistrate who presided over the suppression hearing and the Superior Court disagreed.
Petitioners pleaded guilty to transporting marijuana and were sentenced to 90 days in jail plus
three years of probation.
The California Court of Appeal affirmed. The California Supreme Court denied review. We
granted certiorari and now affirm.
II
The Fourth Amendment permits brief investigative stops—such as the traffic stop in this case—
when a law enforcement officer has “a particularized and objective basis for suspecting the
particular person stopped of criminal activity.” The “reasonable suspicion” necessary to justify
such a stop “is dependent upon both the content of information possessed by police and its
degree of reliability.” The standard takes into account “the totality of the circumstances—the
whole picture.” Although a mere “‘hunch’” does not create reasonable suspicion, the level of
suspicion the standard requires is “considerably less than proof of wrongdoing by a
preponderance of the evidence,” and “obviously less” than is necessary for probable cause.
These principles apply with full force to investigative stops based on information from
anonymous tips. We have firmly rejected the argument “that reasonable cause for a[n
investigative stop] can only be based on the officer’s personal observation, rather than on
information supplied by another person.” Of course, “an anonymous tip alone seldom
demonstrates the informant’s basis of knowledge or veracity.” That is because “ordinary citizens
generally do not provide extensive recitations of the basis of their everyday observations,” and
an anonymous tipster’s veracity is “‘by hypothesis largely unknown, and unknowable.’” But
under appropriate circumstances, an anonymous tip can demonstrate “sufficient indicia of
reliability to provide reasonable suspicion to make [an] investigatory stop.”
Chapter 21 — Page 477

The initial question in this case is whether the 911 call was sufficiently reliable to credit the
allegation that petitioners’ truck “ran the [caller] off the roadway.” Even assuming for present
purposes that the 911 call was anonymous, we conclude that the call bore adequate indicia of
reliability for the officer to credit the caller’s account. The officer was therefore justified in
proceeding from the premise that the truck had, in fact, caused the caller’s car to be dangerously
diverted from the highway.
By reporting that she had been run off the road by a specific vehicle—a silver Ford F-150 pickup,
license plate 8D94925—the caller necessarily claimed eyewitness knowledge of the alleged
dangerous driving. That basis of knowledge lends significant support to the tip’s reliability. A
driver’s claim that another vehicle ran her off the road [] necessarily implies that the informant
knows the other car was driven dangerously.
There is also reason to think that the 911 caller in this case was telling the truth. Police confirmed
the truck’s location near mile marker 69 (roughly 19 highway miles south of the location reported
in the 911 call) at 4:00 p.m. (roughly 18 minutes after the 911 call). That timeline of events
suggests that the caller reported the incident soon after she was run off the road. That sort of
contemporaneous report has long been treated as especially reliable.
Another indicator of veracity is the caller’s use of the 911 emergency system. A 911 call has some
features that allow for identifying and tracing callers, and thus provide some safeguards against
making false reports with immunity. As this case illustrates, 911 calls can be recorded, which
provides victims with an opportunity to identify the false tipster’s voice and subject him to
prosecution. The 911 system also permits law enforcement to verify important information about
the caller. None of this is to suggest that tips in 911 calls are per se reliable. Given the foregoing
technological and regulatory developments, however, a reasonable officer could conclude that a
false tipster would think twice before using such a system. The caller’s use of the 911 system is
therefore one of the relevant circumstances that, taken together, justified the officer’s reliance
on the information reported in the 911 call.
Even a reliable tip will justify an investigative stop only if it creates reasonable suspicion that
“criminal activity may be afoot.” We must therefore determine whether the 911 caller’s report of
being run off the roadway created reasonable suspicion of an ongoing crime such as drunk
driving as opposed to an isolated episode of past recklessness. We conclude that the behavior
alleged by the 911 caller, “viewed from the standpoint of an objectively reasonable police officer,
amount[s] to reasonable suspicion” of drunk driving. The stop was therefore proper.
Reasonable suspicion depends on “‘“the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act.”’” Under that commonsense
approach, we can appropriately recognize certain driving behaviors as sound indicia of drunk
driving. Indeed, the accumulated experience of thousands of officers suggests that these sorts of
erratic behaviors are strongly correlated with drunk driving. Of course, not all traffic infractions
imply intoxication. Unconfirmed reports of driving without a seatbelt or slightly over the speed
limit, for example, are so tenuously connected to drunk driving that a stop on those grounds
alone would be constitutionally suspect. But a reliable tip alleging the dangerous behaviors
discussed above generally would justify a traffic stop on suspicion of drunk driving.
Chapter 21 — Page 478

The 911 caller in this case reported more than a minor traffic infraction and more than a
conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous
result of the driver’s conduct: running another car off the highway. That conduct bears too great
a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated
example of recklessness. Running another vehicle off the road suggests lane-positioning
problems, decreased vigilance, impaired judgment, or some combination of those recognized
drunk driving cues. And the experience of many officers suggests that a driver who almost strikes
a vehicle or another object—the exact scenario that ordinarily causes “running [another vehicle]
off the roadway”—is likely intoxicated. As a result, we cannot say that the officer acted
unreasonably under these circumstances in stopping a driver whose alleged conduct was a
significant indicator of drunk driving.
III
Like White, this is a “close case.” As in that case, the indicia of the 911 caller’s reliability here are
stronger than those in J. L., where we held that a bare-bones tip was unreliable. Although the
indicia present here are different from those we found sufficient in White, there is more than one
way to demonstrate “a particularized and objective basis for suspecting the particular person
stopped of criminal activity.” Under the totality of the circumstances, we find the indicia of
reliability in this case sufficient to provide the officer with reasonable suspicion that the driver
of the reported vehicle had run another vehicle off the road. That made it reasonable under the
circumstances for the officer to execute a traffic stop. We accordingly affirm.
Justice SCALIA, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN
join, dissenting.
Law enforcement agencies follow closely our judgments on matters such as this, and they will
identify at once our new rule: So long as the caller identifies where the car is, anonymous claims
of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic
stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from
unreasonable searches and seizures. I would reverse the judgment of the Court of Appeal of
California.
The California Highway Patrol in this case knew nothing about the tipster on whose word—and
that alone—they seized Lorenzo and José Prado Navarette. They did not know her name. They
did not know her phone number or address. They did not even know where she called from (she
may have dialed in from a neighboring county).
The Court says that “[b]y reporting that she had been run off the road by a specific vehicle ... the
caller necessarily claimed eyewitness knowledge.” So what? The issue is not how she claimed to
know, but whether what she claimed to know was true. The claim to “eyewitness knowledge” of
being run off the road supports not at all its veracity; nor does the amazing, mystifying prediction
(so far short of what existed in White) that the petitioners’ truck would be heading south on
Highway 1.
All that has been said up to now assumes that the anonymous caller made, at least in effect, an
accusation of drunken driving. But in fact she did not. She said that the petitioners’ truck “‘[r]an
Chapter 21 — Page 479

[me] off the roadway.’” That neither asserts that the driver was drunk nor even raises the
likelihood that the driver was drunk. The most it conveys is that the truck did some apparently
nontypical thing that forced the tipster off the roadway, whether partly or fully, temporarily or
permanently. Who really knows what (if anything) happened? The truck might have swerved to
avoid an animal, a pothole, or a jaywalking pedestrian.
But let us assume the worst of the many possibilities: that it was a careless, reckless, or even
intentional maneuver that forced the tipster off the road. Lorenzo might have been distracted by
his use of a hands-free cell phone or distracted by an intense sports argument with Jose. Or,
indeed, he might have intentionally forced the tipster off the road because of some personal
animus, or hostility to her “Make Love, Not War” bumper sticker. I fail to see how reasonable
suspicion of a discrete instance of irregular or hazardous driving generates a reasonable
suspicion of ongoing intoxicated driving. What proportion of the hundreds of thousands—
perhaps millions—of careless, reckless, or intentional traffic violations committed each day is
attributable to drunken drivers? I say 0.1 percent. I have no basis for that except my own
guesswork. But unless the Court has some basis in reality to believe that the proportion is many
orders of magnitude above that—say 1 in 10 or at least 1 in 20—it has no grounds for its
unsupported assertion that the tipster’s report in this case gave rise to a reasonable suspicion of
drunken driving.
Bear in mind that that is the only basis for the stop that has been asserted in this litigation. The
stop required suspicion of an ongoing crime, not merely suspicion of having run someone off the
road earlier. And driving while being a careless or reckless person, unlike driving while being a
drunk person, is not an ongoing crime. In other words, in order to stop the petitioners the officers
here not only had to assume without basis the accuracy of the anonymous accusation but also
had to posit an unlikely reason (drunkenness) for the accused behavior.
In sum, at the moment the police spotted the truck, it was more than merely “possib[le]” that the
petitioners were not committing an ongoing traffic crime. It was overwhelmingly likely that they
were not.
It gets worse. Not only, it turns out, did the police have no good reason at first to believe that
Lorenzo was driving drunk, they had very good reason at last to know that he was not. The Court
concludes that the tip, plus confirmation of the truck’s location, produced reasonable suspicion
that the truck not only had been but still was barreling dangerously and drunkenly down
Highway 1. In fact, alas, it was not, and the officers knew it. They followed the truck for five
minutes, presumably to see if it was being operated recklessly. And that was good police work.
While the anonymous tip was not enough to support a stop for drunken driving, it was surely
enough to counsel observation of the truck to see if it was driven by a drunken driver. But the
pesky little detail left out of the Court’s reasonable-suspicion equation is that, for the five minutes
that the truck was being followed (five minutes is a long time), Lorenzo’s driving was
irreproachable. Had the officers witnessed the petitioners violate a single traffic law, they would
have had cause to stop the truck, and this case would not be before us. And not only was the
driving irreproachable, but the State offers no evidence to suggest that the petitioners even did
anything suspicious, such as suddenly slowing down, pulling off to the side of the road, or turning
somewhere to see whether they were being followed. Consequently, the tip’s suggestion of
ongoing drunken driving (if it could be deemed to suggest that) not only went uncorroborated;
Chapter 21 — Page 480

it was affirmatively undermined.
A hypothetical variation on the facts of this case illustrates the point. Suppose an anonymous
tipster reports that, while following near mile marker 88 a silver Ford F-150, license plate
8D949925, traveling southbound on Highway 1, she saw in the truck’s open cab several five-foottall stacks of what was unmistakably baled cannabis. Two minutes later, a highway patrolman
spots the truck exactly where the tip suggested it would be, begins following it, but sees nothing
in the truck’s cab. It is not enough to say that the officer’s observation merely failed to
corroborate the tipster’s accusation. It is more precise to say that the officer’s observation
discredited the informant’s accusation: The crime was supposedly occurring (and would
continue to occur) in plain view, but the police saw nothing. Similarly, here, the crime supposedly
suggested by the tip was ongoing intoxicated driving, the hallmarks of which are many, readily
identifiable, and difficult to conceal. That the officers witnessed nary a minor traffic violation
nor any other “sound indici[um] of drunk driving,” strongly suggests that the suspected crime
was not occurring after all. The tip’s implication of continuing criminality, already weak, grew
even weaker.
Resisting this line of reasoning, the Court curiously asserts that, since drunk drivers who see
marked squad cars in their rearview mirrors may evade detection simply by driving “more
careful[ly],” the “absence of additional suspicious conduct” is “hardly surprising” and thus
largely irrelevant. Whether a drunk driver drives drunkenly, the Court seems to think, is up to
him. That is not how I understand the influence of alcohol. I subscribe to the more traditional
view that the dangers of intoxicated driving are the intoxicant’s impairing effects on the body—
effects that no mere act of the will can resist. Consistent with this view, I take it as a fundamental
premise of our intoxicated-driving laws that a driver soused enough to swerve once can be
expected to swerve again—and soon. If he does not, and if the only evidence of his first episode
of irregular driving is a mere inference from an uncorroborated, vague, and nameless tip, then
the Fourth Amendment requires that he be left alone.
The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent
falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly
identify a car and its location, and (2) that a single instance of careless or reckless driving
necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need
do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the
police. If the driver turns out not to be drunk (which will almost always be the case), the caller
need fear no consequences, even if 911 knows his identity. After all, he never alleged
drunkenness, but merely called in a traffic violation—and on that point his word is as good as his
victim’s.
Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please
without police interference. To prevent and detect murder we do not allow searches without
probable cause or targeted Terry stops without reasonable suspicion. We should not do so for
drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are
at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a
phone tip, true or false, of a single instance of careless driving. I respectfully dissent.
*

*

*

Chapter 21 — Page 481

This concludes our review of the substantive search and seizure law that the Court has based
upon the Fourth Amendment. We turn next to interrogations.
FOURTH AMENDMENT FLOWCHART EXERCISE
Flowcharts can help students visualize what they have learned. The goal is not to memorize the
example chart presented here but instead to create a new chart that helps one to connect material
from throughout the book. Your authors recommend that when students make their own charts,
they add additional detail, such as case names or chapter numbers. For example, in the box
asking whether there was a
“search” or “seizure” at all,
students
might
add
information related to dog
sniffs, aerial surveillance, the
open fields doctrine, thermal
imaging, garbage collection,
and other items included in the
early chapters of this book.
In the box asking if there was a
valid warrant, students might
add information related to the
particularity requirement, as
well as other sources of
challenges to validity.
This chart focuses on the
Fourth Amendment. Later in
the book, a different sample
chart focuses on the Miranda
Rule.
These charts have two primary
purposes. One is that when the
charts are finished, they can
serve as study aids. The other
is that the creation of the
charts—even if students never
review them after finishing them—forces students to consider material more carefully than they
otherwise might, which helps with learning and with retention of information. Also, fellow
students can help spot misunderstandings that, were they not in a chart, would remain
uncorrected. Study group members might wish to bring charts to share with classmates.
Note that the “Fourth Amendment violation” box asks students to consider what remedy might
be available to the person whose rights were violated. A separate chart devoted to remedies (such
as the exclusionary rule) would be worth creating after students cover that material.
Chapter 21 — Page 482

INTERROGATIONS
Chapter 22
Due Process and the Voluntariness Requirement
In this chapter we begin our study of how the Court has used the Constitution to regulate
interrogations. Over the next several chapters, we will review three main lines of cases: (1) those
decided under the Due Process Clauses of the Fourteenth Amendment and the Fifth
Amendment, which the Court has used to require that only “voluntary” confessions be admitted
as evidence, (2) those decided under the Self-Incrimination Clause of the Fifth Amendment,
which the Court has used as the basis for the Miranda Rule, and (3) those decided under the
Assistance of Counsel Clause of the Sixth Amendment, which the Court has used to prohibit
certain questioning of defendants for whom the right to counsel has “attached.”
We begin with cases enforcing the voluntariness requirement under the Due Process Clauses.
Our first case, Brown v. Mississippi, appeared in the reading for our first chapter and students
may wish to quickly reread the facts of the case if they do not remember them. In that chapter,
Brown was presented to provide background on why the Supreme Court might feel the need to
supervise the criminal justice systems of the states. Now, we consider it again to learn the
substantive law governing interrogations.
Supreme Court of the United States.
Ed Brown v. Mississippi
Decided Feb. 17, 1936 – 297 U.S. 278
Mr. Chief Justice HUGHES delivered the opinion of the [unanimous] Court.
The question in this case is whether convictions, which rest solely upon confessions shown to
have been extorted by officers of the state by brutality and violence, are consistent with the due
process of law required by the Fourteenth Amendment of the Constitution of the United States.
Petitioners were indicted for the murder of one Raymond Stewart, whose death occurred on
March 30, 1934. They were indicted on April 4, 1934, and were then arraigned and pleaded not
guilty. Counsel were appointed by the court to defend them. Trial was begun the next morning
and was concluded on the following day, when they were found guilty and sentenced to death.
Aside from the confessions, there was no evidence sufficient to warrant the submission of the
case to the jury. After a preliminary inquiry, testimony as to the confessions was received over
the objection of defendants’ counsel. Defendants then testified that the confessions were false
and had been procured by physical torture.
[D]efendants filed in the Supreme Court a “suggestion of error” explicitly challenging the
proceedings of the trial, in the use of the confessions and with respect to the alleged denial of
representation by counsel, as violating the due process clause of the Fourteenth Amendment of
the Constitution of the United States. The state court entertained the suggestion of error,
Chapter 22 — Page 483

considered the federal question, and decided it against defendants’ contentions.
The grounds of the decision were (1) that immunity from self-incrimination is not essential to
due process of law; and (2) that the failure of the trial court to exclude the confessions after the
introduction of evidence showing their incompetency, in the absence of a request for such
exclusion, did not deprive the defendants of life or liberty without due process of law; and that
even if the trial court had erroneously overruled a motion to exclude the confessions, the ruling
would have been mere error reversible on appeal, but not a violation of constitution right.
The state court said: “After the state closed its case on the merits, the appellants, for the first
time, introduced evidence from which it appears that the confessions were not made voluntarily
but were coerced.” There is no dispute as to the facts upon this point. It is sufficient to say that
in pertinent respects the transcript reads more like pages torn from some medieval account than
a record made within the confines of a modern civilization which aspires to an enlightened
constitutional government.
[The Court then quoted portions of the state court dissent:]
“[T]he solemn farce of hearing the free and voluntary confessions was gone through with, and
these two sheriffs and one other person then present were the three witnesses used in court to
establish the so-called confessions, which were received by the court and admitted in evidence
over the objections of the defendants duly entered of record as each of the said three witnesses
delivered their alleged testimony. There was thus enough before the court when these
confessions were first offered to make known to the court that they were not, beyond all
reasonable doubt, free and voluntary; and the failure of the court then to exclude the confessions
is sufficient to reverse the judgment, under every rule of procedure that has heretofore been
prescribed, and hence it was not necessary subsequently to renew the objections by motion or
otherwise.”
“The defendants were brought to the courthouse … and the so-called trial was opened, and was
concluded on the next day, … and resulted in a pretended conviction with death sentences. The
evidence upon which the conviction was obtained was the so-called confessions. Without this
evidence, a peremptory instruction to find for the defendants would have been inescapable.”
[T]he trial [] is a mere pretense where the state authorities have contrived a conviction resting
solely upon confessions obtained by violence. The due process clause requires “that state action,
whether through one agency or another, shall be consistent with the fundamental principles of
liberty and justice which lie at the base of all our civil and political institutions.” It would be
difficult to conceive of methods more revolting to the sense of justice than those taken to procure
the confessions of these petitioners, and the use of the confessions thus obtained as the basis for
conviction and sentence was a clear denial of due process.
In the instant case, the trial court was fully advised by the undisputed evidence of the way in
which the confessions had been procured. The trial court knew that there was no other evidence
upon which conviction and sentence could be based. Yet it proceeded to permit conviction and
to pronounce sentence. The conviction and sentence were void for want of the essential elements
of due process, and the proceeding thus vitiated could be challenged in any appropriate manner.
It was challenged before the Supreme Court of the State by the express invocation of the
Chapter 22 — Page 484

Fourteenth Amendment. That court entertained the challenge, considered the federal question
thus presented, but declined to enforce petitioners’ constitutional right. The court thus denied a
federal right fully established and specially set up and claimed, and the judgment must be
reversed.
*

*

*

The Court has stated that “when a confession challenged as involuntary is sought to be used
against a criminal defendant at his trial … the prosecution must prove at least by a
preponderance of the evidence that the confession was voluntary.” Lego v. Twomey, 404 U.S.
477, 489 (1972); see also Bram v. United States, 168 U.S. 532, 555 (1897) (recalling with
approval English precedent to the effect “that it was the duty of the prosecutor to satisfy the trial
judge that the confession had not been obtained by improper means, and that, where it was
impossible to collect from the proof whether such was the case or not, the confession ought not
to be received”).
Unfortunately, while the facts in Brown v. Mississippi are horrific, it was not the only case in
which the Court found it necessary to reverse a conviction based upon an involuntary confession.
Indeed, in reciting the facts of the next case, the Court referred to “the usual pattern” of
testimony concerning the treatment of a suspect.
Supreme Court of the United States
E.E. Ashcraft v. Tennessee
Decided May 1, 1944 – 322 U.S. 143
Mr. Justice BLACK delivered the opinion of the Court.
[Petitioner E.E. Ashcraft’s wife was found murdered. The state presented evidence that during
interrogation, Ashcraft—a white man—suggested that John Ware—a black man—was the killer
and had acted alone. The state’s evidence also included a subsequent confession by Ashcraft that
he hired Ware to kill Mrs. Ashcraft.]
We proceed therefore to consider the evidence relating to the circumstances out of which the
alleged confession[] came.
The officers first talked to Ashcraft about 6 P.M. on the day of his wife’s murder as he was
returning home from work. Informed by them of the tragedy, he was taken to an undertaking
establishment to identify her body which previously had been identified only by a driver’s
license. From there he was taken to the county jail where he conferred with the officers until
about 2 A.M. No clues of ultimate value came from this conference, though it did result in the
officers’ holding and interrogating the Ashcrafts’ maid and several of her friends. During the
following week the officers made extensive investigations in Ashcraft’s neighborhood and
elsewhere and further conferred with Ashcraft himself on several occasions, but none of these
activities produced tangible evidence pointing to the identity of the murderer.
Then, early in the evening of Saturday, June 14, the officers came to Ashcraft’s home and “took
him into custody.” In the words of the Tennessee Supreme Court, “They took him to an office or
Chapter 22 — Page 485

room on the northwest corner of the fifth Floor of the Shelby County jail. This office is equipped
with all sorts of crime and detective devices such as a fingerprint outfit, cameras, high-powered
lights, and such other devices as might be found in a homicide investigating office. … It appears
that the officers placed Ashcraft at a table in this room on the fifth floor of the county jail with a
light over his head and began to quiz him. They questioned him in relays until the following
Monday morning, June 16, 1941, around nine-thirty or ten o’clock. It appears that Ashcraft from
Saturday evening at seven o’clock until Monday morning at approximately nine-thirty never left
this homicide room of the fifth floor.”
Testimony of the officers shows that the reason they questioned Ashcraft “in relays” was that
they became so tired they were compelled to rest. But from 7:00 Saturday evening until 9:30
Monday morning Ashcraft had no rest. One officer did say that he gave the suspect a single five
minutes respite, but except for this five minutes the procedure consisted of one continuous
stream of questions.
As to what happened in the fifth-floor jail room during this thirty-six hour secret examination
the testimony follows the usual pattern and is in hopeless conflict. Ashcraft swears that the first
thing said to him when he was taken into custody was, “Why in hell did you kill your wife?”; that
during the course of the examination he was threatened and abused in various ways; and that as
the hours passed his eyes became blinded by a powerful electric light, his body became weary,
and the strain on his nerves became unbearable. The officers, on the other hand, swear that
throughout the questioning they were kind and considerate. They say that they did not accuse
Ashcraft of the murder until four hours after he was brought to the jail building, though they
freely admit that from that time on their barrage of questions was constantly directed at him on
the assumption that he was the murderer. Together with other persons whom they brought in
on Monday morning to witness the culmination of the thirty-six hour ordeal the officers declare
that at that time Ashcraft was “cool”, “calm”, “collected,” “normal”; that his vision was
unimpaired and his eyes not bloodshot; and that he showed no outward signs of being tired or
sleepy.
As to whether Ashcraft actually confessed there is a similar conflict of testimony. Ashcraft
maintains that although the officers incessantly attempted by various tactics of intimidation to
entrap him into a confession, not once did he admit knowledge concerning or participation in
the crime. And he specifically denies the officers’ statements that he accused Ware of the crime,
insisting that in response to their questions he merely gave them the name of Ware as one of
several men who occasionally had ridden with him to work. The officers’ version of what
happened, however, is that about 11 P.M. on Sunday night, after twenty-eight hours’ constant
questioning, Ashcraft made a statement that Ware had overpowered him at his home and
abducted the deceased, and was probably the killer. About midnight the officers found Ware and
took him into custody, and, according to their testimony, Ware made a self-incriminating
statement as of early Monday morning, and at 5:40 A.M. signed by mark a written confession in
which appeared the statement that Ashcraft had hired him to commit the murder. This alleged
confession of Ware was read to Ashcraft about six o’clock Monday morning, whereupon Ashcraft
is said substantially to have admitted its truth in a detailed statement taken down by a reporter.
About 9:30 Monday morning a transcript of Ashcraft’s purported statement was read to him.
The State’s position is that he affirmed its truth but refused to sign the transcript, saying that he
first wanted to consult his lawyer. As to this latter 9:30 episode the officers’ testimony is
Chapter 22 — Page 486

reinforced by testimony of the several persons whom they brought in to witness the end of the
examination.
In reaching our conclusion as to the validity of Ashcraft’s confession we do not resolve any of the
disputed questions of fact relating to the details of what transpired within the confession
chamber of the jail or whether Ashcraft actually did confess. Such disputes, we may say, are an
inescapable consequence of secret inquisitorial practices. And always evidence concerning the
inner details of secret inquisitions is weighted against an accused, particularly where, as here, he
is charged with a brutal crime, or where, as in many other cases, his supposed offense bears
relation to an unpopular economic, political, or religious cause.
Our conclusion is that if Ashcraft made a confession it was not voluntary but compelled. We
reach this conclusion from facts which are not in dispute at all. Ashcraft, a citizen of excellent
reputation, was taken into custody by police officers. Ten days’ examination of the Ashcrafts’
maid, and of several others, in jail where they were held, had revealed nothing whatever against
Ashcraft. Inquiries among his neighbors and business associates likewise had failed to unearth
one single tangible clue pointing to his guilt. For thirty-six hours after Ashcraft’s seizure during
which period he was held incommunicado, without sleep or rest, relays of officers, experienced
investigators, and highly trained lawyers questioned him without respite. From the beginning of
the questioning at 7 o’clock on Saturday evening until 6 o’clock on Monday morning Ashcraft
denied that he had anything to do with the murder of his wife. And at a hearing before a
magistrate about 8:30 Monday morning Ashcraft pleaded not guilty to the charge of murder
which the officers had sought to make him confess during the previous thirty-six hours.
We think a situation such as that here shown by uncontradicted evidence is so inherently
coercive that its very existence is irreconcilable with the possession of mental freedom by a lone
suspect against whom its full coercive force is brought to bear. It is inconceivable that any court
of justice in the land, conducted as our courts are, open to the public, would permit prosecutors
serving in relays to keep a defendant witness under continuous cross examination for thirty-six
hours without rest or sleep in an effort to extract a “voluntary” confession. Nor can we,
consistently with Constitutional due process of law, hold voluntary a confession where
prosecutors do the same thing away from the restraining influences of a public trial in an open
court room.
*

*

*

As was true of Brown v. Mississippi and Tennessee v. Ashcraft, our next case not only has
unpleasant facts, but also required the Supreme Court to overrule a state court of last resort
which had affirmed a conviction.
Supreme Court of the United States
Frank Andrew Payne v. Arkansas
Decided May 19, 1958 – 356 U.S. 560
Mr. Justice WHITTAKER delivered the opinion of the Court.
Near 6:30 p.m. on October 4, 1955, J. M. Robertson, an elderly retail lumber dealer in the City
Chapter 22 — Page 487

of Pine Bluff, Arkansas, was found in his office dead or dying from crushing blows inflicted upon
his head. More than $450 was missing from the cash drawer. Petitioner, a 19-year-old Negro
with a fifth-grade education,1 who had been employed by Robertson for several weeks, was
suspected of the crime. He was interrogated that night at his home by the police, but they did
not then arrest him. Near 11 a.m. the next day, October 5, he was arrested.
Petitioner was held incommunicado without any charge against him from the time of his arrest
at 11 a.m. on October 5 until after his confession on the afternoon of October 7, without counsel,
advisor or friend being permitted to see him. Members of his family who sought to see him were
turned away, because the police did not “make it a practice of letting anyone talk to [prisoners]
while they are being questioned.” Two of petitioner’s brothers and three of his nephews were, to
his knowledge, brought by the police to the city jail and questioned during the evening of
petitioner’s arrest, and one of his brothers was arrested and held in jail overnight. Petitioner
asked permission to make a telephone call but his request was denied.
Petitioner was not given lunch after being lodged in the city jail on October 5, and missed the
evening meal on that day because he was then being questioned in the office of the chief of police.
Near 6:30 the next morning, October 6, he was taken by the police, without breakfast, and also
without shoes or socks, on a trip to Little Rock, a distance of about 45 miles, for further
questioning and a lie detector test, arriving there about 7:30 a.m. He was not given breakfast in
that city, but was turned over to the state police who gave him a lie detector test and questioned
him for an extended time not shown in the record. At about 1 p.m. that day he was given shoes
and also two sandwiches—the first food he had received in more than 25 hours. He was returned
to the city jail in Pine Bluff at about 6:30 that evening—too late for the evening meal—and placed
in a cell on the second floor. The next morning, October 7, he was given breakfast—which, except
for the two sandwiches he had been given at Little Rock at 1 p.m. the day before, was the only
food he had received in more than 40 hours.
We come now to an even more vital matter. Petitioner testified, concerning the conduct that
immediately induced his confession, as follows: “I was locked up upstairs and Chief Norman
Young came up [about 1 p.m. on October 7] and told me that I had not told him all of the story—
he said that there was 30 or 40 people outside that wanted to get me, and he said if I would come
in and tell him the truth that he would probably keep them from coming in.” When again asked
what the chief of police had said to him on that occasion petitioner testified: “Chief Norman
Young said thirty or forty people were outside wanting to get in to me and he asked me if I wanted
to make a confession he would try to keep them out.” The chief of police, on cross-examination,
admitted that he had made the substance of that statement to petitioner, and had told him that
he would be permitted to confess to the chief “in private.” In this setting, petitioner immediately
agreed to make a statement to the chief. The chief then took petitioner to his private office, and
almost immediately after arriving at that place there was a knock on the door. The chief opened
the door and stepped outside, leaving the door ajar, and petitioner heard him say “‘He is fixing
to confess now,’ and he would like to have me alone.” Petitioner did not know what persons or
how many were outside the door. The chief re-entered his office and began questioning
1 [Footnote 4 by the Court] Petitioner was mentally dull and “slow to learn” and was in the fifth grade when he

became 15 years of age. Because of his age he was arbitrarily promoted to the seventh grade and soon thereafter quit
school.
Chapter 22 — Page 488

petitioner who orally confessed that he had committed the crime. Thereupon Sergeant Halsell of
the State Police and Sheriff Norton were admitted to the room, and under questioning by
Sergeant Halsell petitioner gave more details concerning the crime. Soon afterward a court
reporter was called in and several businessmen were also admitted to the room. Sergeant Halsell
then requisitioned petitioner and the questions and answers were taken by the reporter in
shorthand. After being transcribed by the reporter, the typed transcription was returned to the
room about 3 p.m. and was read and signed to petitioner and witnessed by the officers and
businessmen referred to. Thus the “confession” was obtained.
That petitioner was not physically tortured affords no answer to the question whether the
confession was coerced, for “[t]here is torture of mind as well as body; the will is as much affected
by fear as by force. … A confession by which life becomes forfeit must be the expression of free
choice.” The undisputed evidence in this case shows that petitioner, a mentally dull 19-year-old
youth, (1) was arrested without a warrant, (2) was denied a hearing before a magistrate at which
he would have been advised of his right to remain silent and of his right to counsel, as required
by Arkansas statutes, (3) was not advised of his right to remain silent or of his right to counsel,
(4) was held incommunicado for three days, without counsel, advisor or friend, and though
members of his family tried to see him they were turned away, and he was refused permission to
make even one telephone call, (5) was denied food for long periods, and, finally, (6) was told by
the chief of police “that there would be 30 or 40 people there in a few minutes that wanted to get
him,” which statement created such fear in petitioner as immediately produced the “confession.”
It seems obvious from the totality of this course of conduct, and particularly the culminating
threat of mob violence, that the confession was coerced and did not constitute an “expression of
free choice,” and that its use before the jury, over petitioner’s objection, deprived him of “that
fundamental fairness essential to the very concept of justice,” and, hence, denied him due
process of law, guaranteed by the Fourteenth Amendment.
*

*

*

The next case demonstrates that coercive interrogations were by no means limited to the
American South. Further, to find that a confession was not voluntary, the Court does not require
evidence of physical mistreatment of a suspect.
Supreme Court of the United States
Vincent Joseph Spano v. New York
Decided June 22, 1959 – 360 U.S. 315
Mr. Chief Justice WARREN delivered the opinion of the Court.
This is another in the long line of cases presenting the question whether a confession was
properly admitted into evidence under the Fourteenth Amendment. As in all such cases, we are
forced to resolve a conflict between two fundamental interests of society; its interest in prompt
and efficient law enforcement, and its interest in preventing the rights of its individual members
from being abridged by unconstitutional methods of law enforcement. Because of the delicate
nature of the constitutional determination which we must make, we cannot escape the
responsibility of making our own examination of the record.
Chapter 22 — Page 489

The State’s evidence reveals the following: Petitioner Vincent Joseph Spano is a derivative citizen
of this country, having been born in Messina, Italy. He was 25 years old at the time of the
shooting in question and had graduated from junior high school. He had a record of regular
employment. The shooting took place on January 22, 1957.
On that day, petitioner was drinking in a bar. The decedent, a former professional boxer
weighing almost 200 pounds who had fought in Madison Square Garden, took some of
petitioner’s money from the bar. Petitioner followed him out of the bar to recover it. A fight
ensued, with the decedent knocking petitioner down and then kicking him in the head three or
four times. Shock from the force of these blows caused petitioner to vomit. After the bartender
applied some ice to his head, petitioner left the bar, walked to his apartment, secured a gun, and
walked eight or nine blocks to a candy store where the decedent was frequently to be found. He
entered the store in which decedent, three friends of decedent, at least two of whom were exconvicts, and a boy who was supervising the store were present. He fired five shots, two of which
entered the decedent’s body, causing his death. The boy was the only eyewitness; the three
friends of decedent did not see the person who fired the shot. Petitioner then disappeared for the
next week or so.
On February 1, 1957, the Bronx County Grand Jury returned an indictment for first-degree
murder against petitioner. Accordingly, a bench warrant was issued for his arrest, commanding
that he be forthwith brought before the court to answer the indictment, or, if the court had
adjourned for the term, that he be delivered into the custody of the Sheriff of Bronx County.
On February 3, 1957, petitioner called one Gaspar Bruno, a close friend of 8 or 10 years’ standing
who had attended school with him. Bruno was a fledgling police officer, having at that time not
yet finished attending police academy. According to Bruno’s testimony, petitioner told him “that
he took a terrific beating, that the deceased hurt him real bad and he dropped him a couple of
times and he was dazed; he didn’t know what he was doing and that he went and shot at him.”
Petitioner told Bruno that he intended to get a lawyer and give himself up. Bruno relayed this
information to his superiors.
The following day, February 4, at 7:10 p.m., petitioner, accompanied by counsel, surrendered
himself to the authorities in front of the Bronx County Building, where both the office of the
Assistant District Attorney who ultimately prosecuted his case and the court-room in which he
was ultimately tried were located. His attorney had cautioned him to answer no questions, and
left him in the custody of the officers. He was promptly taken to the office of the Assistant District
Attorney and at 7:15 p.m. the questioning began, being conducted by Assistant District Attorney
Goldsmith, Lt. Gannon, Detectives Farrell, Lehrer and Motta, and Sgt. Clarke. The record reveals
that the questioning was both persistent and continuous. Petitioner, in accordance with his
attorney’s instructions, steadfastly refused to answer. Detective Motta testified: “He refused to
talk to me.” “He just looked up to the ceiling and refused to talk to me.” Detective Farrell testified:
“Q. And you started to interrogate him? A. That is right.
“Q. What did he say? A. He said ‘you would have to see my attorney. I tell you nothing but my
name.’
“Q. Did you continue to examine him? A. Verbally, yes, sir.”
Chapter 22 — Page 490

He asked one officer, Detective Ciccone, if he could speak to his attorney, but that request was
denied. Detective Ciccone testified that he could not find the attorney’s name in the telephone
book.2 He was given two sandwiches, coffee and cake at 11 p.m.
At 12:15 a.m. on the morning of February 5, after five hours of questioning in which it became
evident that petitioner was following his attorney’s instructions, on the Assistant District
Attorney’s orders petitioner was transferred to the 46th Squad, Ryer Avenue Police Station. The
Assistant District Attorney also went to the police station and to some extent continued to
participate in the interrogation. Petitioner arrived at 12:30 and questioning was resumed at
12:40. The character of the questioning is revealed by the testimony of Detective Farrell:
“Q. Who did you leave him in the room with? A. With Detective Lehrer and Sergeant Clarke came
in and Mr. Goldsmith came in or Inspector Halk came in. It was back and forth. People just came
in, spoke a few words to the defendant or they listened a few minutes and they left.”
But petitioner persisted in his refusal to answer, and again requested permission to see his
attorney, this time from Detective Lehrer. His request was again denied.
It was then that those in charge of the investigation decided that petitioner’s close friend, Bruno,
could be of use. He had been called out on the case around 10 or 11 p.m., although he was not
connected with the 46th Squad or Precinct in any way. Although, in fact, his job was in no way
threatened, Bruno was told to tell petitioner that petitioner’s telephone call had gotten him “in a
lot of trouble,” and that he should seek to extract sympathy from petitioner for Bruno’s pregnant
wife and three children. Bruno developed this theme with petitioner without success, and
petitioner, also without success, again sought to see his attorney, a request which Bruno relayed
unavailingly to his superiors. After this first session with petitioner, Bruno was again directed by
Lt. Gannon to play on petitioner’s sympathies, but again no confession was forthcoming. But the
Lieutenant a third time ordered Bruno falsely to importune his friend to confess but again
petitioner clung to his attorney’s advice. Inevitably, in the fourth such session directed by the
Lieutenant, lasting a full hour, petitioner succumbed to his friend’s prevarications and agreed to
make a statement. Accordingly, at 3:25 a.m. the Assistant District Attorney, a stenographer, and
several other law enforcement officials entered the room where petitioner was being questioned,
and took his statement in question and answer form with the Assistant District Attorney asking
the questions. The statement was completed at 4:05 a.m.
But this was not the end. At 4:30 a.m. three detectives took petitioner to Police Headquarters in
Manhattan. On the way they attempted to find the bridge from which petitioner said he had
thrown the murder weapon. They crossed the Triborough Bridge into Manhattan, arriving at
Police Headquarters at 5 a.m., and left Manhattan for the Bronx at 5:40 a.m. via the Willis
Avenue Bridge. When petitioner recognized neither bridge as the one from which he had thrown
the weapon, they re-entered Manhattan via the Third Avenue Bridge, which petitioner stated
was the right one, and then returned to the Bronx well after 6 a.m. During that trip the officers
also elicited a statement from petitioner that the deceased was always “on [his] back,” “always
2 [Footnote 1 by the Court] How this could be so when the attorney’s name, Tobias Russo, was concededly in the

telephone book does not appear. The trial judge sustained objections by the Assistant District Attorney to questions
designed to delve into this mystery.
Chapter 22 — Page 491

pushing” him and that he was “not sorry” he had shot the deceased. All three detectives testified
to that statement at the trial.
At the trial, the confession was introduced in evidence over appropriate objections. The jury was
instructed that it could rely on it only if it was found to be voluntary. The jury returned a guilty
verdict and petitioner was sentenced to death. The New York Court of Appeals affirmed the
conviction over three dissents, and we granted certiorari to resolve the serious problem
presented under the Fourteenth Amendment.
The abhorrence of society to the use of involuntary confessions does not turn alone on their
inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey
the law while enforcing the law; that in the end life and liberty can be as much endangered from
illegal methods used to convict those thought to be criminals as from the actual criminals
themselves. Accordingly, the actions of police in obtaining confessions have come under scrutiny
in a long series of cases. Those cases suggest that in recent years law enforcement officials have
become increasingly aware of the burden which they share, along with our courts, in protecting
fundamental rights of our citizenry, including that portion of our citizenry suspected of crime.
[A]s law enforcement officers become more responsible, and the methods used to extract
confessions more sophisticated, our duty to enforce federal constitutional protections does not
cease. It only becomes more difficult because of the more delicate judgments to be made. Our
judgment here is that, on all the facts, this conviction cannot stand.
Petitioner was a foreign-born young man of 25 with no past history of law violation or of
subjection to official interrogation, at least insofar as the record shows. He had progressed only
one-half year into high school and the record indicates that he had a history of emotional
instability. He did not make a narrative statement, but was subject to the leading questions of a
skillful prosecutor in a question and answer confession. He was subjected to questioning not by
a few men, but by many. They included Assistant District Attorney Goldsmith, one Hyland of the
District Attorney’s Office, Deputy Inspector Halks, Lieutenant Gannon, Detective Ciccone,
Detective Motta, Detective Lehrer, Detective Marshal, Detective Farrell, Detective Leira,
Detective Murphy, Detective Murtha, Sergeant Clarke, Patrolman Bruno and Stenographer
Baldwin. All played some part, and the effect of such massive official interrogation must have
been felt. Petitioner was questioned for virtually eight straight hours before he confessed, with
his only respite being a transfer to an arena presumably considered more appropriate by the
police for the task at hand. Nor was the questioning conducted during normal business hours,
but began in early evening, continued into the night, and did not bear fruition until the not-tooearly morning. The drama was not played out, with the final admissions obtained, until almost
sunrise. In such circumstances slowly mounting fatigue does, and is calculated to, play its part.
The questioners persisted in the face of his repeated refusals to answer on the advice of his
attorney, and they ignored his reasonable requests to contact the local attorney whom he had
already retained and who had personally delivered him into the custody of these officers in
obedience to the bench warrant.
The use of Bruno, characterized in this Court by counsel for the State as a “childhood friend” of
petitioner’s, is another factor which deserves mention in the totality of the situation. Bruno’s was
the one face visible to petitioner in which he could put some trust. There was a bond of friendship
between them going back a decade into adolescence. It was with this material that the officers
Chapter 22 — Page 492

felt that they could overcome petitioner’s will. They instructed Bruno falsely to state that
petitioner’s telephone call had gotten him into trouble, that his job was in jeopardy, and that loss
of his job would be disastrous to his three children, his wife and his unborn child. And Bruno
played this part of a worried father, harried by his superiors, in not one, but four different acts,
the final one lasting an hour. Petitioner was apparently unaware of John Gay’s famous couplet:
“An open foe may prove a curse, But a pretended friend is worse,” and he yielded to his false
friend’s entreaties.
We conclude that petitioner’s will was overborne by official pressure, fatigue and sympathy
falsely aroused after considering all the facts in their post-indictment setting. Here a grand jury
had already found sufficient cause to require petitioner to face trial on a charge of first-degree
murder, and the police had an eyewitness to the shooting. The police were not therefore merely
trying to solve a crime, or even to absolve a suspect. They were rather concerned primarily with
securing a statement from defendant on which they could convict him. The undeviating intent
of the officers to extract a confession from petitioner is therefore patent. When such an intent is
shown, this Court has held that the confession obtained must be examined with the most careful
scrutiny, and has reversed a conviction on facts less compelling than these. Accordingly, we hold
that petitioner’s conviction cannot stand under the Fourteenth Amendment. The judgment must
be reversed.
Notes, Comments, and Questions
For a case in which coercive conduct was alleged but the Court nonetheless affirmed a conviction,
students should see Lisbena v. California, 314 U.S. 219 (1941). In a dissent joined by Justice
Douglas, Justice Black wrote, “The testimony of the officers to whom the confession was given is
enough, standing alone, to convince me that it could not have been free and voluntary.” In
particular, the dissent noted that “an investigator, ‘slapped’ the defendant whose left ear was
thereafter red and swollen” and that squads of questioners took turns interviewing the
defendant, in a manner similar to other cases we have seen. The majority, however, deferred to
state court findings “as concerns the petitioner’s claims of physical violence, threats or implied
promises of leniency.” Despite referring to “the violations of law involved in the treatment of the
petitioner,” the Court declined to find a Due Process violation. Instead, it called the case “close
to the line” and held that the defendant “exhibited a self-possession, a coolness, and an acumen
throughout his questioning, and at his trial, which negatives the view that he had so lost his
freedom of action that the statements made were not his but were the result of the deprivation
of his free choice to admit, to deny, or to refuse to answer.”
These days, a promise of lenient treatment does not automatically render the ensuing confession
involuntary. Instead, it is a factor to consider as part of the “totality-of-the-circumstances” test
the Court applies to Due Process claims.
The next case also involved facts very close to the line that separates “voluntary” confessions
from “involuntary” confessions. Note that while Justice White wrote for the Court, part of his
opinion is a dissent because he could not obtain majority support.

Chapter 22 — Page 493

Supreme Court of the United States
Arizona v. Oreste C. Fulminante
Decided March 26, 1991 – 499 U.S. 279
Justice WHITE delivered an opinion, Parts I, II, and IV of which are the opinion of the Court,
and Part III of which is a dissenting opinion.3
The Arizona Supreme Court ruled in this case that respondent Oreste Fulminante’s confession,
received in evidence at his trial for murder, had been coerced and that its use against him was
barred by the Fifth and Fourteenth Amendments to the United States Constitution. The court
also held that the harmless-error rule could not be used to save the conviction. We affirm the
judgment of the Arizona court, although for different reasons than those upon which that court
relied.
I
Early in the morning of September 14, 1982, Fulminante called the Mesa, Arizona, Police
Department to report that his 11-year-old stepdaughter, Jeneane Michelle Hunt, was missing.
He had been caring for Jeneane while his wife, Jeneane’s mother, was in the hospital. Two days
later, Jeneane’s body was found in the desert east of Mesa. She had been shot twice in the head
at close range with a large caliber weapon, and a ligature was around her neck. Because of the
decomposed condition of the body, it was impossible to tell whether she had been sexually
assaulted.
Fulminante’s statements to police concerning Jeneane’s disappearance and his relationship with
her contained a number of inconsistencies, and he became a suspect in her killing. When no
charges were filed against him, Fulminante left Arizona for New Jersey. Fulminante was later
convicted in New Jersey on federal charges of possession of a firearm by a felon.
Fulminante was incarcerated in the Ray Brook Federal Correctional Institution in New York.
There he became friends with another inmate, Anthony Sarivola, then serving a 60-day sentence
for extortion. The two men came to spend several hours a day together. Sarivola, a former police
officer, had been involved in loansharking for organized crime but then became a paid informant
for the Federal Bureau of Investigation. While at Ray Brook, he masqueraded as an organized
crime figure. After becoming friends with Fulminante, Sarivola heard a rumor that Fulminante
was suspected of killing a child in Arizona. Sarivola then raised the subject with Fulminante in
several conversations, but Fulminante repeatedly denied any involvement in Jeneane’s death.
During one conversation, he told Sarivola that Jeneane had been killed by bikers looking for
drugs; on another occasion, he said he did not know what had happened. Sarivola passed this
information on to an agent of the Federal Bureau of Investigation, who instructed Sarivola to
find out more.

3 [Footnote † by the Court] Justice MARSHALL, Justice BRENNAN and Justice STEVENS join this opinion in its

entirety; Justice SCALIA joins Parts I and II; and Justice KENNEDY joins Parts I and IV.
Chapter 22 — Page 494

Sarivola learned more one evening in October 1983, as he and Fulminante walked together
around the prison track. Sarivola said that he knew Fulminante was “starting to get some tough
treatment and whatnot” from other inmates because of the rumor. Sarivola offered to protect
Fulminante from his fellow inmates, but told him, “‘You have to tell me about it,’ you know. I
mean, in other words, ‘For me to give you any help.’” Fulminante then admitted to Sarivola that
he had driven Jeneane to the desert on his motorcycle, where he choked her, sexually assaulted
her, and made her beg for her life, before shooting her twice in the head.
Sarivola was released from prison in November 1983. Fulminante was released the following
May, only to be arrested the next month for another weapons violation. On September 4, 1984,
Fulminante was indicted in Arizona for the first-degree murder of Jeneane.
Prior to trial, Fulminante moved to suppress the statement he had given Sarivola in prison, as
well as a second confession he had given to Donna Sarivola, then Anthony Sarivola’s fiancée and
later his wife, following his May 1984 release from prison. He asserted that the confession to
Sarivola was coerced, and that the second confession was the “fruit” of the first. Following the
hearing, the trial court denied the motion to suppress, specifically finding that, based on the
stipulated facts, the confessions were voluntary. The State introduced both confessions as
evidence at trial, and on December 19, 1985, Fulminante was convicted of Jeneane’s murder. He
was subsequently sentenced to death.
Fulminante appealed, arguing, among other things, that his confession to Sarivola was the
product of coercion and that its admission at trial violated his rights to due process under the
Fifth and Fourteenth Amendments to the United States Constitution. After considering the
evidence at trial as well as the stipulated facts before the trial court on the motion to suppress,
the Arizona Supreme Court held that the confession was coerced, but initially determined that
the admission of the confession at trial was harmless error, because of the overwhelming nature
of the evidence against Fulminante. Upon Fulminante’s motion for reconsideration, however,
the court ruled that this Court’s precedent precluded the use of the harmless-error analysis in
the case of a coerced confession. The court therefore reversed the conviction and ordered that
Fulminante be retried without the use of the confession to Sarivola. Because of differing views
in the state and federal courts over whether the admission at trial of a coerced confession is
subject to a harmless-error analysis, we granted the State’s petition for certiorari. Although a
majority of this Court finds that such a confession is subject to a harmless-error analysis, for the
reasons set forth below, we affirm the judgment of the Arizona court.
II
We deal first with the State’s contention that the court below erred in holding Fulminante’s
confession to have been coerced. In applying the totality of the circumstances test to determine
that the confession to Sarivola was coerced, the Arizona Supreme Court focused on a number of
relevant facts. First, the court noted that “because [Fulminante] was an alleged child murderer,
he was in danger of physical harm at the hands of other inmates.” In addition, Sarivola was aware
that Fulminante had been receiving “‘rough treatment from the guys.’” Using his knowledge of
these threats, Sarivola offered to protect Fulminante in exchange for a confession to Jeneane’s
murder, and “[i]n response to Sarivola’s offer of protection, [Fulminante] confessed.” Agreeing
with Fulminante that “Sarivola’s promise was ‘extremely coercive,’” the Arizona court declared:
Chapter 22 — Page 495

“[T]he confession was obtained as a direct result of extreme coercion and was tendered in the
belief that the defendant’s life was in jeopardy if he did not confess. This is a true coerced
confession in every sense of the word.”
We normally give great deference to the factual findings of the state court. Nevertheless, “the
ultimate issue of ‘voluntariness’ is a legal question requiring independent federal
determination.” Although the question is a close one, we agree with the Arizona Supreme Court’s
conclusion that Fulminante’s confession was coerced. The Arizona Supreme Court found a
credible threat of physical violence unless Fulminante confessed. Our cases have made clear that
a finding of coercion need not depend upon actual violence by a government agent; a credible
threat is sufficient. Accepting the Arizona court’s finding, permissible on this record, that there
was a credible threat of physical violence, we agree with its conclusion that Fulminante’s will was
overborne in such a way as to render his confession the product of coercion.
III4
Four of us, Justices MARSHALL, BLACKMUN, STEVENS, and myself, would affirm the
judgment of the Arizona Supreme Court on the ground that the harmless-error rule is
inapplicable to erroneously admitted coerced confessions. We thus disagree with the Justices
who have a contrary view.
The majority today abandons what until now the Court has regarded as the “axiomatic
[proposition] that a defendant in a criminal case is deprived of due process of law if his
conviction is founded, in whole or in part, upon an involuntary confession, without regard for
the truth or falsity of the confession, and even though there is ample evidence aside from the
confession to support the conviction.” Today, a majority of the Court, without any justification,
overrules [a] vast body of precedent without a word and in so doing dislodges one of the
fundamental tenets of our criminal justice system.
The search for truth is indeed central to our system of justice, but “certain constitutional rights
are not, and should not be, subject to harmless-error analysis because those rights protect
important values that are unrelated to the truth-seeking function of the trial.” The right of a
defendant not to have his coerced confession used against him is among those rights, for using
a coerced confession “abort[s] the basic trial process” and “render[s] a trial fundamentally
unfair.”
For the foregoing reasons the four of us would adhere to the consistent line of authority that has
recognized as a basic tenet of our criminal justice system the prohibition against using a
defendant’s coerced confession against him at his criminal trial. Stare decisis is “of fundamental
importance to the rule of law;” the majority offers no convincing reason for overturning our long
line of decisions requiring the exclusion of coerced confessions.

4 [Footnote by editors] Note that Part III of the opinion is a dissent. Justice White would have preferred that

“harmless-error” analysis never be allowed in cases involving the admission of involuntary confessions. But he could
not obtain a majority for that position.
Chapter 22 — Page 496

IV
Since five Justices have determined that harmless-error analysis applies to coerced confessions,
it becomes necessary to evaluate under that ruling the admissibility of Fulminante’s confession
to Sarivola. “Before a federal constitutional error can be held harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable doubt.” The Court has the power to
review the record de novo in order to determine an error’s harmlessness. In so doing, it must be
determined whether the State has met its burden of demonstrating that the admission of the
confession to Sarivola did not contribute to Fulminante’s conviction. Five of us are of the view
that the State has not carried its burden and accordingly affirm the judgment of the court below
reversing respondent’s conviction.
A confession is like no other evidence. Indeed, “the defendant’s own confession is probably the
most probative and damaging evidence that can be admitted against him. ... [T]he admissions of
a defendant come from the actor himself, the most knowledgeable and unimpeachable source of
information about his past conduct. Certainly, confessions have profound impact on the jury, so
much so that we may justifiably doubt its ability to put them out of mind even if told to do so.”
While some statements by a defendant may concern isolated aspects of the crime or may be
incriminating only when linked to other evidence, a full confession in which the defendant
discloses the motive for and means of the crime may tempt the jury to rely upon that evidence
alone in reaching its decision. In the case of a coerced confession such as that given by
Fulminante to Sarivola, the risk that the confession is unreliable, coupled with the profound
impact that the confession has upon the jury, requires a reviewing court to exercise extreme
caution before determining that the admission of the confession at trial was harmless.
Our review of the record leads us to conclude that the State has failed to meet its burden of
establishing, beyond a reasonable doubt, that the admission of Fulminante’s confession to
Anthony Sarivola was harmless error.
Because a majority of the Court has determined that Fulminante’s confession to Anthony
Sarivola was coerced and because a majority has determined that admitting this confession was
not harmless beyond a reasonable doubt, we agree with the Arizona Supreme Court’s conclusion
that Fulminante is entitled to a new trial at which the confession is not admitted. Accordingly
the judgment of the Arizona Supreme Court is [a]ffirmed.
Chief Justice REHNQUIST, with whom Justice O’CONNOR joins, Justice KENNEDY and
Justice SOUTER join as to Parts I and II, and Justice SCALIA joins as to Parts II and III,
delivered the opinion of the Court with respect to Part II, and a dissenting opinion with respect
to Parts I and III.
The Court today properly concludes that the admission of an “involuntary” confession at trial is
subject to harmless error analysis. Nonetheless, the independent review of the record which we
are required to make shows that respondent Fulminante’s confession was not in fact involuntary.
And even if the confession were deemed to be involuntary, the evidence offered at trial, including
a second, untainted confession by Fulminante, supports the conclusion that any error here was
certainly harmless.
Chapter 22 — Page 497

The admissibility of a confession such as that made by respondent Fulminante depends upon
whether it was voluntarily made. “The ultimate test remains that which has been the only clearly
established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the
confession the product of an essentially free and unconstrained choice by its maker? If it is, if he
has willed to confess, it may be used against him. If it is not, if his will has been overborne and
his capacity for self-determination critically impaired, the use of his confession offends due
process.”
In this case the parties stipulated to the basic facts at the hearing in the Arizona trial court on
respondent's motion to suppress the confession. Anthony Sarivola, an inmate at the Ray Brook
Prison, was a paid confidential informant for the FBI. While at Ray Brook, various rumors
reached Sarivola that Oreste Fulminante, a fellow inmate who had befriended Sarivola, had
killed his stepdaughter in Arizona. Sarivola passed these rumors on to his FBI contact, who told
him “to find out more about it.” Sarivola, having already discussed the rumors with respondent
on several occasions, asked him whether the rumors were true, adding that he might be in a
position to protect Fulminante from physical recriminations in prison, but that “[he] must tell
him the truth.” Fulminante then confessed to Sarivola that he had in fact killed his stepdaughter
in Arizona, and provided Sarivola with substantial details about the manner in which he killed
the child. At the suppression hearing, Fulminante stipulated to the fact that “[a]t no time did the
defendant indicate he was in fear of other inmates nor did he ever seek Mr. Sarivola's
‘protection.’” The trial court was also aware, through an excerpt from Sarivola’s interview
testimony which respondent appended to his reply memorandum, that Sarivola believed
Fulminante’s time was “running short” and that he would “have went out of the prison
horizontally.” The trial court found that respondent’s confession was voluntary.
On the basis of the record before it, the Supreme Court stated:
“Defendant contends that because he was an alleged child murderer, he was in danger of physical
harm at the hands of other inmates. Sarivola was aware that defendant faced the possibility of
retribution from other inmates, and that in return for the confession with respect to the victim’s
murder, Sarivola would protect him. Moreover, the defendant maintains that Sarivola's promise
was “extremely coercive' because the ‘obvious' inference from the promise was that his life would
be in jeopardy if he did not confess. We agree.”
Exercising our responsibility to make the independent examination of the record necessary to
decide this federal question, I am at a loss to see how the Supreme Court of Arizona reached the
conclusion that it did. Fulminante offered no evidence that he believed that his life was in danger
or that he in fact confessed to Sarivola in order to obtain the proffered protection. Indeed, he
had stipulated that “[a]t no time did the defendant indicate he was in fear of other inmates nor
did he ever seek Mr. Sarivola's ‘protection.’” Sarivola’s testimony that he told Fulminante that “if
[he] would tell the truth, he could be protected,” adds little if anything to the substance of the
parties' stipulation. The decision of the Supreme Court of Arizona rests on an assumption that is
squarely contrary to this stipulation, and one that is not supported by any testimony of
Fulminante.

Chapter 22 — Page 498

The conversations between Sarivola and Fulminante were not lengthy, and the defendant was
free at all times to leave Sarivola’s company. Sarivola at no time threatened him or demanded
that he confess; he simply requested that he speak the truth about the matter. Fulminante was
an experienced habitue of prisons, and presumably able to fend for himself. In concluding on
these facts that Fulminante’s confession was involuntary, the Court today embraces a more
expansive definition of that term than is warranted by any of our decided cases.
*

*

*

In Colorado v. Connelly, the Court considered whether a confession could be deemed
“involuntary” without evidence of misconduct by any government official. In particular, the
question was whether a suspect’s mental illness could make his confession involuntary for
purposes of the Due Process Clause of the Fourteenth Amendment.
Supreme Court of the United States
Colorado v. Francis Barry Connelly
Decided Dec. 10, 1986 – 479 U.S. 157
Chief Justice REHNQUIST delivered the opinion of the Court.
In this case, the Supreme Court of Colorado held that the United States Constitution requires a
court to suppress a confession when the mental state of the defendant, at the time he made the
confession, interfered with his “rational intellect” and his “free will.” Because this decision
seemed to conflict with prior holdings of this Court, we granted certiorari. We conclude that the
admissibility of this kind of statement is governed by state rules of evidence. We therefore
reverse.
I
On August 18, 1983, Officer Patrick Anderson of the Denver Police Department was in uniform,
working in an off-duty capacity in downtown Denver. Respondent Francis Connelly approached
Officer Anderson and, without any prompting, stated that he had murdered someone and
wanted to talk about it. Anderson immediately advised respondent that he had the right to
remain silent, that anything he said could be used against him in court, and that he had the right
to an attorney prior to any police questioning. Respondent stated that he understood these rights
but he still wanted to talk about the murder. Understandably bewildered by this confession,
Officer Anderson asked respondent several questions. Connelly denied that he had been
drinking, denied that he had been taking any drugs, and stated that, in the past, he had been a
patient in several mental hospitals. Officer Anderson again told Connelly that he was under no
obligation to say anything. Connelly replied that it was “all right,” and that he would talk to
Officer Anderson because his conscience had been bothering him. To Officer Anderson,
respondent appeared to understand fully the nature of his acts.
Shortly thereafter, Homicide Detective Stephen Antuna arrived. Respondent was again advised
of his rights, and Detective Antuna asked him “what he had on his mind.” Respondent answered
that he had come all the way from Boston to confess to the murder of Mary Ann Junta, a young
Chapter 22 — Page 499

girl whom he had killed in Denver sometime during November 1982. Respondent was taken to
police headquarters, and a search of police records revealed that the body of an unidentified
female had been found in April 1983. Respondent openly detailed his story to Detective Antuna
and Sergeant Thomas Haney, and readily agreed to take the officers to the scene of the killing.
Under Connelly’s sole direction, the two officers and respondent proceeded in a police vehicle to
the location of the crime. Respondent pointed out the exact location of the murder. Throughout
this episode, Detective Antuna perceived no indication whatsoever that respondent was suffering
from any kind of mental illness.
Respondent was held overnight. During an interview with the public defender’s office the
following morning, he became visibly disoriented. He began giving confused answers to
questions, and for the first time, stated that “voices” had told him to come to Denver and that he
had followed the directions of these voices in confessing. Respondent was sent to a state hospital
for evaluation. He was initially found incompetent to assist in his own defense. By March 1984,
however, the doctors evaluating respondent determined that he was competent to proceed to
trial.
At a preliminary hearing, respondent moved to suppress all of his statements. Dr. Jeffrey
Metzner, a psychiatrist employed by the state hospital, testified that respondent was suffering
from chronic schizophrenia and was in a psychotic state at least as of August 17, 1983, the day
before he confessed. Metzner’s interviews with respondent revealed that respondent was
following the “voice of God.” This voice instructed respondent to withdraw money from the bank,
to buy an airplane ticket, and to fly from Boston to Denver. When respondent arrived from
Boston, God’s voice became stronger and told respondent either to confess to the killing or to
commit suicide. Reluctantly following the command of the voices, respondent approached
Officer Anderson and confessed.
Dr. Metzner testified that, in his expert opinion, respondent was experiencing “command
hallucinations.” This condition interfered with respondent’s “volitional abilities; that is, his
ability to make free and rational choices.” Dr. Metzner further testified that Connelly’s illness
did not significantly impair his cognitive abilities. Thus, respondent understood the rights he
had when Officer Anderson and Detective Antuna advised him that he need not speak. Dr.
Metzner admitted that the “voices” could in reality be Connelly’s interpretation of his own guilt,
but explained that in his opinion, Connelly’s psychosis motivated his confession.
On the basis of this evidence the Colorado trial court decided that respondent’s statements must
be suppressed because they were “involuntary.” The trial court also found that Connelly’s mental
state vitiated his attempted waiver of the right to counsel and the privilege against compulsory
self-incrimination. Accordingly, respondent’s initial statements and his custodial confession
were suppressed. The Colorado Supreme Court affirmed.
II
[W]e [have] held that by virtue of the Due Process Clause “certain interrogation techniques,
either in isolation or as applied to the unique characteristics of a particular suspect, are so
offensive to a civilized system of justice that they must be condemned.”
Chapter 22 — Page 500

Indeed, coercive government misconduct was the catalyst for this Court’s seminal confession
case, Brown v. Mississippi. In that case, police officers extracted confessions from the accused
through brutal torture. The Court had little difficulty concluding that even though the Fifth
Amendment did not at that time apply to the States, the actions of the police were “revolting to
the sense of justice.”
Thus the cases considered by this Court over the 50 years since Brown v. Mississippi have
focused upon the crucial element of police overreaching. While each confession case has turned
on its own set of factors justifying the conclusion that police conduct was oppressive, all have
contained a substantial element of coercive police conduct. Absent police conduct causally
related to the confession, there is simply no basis for concluding that any state actor has deprived
a criminal defendant of due process of law. Respondent correctly notes that as interrogators have
turned to more subtle forms of psychological persuasion, courts have found the mental condition
of the defendant a more significant factor in the “voluntariness” calculus. But this fact does not
justify a conclusion that a defendant’s mental condition, by itself and apart from its relation to
official coercion, should ever dispose of the inquiry into constitutional “voluntariness.”
Our “involuntary confession” jurisprudence is entirely consistent with the settled law requiring
some sort of “state action” to support a claim of violation of the Due Process Clause of the
Fourteenth Amendment. The Colorado trial court, of course, found that the police committed no
wrongful acts, and that finding has been neither challenged by respondent nor disturbed by the
Supreme Court of Colorado. The latter court, however, concluded that sufficient state action was
present by virtue of the admission of the confession into evidence in a court of the State.
The difficulty with the approach of the Supreme Court of Colorado is that it fails to recognize the
essential link between coercive activity of the State, on the one hand, and a resulting confession
by a defendant, on the other. The flaw in respondent’s constitutional argument is that it would
expand our previous line of “voluntariness” cases into a far-ranging requirement that courts
must divine a defendant’s motivation for speaking or acting as he did even though there be no
claim that governmental conduct coerced his decision.
The most outrageous behavior by a private party seeking to secure evidence against a defendant
does not make that evidence inadmissible under the Due Process Clause. Moreover, suppressing
respondent’s statements would serve absolutely no purpose in enforcing constitutional
guarantees. The purpose of excluding evidence seized in violation of the Constitution is to
substantially deter future violations of the Constitution. Only if we were to establish a brand new
constitutional right—the right of a criminal defendant to confess to his crime only when totally
rational and properly motivated—could respondent’s present claim be sustained.
We have previously cautioned against expanding “currently applicable exclusionary rules by
erecting additional barriers to placing truthful and probative evidence before state juries....” We
abide by that counsel now. We hold that coercive police activity is a necessary predicate to the
finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the
Fourteenth Amendment. We also conclude that the taking of respondent’s statements, and their
admission into evidence, constitute no violation of that Clause.

Chapter 22 — Page 501

The judgment of the Supreme Court of Colorado is accordingly reversed, and the cause is
remanded for further proceedings not inconsistent with this opinion.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
Today the Court denies Mr. Connelly his fundamental right to make a vital choice with a sane
mind, involving a determination that could allow the State to deprive him of liberty or even life.
This holding is unprecedented: “Surely in the present stage of our civilization a most basic sense
of justice is affronted by the spectacle of incarcerating a human being upon the basis of a
statement he made while insane....” Because I believe that the use of a mentally ill person’s
involuntary confession is antithetical to the notion of fundamental fairness embodied in the Due
Process Clause, I dissent.
The respondent’s seriously impaired mental condition is clear on the record of this case. At the
time of his confession, Mr. Connelly suffered from a “longstanding severe mental disorder,”
diagnosed as chronic paranoid schizophrenia. He had been hospitalized for psychiatric reasons
five times prior to his confession; his longest hospitalization lasted for seven months. Mr.
Connelly heard imaginary voices and saw nonexistent objects. He believed that his father was
God, and that he was a reincarnation of Jesus.
At the time of his confession, Mr. Connelly’s mental problems included “grandiose and
delusional thinking.” He had a known history of “thought withdrawal and insertion.” Although
physicians had treated Mr. Connelly “with a wide variety of medications in the past including
antipsychotic medications,” he had not taken any antipsychotic medications for at least six
months prior to his confession. Following his arrest, Mr. Connelly initially was found
incompetent to stand trial because the court-appointed psychiatrist, Dr. Metzner, “wasn’t very
confident that he could consistently relate accurate information.” Dr. Metzner testified that Mr.
Connelly was unable “to make free and rational choices” due to auditory hallucinations. He
achieved competency to stand trial only after six months of hospitalization and treatment with
antipsychotic and sedative medications.
The state trial court found that the “overwhelming evidence presented by the Defense” indicated
that the prosecution did not meet its burden of demonstrating by a preponderance of the
evidence that the initial statement to Officer Anderson was voluntary. The Supreme Court of
Colorado affirmed after evaluating “the totality of circumstances” surrounding the unsolicited
confession.
The absence of police wrongdoing should not, by itself, determine the voluntariness of a
confession by a mentally ill person. The requirement that a confession be voluntary reflects a
recognition of the importance of free will and of reliability in determining the admissibility of a
confession, and thus demands an inquiry into the totality of the circumstances surrounding the
confession.
Today’s decision restricts the application of the term “involuntary” to those confessions obtained
by police coercion. Confessions by mentally ill individuals or by persons coerced by parties other
than police officers are now considered “voluntary.” The Court’s failure to recognize all forms of
involuntariness or coercion as antithetical to due process reflects a refusal to acknowledge free
Chapter 22 — Page 502

will as a value of constitutional consequence. This right requires vigilant protection if we are to
safeguard the values of private conscience and human dignity.
Since the Court redefines voluntary confessions to include confessions by mentally ill
individuals, the reliability of these confessions becomes a central concern. The instant case
starkly highlights the danger of admitting a confession by a person with a severe mental illness.
The trial court made no findings concerning the reliability of Mr. Connelly’s involuntary
confession, since it believed that the confession was excludable on the basis of involuntariness.
However, the overwhelming evidence in the record points to the unreliability of Mr. Connelly’s
delusional mind. Mr. Connelly was found incompetent to stand trial because he was unable to
relate accurate information, and the court-appointed psychiatrist indicated that Mr. Connelly
was actively hallucinating and exhibited delusional thinking at the time of his confession. The
Court, in fact, concedes that “[a] statement rendered by one in the condition of respondent might
be proved to be quite unreliable....”
Moreover, the record is barren of any corroboration of the mentally ill defendant’s confession.
No physical evidence links the defendant to the alleged crime. Police did not identify the alleged
victim’s body as the woman named by the defendant. Mr. Connelly identified the alleged scene
of the crime, but it has not been verified that the unidentified body was found there or that a
crime actually occurred there. There is not a shred of competent evidence in this record linking
the defendant to the charged homicide. There is only Mr. Connelly’s confession.
Minimum standards of due process should require that the trial court find substantial indicia of
reliability, on the basis of evidence extrinsic to the confession itself, before admitting the
confession of a mentally ill person into evidence. I would require the trial court to make such a
finding on remand. To hold otherwise allows the State to imprison and possibly to execute a
mentally ill defendant based solely upon an inherently unreliable confession.
I dissent.
*

*

*

In part because the Court found it difficult to regulate interrogations effectively using only the
Due Process Clauses, the Justices were inspired to create the Miranda Rule, which imposes
additional requirements on police. We turn to Miranda in our next chapter.

Chapter 22 — Page 503

INTERROGATIONS
Chapter 23
The Miranda Rule
In Miranda v. Arizona, the Court created an entirely new method of regulating police
interrogations of suspects. Rather than search the records of each case for evidence of
voluntariness, the Court set forth a procedure under which law enforcement officers must—at
least sometimes—inform suspects of certain constitutional rights and the potential
consequences of waiving those rights. Under the new rule, the Court would presume confessions
were obtained involuntarily if officers failed to follow the new procedure, and such a
presumption would lead to exclusion of confessions from evidence at trial. Over the next several
chapters, we will explore (1) the basics of the Miranda Rule, (2) how the Court has defined
important terms like “custody” and “interrogation,” (3) what constitutes an effective “waiver” of
rights under Miranda, and (4) what exceptions apply to the rule that evidence obtained in
violation of Miranda is excluded from evidence.
Even more than Terry v. Ohio—which all lawyers should be able to summarize—Miranda v.
Arizona is a case that friends and acquaintances will expect lawyers to understand. It is probably
the most famous criminal procedure case ever decided, and students should form their own
opinions about the doctrine it created.
Supreme Court of the United States
Ernesto A. Miranda v. State of Arizona
Decided June 13, 1966 – 384 U.S. 436
Mr. Chief Justice WARREN delivered the opinion of the Court.
The cases before us raise questions which go to the roots of our concepts of American criminal
jurisprudence: the restraints society must observe consistent with the Federal Constitution in
prosecuting individuals for crime. More specifically, we deal with the admissibility of statements
obtained from an individual who is subjected to custodial police interrogation and the necessity
for procedures which assure that the individual is accorded his privilege under the Fifth
Amendment to the Constitution not to be compelled to incriminate himself.
We dealt with certain phases of this problem recently in Escobedo v. State of Illinois, 378 U.S.
478 (1964). There, as in the four cases before us, law enforcement officials took the defendant
into custody and interrogated him in a police station for the purpose of obtaining a confession.
The police did not effectively advise him of his right to remain silent or of his right to consult
with his attorney. Rather, they confronted him with an alleged accomplice who accused him of
having perpetrated a murder. When the defendant denied the accusation and said “I didn’t shoot
Manuel, you did it,” they handcuffed him and took him to an interrogation room. There, while
handcuffed and standing, he was questioned for four hours until he confessed. During this
interrogation, the police denied his request to speak to his attorney, and they prevented his
retained attorney, who had come to the police station, from consulting with him. At his trial, the
State, over his objection, introduced the confession against him. We held that the statements
Chapter 23 — Page 504

thus made were constitutionally inadmissible. This case has been the subject of judicial
interpretation and spirited legal debate since it was decided two years ago.
We start here, as we did in Escobedo, with the premise that our holding is not an innovation in
our jurisprudence, but is an application of principles long recognized and applied in other
settings. We have undertaken a thorough re-examination of the Escobedo decision and the
principles it announced, and we reaffirm it. That case was but an explication of basic rights that
are enshrined in our Constitution—that “No person … shall be compelled in any criminal case to
be a witness against himself,” and that “the accused shall … have the Assistance of Counsel”—
rights which were put in jeopardy in that case through official overbearing. These precious rights
were fixed in our Constitution only after centuries of persecution and struggle. And in the words
of Chief Justice Marshall, they were secured “for ages to come, and … designed to approach
immortality as nearly as human institutions can approach it.”
Our holding will be spelled out with some specificity in the pages which follow but briefly stated
it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination. By custodial interrogation,
we mean questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way. As for the
procedural safeguards to be employed, unless other fully effective means are devised to inform
accused persons of their right of silence and to assure a continuous opportunity to exercise it,
the following measures are required. Prior to any questioning, the person must be warned that
he has a right to remain silent, that any statement he does make may be used as evidence against
him, and that he has a right to the presence of an attorney, either retained or appointed. The
defendant may waive effectuation of these rights, provided the waiver is made voluntarily,
knowingly and intelligently. If, however, he indicates in any manner and at any stage of the
process that he wishes to consult with an attorney before speaking there can be no questioning.
Likewise, if the individual is alone and indicates in any manner that he does not wish to be
interrogated, the police may not question him. The mere fact that he may have answered some
questions or volunteered some statements on his own does not deprive him of the right to refrain
from answering any further inquiries until he has consulted with an attorney and thereafter
consents to be questioned.
I
The constitutional issue we decide in each of these cases is the admissibility of statements
obtained from a defendant questioned while in custody or otherwise deprived of his freedom of
action in any significant way. In each, the defendant was questioned by police officers, detectives,
or a prosecuting attorney in a room in which he was cut off from the outside world. In none of
these cases was the defendant given a full and effective warning of his rights at the outset of the
interrogation process. In all the cases, the questioning elicited oral admissions, and in three of
them, signed statements as well which were admitted at their trials. They all thus share salient
features—incommunicado interrogation of individuals in a police-dominated atmosphere,
resulting in self-incriminating statements without full warnings of constitutional rights.

Chapter 23 — Page 505

An understanding of the nature and setting of this in-custody interrogation is essential to our
decisions today. The difficulty in depicting what transpires at such interrogations stems from the
fact that in this country they have largely taken place incommunicado. From extensive factual
studies undertaken in the early 1930’s, including the famous Wickersham Report to Congress by
a Presidential Commission, it is clear that police violence and the “third degree” flourished at
that time. In a series of cases decided by this Court long after these studies, the police resorted
to physical brutality—beatings, hanging, whipping—and to sustained and protracted questioning
incommunicado in order to extort confessions. The Commission on Civil Rights in 1961 found
much evidence to indicate that ‘some policemen still resort to physical force to obtain
confessions.” The use of physical brutality and violence is not, unfortunately, relegated to the
past or to any part of the country. Only recently in Kings County, New York, the police brutally
beat, kicked and placed lighted cigarette butts on the back of a potential witness under
interrogation for the purpose of securing a statement incriminating a third party.
The examples given above are undoubtedly the exception now, but they are sufficiently
widespread to be the object of concern. Unless a proper limitation upon custodial interrogation
is achieved—such as these decisions will advance—there can be no assurance that practices of
this nature will be eradicated in the foreseeable future.
Again we stress that the modern practice of in-custody interrogation is psychologically rather
than physically oriented. As we have stated before, “this Court has recognized that coercion can
be mental as well as physical, and that the blood of the accused is not the only hallmark of an
unconstitutional inquisition.” Interrogation still takes place in privacy. Privacy results in secrecy
and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation
rooms. A valuable source of information about present police practices, however, may be found
in various police manuals and texts which document procedures employed with success in the
past, and which recommend various other effective tactics. These texts are used by law
enforcement agencies themselves as guides. It should be noted that these texts professedly
present the most enlightened and effective means presently used to obtain statements through
custodial interrogation. By considering these texts and other data, it is possible to describe
procedures observed and noted around the country.
The officers are told by the manuals that the “principal psychological factor contributing to a
successful interrogation is privacy—being alone with the person under interrogation.” To
highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display
an air of confidence in the suspect’s guilt and from outward appearance to maintain only an
interest in confirming certain details. The guilt of the subject is to be posited as a fact. The
interrogator should direct his comments toward the reasons why the subject committed the act,
rather than court failure by asking the subject whether he did it. Like other men, perhaps the
subject has had a bad family life, had an unhappy childhood, had too much to drink, had an
unrequited desire for women. The officers are instructed to minimize the moral seriousness of
the offense, to cast blame on the victim or on society. These tactics are designed to put the subject
in a psychological state where his story is but an elaboration of what the police purport to know
already—that he is guilty. Explanations to the contrary are dismissed and discouraged. The texts
thus stress that the major qualities an interrogator should possess are patience and
perseverance. The manuals suggest that the suspect be offered legal excuses for his actions in
order to obtain an initial admission of guilt.
Chapter 23 — Page 506

When the techniques described above prove unavailing, the texts recommend they be alternated
with a show of some hostility. One ploy often used has been termed the “friendly-unfriendly” or
the “Mutt and Jeff” act:
“… In this technique, two agents are employed. Mutt, the relentless investigator, who knows the
subject is guilty and is not going to waste any time. He’s sent a dozen men away for this crime
and he’s going to send the subject away for the full term. Jeff, on the other hand, is obviously a
kindhearted man. He has a family himself. He has a brother who was involved in a little scrape
like this. He disapproves of Mutt and his tactics and will arrange to get him off the case if the
subject will cooperate. He can’t hold Mutt off for very long. The subject would be wise to make a
quick decision. The technique is applied by having both investigators present while Mutt acts
out his role. Jeff may stand by quietly and demur at some of Mutt’s tactics. When Jeff makes his
plea for cooperation, Mutt is not present in the room.”
The interrogators sometimes are instructed to induce a confession out of trickery. The technique
here is quite effective in crimes which require identification or which run in series. In the
identification situation, the interrogator may take a break in his questioning to place the subject
among a group of men in a line-up. “The witness or complainant (previously coached, if
necessary) studies the line-up and confidently points out the subject as the guilty party.” Then
the questioning resumes “as though there were now no doubt about the guilt of the subject.”
The manuals also contain instructions for police on how to handle the individual who refuses to
discuss the matter entirely, or who asks for an attorney or relatives. The examiner is to concede
him the right to remain silent. “This usually has a very undermining effect. First of all, he is
disappointed in his expectation of an unfavorable reaction on the part of the interrogator.
Secondly, a concession of this right to remain silent impresses the subject with the apparent
fairness of his interrogator.” After this psychological conditioning, however, the officer is told to
point out the incriminating significance of the suspect’s refusal to talk:
“Joe, you have a right to remain silent. That’s your privilege and I’m the last person in the world
who’ll try to take it away from you. If that’s the way you want to leave this, O.K. But let me ask
you this. Suppose you were in my shoes and I were in yours and you called me in to ask me about
this and I told you, ‘I don’t want to answer any of your questions.’ You’d think I had something
to hide, and you’d probably be right in thinking that. That’s exactly what I’ll have to think about
you, and so will everybody else. So let’s sit here and talk this whole thing over.”
Few will persist in their initial refusal to talk, it is said, if this monologue is employed correctly.
From these representative samples of interrogation techniques, the setting prescribed by the
manuals and observed in practice becomes clear. In essence, it is this: To be alone with the
subject is essential to prevent distraction and to deprive him of any outside support. The aura of
confidence in his guilt undermines his will to resist. He merely confirms the preconceived story
the police seek to have him describe. Patience and persistence, at times relentless questioning,
are employed. To obtain a confession, the interrogator must “patiently maneuver himself or his
quarry into a position from which the desired objective may be attained.” When normal
procedures fail to produce the needed result, the police may resort to deceptive stratagems such
as giving false legal advice. It is important to keep the subject off balance, for example, by trading
Chapter 23 — Page 507

on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole
him out of exercising his constitutional rights.
Even without employing brutality, the “third degree” or the specific stratagems described above,
the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the
weakness of individuals.
In these cases [before us], we might not find the defendants’ statements to have been involuntary
in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment
rights is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust
into an unfamiliar atmosphere and run through menacing police interrogation procedures.
It is obvious that such an interrogation environment is created for no purpose other than to
subjugate the individual to the will of his examiner. This atmosphere carries its own badge of
intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human
dignity. The current practice of incommunicado interrogation is at odds with one of our Nation’s
most cherished principles—that the individual may not be compelled to incriminate himself.
Unless adequate protective devices are employed to dispel the compulsion inherent in custodial
surroundings, no statement obtained from the defendant can truly be the product of his free
choice.
From the foregoing, we can readily perceive an intimate connection between the privilege against
self-incrimination and police custodial questioning. It is fitting to turn to history and precedent
underlying the Self-Incrimination Clause to determine its applicability in this situation.
II
We sometimes forget how long it has taken to establish the privilege against self-incrimination,
the sources from which it came and the fervor with which it was defended. Its roots go back into
ancient times.
The question in these cases is whether the privilege is fully applicable during a period of custodial
interrogation. In this Court, the privilege has consistently been accorded a liberal construction.
We are satisfied that all the principles embodied in the privilege apply to informal compulsion
exerted by law-enforcement officers during in-custody questioning. An individual swept from
familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to
the techniques of persuasion described above cannot be otherwise than under compulsion to
speak. As a practical matter, the compulsion to speak in the isolated setting of the police station
may well be greater than in courts or other official investigations, where there are often impartial
observers to guard against intimidation or trickery.
III
Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of
criminal court proceedings and serves to protect persons in all settings in which their freedom
of action is curtailed in any significant way from being compelled to incriminate themselves. We
have concluded that without proper safeguards the process of in-custody interrogation of
persons suspected or accused of crime contains inherently compelling pressures which work to
Chapter 23 — Page 508

undermine the individual’s will to resist and to compel him to speak where he would not
otherwise do so freely. In order to combat these pressures and to permit a full opportunity to
exercise the privilege against self-incrimination, the accused must be adequately and effectively
apprised of his rights and the exercise of those rights must be fully honored.
It is impossible for us to foresee the potential alternatives for protecting the privilege which
might be devised by Congress or the States in the exercise of their creative rule-making
capacities. Therefore we cannot say that the Constitution necessarily requires adherence to any
particular solution for the inherent compulsions of the interrogation process as it is presently
conducted. Our decision in no way creates a constitutional straitjacket which will handicap
sound efforts at reform, nor is it intended to have this effect. We encourage Congress and the
States to continue their laudable search for increasingly effective ways of protecting the rights of
the individual while promoting efficient enforcement of our criminal laws. However, unless we
are shown other procedures which are at least as effective in apprising accused persons of their
right of silence and in assuring a continuous opportunity to exercise it, the following safeguards
must be observed.
At the outset, if a person in custody is to be subjected to interrogation, he must first be informed
in clear and unequivocal terms that he has the right to remain silent. For those unaware of the
privilege, the warning is needed simply to make them aware of it—the threshold requirement for
an intelligent decision as to its exercise. More important, such a warning is an absolute
prerequisite in overcoming the inherent pressures of the interrogation atmosphere. It is not just
the subnormal or woefully ignorant who succumb to an interrogator’s imprecations, whether
implied or expressly stated, that the interrogation will continue until a confession is obtained or
that silence in the face of accusation is itself damning and will bode ill when presented to a jury.
Further, the warning will show the individual that his interrogators are prepared to recognize
his privilege should he choose to exercise it.
The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the
expedient of giving an adequate warning as to the availability of the privilege so simple, we will
not pause to inquire in individual cases whether the defendant was aware of his rights without a
warning being given. Assessments of the knowledge the defendant possessed, based on
information as to his age, education, intelligence, or prior contact with authorities, can never be
more than speculation; a warning is a clearcut fact. More important, whatever the background
of the person interrogated, a warning at the time of the interrogation is indispensable to
overcome its pressures and to insure that the individual knows he is free to exercise the privilege
at that point in time.
The warning of the right to remain silent must be accompanied by the explanation that anything
said can and will be used against the individual in court. This warning is needed in order to make
him aware not only of the privilege, but also of the consequences of forgoing it. It is only through
an awareness of these consequences that there can be any assurance of real understanding and
intelligent exercise of the privilege. Moreover, this warning may serve to make the individual
more acutely aware that he is faced with a phase of the adversary system—that he is not in the
presence of persons acting solely in his interest.
The circumstances surrounding in-custody interrogation can operate very quickly to overbear
Chapter 23 — Page 509

the will of one merely made aware of his privilege by his interrogators. Therefore, the right to
have counsel present at the interrogation is indispensable to the protection of the Fifth
Amendment privilege under the system we delineate today. Our aim is to assure that the
individual’s right to choose between silence and speech remains unfettered throughout the
interrogation process. A once-stated warning, delivered by those who will conduct the
interrogation, cannot itself suffice to that end among those who most require knowledge of their
rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end.
Prosecutors themselves claim that the admonishment of the right to remain silent without more
“will benefit only the recidivist and the professional.” Even preliminary advice given to the
accused by his own attorney can be swiftly overcome by the secret interrogation process. Thus,
the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right
to consult with counsel prior to questioning, but also to have counsel present during any
questioning if the defendant so desires.
The presence of counsel at the interrogation may serve several significant subsidiary functions
as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate
the dangers of untrustworthiness. With a lawyer present the likelihood that the police will
practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it
in court. The presence of a lawyer can also help to guarantee that the accused gives a fully
accurate statement to the police and that the statement is rightly reported by the prosecution at
trial.
An individual need not make a pre-interrogation request for a lawyer. While such request
affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a
waiver. No effective waiver of the right to counsel during interrogation can be recognized unless
specifically made after the warnings we here delineate have been given. The accused who does
not know his rights and therefore does not make a request may be the person who most needs
counsel.
Accordingly we hold that an individual held for interrogation must be clearly informed that he
has the right to consult with a lawyer and to have the lawyer with him during interrogation under
the system for protecting the privilege we delineate today. As with the warnings of the right to
remain silent and that anything stated can be used in evidence against him, this warning is an
absolute prerequisite to interrogation. No amount of circumstantial evidence that the person
may have been aware of this right will suffice to stand in its stead. Only through such a warning
is there ascertainable assurance that the accused was aware of this right.
If an individual indicates that he wishes the assistance of counsel before any interrogation
occurs, the authorities cannot rationally ignore or deny his request on the basis that the
individual does not have or cannot afford a retained attorney. The financial ability of the
individual has no relationship to the scope of the rights involved here. The privilege against selfincrimination secured by the Constitution applies to all individuals. The need for counsel in
order to protect the privilege exists for the indigent as well as the affluent. In fact, were we to
limit these constitutional rights to those who can retain an attorney, our decisions today would
be of little significance. The cases before us as well as the vast majority of confession cases with
which we have dealt in the past involve those unable to retain counsel. While authorities are not
required to relieve the accused of his poverty, they have the obligation not to take advantage of
Chapter 23 — Page 510

indigence in the administration of justice. Denial of counsel to the indigent at the time of
interrogation while allowing an attorney to those who can afford one would be no more
supportable by reason or logic than the similar situation at trial and on appeal struck down in
Gideon v. Wainwright, 372 U.S. 335 (1963), and Douglas v. California, 372 U.S. 353 (1963).
In order fully to apprise a person interrogated of the extent of his rights under this system then,
it is necessary to warn him not only that he has the right to consult with an attorney, but also
that if he is indigent a lawyer will be appointed to represent him. Without this additional
warning, the admonition of the right to consult with counsel would often be understood as
meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The
warning of a right to counsel would be hollow if not couched in terms that would convey to the
indigent—the person most often subjected to interrogation—the knowledge that he too has a
right to have counsel present. As with the warnings of the right to remain silent and of the general
right to counsel, only by effective and express explanation to the indigent of this right can there
be assurance that he was truly in a position to exercise it.
Once warnings have been given, the subsequent procedure is clear. If the individual indicates in
any manner, at any time prior to or during questioning, that he wishes to remain silent, the
interrogation must cease. At this point he has shown that he intends to exercise his Fifth
Amendment privilege; any statement taken after the person invokes his privilege cannot be other
than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the
setting of in-custody interrogation operates on the individual to overcome free choice in
producing a statement after the privilege has been once invoked. If the individual states that he
wants an attorney, the interrogation must cease until an attorney is present. At that time, the
individual must have an opportunity to confer with the attorney and to have him present during
any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he
wants one before speaking to police, they must respect his decision to remain silent.
This does not mean, as some have suggested, that each police station must have a “station house
lawyer” present at all times to advise prisoners. It does mean, however, that if police propose to
interrogate a person they must make known to him that he is entitled to a lawyer and that if he
cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities
conclude that they will not provide counsel during a reasonable period of time in which
investigation in the field is carried out, they may refrain from doing so without violating the
person’s Fifth Amendment privilege so long as they do not question him during that time.
If the interrogation continues without the presence of an attorney and a statement is taken, a
heavy burden rests on the government to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination and his right to retained or appointed
counsel. This Court has always set high standards of proof for the waiver of constitutional rights,
and we reassert these standards as applied to in-custody interrogation. Since the State is
responsible for establishing the isolated circumstances under which the interrogation takes place
and has the only means of making available corroborated evidence of warnings given during
incommunicado interrogation, the burden is rightly on its shoulders.
An express statement that the individual is willing to make a statement and does not want an
attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be
Chapter 23 — Page 511

presumed simply from the silence of the accused after warnings are given or simply from the fact
that a confession was in fact eventually obtained. Moreover, where in-custody interrogation is
involved, there is no room for the contention that the privilege is waived if the individual answers
some questions or gives some information on his own prior to invoking his right to remain silent
when interrogated.
Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy
interrogation or incommunicado incarceration before a statement is made is strong evidence
that the accused did not validly waive his rights. In these circumstances the fact that the
individual eventually made a statement is consistent with the conclusion that the compelling
influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a
voluntary relinquishment of the privilege. Moreover, any evidence that the accused was
threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not
voluntarily waive his privilege. The requirement of warnings and waiver of rights is a
fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual
to existing methods of interrogation.
The warnings required and the waiver necessary in accordance with our opinion today are, in
the absence of a fully effective equivalent, prerequisites to the admissibility of any statement
made by a defendant.
The principles announced today deal with the protection which must be given to the privilege
against self-incrimination when the individual is first subjected to police interrogation while in
custody at the station or otherwise deprived of his freedom of action in any significant way. It is
at this point that our adversary system of criminal proceedings commences, distinguishing itself
at the outset from the inquisitorial system recognized in some countries. Under the system of
warnings we delineate today or under any other system which may be devised and found
effective, the safeguards to be erected about the privilege must come into play at this point.
Our decision is not intended to hamper the traditional function of police officers in investigating
crime. When an individual is in custody on probable cause, the police may, of course, seek out
evidence in the field to be used at trial against him. Such investigation may include inquiry of
persons not under restraint. General on-the-scene questioning as to facts surrounding a crime
or other general questioning of citizens in the fact-finding process is not affected by our holding.
It is an act of responsible citizenship for individuals to give whatever information they may have
to aid in law enforcement. In such situations the compelling atmosphere inherent in the process
of in-custody interrogation is not necessarily present.

Chapter 23 — Page 512

In dealing with statements obtained through interrogation, we do not purport to find all
confessions inadmissible. Confessions remain a proper element in law enforcement. Any
statement given freely and voluntarily without any compelling influences is, of course,
admissible in evidence. The fundamental import of the privilege while an individual is in custody
is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but
whether he can be interrogated. There is no requirement that police stop a person who enters a
police station and states that he wishes to confess to a crime, or a person who calls the police to
offer a confession or any other statement he desires to make. Volunteered statements of any kind
are not barred by the Fifth Amendment and their admissibility is not affected by our holding
today.
IV
If the individual desires to exercise his privilege, he has the right to do so. This is not for the
authorities to decide. An attorney may advise his client not to talk to police until he has had an
opportunity to investigate the case, or he may wish to be present with his client during any police
questioning. In doing so an attorney is merely exercising the good professional judgment he has
been taught. This is not cause for considering the attorney a menace to law enforcement. He is
merely carrying out what he is sworn to do under his oath—to protect to the extent of his ability
the rights of his client. In fulfilling this responsibility the attorney plays a vital role in the
administration of criminal justice under our Constitution.
In announcing these principles, we are not unmindful of the burdens which law enforcement
officials must bear, often under trying circumstances. We also fully recognize the obligation of
all citizens to aid in enforcing the criminal laws. This Court, while protecting individual rights,
has always given ample latitude to law enforcement agencies in the legitimate exercise of their
duties. The limits we have placed on the interrogation process should not constitute an undue
interference with a proper system of law enforcement. As we have noted, our decision does not
in any way preclude police from carrying out their traditional investigatory functions. Although
confessions may play an important role in some convictions, the cases before us present graphic
examples of the overstatement of the “need” for confessions. In each case authorities conducted
interrogations ranging up to five days in duration despite the presence, through standard
investigating practices, of considerable evidence against each defendant.
V
Because of the nature of the problem and because of its recurrent significance in numerous cases,
we have to this point discussed the relationship of the Fifth Amendment privilege to police
interrogation without specific concentration on the facts of the cases before us. In each instance,
we have concluded that statements were obtained from the defendant under circumstances that
did not meet constitutional standards for protection of the privilege.
Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
I believe the decision of the Court represents poor constitutional law and entails harmful
consequences for the country at large. How serious these consequences may prove to be only
time can tell. But the basic flaws in the Court’s justification seem to me readily apparent now
once all sides of the problem are considered.
Chapter 23 — Page 513

At the outset, it is well to note exactly what is required by the Court’s new constitutional code of
rules for confessions. The foremost requirement, upon which later admissibility of a confession
depends, is that a fourfold warning be given to a person in custody before he is questioned,
namely, that he has a right to remain silent, that anything he says may be used against him, that
he has a right to have present an attorney during the questioning, and that if indigent he has a
right to a lawyer without charge. To forgo these rights, some affirmative statement of rejection
is seemingly required, and threats, tricks, or cajolings to obtain this waiver are forbidden. If
before or during questioning the suspect seeks to invoke his right to remain silent, interrogation
must be forgone or cease; a request for counsel brings about the same result until a lawyer is
procured. Finally, there are a miscellany of minor directives, for example, the burden of proof of
waiver is on the State, admissions and exculpatory statements are treated just like confessions,
withdrawal of a waiver is always permitted, and so forth.
While the fine points of this scheme are far less clear than the Court admits, the tenor is quite
apparent. The new rules are not designed to guard against police brutality or other unmistakably
banned forms of coercion. Those who use third-degree tactics and deny them in court are equally
able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new
rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to
discourage any confession at all. The aim in short is toward “voluntariness” in a utopian sense,
or to view it from a different angle, voluntariness with a vengeance.
To incorporate this notion into the Constitution requires a strained reading of history and
precedent and a disregard of the very pragmatic concerns that alone may on occasion justify such
strains. I believe that reasoned examination will show that the Due Process Clauses provide an
adequate tool for coping with confessions and that, even if the Fifth Amendment privilege
against self-incrimination be invoked, its precedents taken as a whole do not sustain the present
rules. Viewed as a choice based on pure policy, these new rules prove to be a highly debatable, if
not one-sided, appraisal of the competing interests, imposed over widespread objection, at the
very time when judicial restraint is most called for by the circumstances.
Without at all subscribing to the generally black picture of police conduct painted by the Court,
I think it must be frankly recognized at the outset that police questioning allowable under due
process precedents may inherently entail some pressure on the suspect and may seek advantage
in his ignorance or weaknesses. The atmosphere and questioning techniques, proper and fair
though they be, can in themselves exert a tug on the suspect to confess, and in this light “[t]o
speak of any confessions of crime made after arrest as being ‘voluntary’ or ‘uncoerced’ is
somewhat inaccurate, although traditional. A confession is wholly and incontestably voluntary
only if a guilty person gives himself up to the law and becomes his own accuser.” Until today, the
role of the Constitution has been only to sift out undue pressure, not to assure spontaneous
confessions.
The Court’s new rules aim to offset these minor pressures and disadvantages intrinsic to any
kind of police interrogation. The rules do not serve due process interests in preventing blatant
coercion since, as I noted earlier, they do nothing to contain the policeman who is prepared to
lie from the start. The rules work for reliability in confessions almost only in the Pickwickian
sense that they can prevent some from being given at all.
What the Court largely ignores is that its rules impair, if they will not eventually serve wholly to
Chapter 23 — Page 514

frustrate, an instrument of law enforcement that has long and quite reasonably been thought
worth the price paid for it. There can be little doubt that the Court’s new code would markedly
decrease the number of confessions. To warn the suspect that he may remain silent and remind
him that his confession may be used in court are minor obstructions. To require also an express
waiver by the suspect and an end to questioning whenever he demurs must heavily handicap
questioning. And to suggest or provide counsel for the suspect simply invites the end of the
interrogation.
How much harm this decision will inflict on law enforcement cannot fairly be predicted with
accuracy. Evidence on the role of confessions is notoriously incomplete. We do know that some
crimes cannot be solved without confessions, that ample expert testimony attests to their
importance in crime control, and that the Court is taking a real risk with society’s welfare in
imposing its new regime on the country. The social costs of crime are too great to call the new
rules anything but a hazardous experimentation.
Mr. Justice WHITE, with whom Mr. Justice HARLAN and Mr. Justice STEWART join,
dissenting.
The proposition that the privilege against self-incrimination forbids in-custody interrogation
without the warnings specified in the majority opinion and without a clear waiver of counsel has
no significant support in the history of the privilege or in the language of the Fifth Amendment.
Only a tiny minority of our judges who have dealt with the question, including today’s majority,
have considered in-custody interrogation, without more, to be a violation of the Fifth
Amendment. And this Court, as every member knows, has left standing literally thousands of
criminal convictions that rested at least in part on confessions taken in the course of
interrogation by the police after arrest.
By considering any answers to any interrogation to be compelled regardless of the content and
course of examination and by escalating the requirements to prove waiver, the Court not only
prevents the use of compelled confessions but for all practical purposes forbids interrogation
except in the presence of counsel. That is, instead of confining itself to protection of the right
against compelled self-incrimination the Court has created a limited Fifth Amendment right to
counsel—or, as the Court expresses it, a “need for counsel to protect the Fifth Amendment
privilege ....”
The obvious underpinning of the Court’s decision is a deep-seated distrust of all confessions. As
the Court declares that the accused may not be interrogated without counsel present, absent a
waiver of the right to counsel, and as the Court all but admonishes the lawyer to advise the
accused to remain silent, the result adds up to a judicial judgment that evidence from the accused
should not be used against him in any way, whether compelled or not. This is the not so subtle
overtone of the opinion—that it is inherently wrong for the police to gather evidence from the
accused himself. And this is precisely the nub of this dissent. I see nothing wrong or immoral,
and certainly nothing unconstitutional, in the police’s asking a suspect whom they have
reasonable cause to arrest whether or not he killed his wife or in confronting him with the
evidence on which the arrest was based, at least where he has been plainly advised that he may
remain completely silent. Until today, “the admissions or confessions of the prisoner, when
voluntarily and freely made, have always ranked high in the scale of incriminating evidence.”
Chapter 23 — Page 515

Particularly when corroborated, as where the police have confirmed the accused’s disclosure of
the hiding place of implements or fruits of the crime, such confessions have the highest reliability
and significantly contribute to the certitude with which we may believe the accused is guilty.
Moreover, it is by no means certain that the process of confessing is injurious to the accused. To
the contrary it may provide psychological relief and enhance the prospects for rehabilitation.
The rule announced today will measurably weaken the ability of the criminal law to perform
these tasks. It is a deliberate calculus to prevent interrogations, to reduce the incidence of
confessions and pleas of guilty and to increase the number of trials. Criminal trials, no matter
how efficient the police are, are not sure bets for the prosecution, nor should they be if the
evidence is not forthcoming. Under the present law, the prosecution fails to prove its case in
about 30% of the criminal cases actually tried in the federal courts. But it is something else again
to remove from the ordinary criminal case all those confessions which heretofore have been held
to be free and voluntary acts of the accused and to thus establish a new constitutional barrier to
the ascertainment of truth by the judicial process. There is, in my view, every reason to believe
that a good many criminal defendants who otherwise would have been convicted on what this
Court has previously thought to be the most satisfactory kind of evidence will now under this
new version of the Fifth Amendment, either not be tried at all or will be acquitted if the State’s
evidence, minus the confession, is put to the test of litigation.
In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal
to the streets and to the environment which produced him, to repeat his crime whenever it
pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real
concern is not the unfortunate consequences of this new decision on the criminal law as an
abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on
the public authority for protection and who without it can only engage in violent self-help with
guns, knives and the help of their neighbors similarly inclined. There is, of course, a saving
factor: the next victims are uncertain, unnamed and unrepresented in this case.
Much of the trouble with the Court’s new rule is that it will operate indiscriminately in all
criminal cases, regardless of the severity of the crime or the circumstances involved. It applies to
every defendant, whether the professional criminal or one committing a crime of momentary
passion who is not part and parcel of organized crime. It will slow down the investigation and
the apprehension of confederates in those cases where time is of the essence, such as kidnapping
and some of those involving organized crime.
Today’s decision leaves open such questions as whether the accused was in custody, whether his
statements were spontaneous or the product of interrogation, whether the accused has
effectively waived his rights, and whether nontestimonial evidence introduced at trial is the fruit
of statements made during a prohibited interrogation, all of which are certain to prove
productive of uncertainty during investigation and litigation during prosecution. For all these
reasons, if further restrictions on police interrogation are desirable at this time, a more flexible
approach makes much more sense than the Court’s constitutional straitjacket which forecloses
more discriminating treatment by legislative or rule-making pronouncements.

Chapter 23 — Page 516

Notes, Comments, and Questions
Most students are familiar with the Miranda warnings, even before reading the case. Prior to a
custodial interrogation, officers must inform suspects of the following:
1) You have the right to remain silent
2) Anything you say can be used against you
3) You have the right to an attorney
4) An attorney will be provided by the government if you cannot pay
Review section I of the opinion to see where these specific warnings originated.
The Court finds the Constitutional basis in the 5th Amendment; an element of informal
compulsion exists in any form of custodial interrogation, and specified warnings are needed to
dispel the inherent pressure of custodial interrogation. Does the Court have the power to
promulgate constitutional prophylactic rules?
The Miranda warnings are really a way to avoid the difficulties of case-by-case determination of
compulsion. How well do you think Miranda warnings work in practice to (1) reduce the
compulsion suspects feel during custodial interrogations; and (2) reduce courts necessity to
make case-by-case determinations of compulsion.
As you can imagine, suspects continue to confess, despite receiving appropriate Miranda
warnings. Why do you think this is?
How Well Must Officers Administer the Miranda Warnings?
One issue not settled by Miranda was how closely police interrogators would be required to
deliver the precise warnings set forth by the Miranda majority. Would word-for-word accuracy—
or at least warnings materially identical to those provided by the Court—be necessary? Because
police officers are human, perfect accuracy would not be a fair standard. The real question was
how far officers could stray from the Court’s language while still having their warnings count for
purposes of getting confessions into evidence under Miranda.
Supreme Court of the United States
California v. Randall James Prysock
June 29, 1981 – 453 U.S. 355
PER CURIAM.
This case presents the question whether the warnings given to respondent prior to a recorded
conversation with a police officer satisfied the requirements of Miranda v. Arizona. Although
ordinarily this Court would not be inclined to review a case involving application of that
precedent to a particular set of facts, the opinion of the California Court of Appeal essentially
laid down a flat rule requiring that the content of Miranda warnings be a virtual incantation of
Chapter 23 — Page 517

the precise language contained in the Miranda opinion. Because such a rigid rule was not
mandated by Miranda or any other decision of this Court, and is not required to serve the
purposes of Miranda, we grant the motion of respondent for leave to proceed in forma pauperis
and the petition for certiorari and reverse.
On January 30, 1978, Mrs. Donna Iris Erickson was brutally murdered. Later that evening
respondent and a codefendant were apprehended for commission of the offense. Respondent
was brought to a substation of the Tulare County Sheriff’s Department and advised of his
Miranda rights. He declined to talk and, since he was a minor, his parents were notified.
Respondent’s parents arrived and after meeting with them respondent decided to answer police
questions. An officer questioned respondent, on tape, with respondent’s parents present. The
tape reflects that the following warnings were given prior to any questioning:
“Sgt. Byrd: ... Mr. Randall James Prysock, earlier today I advised you of your legal rights and at
that time you advised me you did not wish to talk to me, is that correct?
“Randall P.: Yeh.
“Sgt. Byrd: And, uh, during, at the first interview your folks were not present, they are now
present. I want to go through your legal rights again with you and after each legal right I would
like for you to answer whether you understand it or not.... Your legal rights, Mr. Prysock, is [sic]
follows: Number One, you have the right to remain silent. This means you don’t have to talk to
me at all unless you so desire. Do you understand this?
“Randall P.: Yeh.
“Sgt. Byrd: If you give up your right to remain silent, anything you say can and will be used as
evidence against you in a court of law. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: You have the right to talk to a lawyer before you are questioned, have him present
with you while you are being questioned, and all during the questioning. Do you understand
this?
“Randall P.: Yes.
“Sgt. Byrd: You also, being a juvenile, you have the right to have your parents present, which
they are. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: Even if they weren’t here, you’d have this right. Do you understand this?
“Randall P.: Yes.

Chapter 23 — Page 518

“Sgt. Byrd: You all, uh,—if,—you have the right to have a lawyer appointed to represent you at
no cost to yourself. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: Now, having all these legal rights in mind, do you wish to talk to me at this time?
“Randall P.: Yes.”
At this point, at the request of Mrs. Prysock, a conversation took place with the tape recorder
turned off. According to Sgt. Byrd, Mrs. Prysock asked if respondent could still have an attorney
at a later time if he gave a statement now without one. Sgt. Byrd assured Mrs. Prysock that
respondent would have an attorney when he went to court and that “he could have one at this
time if he wished one.”
At trial in the Superior Court of Tulare County the court denied respondent’s motion to suppress
the taped statement. Respondent was convicted by a jury of first-degree murder with two special
circumstances—torture and robbery. He was also convicted of robbery with the use of a
dangerous weapon, burglary with the use of a deadly weapon, automobile theft, escape from a
youth facility, and destruction of evidence.
The Court of Appeal for the Fifth Appellate District reversed respondent’s convictions and
ordered a new trial because of what it thought to be error under Miranda. The Court of Appeal
ruled that respondent’s recorded incriminating statements, given with his parents present, had
to be excluded from consideration by the jury because respondent was not properly advised of
his right to the services of a free attorney before and during interrogation. Although respondent
was indisputably informed that he had “the right to talk to a lawyer before you are questioned,
have him present with you while you are being questioned, and all during the questioning,” and
further informed that he had “the right to have a lawyer appointed to represent you at no cost to
yourself,” the Court of Appeal ruled that these warnings were inadequate because respondent
was not explicitly informed of his right to have an attorney appointed before further questioning.
The Court of Appeal stated that “[o]ne of [Miranda’s] virtues is its precise requirements which
are so easily met.” The California Supreme Court denied a petition for hearing, with two justices
dissenting.
This Court has never indicated that the “rigidity” of Miranda extends to the precise formulation
of the warnings given a criminal defendant. This Court and others have stressed as one virtue of
Miranda the fact that the giving of the warnings obviates the need for a case-by-case inquiry into
the actual voluntariness of the admissions of the accused. Nothing in these observations suggests
any desirable rigidity in the form of the required warnings.
Quite the contrary, Miranda itself indicated that no talismanic incantation was required to
satisfy its strictures. The Court in that case stated that “[t]he warnings required and the waiver
necessary in accordance with our opinion today are, in the absence of a fully effective equivalent,
prerequisites to the admissibility of any statement made by a defendant.”
[N]othing in the warnings given respondent suggested any limitation on the right to the presence
of appointed counsel different from the clearly conveyed rights to a lawyer in general, including
Chapter 23 — Page 519

the right “to a lawyer before you are questioned, ... while you are being questioned, and all during
the questioning.”
It is clear that the police in this case fully conveyed to respondent his rights as required by
Miranda. He was told of his right to have a lawyer present prior to and during interrogation, and
his right to have a lawyer appointed at no cost if he could not afford one. These warnings
conveyed to respondent his right to have a lawyer appointed if he could not afford one prior to
and during interrogation. The Court of Appeal erred in holding that the warnings were
inadequate simply because of the order in which they were given.
Because respondent was given the warnings required by Miranda, the decision of the California
Court of Appeal to the contrary is reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.
*

*

*

The next case presented the Court with another deviation from the warning language set forth
in Miranda.
Supreme Court of the United States
Jack R. Duckworth v. Gary James Eagan
Decided June 26, 1989 – 492 U.S. 195
Chief Justice REHNQUIST delivered the opinion of the Court.
Respondent confessed to stabbing a woman nine times after she refused to have sexual relations
with him, and he was convicted of attempted murder. Before confessing, respondent was given
warnings by the police, which included the advice that a lawyer would be appointed “if and when
you go to court.” The United States Court of Appeals for the Seventh Circuit held that such advice
did not comply with the requirements of Miranda v. Arizona. We disagree and reverse.
Late on May 16, 1982, respondent contacted a Chicago police officer he knew to report that he
had seen the naked body of a dead woman lying on a Lake Michigan beach. Respondent denied
any involvement in criminal activity. He then took several Chicago police officers to the beach,
where the woman was crying for help. When she saw respondent, the woman exclaimed: “Why
did you stab me? Why did you stab me?” Respondent told the officers that he had been with the
woman earlier that night, but that they had been attacked by several men who abducted the
woman in a van.
The next morning, after realizing that the crime had been committed in Indiana, the Chicago
police turned the investigation over to the Hammond, Indiana, Police Department. Respondent
repeated to the Hammond police officers his story that he had been attacked on the lakefront,
and that the woman had been abducted by several men. After he filled out a battery complaint
at a local police station, respondent agreed to go to the Hammond police headquarters for further
questioning.
Chapter 23 — Page 520

At about 11 a.m., the Hammond police questioned respondent. Before doing so, the police read
to respondent a waiver form, entitled “Voluntary Appearance; Advice of Rights,” and they asked
him to sign it. The form provided:
“Before we ask you any questions, you must understand your rights. You have the right to remain
silent. Anything you say can be used against you in court. You have a right to talk to a lawyer
for advice before we ask you any questions, and to have him with you during questioning. You
have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We
have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when
you go to court. If you wish to answer questions now without a lawyer present, you have the right
to stop answering questions at any time. You also have the right to stop answering at any time
until you’ve talked to a lawyer.”
Respondent signed the form and repeated his exculpatory explanation for his activities of the
previous evening.
Respondent was then placed in the “lock up” at the Hammond police headquarters. Some 29
hours later, at about 4 p.m. on May 18, the police again interviewed respondent. Before this
questioning, one of the officers read the following waiver form to respondent:
[The waiver form presented the Miranda warnings in a standard way.]
Respondent read the form back to the officers and signed it. He proceeded to confess to stabbing
the woman. The next morning, respondent led the officers to the Lake Michigan beach where
they recovered the knife he had used in the stabbing and several items of clothing.
At trial, over respondent’s objection, the state court admitted his confession, his first statement
denying any involvement in the crime, the knife, and the clothing. The jury found respondent
guilty of attempted murder, but acquitted him of rape. He was sentenced to 35 years’
imprisonment. The conviction was upheld on appeal.
Respondent sought a writ of habeas corpus, claiming, inter alia, that his confession was
inadmissible because the first waiver form did not comply with Miranda. The District Court
denied the petition, holding that the record “clearly manifests adherence to Miranda ...
especially as to the so-called second statement.”
A divided United States Court of Appeals for the Seventh Circuit reversed. The majority held that
the advice that counsel would be appointed “if and when you go to court,” which was included in
the first warnings given to respondent, was “constitutionally defective because it denies an
accused indigent a clear and unequivocal warning of the right to appointed counsel before any
interrogation,” and “link[s] an indigent’s right to counsel before interrogation with a future
event.” Turning to the admissibility of respondent’s confession, the majority thought that “as a
result of the first warning, [respondent] arguably believed that he could not secure a lawyer
during interrogation” and that the second warning “did not explicitly correct this
misinformation.” It therefore remanded the case for a determination whether respondent had
knowingly and intelligently waived his right to an attorney during the second interview.
Chapter 23 — Page 521

We then granted certiorari, to resolve a conflict among the lower courts as to whether informing
a suspect that an attorney would be appointed for him “if and when you go to court” renders
Miranda warnings inadequate. We agree with the majority of the lower courts that it does not.
In Miranda itself, the Court said that “[t]he warnings required and the waiver necessary in
accordance with our opinion today are, in the absence of a fully effective equivalent,
prerequisites to the admissibility of any statement made by a defendant.”
We think the initial warnings given to respondent touched all of the bases required by Miranda.
The police told respondent that he had the right to remain silent, that anything he said could be
used against him in court, that he had the right to speak to an attorney before and during
questioning, that he had “this right to the advice and presence of a lawyer even if [he could] not
afford to hire one,” and that he had the “right to stop answering at any time until [he] talked to
a lawyer.” As noted, the police also added that they could not provide respondent with a lawyer,
but that one would be appointed “if and when you go to court.” The Court of Appeals thought
this “if and when you go to court” language suggested that “only those accused who can afford
an attorney have the right to have one present before answering any questions,” and “implie[d]
that if the accused does not ‘go to court,’ i.e.[,] the government does not file charges, the accused
is not entitled to [counsel] at all.”
In our view, the Court of Appeals misapprehended the effect of the inclusion of “if and when you
go to court” language in Miranda warnings. First, this instruction accurately described the
procedure for the appointment of counsel in Indiana. Under Indiana law, counsel is appointed
at the defendant’s initial appearance in court, and formal charges must be filed at or before that
hearing. We think it must be relatively commonplace for a suspect, after receiving Miranda
warnings, to ask when he will obtain counsel. The “if and when you go to court” advice simply
anticipates that question. Second, Miranda does not require that attorneys be producible on call,
but only that the suspect be informed, as here, that he has the right to an attorney before and
during questioning, and that an attorney would be appointed for him if he could not afford one.
The Court in Miranda emphasized that it was not suggesting that “each police station must have
a ‘station house lawyer’ present at all times to advise prisoners.” If the police cannot provide
appointed counsel, Miranda requires only that the police not question a suspect unless he waives
his right to counsel. Here, respondent did just that.
Justice MARSHALL, with whom Justice BRENNAN joins, and with whom Justice BLACKMUN
and Justice STEVENS join, dissenting.
The majority holds today that a police warning advising a suspect that he is entitled to an
appointed lawyer only “if and when he goes to court” satisfies the requirements of Miranda v.
Arizona. The majority reaches this result by seriously mischaracterizing that decision. Under
Miranda, a police warning must “clearly infor[m]” a suspect taken into custody “that if he
cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”
A warning qualified by an “if and when you go to court” caveat does nothing of the kind; instead,
it leads the suspect to believe that a lawyer will not be provided until some indeterminate time
in the future after questioning. I refuse to acquiesce in the continuing debasement of this historic
precedent and therefore dissent.
Chapter 23 — Page 522

Notes, Comments, and Questions
The Endurance of Miranda in the Face of Criticism
In 2000, the Court considered whether to abolish the Miranda Rule. Miranda had inspired
intense criticism, including from William H. Rehnquist, who had been an assistant attorney
general in the Nixon administration soon after Miranda was decided. He wrote in 1969 that “the
court is now committed to the proposition that relevant, competent, uncoerced statements of the
defendant will not be admissible at his trial unless an elaborate set of warnings be given, which
is very likely to have the effect of preventing a defendant from making any statement at all.” See
Victor Li, “50-Year Story of the Miranda Warning Has the Twists of a Cop Show,” ABA Journal
(Aug. 2016). Three decades later, Rehnquist was Chief Justice of the United States, with the
ability to shape constitutional law instead of merely commenting on it.
Supreme Court of the United States
Charles Thomas Dickerson v. United States
Decided June 26, 2000 – 530 U.S. 428
Chief Justice REHNQUIST delivered the opinion of the Court.
In Miranda v. Arizona, we held that certain warnings must be given before a suspect’s statement
made during custodial interrogation could be admitted in evidence. In the wake of that decision,
Congress enacted 18 U.S.C. § 3501, which in essence laid down a rule that the admissibility of
such statements should turn only on whether or not they were voluntarily made. We hold that
Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act
of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and
its progeny in this Court govern the admissibility of statements made during custodial
interrogation in both state and federal courts.
Petitioner Dickerson was indicted for bank robbery, conspiracy to commit bank robbery, and
using a firearm in the course of committing a crime of violence, all in violation of the applicable
provisions of Title 18 of the United States Code. Before trial, Dickerson moved to suppress a
statement he had made at a Federal Bureau of Investigation field office, on the grounds that he
had not received “Miranda warnings” before being interrogated. The District Court granted his
motion to suppress, and the Government took an interlocutory appeal to the United States Court
of Appeals for the Fourth Circuit. That court, by a divided vote, reversed the District Court’s
suppression order. It agreed with the District Court’s conclusion that petitioner had not received
Miranda warnings before making his statement. But it went on to hold that § 3501, which in
effect makes the admissibility of statements such as Dickerson’s turn solely on whether they were
made voluntarily, was satisfied in this case. It then concluded that our decision in Miranda was
not a constitutional holding, and that, therefore, Congress could by statute have the final say on
the question of admissibility.
Because of the importance of the questions raised by the Court of Appeals’ decision, we granted
certiorari and now reverse.
Chapter 23 — Page 523

Given § 3501’s express designation of voluntariness as the touchstone of admissibility, its
omission of any warning requirement, and the instruction for trial courts to consider a
nonexclusive list of factors relevant to the circumstances of a confession, we agree with the Court
of Appeals that Congress intended by its enactment to overrule Miranda. Because of the obvious
conflict between our decision in Miranda and § 3501, we must address whether Congress has
constitutional authority to thus supersede Miranda. If Congress has such authority, § 3501’s
totality-of-the-circumstances approach must prevail over Miranda’s requirement of warnings;
if not, that section must yield to Miranda’s more specific requirements.
The law in this area is clear. This Court has supervisory authority over the federal courts, and we
may use that authority to prescribe rules of evidence and procedure that are binding in those
tribunals. However, the power to judicially create and enforce nonconstitutional “rules of
procedure and evidence for the federal courts exists only in the absence of a relevant Act of
Congress.” Congress retains the ultimate authority to modify or set aside any judicially created
rules of evidence and procedure that are not required by the Constitution.
But Congress may not legislatively supersede our decisions interpreting and applying the
Constitution. This case therefore turns on whether the Miranda Court announced a
constitutional rule or merely exercised its supervisory authority to regulate evidence in the
absence of congressional direction. [T]he Court of Appeals concluded that the protections
announced in Miranda are not constitutionally required.
We disagree with the Court of Appeals’ conclusion, although we concede that there is language
in some of our opinions that supports the view taken by that court. But first and foremost of the
factors on the other side—that Miranda is a constitutional decision—is that both Miranda and
two of its companion cases applied the rule to proceedings in state courts—to wit, Arizona,
California, and New York. Since that time, we have consistently applied Miranda’s rule to
prosecutions arising in state courts. It is beyond dispute that we do not hold a supervisory power
over the courts of the several States. With respect to proceedings in state courts, our “authority
is limited to enforcing the commands of the United States Constitution.”
Additional support for our conclusion that Miranda is constitutionally based is found in the
Miranda Court’s invitation for legislative action to protect the constitutional right against
coerced self-incrimination. After discussing the “compelling pressures” inherent in custodial
police interrogation, the Miranda Court concluded that, “[i]n order to combat these pressures
and to permit a full opportunity to exercise the privilege against self-incrimination, the accused
must be adequately and effectively apprised of his rights and the exercise of those rights must be
fully honored.” However, the Court emphasized that it could not foresee “the potential
alternatives for protecting the privilege which might be devised by Congress or the States,” and
it accordingly opined that the Constitution would not preclude legislative solutions that differed
from the prescribed Miranda warnings but which were “at least as effective in apprising accused
persons of their right of silence and in assuring a continuous opportunity to exercise it.”
Miranda requires procedures that will warn a suspect in custody of his right to remain silent and
which will assure the suspect that the exercise of that right will be honored. [Section] 3501
explicitly eschews a requirement of preinterrogation warnings in favor of an approach that looks
to the administration of such warnings as only one factor in determining the voluntariness of a
Chapter 23 — Page 524

suspect’s confession. The additional remedies cited by amicus do not, in our view, render them,
together with § 3501, an adequate substitute for the warnings required by Miranda.
[W]e need not go further than Miranda to decide this case. In Miranda, the Court noted that
reliance on the traditional totality-of-the-circumstances test raised a risk of overlooking an
involuntary custodial confession, a risk that the Court found unacceptably great when the
confession is offered in the case in chief to prove guilt. The Court therefore concluded that
something more than the totality test was necessary. [Section] 3501 reinstates the totality test as
sufficient. Section 3501 therefore cannot be sustained if Miranda is to remain the law.
Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we
addressing the issue in the first instance, the principles of stare decisis weigh heavily against
overruling it now. While “‘stare decisis is not an inexorable command,’” particularly when we
are interpreting the Constitution, “even in constitutional cases, the doctrine carries such
persuasive force that we have always required a departure from precedent to be supported by
some ‘special justification.’”
We do not think there is such justification for overruling Miranda. Miranda has become
embedded in routine police practice to the point where the warnings have become part of our
national culture. While we have overruled our precedents when subsequent cases have
undermined their doctrinal underpinnings, we do not believe that this has happened to the
Miranda decision. If anything, our subsequent cases have reduced the impact of the Miranda
rule on legitimate law enforcement while reaffirming the decision’s core ruling that unwarned
statements may not be used as evidence in the prosecution’s case in chief.
The disadvantage of the Miranda rule is that statements which may be by no means involuntary,
made by a defendant who is aware of his “rights,” may nonetheless be excluded and a guilty
defendant go free as a result. But experience suggests that the totality-of-the-circumstances test
which § 3501 seeks to revive is more difficult than Miranda for law enforcement officers to
conform to, and for courts to apply in a consistent manner.
In sum, we conclude that Miranda announced a constitutional rule that Congress may not
supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda
ourselves. The judgment of the Court of Appeals is therefore [r]eversed.
Justice SCALIA, with whom Justice THOMAS joins, dissenting.
Those to whom judicial decisions are an unconnected series of judgments that produce either
favored or disfavored results will doubtless greet today’s decision as a paragon of moderation,
since it declines to overrule Miranda v. Arizona. Those who understand the judicial process will
appreciate that today’s decision is not a reaffirmation of Miranda, but a radical revision of the
most significant element of Miranda (as of all cases): the rationale that gives it a permanent
place in our jurisprudence.

Chapter 23 — Page 525

Marbury v. Madison held that an Act of Congress will not be enforced by the courts if what it
prescribes violates the Constitution of the United States. That was the basis on which Miranda
was decided. One will search today’s opinion in vain, however, for a statement (surely simple
enough to make) that what 18 U.S.C. § 3501 prescribes—the use at trial of a voluntary confession,
even when a Miranda warning or its equivalent has failed to be given—violates the Constitution.
The reason the statement does not appear is not only (and perhaps not so much) that it would
be absurd, inasmuch as § 3501 excludes from trial precisely what the Constitution excludes from
trial, viz., compelled confessions; but also that Justices whose votes are needed to compose
today’s majority are on record as believing that a violation of Miranda is not a violation of the
Constitution. And so, to justify today’s agreed-upon result, the Court must adopt a significant
new, if not entirely comprehensible, principle of constitutional law. As the Court chooses to
describe that principle, statutes of Congress can be disregarded, not only when what they
prescribe violates the Constitution, but when what they prescribe contradicts a decision of this
Court that “announced a constitutional rule.” [T]he only thing that can possibly mean in the
context of this case is that this Court has the power, not merely to apply the Constitution but to
expand it, imposing what it regards as useful “prophylactic” restrictions upon Congress and the
States. That is an immense and frightening antidemocratic power, and it does not exist.
It takes only a small step to bring today’s opinion out of the realm of power-judging and into the
mainstream of legal reasoning: The Court need only go beyond its carefully couched iterations
that “Miranda is a constitutional decision,” that “Miranda is constitutionally based,” that
Miranda has “constitutional underpinnings,” and come out and say quite clearly: “We reaffirm
today that custodial interrogation that is not preceded by Miranda warnings or their equivalent
violates the Constitution of the United States.” It cannot say that, because a majority of the Court
does not believe it. The Court therefore acts in plain violation of the Constitution when it denies
effect to this Act of Congress.
I dissent from today’s decision, and, until § 3501 is repealed, will continue to apply it in all cases
where there has been a sustainable finding that the defendant’s confession was voluntary.
Notes, Comments, and Questions
When given the opportunity, the Court did not overrule Miranda. Do you agree that Miranda
warnings should still be required? Why or why not?
Our next chapters explore two important questions left open by Miranda—how the Court would
define “custody” and how it would define “interrogation.” Because the Miranda Rule applies
only during “custodial interrogation,” each of these definitions is essential to applying the rule.

Chapter 23 — Page 526

INTERROGATIONS
Chapter 24
The Miranda Rule: What Is Custody?
The Miranda Rule applies only during “custodial interrogation.” Therefore, unless a suspect is
both (1) “in custody” and (2) being “interrogated,” police need not provide the warnings
described in Miranda. In this chapter, we consider how the Court has defined “custody” in cases
applying the Miranda Rule. We also review some of the literature evaluating the practical effects
of the doctrine on suspects and police.
In Miranda, the Court wrote: “By custodial interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” Subsequent cases, however, have strayed from the
expansive definition of “custody” implied by the words “deprived of his freedom of action in any
significant way.”
Students should note that the definition of “custody” under Miranda differs from the definition
of a “seizure” for Fourth Amendment purposes. In other words, a person can be “seized” (or
“detained”) but not be in a situation in which Miranda warnings are required before police may
begin interrogation. Yet Fourth Amendment law remains a useful touchstone because if a person
is not “seized”—that is, if a reasonable person in her situation would have felt free to leave—then
it will be difficult to argue that she was “in custody” for Miranda purposes.
Supreme Court of the United States
Oregon v. Carl Ray Mathiason
Jan. 25, 1977 – 429 U.S. 492
PER CURIAM.
Respondent Carl Mathiason was convicted of first-degree burglary after a bench trial in which
his confession was critical to the State’s case. At trial he moved to suppress the confession as the
fruit of questioning by the police not preceded by the warnings required in Miranda v. Arizona.
The trial court refused to exclude the confession because it found that Mathiason was not in
custody at the time of the confession.
The Oregon Court of Appeals affirmed respondent’s conviction, but on his petition for review in
the Supreme Court of Oregon that court by a divided vote reversed the conviction. It found that
although Mathiason had not been arrested or otherwise formally detained, “the interrogation
took place in a ‘coercive environment’” of the sort to which Miranda was intended to apply. The
State of Oregon has petitioned for certiorari to review the judgment of the Supreme Court of
Oregon. We think that court has read Miranda too broadly, and we therefore reverse its
judgment.

Chapter 24 — Page 527

The Supreme Court of Oregon described the factual situation surrounding the confession as
follows:
“An officer of the State Police investigated a theft at a residence near Pendleton. He asked the
lady of the house which had been burglarized if she suspected anyone. She replied that the
defendant was the only one she could think of. The defendant was a parolee and a ‘close associate’
of her son. The officer tried to contact defendant on three or four occasions with no success.
Finally, about 25 days after the burglary, the officer left his card at defendant’s apartment with
a note asking him to call because ‘I’d like to discuss something with you.’ The next afternoon the
defendant did call. The officer asked where it would be convenient to meet. The defendant had
no preference; so the officer asked if the defendant could meet him at the state patrol office in
about an hour and a half, about 5:00 p.m. The patrol office was about two blocks from
defendant’s apartment. The building housed several state agencies.”
“The officer met defendant in the hallway, shook hands and took him into an office. The
defendant was told he was not under arrest. The door was closed. The two sat across a desk. The
police radio in another room could be heard. The officer told defendant he wanted to talk to him
about a burglary and that his truthfulness would possibly be considered by the district attorney
or judge. The officer further advised that the police believed defendant was involved in the
burglary and (falsely stated that) defendant’s fingerprints were found at the scene. The
defendant sat for a few minutes and then said he had taken the property. This occurred within
five minutes after defendant had come to the office. The officer then advised defendant of his
Miranda rights and took a taped confession.”
“At the end of the taped conversation the officer told defendant he was not arresting him at this
time; he was released to go about his job and return to his family. The officer said he was referring
the case to the district attorney for him to determine whether criminal charges would be brought.
It was 5:30 p.m. when the defendant left the office.”
“The officer gave all the testimony relevant to this issue. The defendant did not take the stand
either at the hearing on the motion to suppress or at the trial.”
Our decision in Miranda set forth rules of police procedure applicable to “custodial
interrogation.” “By custodial interrogation, we mean questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his freedom of action
in any significant way.” Subsequently we have found the Miranda principle applicable to
questioning which takes place in a prison setting during a suspect’s term of imprisonment on a
separate offense, and to questioning taking place in a suspect’s home, after he has been arrested
and is no longer free to go where he pleases.
In the present case, however, there is no indication that the questioning took place in a context
where respondent’s freedom to depart was restricted in any way. He came voluntarily to the
police station, where he was immediately informed that he was not under arrest. At the close of
a ½-hour interview respondent did in fact leave the police station without hindrance. It is clear
from these facts that Mathiason was not in custody “or otherwise deprived of his freedom of
action in any significant way.”
Chapter 24 — Page 528

Such a noncustodial situation is not converted to one in which Miranda applies simply because
a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom
of movement, the questioning took place in a “coercive environment.” Any interview of one
suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact
that the police officer is part of a law enforcement system which may ultimately cause the suspect
to be charged with a crime. But police officers are not required to administer Miranda warnings
to everyone whom they question. Nor is the requirement of warnings to be imposed simply
because the questioning takes place in the station house, or because the questioned person is
one whom the police suspect. Miranda warnings are required only where there has been such a
restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive
environment to which Miranda by its terms was made applicable, and to which it is limited.
The officer’s false statement about having discovered Mathiason’s fingerprints at the scene was
found by the Supreme Court of Oregon to be another circumstance contributing to the coercive
environment which makes the Miranda rationale applicable. Whatever relevance this fact may
have to other issues in the case, it has nothing to do with whether respondent was in custody for
purposes of the Miranda rule.
The petition for certiorari is granted, the judgment of the Oregon Supreme Court is reversed,
and the case is remanded for proceedings not inconsistent with this opinion.
Mr. Justice MARSHALL, dissenting.
The respondent in this case was interrogated behind closed doors at police headquarters in
connection with a burglary investigation. He had been named by the victim of the burglary as a
suspect, and was told by the police that they believed he was involved. He was falsely informed
that his fingerprints had been found at the scene, and in effect was advised that by cooperating
with the police he could help himself. Not until after he had confessed was he given the warnings
set forth in Miranda v. Arizona.
The Court today holds that for constitutional purposes all this is irrelevant because respondent
had not “‘been taken into custody or otherwise deprived of his freedom of action in any
significant way.’” I do not believe that such a determination is possible on the record before us.
It is true that respondent was not formally placed under arrest, but surely formalities alone
cannot control. At the very least, if respondent entertained an objectively reasonable belief that
he was not free to leave during the questioning, then he was “deprived of his freedom of action
in a significant way.” Plainly the respondent could have so believed, after being told by the police
that they thought he was involved in a burglary and that his fingerprints had been found at the
scene. Yet the majority is content to note that “there is no indication that … respondent’s freedom
to depart was restricted in any way,” as if a silent record (and no state-court findings) means that
the State has sustained its burden of demonstrating that respondent received his constitutional
due.
More fundamentally, however, I cannot agree with the Court’s conclusion that if respondent
were not in custody no warnings were required. I recognize that Miranda is limited to custodial
interrogations, but that is because [] the facts in the Miranda cases raised only this “narrow
issue.”
Chapter 24 — Page 529

In my view, even if respondent were not in custody, the coercive elements in the instant case
were so pervasive as to require Miranda-type warnings. Respondent was interrogated in
“privacy” and in “unfamiliar surroundings,” factors on which Miranda places great stress. The
investigation had focused on respondent. And respondent was subjected to some of the
“deceptive stratagems,” which called forth the Miranda decision. I therefore agree with the
Oregon Supreme Court that to excuse the absence of warnings given these facts is “contrary to
the rationale expressed in Miranda.”
The privilege against self-incrimination “has always been ‘as broad as the mischief against which
it seeks to guard.’” Today’s decision means, however, that the Fifth Amendment privilege does
not provide full protection against mischiefs equivalent to, but different from, custodial
interrogation. I respectfully dissent.
Notes, Comments, and Questions
We have seen the Court’s preference for objective tests—those based upon what a “reasonable”
person would have done or believed in certain circumstances—over subjective tests based on
what a specific person was actually thinking. When deciding whether Sylvia Mendenhall was
detained (Chapter 19), for example, the question was not whether she felt free to leave but
instead was whether a hypothetical reasonable person in her situation at the airport would have
felt free to leave. Similar analysis pervades decisions about whether consent for searches was
validly obtained.
Further, the Court has often seemed to adopt a one-size-fits-all concept of the reasonable person.
To return to Mendenhall: The Court considered briefly that she was “22 years old and had not
been graduated from high school … [and was] a female and a Negro” interacting with white police
officers. Nonetheless, the Court’s “reasonable person” analysis paid little attention to these
factors, finding them “not irrelevant” but not especially important. Critics have suggested (as
they have in other legal contexts applying “reasonable person” standards, such as tort law) that
the beliefs and behaviors of a reasonable person will depend significantly on factors such as race,
sex, education, age, and social class, to which the Court gives little attention.
In the next case, the Court considered the potential relevance of someone’s age to the question
of whether he was “in custody” for purposes of Miranda. The result differed from the common
one-size-fits-all concept of “reasonable” that the Court had previously applied in Miranda cases.
Supreme Court of the United States
J.D.B. v. North Carolina
Decided June 16, 2011 – 564 U.S. 261
Justice SOTOMAYOR delivered the opinion of the Court.
This case presents the question whether the age of a child subjected to police questioning is
relevant to the custody analysis of Miranda v. Arizona. It is beyond dispute that children will
often feel bound to submit to police questioning when an adult in the same circumstances would
Chapter 24 — Page 530

feel free to leave. Seeing no reason for police officers or courts to blind themselves to that
commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis.
I
A
Petitioner J.D.B. was a 13-year-old, seventh-grade student attending class at Smith Middle
School in Chapel Hill, North Carolina when he was removed from his classroom by a uniformed
police officer, escorted to a closed-door conference room, and questioned by police for at least
half an hour.
This was the second time that police questioned J.D.B. in the span of a week. Five days earlier,
two home break-ins occurred, and various items were stolen. Police stopped and questioned
J.D.B. after he was seen behind a residence in the neighborhood where the crimes occurred. That
same day, police also spoke to J.D.B.’s grandmother—his legal guardian—as well as his aunt.
Police later learned that a digital camera matching the description of one of the stolen items had
been found at J.D.B.’s middle school and seen in J.D.B.’s possession. Investigator DiCostanzo,
the juvenile investigator with the local police force who had been assigned to the case, went to
the school to question J.D.B. Upon arrival, DiCostanzo informed the uniformed police officer on
detail to the school (a so-called school resource officer), the assistant principal, and an
administrative intern that he was there to question J.D.B. about the break-ins. Although
DiCostanzo asked the school administrators to verify J.D.B.’s date of birth, address, and parent
contact information from school records, neither the police officers nor the school
administrators contacted J.D.B.’s grandmother.
The uniformed officer interrupted J.D.B.’s afternoon social studies class, removed J.D.B. from
the classroom, and escorted him to a school conference room. There, J.D.B. was met by
DiCostanzo, the assistant principal, and the administrative intern. The door to the conference
room was closed. With the two police officers and the two administrators present, J.D.B. was
questioned for the next 30 to 45 minutes. Prior to the commencement of questioning, J.D.B. was
given neither Miranda warnings nor the opportunity to speak to his grandmother. Nor was he
informed that he was free to leave the room.
Questioning began with small talk—discussion of sports and J.D.B.’s family life. DiCostanzo
asked, and J.D.B. agreed, to discuss the events of the prior weekend. Denying any wrongdoing,
J.D.B. explained that he had been in the neighborhood where the crimes occurred because he
was seeking work mowing lawns. DiCostanzo pressed J.D.B. for additional detail about his
efforts to obtain work; asked J.D.B. to explain a prior incident, when one of the victims returned
home to find J.D.B. behind her house; and confronted J.D.B. with the stolen camera. The
assistant principal urged J.D.B. to “do the right thing,” warning J.D.B. that “the truth always
comes out in the end.”
Eventually, J.D.B. asked whether he would “still be in trouble” if he returned the “stuff.” In
response, DiCostanzo explained that return of the stolen items would be helpful, but “this thing
is going to court” regardless. DiCostanzo then warned that he may need to seek a secure custody
Chapter 24 — Page 531

order if he believed that J.D.B. would continue to break into other homes. When J.D.B. asked
what a secure custody order was, DiCostanzo explained that “it’s where you get sent to juvenile
detention before court.”
After learning of the prospect of juvenile detention, J.D.B. confessed that he and a friend were
responsible for the break-ins. DiCostanzo only then informed J.D.B. that he could refuse to
answer the investigator’s questions and that he was free to leave. Asked whether he understood,
J.D.B. nodded and provided further detail, including information about the location of the stolen
items. Eventually J.D.B. wrote a statement, at DiCostanzo’s request. When the bell rang
indicating the end of the schoolday, J.D.B. was allowed to leave to catch the bus home.
B
Two juvenile petitions were filed against J.D.B., each alleging one count of breaking and entering
and one count of larceny. J.D.B.’s public defender moved to suppress his statements and the
evidence derived therefrom, arguing that suppression was necessary because J.D.B. had been
“interrogated by police in a custodial setting without being afforded Miranda warning[s]” and
because his statements were involuntary under the totality of the circumstances test. After a
suppression hearing at which DiCostanzo and J.D.B. testified, the trial court denied the motion,
deciding that J.D.B. was not in custody at the time of the schoolhouse interrogation and that his
statements were voluntary. As a result, J.D.B. entered a transcript of admission to all four counts,
renewing his objection to the denial of his motion to suppress, and the court adjudicated J.D.B.
delinquent.
A divided panel of the North Carolina Court of Appeals affirmed. The North Carolina Supreme
Court held, over two dissents, that J.D.B. was not in custody when he confessed, “declin[ing] to
extend the test for custody to include consideration of the age ... of an individual subjected to
questioning by police.” We granted certiorari to determine whether the Miranda custody
analysis includes consideration of a juvenile suspect’s age.
II
A
Any police interview of an individual suspected of a crime has “coercive aspects to it.” Only those
interrogations that occur while a suspect is in police custody, however, “heighte[n] the risk” that
statements obtained are not the product of the suspect’s free choice.
By its very nature, custodial police interrogation entails “inherently compelling pressures.” Even
for an adult, the physical and psychological isolation of custodial interrogation can “undermine
the individual’s will to resist and ... compel him to speak where he would not otherwise do so
freely.” Indeed, the pressure of custodial interrogation is so immense that it “can induce a
frighteningly high percentage of people to confess to crimes they never committed.” That risk is
all the more troubling—and recent studies suggest, all the more acute—when the subject of
custodial interrogation is a juvenile.

Chapter 24 — Page 532

Recognizing that the inherently coercive nature of custodial interrogation “blurs the line between
voluntary and involuntary statements,” this Court in Miranda adopted a set of prophylactic
measures designed to safeguard the constitutional guarantee against self-incrimination. Because
these measures protect the individual against the coercive nature of custodial interrogation, they
are required “‘only where there has been such a restriction on a person’s freedom as to render
him “in custody.”’” As we have repeatedly emphasized, whether a suspect is “in custody” is an
objective inquiry.
The benefit of the objective custody analysis is that it is “designed to give clear guidance to the
police.”
B
The State and its amici contend that a child’s age has no place in the custody analysis, no matter
how young the child subjected to police questioning. We cannot agree. In some circumstances,
a child’s age “would have affected how a reasonable person” in the suspect’s position “would
perceive his or her freedom to leave.” That is, a reasonable child subjected to police questioning
will sometimes feel pressured to submit when a reasonable adult would feel free to go. We think
it clear that courts can account for that reality without doing any damage to the objective nature
of the custody analysis.
A child’s age is far “more than a chronological fact.” It is a fact that “generates commonsense
conclusions about behavior and perception.” Such conclusions apply broadly to children as a
class. And, they are self-evident to anyone who was a child once himself, including any police
officer or judge.
Time and again, this Court has drawn these commonsense conclusions for itself. We have
observed that children “generally are less mature and responsible than adults,” that they “often
lack the experience, perspective, and judgment to recognize and avoid choices that could be
detrimental to them,” that they “are more vulnerable or susceptible to ... outside pressures” than
adults, and so on. Addressing the specific context of police interrogation, we have observed that
events that “would leave a man cold and unimpressed can overawe and overwhelm a lad in his
early teens.” Describing no one child in particular, these observations restate what “any parent
knows”—indeed, what any person knows—about children generally.
Our various statements to this effect are far from unique. The law has historically reflected the
same assumption that children characteristically lack the capacity to exercise mature judgment
and possess only an incomplete ability to understand the world around them. Like this Court’s
own generalizations, the legal disqualifications placed on children as a class—e.g., limitations on
their ability to alienate property, enter a binding contract enforceable against them, and marry
without parental consent—exhibit the settled understanding that the differentiating
characteristics of youth are universal.

Chapter 24 — Page 533

Indeed, even where a “reasonable person” standard otherwise applies, the common law has
reflected the reality that children are not adults. In negligence suits, for instance, where liability
turns on what an objectively reasonable person would do in the circumstances, “[a]ll American
jurisdictions accept the idea that a person’s childhood is a relevant circumstance” to be
considered.
As this discussion establishes, “[o]ur history is replete with laws and judicial recognition” that
children cannot be viewed simply as miniature adults. We see no justification for taking a
different course here[,] [s]o long as the child’s age was known to the officer at the time of the
interview, or would have been objectively apparent to any reasonable officer. The same “wide
basis of community experience” that makes it possible, as an objective matter, “to determine
what is to be expected” of children in other contexts likewise makes it possible to know what to
expect of children subjected to police questioning.
In other words, a child’s age differs from other personal characteristics that, even when known
to police, have no objectively discernible relationship to a reasonable person’s understanding of
his freedom of action. Precisely because childhood yields objective conclusions like those we
have drawn ourselves—among others, that children are “most susceptible to influence” and
“outside pressures,”—considering age in the custody analysis in no way involves a determination
of how youth “subjectively affect[s] the mindset” of any particular child.
In fact, in many cases involving juvenile suspects, the custody analysis would be nonsensical
absent some consideration of the suspect’s age. This case is a prime example. Were the court
precluded from taking J.D.B.’s youth into account, it would be forced to evaluate the
circumstances present here through the eyes of a reasonable person of average years. In other
words, how would a reasonable adult understand his situation, after being removed from a
seventh-grade social studies class by a uniformed school resource officer; being encouraged by
his assistant principal to “do the right thing”; and being warned by a police investigator of the
prospect of juvenile detention and separation from his guardian and primary caretaker? To
describe such an inquiry is to demonstrate its absurdity. Neither officers nor courts can
reasonably evaluate the effect of objective circumstances that, by their nature, are specific to
children without accounting for the age of the child subjected to those circumstances.
Indeed, the effect of the schoolhouse setting cannot be disentangled from the identity of the
person questioned. A student—whose presence at school is compulsory and whose disobedience
at school is cause for disciplinary action—is in a far different position than, say, a parent
volunteer on school grounds to chaperone an event, or an adult from the community on school
grounds to attend a basketball game. Without asking whether the person “questioned in school”
is a “minor,” the coercive effect of the schoolhouse setting is unknowable.
Reviewing the question de novo today, we hold that so long as the child’s age was known to the
officer at the time of police questioning, or would have been objectively apparent to a reasonable
officer, its inclusion in the custody analysis is consistent with the objective nature of that test.
This is not to say that a child’s age will be a determinative, or even a significant, factor in every
case. It is, however, a reality that courts cannot simply ignore.

Chapter 24 — Page 534

The question remains whether J.D.B. was in custody when police interrogated him. We remand
for the state courts to address that question, this time taking account of all of the relevant
circumstances of the interrogation, including J.D.B.’s age at the time. The judgment of the North
Carolina Supreme Court is reversed, and the case is remanded for proceedings not inconsistent
with this opinion.
Justice ALITO, with whom THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS join,
dissenting.
The Court’s decision in this case may seem on first consideration to be modest and sensible, but
in truth it is neither. It is fundamentally inconsistent with one of the main justifications for the
Miranda rule: the perceived need for a clear rule that can be easily applied in all cases. And
today’s holding is not needed to protect the constitutional rights of minors who are questioned
by the police.
Miranda’s prophylactic regime places a high value on clarity and certainty. Dissatisfied with the
highly fact-specific constitutional rule against the admission of involuntary confessions, the
Miranda Court set down rigid standards that often require courts to ignore personal
characteristics that may be highly relevant to a particular suspect’s actual susceptibility to police
pressure. This rigidity, however, has brought with it one of Miranda’s principal strengths—“the
ease and clarity of its application” by law enforcement officials and courts. A key contributor to
this clarity, at least up until now, has been Miranda’s objective reasonable-person test for
determining custody.
Miranda’s custody requirement is based on the proposition that the risk of unconstitutional
coercion is heightened when a suspect is placed under formal arrest or is subjected to some
functionally equivalent limitation on freedom of movement. When this custodial threshold is
reached, Miranda warnings must precede police questioning. But in the interest of simplicity,
the custody analysis considers only whether, under the circumstances, a hypothetical reasonable
person would consider himself to be confined.
Many suspects, of course, will differ from this hypothetical reasonable person. Some, including
those who have been hardened by past interrogations, may have no need for Miranda warnings
at all. And for other suspects—those who are unusually sensitive to the pressures of police
questioning—Miranda warnings may come too late to be of any use. That is a necessary
consequence of Miranda’s rigid standards, but it does not mean that the constitutional rights of
these especially sensitive suspects are left unprotected. A vulnerable defendant can still turn to
the constitutional rule against actual coercion and contend that that his confession was extracted
against his will.
Today’s decision shifts the Miranda custody determination from a one-size-fits-all reasonableperson test into an inquiry that must account for at least one individualized characteristic—age—
that is thought to correlate with susceptibility to coercive pressures. Age, however, is in no way
the only personal characteristic that may correlate with pliability, and in future cases the Court
will be forced to choose between two unpalatable alternatives. It may choose to limit today’s
decision by arbitrarily distinguishing a suspect’s age from other personal characteristics—such
as intelligence, education, occupation, or prior experience with law enforcement—that may also
Chapter 24 — Page 535

correlate with susceptibility to coercive pressures. Or, if the Court is unwilling to draw these
arbitrary lines, it will be forced to effect a fundamental transformation of the Miranda custody
test—from a clear, easily applied prophylactic rule into a highly fact-intensive standard
resembling the voluntariness test that the Miranda Court found to be unsatisfactory.
For at least three reasons, there is no need to go down this road. First, many minors subjected
to police interrogation are near the age of majority, and for these suspects the one-size-fits-all
Miranda custody rule may not be a bad fit. Second, many of the difficulties in applying the
Miranda custody rule to minors arise because of the unique circumstances present when the
police conduct interrogations at school. The Miranda custody rule has always taken into account
the setting in which questioning occurs, and accounting for the school setting in such cases will
address many of these problems. Third, in cases like the one now before us, where the suspect is
especially young, courts applying the constitutional voluntariness standard can take special care
to ensure that incriminating statements were not obtained through coercion. Safeguarding the
constitutional rights of minors does not require the extreme makeover of Miranda that today’s
decision may portend.
Notes, Comments, and Questions
The dissent in J.D.B raised concerns that the majority’s decision will lead to a slippery slope.
Should the court consider factors like race, sex, and socioeconomic status in the Miranda
analysis? What are potential pros and cons of such an approach?
In addition, the dissent’s argument presents an opportunity to consider “slippery slope”
arguments more generally.1 For a slippery slope claim to be compelling, the proponent must
establish two things: First, the slope is truly slippery. Second, the place down at the bottom of
the slope is a bad place to be. For example, when the Court decided Lawrence v. Texas, 539 U.S.
558 (2003), opponents of the decision attacked the majority’s reasoning, often employing
slippery slope arguments.
The Court’s decision in Lawrence prohibits states from criminalizing consensual sexual activity
among adults of the same sex (at least if the same activity would be lawful among opposite-sex
couples). In his dissent, Justice Scalia decried the Court’s decision to overrule Bowers v.
Hardwick, 478 U.S. 186 (1986), writing, “State laws against bigamy, same-sex marriage, adult
incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise
sustainable only in light of Bowers’ validation of laws based on moral choices.”
Supporters of the Lawrence decision responded to Scalia’s slippery slope arguments on two
fronts. First, for some items, the slope was not actually slippery, they argued (for example,
bigamy need not follow from ending criminal punishment for same-sex consensual sex). Second,
for some items, such as same-sex marriage, the bottom of the slope looks great. (In other words,
yes, the slope there is slippery, and that’s just fine.) Considering these two questions—is it
slippery, and if so is that bad—will help students evaluate slippery slope arguments in various
contexts.
1 For more on this theme, see Eugene Volokh, The Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026

(2003), and sources cited therein.

Chapter 24 — Page 536

Further, consider the prospect of a police department seeking to enforce criminal laws against
adultery. What would be involved in seeking a warrant to search a house for evidence? How
would communities react when homes were raided, and phones seized and searched, as officers
sought proof of extramarital affairs?
Police investigations of masturbation seem even sillier. That said, the image of police
establishing probable cause to search a house for proof of masturbation (“Well, Your Honor, a
teenager lives there.”)—and then emerging triumphantly with seized evidence—illustrates the
power entrusted in the legislature to decide what counts as a “crime.” Because tobacco is legal to
possess and use on public sidewalks, a smoker can walk down the street without fear of being
arrested, searched incident to the arrest, and then taken to jail, where officials can conduct far
more invasive searches. Because marijuana is illegal to possess (and even in places where use
has been legalized generally may not be smoked in public), a marijuana user walking down the
street with a joint enjoys no such security.2
Ultimately, the application of every doctrine in this book depends upon the definition of what is
and is not a crime, as well as what crimes (and persons) police choose to investigate.
The next case provides a stark example of the difference between “custody” under Miranda and
the definition of a Fourth Amendment “seizure.” The Court has long held that when police stop
a car, the driver is “seized” and can later object if the stop was unlawful. See Delaware v. Prouse,
440 U.S. 648, 653 (1979). In 2007, the Court announced the additional holding that everyone in
the car—including passengers—is “seized” during a vehicle stop. See Brendlin v. California, 551
U.S. 249 (2007). The Court explained: “We think that in these circumstances any reasonable
passenger would have understood the police officers to be exercising control to the point that no
one in the car was free to depart without police permission. A traffic stop necessarily curtails the
travel a passenger has chosen just as much as it halts the driver, diverting both from the stream
of traffic to the side of the road, and the police activity that normally amounts to intrusion on
‘privacy and personal security’ does not normally (and did not here) distinguish between
passenger and driver.”
Nonetheless, the Court held in Berkemer v. McCarty—in an opinion by Justice Marshall,
normally among the Justices most supportive of expanding the scope of the Miranda Rule—that
police need not recite Miranda warnings before questioning a driver during a vehicle stop. (The
opinion was nearly unanimous. Justice Stevens wrote separately that the Court should not have
reached the issue. No Justice disagreed on the merits.) Students should consider why the Court
declined to apply the Miranda Rule to interrogations conducted during traffic stops.

2 See generally Alec Karakatsanis, Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System

(2019) (discussing how “what is a crime” affects the lives of millions).
Chapter 24 — Page 537

Supreme Court of the United States
Harry J. Berkemer, Sheriff of Franklin County, Ohio v. Richard N. McCarty
Decided July 2, 1984 – 468 U.S. 420
Justice MARSHALL delivered the opinion of the Court.
This case presents two related questions: First, does our decision in Miranda v. Arizona govern
the admissibility of statements made during custodial interrogation by a suspect accused of a
misdemeanor traffic offense? Second, does the roadside questioning of a motorist detained
pursuant to a traffic stop constitute custodial interrogation for the purposes of the doctrine
enunciated in Miranda?
I
A
The parties have stipulated to the essential facts. On the evening of March 31, 1980, Trooper
Williams of the Ohio State Highway Patrol observed respondent’s car weaving in and out of a
lane on Interstate Highway 270. After following the car for two miles, Williams forced
respondent to stop and asked him to get out of the vehicle. When respondent complied, Williams
noticed that he was having difficulty standing. At that point, “Williams concluded that
[respondent] would be charged with a traffic offense and, therefore, his freedom to leave the
scene was terminated.” However, respondent was not told that he would be taken into custody.
Williams then asked respondent to perform a field sobriety test, commonly known as a
“balancing test.” Respondent could not do so without falling.
While still at the scene of the traffic stop, Williams asked respondent whether he had been using
intoxicants. Respondent replied that “he had consumed two beers and had smoked several joints
of marijuana a short time before.” Respondent’s speech was slurred, and Williams had difficulty
understanding him. Williams thereupon formally placed respondent under arrest and
transported him in the patrol car to the Franklin County Jail.
At the jail, respondent was given an intoxilyzer test to determine the concentration of alcohol in
his blood. The test did not detect any alcohol whatsoever in respondent’s system. Williams then
resumed questioning respondent in order to obtain information for inclusion in the State
Highway Patrol Alcohol Influence Report. Respondent answered affirmatively a question
whether he had been drinking. When then asked if he was under the influence of alcohol, he said,
“I guess, barely.” Williams next asked respondent to indicate on the form whether the marihuana
he had smoked had been treated with any chemicals. In the section of the report headed
“Remarks,” respondent wrote, “No ang[el] dust or PCP in the pot. Rick McCarty.”
At no point in this sequence of events did Williams or anyone else tell respondent that he had a
right to remain silent, to consult with an attorney, and to have an attorney appointed for him if
he could not afford one.

Chapter 24 — Page 538

B
Respondent was charged with operating a motor vehicle while under the influence of alcohol
and/or drugs. Under Ohio law, that offense is a first-degree misdemeanor and is punishable by
fine or imprisonment for up to six months. Incarceration for a minimum of three days is
mandatory.
Respondent moved to exclude the various incriminating statements he had made to Trooper
Williams on the ground that introduction into evidence of those statements would violate the
Fifth Amendment insofar as he had not been informed of his constitutional rights prior to his
interrogation. When the trial court denied the motion, respondent pleaded “no contest” and was
found guilty. He was sentenced to 90 days in jail, 80 of which were suspended, and was fined
$300, $100 of which were suspended.
On appeal to the Franklin County Court of Appeals, respondent renewed his constitutional claim.
Relying on a prior decision by the Ohio Supreme Court, which held that the rule announced in
Miranda “is not applicable to misdemeanors,” the Court of Appeals rejected respondent’s
argument and affirmed his conviction. The Ohio Supreme Court dismissed respondent’s appeal
on the ground that it failed to present a “substantial constitutional question.”
Respondent then filed an action for a writ of habeas corpus in the District Court for the Southern
District of Ohio. The District Court dismissed the petition, holding that “Miranda warnings do
not have to be given prior to in custody interrogation of a suspect arrested for a traffic offense.”
A divided panel of the Court of Appeals for the Sixth Circuit reversed, holding that “Miranda
warnings must be given to all individuals prior to custodial interrogation, whether the offense
investigated be a felony or a misdemeanor traffic offense.” In applying this principle to the facts
of the case, the Court of Appeals distinguished between the statements made by respondent
before and after his formal arrest. The postarrest statements, the court ruled, were plainly
inadmissible; because respondent was not warned of his constitutional rights prior to or “[a]t
the point that Trooper Williams took [him] to the police station,” his ensuing admissions could
not be used against him. The court’s treatment of respondent’s prearrest statements was less
clear. It eschewed a holding that “the mere stopping of a motor vehicle triggers Miranda” but
did not expressly rule that the statements made by respondent at the scene of the traffic stop
could be used against him. In the penultimate paragraph of its opinion, the court asserted that
“[t]he failure to advise [respondent] of his constitutional rights rendered at least some of his
statements inadmissible,” suggesting that the court was uncertain as to the status of the prearrest
confessions. “Because [respondent] was convicted on inadmissible evidence,” the court deemed
it necessary to vacate his conviction and order the District Court to issue a writ of habeas corpus.
However, the Court of Appeals did not specify which statements, if any, could be used against
respondent in a retrial.
We granted certiorari to resolve confusion in the federal and state courts regarding the
applicability of our ruling in Miranda to interrogations involving minor offenses and to
questioning of motorists detained pursuant to traffic stops.

Chapter 24 — Page 539

II
In the years since the decision in Miranda, we have frequently reaffirmed the central principle
established by that case: if the police take a suspect into custody and then ask him questions
without informing him of the rights enumerated above, his responses cannot be introduced into
evidence to establish his guilt.
Petitioner asks us to carve an exception out of the foregoing principle. When the police arrest a
person for allegedly committing a misdemeanor traffic offense and then ask him questions
without telling him his constitutional rights, petitioner argues, his responses should be
admissible against him. We cannot agree.
One of the principal advantages of the doctrine that suspects must be given warnings before
being interrogated while in custody is the clarity of that rule. The exception to Miranda proposed
by petitioner would substantially undermine this crucial advantage of the doctrine. The police
often are unaware when they arrest a person whether he may have committed a misdemeanor
or a felony. Consider, for example, the reasonably common situation in which the driver of a car
involved in an accident is taken into custody. Under Ohio law, both driving while under the
influence of intoxicants and negligent vehicular homicide are misdemeanors, while reckless
vehicular homicide is a felony. When arresting a person for causing a collision, the police may
not know which of these offenses he may have committed. Indeed, the nature of his offense may
depend upon circumstances unknowable to the police, such as whether the suspect has
previously committed a similar offense or has a criminal record of some other kind. It may even
turn upon events yet to happen, such as whether a victim of the accident dies. It would be
unreasonable to expect the police to make guesses as to the nature of the criminal conduct at
issue before deciding how they may interrogate the suspect.
Equally importantly, the doctrinal complexities that would confront the courts if we accepted
petitioner’s proposal would be Byzantine. Difficult questions quickly spring to mind: For
instance, investigations into seemingly minor offenses sometimes escalate gradually into
investigations into more serious matters; at what point in the evolution of an affair of this sort
would the police be obliged to give Miranda warnings to a suspect in custody? What evidence
would be necessary to establish that an arrest for a misdemeanor offense was merely a pretext
to enable the police to interrogate the suspect (in hopes of obtaining information about a felony)
without providing him the safeguards prescribed by Miranda? The litigation necessary to resolve
such matters would be time-consuming and disruptive of law enforcement. And the end result
would be an elaborate set of rules, interlaced with exceptions and subtle distinctions,
discriminating between different kinds of custodial interrogations. Neither the police nor
criminal defendants would benefit from such a development.
We do not suggest that there is any reason to think improper efforts were made in this case to
induce respondent to make damaging admissions. More generally, we have no doubt that, in
conducting most custodial interrogations of persons arrested for misdemeanor traffic offenses,
the police behave responsibly and do not deliberately exert pressures upon the suspect to confess
against his will. But the same might be said of custodial interrogations of persons arrested for
felonies. The purposes of the safeguards prescribed by Miranda are to ensure that the police do
not coerce or trick captive suspects into confessing, to relieve the “‘inherently compelling
pressures’” generated by the custodial setting itself, “‘which work to undermine the individual’s
Chapter 24 — Page 540

will to resist,’” and as much as possible to free courts from the task of scrutinizing individual
cases to try to determine, after the fact, whether particular confessions were voluntary. Those
purposes are implicated as much by in-custody questioning of persons suspected of
misdemeanors as they are by questioning of persons suspected of felonies.
Petitioner’s second argument is that law enforcement would be more expeditious and effective
in the absence of a requirement that persons arrested for traffic offenses be informed of their
rights. Again, we are unpersuaded. The occasions on which the police arrest and then interrogate
someone suspected only of a misdemeanor traffic offense are rare. The police are already well
accustomed to giving Miranda warnings to persons taken into custody. Adherence to the
principle that all suspects must be given such warnings will not significantly hamper the efforts
of the police to investigate crimes.
We hold therefore that a person subjected to custodial interrogation is entitled to the benefit of
the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the
offense of which he is suspected or for which he was arrested.
The implication of this holding is that the Court of Appeals was correct in ruling that the
statements made by respondent at the County Jail were inadmissible. There can be no question
that respondent was “in custody” at least as of the moment he was formally placed under arrest
and instructed to get into the police car. Because he was not informed of his constitutional rights
at that juncture, respondent’s subsequent admissions should not have been used against him.
III
To assess the admissibility of the self-incriminating statements made by respondent prior to his
formal arrest, we are obliged to address a second issue concerning the scope of our decision in
Miranda: whether the roadside questioning of a motorist detained pursuant to a routine traffic
stop should be considered “custodial interrogation.” Respondent urges that it should, on the
ground that Miranda by its terms applies whenever “a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” Petitioner contends that a
holding that every detained motorist must be advised of his rights before being questioned would
constitute an unwarranted extension of the Miranda doctrine.
It must be acknowledged at the outset that a traffic stop significantly curtails the “freedom of
action” of the driver and the passengers, if any, of the detained vehicle. Under the law of most
States, it is a crime either to ignore a policeman’s signal to stop one’s car or, once having stopped,
to drive away without permission. 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.
Partly for these reasons, we have long acknowledged that “stopping an automobile and detaining
its occupants constitute a ‘seizure’ within the meaning of [the Fourth] Amendmen[t], even
though the purpose of the stop is limited and the resulting detention quite brief.”
However, we decline to accord talismanic power to the phrase in the Miranda opinion
emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be
enforced strictly, but only in those types of situations in which the concerns that powered the
decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained
Chapter 24 — Page 541

person pressures that sufficiently impair his free exercise of his privilege against selfincrimination to require that he be warned of his constitutional rights.
Two features of an ordinary traffic stop mitigate the danger that a person questioned will be
induced “to speak where he would not otherwise do so freely.” First, detention of a motorist
pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside
detentions last only a few minutes. A motorist’s expectations, when he sees a policeman’s light
flashing behind him, are that he will be obliged to spend a short period of time answering
questions and waiting while the officer checks his license and registration, that he may then be
given a citation, but that in the end he most likely will be allowed to continue on his way. In this
respect, questioning incident to an ordinary traffic stop is quite different from stationhouse
interrogation, which frequently is prolonged, and in which the detainee often is aware that
questioning will continue until he provides his interrogators the answers they seek.
Second, circumstances associated with the typical traffic stop are not such that the motorist feels
completely at the mercy of the police. To be sure, the aura of authority surrounding an armed,
uniformed officer and the knowledge that the officer has some discretion in deciding whether to
issue a citation, in combination, exert some pressure on the detainee to respond to questions.
But other aspects of the situation substantially offset these forces. Perhaps most importantly, the
typical traffic stop is public, at least to some degree. Passersby, on foot or in other cars, witness
the interaction of officer and motorist. This exposure to public view both reduces the ability of
an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and
diminishes the motorist’s fear that, if he does not cooperate, he will be subjected to abuse. The
fact that the detained motorist typically is confronted by only one or at most two policemen
further mutes his sense of vulnerability. In short, the atmosphere surrounding an ordinary traffic
stop is substantially less “police dominated” than that surrounding the kinds of interrogation at
issue in Miranda itself and in the subsequent cases in which we have applied Miranda.
In both of these respects, the usual traffic stop is more analogous to a so-called “Terry stop” than
to a formal arrest. The comparatively nonthreatening character of detentions of this sort explains
the absence of any suggestion in our opinions that Terry stops are subject to the dictates of
Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that
persons temporarily detained pursuant to such stops are not “in custody” for the purposes of
Miranda.
Turning to the case before us, we find nothing in the record that indicates that respondent should
have been given Miranda warnings at any point prior to the time Trooper Williams placed him
under arrest. For the reasons indicated above, we reject the contention that the initial stop of
respondent’s car, by itself, rendered him “in custody.” And respondent has failed to demonstrate
that, at any time between the initial stop and the arrest, he was subjected to restraints
comparable to those associated with a formal arrest. Only a short period of time elapsed between
the stop and the arrest. At no point during that interval was respondent informed that his
detention would not be temporary. Although Trooper Williams apparently decided as soon as
respondent stepped out of his car that respondent would be taken into custody and charged with
a traffic offense, Williams never communicated his intention to respondent. A policeman’s
unarticulated plan has no bearing on the question whether a suspect was “in custody” at a
particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would
Chapter 24 — Page 542

have understood his situation. Nor do other aspects of the interaction of Williams and
respondent support the contention that respondent was exposed to “custodial interrogation” at
the scene of the stop. From aught that appears in the stipulation of facts, a single police officer
asked respondent a modest number of questions and requested him to perform a simple
balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be
characterized as the functional equivalent of formal arrest.
We conclude, in short, that respondent was not taken into custody for the purposes of Miranda
until Williams arrested him. Consequently, the statements respondent made prior to that point
were admissible against him.
Accordingly, the judgment of the Court of Appeals is [a]ffirmed.
Notes, Comments, and Questions
As the Court noted near the end of its opinion in Berkemer, the definition of “custody” under
Miranda does not include seizures conducted pursuant to Terry v. Ohio on the basis of
reasonable suspicion.
The Practical Consequences of the Miranda Rule
Before exploring more of the Miranda doctrine—defining “interrogation,” learning what counts
as a “waiver” of Miranda rights, and so on—we pause here to consider the practical effects of the
doctrine. The Miranda Rule is now more than 50 years old, and debate rages on straightforward
questions such as: (1) does the rule reduce the ability of police to obtain voluntary confessions,3
(2) does it provide any real benefits to suspects, or to society as a whole, such as by promoting
meaningful free choice and protecting the dignity of suspects under interrogation, (3) has it
affected the crime rate?
For example, Professor Paul Cassell has argued that Miranda has increased the crime rate while
providing no compelling benefits to compensate.4 Challenging a perceived academic consensus
that Miranda’s practical effects on crime-fighting have been “negligible,” Professor Cassell offers
an empirical analysis of the number of confessions police never obtain because of Miranda. He
includes a corresponding analysis of lost convictions—as well as lenient plea bargains
necessitated by missing evidence. He begins with the “common sense” premise that “[s]urely
fewer persons will confess if police must warn them of their right to silence, obtain affirmative
waivers from them, and end the interrogation if they ask for a lawyer or for questioning to stop.”
He also quotes the Miranda dissent of Justice White: “In some unknown number of cases the
Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment
which produced him, to repeat his crime whenever it pleases him.”
While acknowledging that any empirical analysis must be a “sound estimate” rather than an
exact calculation, Cassell argues that the costs are severe—well in excess of the insignificant
3 We are assuming for purposes of this discussion that critics of Miranda object only to impediments it places in the

path of voluntary confessions, not involuntary confessions.
4 See Paul Cassell, Miranda’s Social Costs: An Empirical Reassessment, 90 Nw. U. L. Rev. 387 (1996).
Chapter 24 — Page 543

harms commonly imagined by scholars and judges.5 He concludes that each year, Miranda
results in tens of thousands of “lost cases” for violent crimes, along with tens of thousands more
for property crimes. His numbers are based on an estimated loss of 3.8 percent of convictions in
serious cases.
Replying to Cassell, Professor Stephen Schulhofer reached the opposite conclusion. 6 After
adjusting for what he describes as Cassell’s faulty data analysis and biased selection of samples,
Schulhofer concludes, “For all practical purposes, Miranda’s empirically detectable harm to law
enforcement shrinks virtually to zero.” Schulhofer then offers a robust defense of Miranda’s
benefits, noting that “[t]o carry the day, an alternative to Miranda not only must promise more
convictions, but also must preserve justice and respect for constitutional values in the 99% (or
perhaps only 96.2%) of convictions that will be obtained successfully under either regime—and
in all the arrests that will not produce convictions under either regime.”7
Noting that—according to his own analysis—police have managed to obtain confessions under
Miranda at rates similar to those of the old days, Schulhofer confronts the question of why then
we should care about Miranda. That is, if it doesn’t reduce confessions, why bother? He replies
that the Court’s goal in Miranda was not “to reduce or eliminate confessions,” recalling that the
Court explicitly established a procedure “to ensure that confessions could continue to be elicited
and used.”8 “Miranda’s stated objective was not to eliminate confessions, but to eliminate
compelling pressure in the interrogation process.”9 In other words, under Miranda, police still
get confessions, but they get them by tricking suspects (and exploiting their overconfidence)
instead of by “pressure and fear.” That difference, to Schulhofer, honors the Self-Incrimination
Clause of the Fifth Amendment while imposing “detectable social costs [that] are vanishingly
small.”10
A decade later, Professors George C. Thomas III and Richard A. Leo reviewed “two generations
of scholarship” and concluded that Miranda has “exerted a negligible effect” on the ability of
police to obtain confessions.11 They argued, as well, that Miranda’s “practical benefits—as a
procedural safeguard against compulsion, coercion, false confessions, or any of the pernicious
interrogation techniques that the Warren Court excoriated in the Miranda decision”—are
similarly negligible.12 They offered several potentially overlapping explanations for their findings
of negligible effects. First, suspects know of their rights from television and elsewhere, yet
overwhelming majorities “waive their rights and thus appear to consent to interrogation.” 13
(They analogized Miranda warnings to those on cigarette packages.) Second, police have learned
to recite the Miranda warnings in a way that encourages cooperation. Third, Supreme Court
decisions have limited the effects of the Miranda Rule (for example, by making it easy for
5 See id. at 437-46.
6 See Stephen Schulhofer, Miranda’s Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90

Nw. U. L. Rev. 500 (1996).
7 Id. at 502.
8 Id. at 561.
9 Id.
10 Id. at 562.
11 See George C. Thomas III & Richard A Leo, The Effects of Miranda v. Arizona: Embedded in Our National
Culture?, 29 Crime & Justice 203 (2002).
12 Id. at 246.
13 Id. at 247.
Chapter 24 — Page 544

prosecutors to demonstrate “waiver”). Indeed, police and prosecutors now largely support
Miranda and report that it does not interfere with their work.
The broad consensus is that Miranda is not a serious impediment to policework, meaning that
suspects regularly confess to serious crimes despite being explicitly informed (1) that they need
not do so and (2) that doing so could cause them harm in court. Students interested in how police
obtain confessions should see an article titled Ordinary Police Interrogation in the United
States: The Destruction of Meaning and Persons: A Psychoanalytic-Ethical Investigation.14
The authors describe a suspect who falsely confessed to murdering his sister. The interrogation
was videotaped, allowing analysis of how an innocent person (conclusive evidence of his
innocence was later discovered) was pressured to confess by lawful police tactics. The authors
argue, “The goal of interrogation is not to gather information. It is to obtain confessions.”15 That
is, once police decide during an investigation who they believe committed the crime, the purpose
of interrogation is to get the admissions needed to convict the suspect.
One author attended a training seminar for police interrogators, learning techniques such as how
to “evade informing suspects of their rights during interrogation by giving suspects the
impression that they have been arrested without in fact placing them under arrest.” He reports,
“Reid seminar attendees are told to walk into interviews with thick folders, videocassettes, or
similar props spilling out to make subjects believe interrogators have evidence against them.”
After describing several other techniques effective against the innocent and guilty alike, the
authors state, “The interrogator, armed and trained with these powerful rhetorical tools
developed and refined over seventy years of systematic study and placed in the position of power
and authority over the suspect, not surprisingly often extracts admissions of criminal conduct.
But such admissions do not end the interrogation.”16 Because police prefer confessions that
match other evidence, interrogators follow the initial admissions with leading questions
designed to conform the suspect’s story to what is already known about a crime.
A discussion of best practices for interrogations is beyond the scope of this chapter. It will suffice
to state that if questioners seek to learn the truth during questioning—as opposed to confirming
existing beliefs and obtaining evidence for trial—the process described in Ordinary Police
Interrogation would be avoided.17
Regardless of one’s views on the ultimate practical effects of Miranda, one cannot deny that
Supreme Court doctrine affects the number of confessions admitted as evidence against
defendants. In our next chapter, we review how the Court has defined “interrogation” under
Miranda.

14 Benjamin A. Galatzer-Levy & Robert M. Galatzer-Levy, Ordinary Police Interrogation in the United States: The

Destruction of Meaning and Persons: A Psychoanalytic-Ethical Investigation, 69 Am. Imago 57 (2012)
15 Id. at 68.
16 Id. at 73.
17 See, e.g., Elizabeth Loftus, Eyewitness Testimony (1996); Douglas Starr, Remembering a Crime That You Didn’t
Commit, New Yorker (Mar. 5, 2015) (reviewing studies of how easily false memories can be implanted during
questioning).
Chapter 24 — Page 545

INTERROGATIONS
Chapter 25
The Miranda Rule: What Is Interrogation?
Having considered how the Court defines “custody” in Miranda Rule cases, we now examine
how the Court defines “interrogation.” Only during “custodial interrogation” does the Miranda
Rule apply.
In addition, in this chapter we begin our review of the Court’s cases concerning waiver of rights
under Miranda.
Supreme Court of the United States
Rhode Island v. Thomas J. Innis
Decided May 12, 1980 – 446 U.S. 291
Mr. Justice STEWART delivered the opinion of the Court.
In Miranda v. Arizona, the Court held that, once a defendant in custody asks to speak with a
lawyer, all interrogation must cease until a lawyer is present. The issue in this case is whether
the respondent was “interrogated” in violation of the standards promulgated in the Miranda
opinion.
I
On the night of January 12, 1975, John Mulvaney, a Providence, R.I., taxicab driver, disappeared
after being dispatched to pick up a customer. His body was discovered four days later buried in
a shallow grave in Coventry, R.I. He had died from a shotgun blast aimed at the back of his head.
On January 17, 1975, shortly after midnight, the Providence police received a telephone call from
Gerald Aubin, also a taxicab driver, who reported that he had just been robbed by a man wielding
a sawed-off shotgun. Aubin further reported that he had dropped off his assailant near Rhode
Island College in a section of Providence known as Mount Pleasant. While at the Providence
police station waiting to give a statement, Aubin noticed a picture of his assailant on a bulletin
board. Aubin so informed one of the police officers present. The officer prepared a photo array,
and again Aubin identified a picture of the same person. That person was the respondent. Shortly
thereafter, the Providence police began a search of the Mount Pleasant area.
At approximately 4:30 a.m. on the same date, Patrolman Lovell, while cruising the streets of
Mount Pleasant in a patrol car, spotted the respondent standing in the street facing him. When
Patrolman Lovell stopped his car, the respondent walked towards it. Patrolman Lovell then
arrested the respondent, who was unarmed, and advised him of his so-called Miranda rights.
While the two men waited in the patrol car for other police officers to arrive, Patrolman Lovell
did not converse with the respondent other than to respond to the latter’s request for a cigarette.

Chapter 25 — Page 546

Within minutes, Sergeant Sears arrived at the scene of the arrest, and he also gave the
respondent the Miranda warnings. Immediately thereafter, Captain Leyden and other police
officers arrived. Captain Leyden advised the respondent of his Miranda rights. The respondent
stated that he understood those rights and wanted to speak with a lawyer. Captain Leyden then
directed that the respondent be placed in a “caged wagon,” a four-door police car with a wire
screen mesh between the front and rear seats, and be driven to the central police station. Three
officers, Patrolmen Gleckman, Williams, and McKenna, were assigned to accompany the
respondent to the central station. They placed the respondent in the vehicle and shut the doors.
Captain Leyden then instructed the officers not to question the respondent or intimidate or
coerce him in any way. The three officers then entered the vehicle, and it departed.
While en route to the central station, Patrolman Gleckman initiated a conversation with
Patrolman McKenna concerning the missing shotgun. As Patrolman Gleckman later testified:
“A. At this point, I was talking back and forth with Patrolman McKenna stating that I frequent
this area while on patrol and [that because a school for handicapped children is located nearby,]
there’s a lot of handicapped children running around in this area, and God forbid one of them
might find a weapon with shells and they might hurt themselves.”
Patrolman McKenna apparently shared his fellow officer’s concern:
“A. I more or less concurred with him [Gleckman] that it was a safety factor and that we should,
you know, continue to search for the weapon and try to find it.”
While Patrolman Williams said nothing, he overheard the conversation between the two officers:
“A. He [Gleckman] said it would be too bad if the little—I believe he said a girl—would pick up
the gun, maybe kill herself.”
The respondent then interrupted the conversation, stating that the officers should turn the car
around so he could show them where the gun was located. At this point, Patrolman McKenna
radioed back to Captain Leyden that they were returning to the scene of the arrest and that the
respondent would inform them of the location of the gun. At the time the respondent indicated
that the officers should turn back, they had traveled no more than a mile, a trip encompassing
only a few minutes.
The police vehicle then returned to the scene of the arrest where a search for the shotgun was in
progress. There, Captain Leyden again advised the respondent of his Miranda rights. The
respondent replied that he understood those rights but that he “wanted to get the gun out of the
way because of the kids in the area in the school.” The respondent then led the police to a nearby
field, where he pointed out the shotgun under some rocks by the side of the road.
On March 20, 1975, a grand jury returned an indictment charging the respondent with the
kidnaping, robbery, and murder of John Mulvaney. Before trial, the respondent moved to
suppress the shotgun and the statements he had made to the police regarding it. After an
evidentiary hearing at which the respondent elected not to testify, the trial judge found that the
respondent had been “repeatedly and completely advised of his Miranda rights.” He further

Chapter 25 — Page 547

found that it was “entirely understandable that [the officers in the police vehicle] would voice
their concern [for the safety of the handicapped children] to each other.” The judge then
concluded that the respondent’s decision to inform the police of the location of the shotgun was
“a waiver, clearly, and on the basis of the evidence that I have heard, and [sic] intelligent waiver,
of his [Miranda] right to remain silent.” Thus, without passing on whether the police officers
had in fact “interrogated” the respondent, the trial court sustained the admissibility of the
shotgun and testimony related to its discovery. That evidence was later introduced at the
respondent’s trial, and the jury returned a verdict of guilty on all counts.
On appeal, the Rhode Island Supreme Court, in a 3–2 decision, set aside the respondent’s
conviction. [T]he court concluded that the respondent had invoked his Miranda right to counsel
and that, contrary to Miranda’s mandate that, in the absence of counsel, all custodial
interrogation then cease, the police officers in the vehicle had “interrogated” the respondent
without a valid waiver of his right to counsel. It was the view of the state appellate court that,
even though the police officers may have been genuinely concerned about the public safety and
even though the respondent had not been addressed personally by the police officers, the
respondent nonetheless had been subjected to “subtle coercion” that was the equivalent of
“interrogation” within the meaning of the Miranda opinion. Moreover, contrary to the holding
of the trial court, the appellate court concluded that the evidence was insufficient to support a
finding of waiver. Having concluded that both the shotgun and testimony relating to its discovery
were obtained in violation of the Miranda standards and therefore should not have been
admitted into evidence, the Rhode Island Supreme Court held that the respondent was entitled
to a new trial.
We granted certiorari to address for the first time the meaning of “interrogation” under Miranda
v. Arizona.
II
The Court in the Miranda opinion [] outlined in some detail the consequences that would result
if a defendant sought to invoke those procedural safeguards. With regard to the right to the
presence of counsel, the Court noted:
“Once warnings have been given, the subsequent procedure is clear. … If the individual states
that he wants an attorney, the interrogation must cease until an attorney is present. At that time,
the individual must have an opportunity to confer with the attorney and to have him present
during any subsequent questioning. If the individual cannot obtain an attorney and he indicates
that he wants one before speaking to police, they must respect his decision to remain silent.”
In the present case, the parties are in agreement that the respondent was fully informed of his
Miranda rights and that he invoked his Miranda right to counsel when he told Captain Leyden
that he wished to consult with a lawyer. It is also uncontested that the respondent was “in
custody” while being transported to the police station.

Chapter 25 — Page 548

The issue, therefore, is whether the respondent was “interrogated” by the police officers in
violation of the respondent’s undisputed right under Miranda to remain silent until he had
consulted with a lawyer. In resolving this issue, we first define the term “interrogation” under
Miranda before turning to a consideration of the facts of this case.
A
The starting point for defining “interrogation” in this context is, of course, the Court’s Miranda
opinion. There the Court observed that “[b]y custodial interrogation, we mean questioning
initiated by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” This passage and other references
throughout the opinion to “questioning” might suggest that the Miranda rules were to apply only
to those police interrogation practices that involve express questioning of a defendant while in
custody.
We do not, however, construe the Miranda opinion so narrowly. The concern of the Court in
Miranda was that the “interrogation environment” created by the interplay of interrogation and
custody would “subjugate the individual to the will of his examiner” and thereby undermine the
privilege against compulsory self-incrimination. The police practices that evoked this concern
included several that did not involve express questioning. For example, one of the practices
discussed in Miranda was the use of line-ups in which a coached witness would pick the
defendant as the perpetrator. This was designed to establish that the defendant was in fact guilty
as a predicate for further interrogation. A variation on this theme discussed in Miranda was the
so-called “reverse line-up” in which a defendant would be identified by coached witnesses as the
perpetrator of a fictitious crime, with the object of inducing him to confess to the actual crime of
which he was suspected in order to escape the false prosecution. The Court in Miranda also
included in its survey of interrogation practices the use of psychological ploys, such as to “posi[t]”
“the guilt of the subject,” to “minimize the moral seriousness of the offense,” and “to cast blame
on the victim or on society.” It is clear that these techniques of persuasion, no less than express
questioning, were thought, in a custodial setting, to amount to interrogation.
This is not to say, however, that all statements obtained by the police after a person has been
taken into custody are to be considered the product of interrogation. It is clear [] that the special
procedural safeguards outlined in Miranda are required not where a suspect is simply taken into
custody, but rather where a suspect in custody is subjected to interrogation. “Interrogation,” as
conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond
that inherent in custody itself.
We conclude that the Miranda safeguards come into play whenever a person in custody is
subjected to either express questioning or its functional equivalent. That is to say, the term
“interrogation” under Miranda refers not only to express questioning, but also to any words or
actions on the part of the police (other than those normally attendant to arrest and custody) that
the police should know are reasonably likely to elicit an incriminating response from the suspect.
The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather
than the intent of the police. This focus reflects the fact that the Miranda safeguards were
designed to vest a suspect in custody with an added measure of protection against coercive police
practices, without regard to objective proof of the underlying intent of the police. A practice that

Chapter 25 — Page 549

the police should know is reasonably likely to evoke an incriminating response from a suspect
thus amounts to interrogation.1 But, since the police surely cannot be held accountable for the
unforeseeable results of their words or actions, the definition of interrogation can extend only to
words or actions on the part of police officers that they should have known were reasonably
likely to elicit an incriminating response.
B
Turning to the facts of the present case, we conclude that the respondent was not “interrogated”
within the meaning of Miranda. It is undisputed that the first prong of the definition of
“interrogation” was not satisfied, for the conversation between Patrolmen Gleckman and
McKenna included no express questioning of the respondent. Rather, that conversation was, at
least in form, nothing more than a dialogue between the two officers to which no response from
the respondent was invited.
Moreover, it cannot be fairly concluded that the respondent was subjected to the “functional
equivalent” of questioning. It cannot be said, in short, that Patrolmen Gleckman and McKenna
should have known that their conversation was reasonably likely to elicit an incriminating
response from the respondent. There is nothing in the record to suggest that the officers were
aware that the respondent was peculiarly susceptible to an appeal to his conscience concerning
the safety of handicapped children. Nor is there anything in the record to suggest that the police
knew that the respondent was unusually disoriented or upset at the time of his arrest.
The case thus boils down to whether, in the context of a brief conversation, the officers should
have known that the respondent would suddenly be moved to make a self-incriminating
response. Given the fact that the entire conversation appears to have consisted of no more than
a few off hand remarks, we cannot say that the officers should have known that it was reasonably
likely that Innis would so respond. This is not a case where the police carried on a lengthy
harangue in the presence of the suspect. Nor does the record support the respondent’s
contention that, under the circumstances, the officers’ comments were particularly “evocative.”
It is our view, therefore, that the respondent was not subjected by the police to words or actions
that the police should have known were reasonably likely to elicit an incriminating response from
him.
The Rhode Island Supreme Court erred, in short, in equating “subtle compulsion” with
interrogation. That the officers’ comments struck a responsive chord is readily apparent. Thus,
it may be said, as the Rhode Island Supreme Court did say, that the respondent was subjected to
“subtle compulsion.” But that is not the end of the inquiry. It must also be established that a
suspect’s incriminating response was the product of words or actions on the part of the police
that they should have known were reasonably likely to elicit an incriminating response. This was
not established in the present case.

1 [Footnote 7 by the Court] This is not to say that the intent of the police is irrelevant, for it may well have a bearing

on whether the police should have known that their words or actions were reasonably likely to evoke an
incriminating response. In particular, where a police practice is designed to elicit an incriminating response from
the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably
likely to have that effect.
Chapter 25 — Page 550

For the reasons stated, the judgment of the Supreme Court of Rhode Island is vacated, and the
case is remanded to that court for further proceedings not inconsistent with this opinion.
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
I am substantially in agreement with the Court’s definition of “interrogation” within the meaning
of Miranda v. Arizona.
I am utterly at a loss, however, to understand how this objective standard as applied to the facts
before us can rationally lead to the conclusion that there was no interrogation. Innis was arrested
at 4:30 a.m., handcuffed, searched, advised of his rights, and placed in the back seat of a patrol
car. Within a short time he had been twice more advised of his rights and driven away in a fourdoor sedan with three police officers. Two officers sat in the front seat and one sat beside Innis
in the back seat. Since the car traveled no more than a mile before Innis agreed to point out the
location of the murder weapon, Officer Gleckman must have begun almost immediately to talk
about the search for the shotgun.
The Court attempts to characterize Gleckman’s statements as “no more than a few off hand
remarks” which could not reasonably have been expected to elicit a response. If the statements
had been addressed to respondent, it would be impossible to draw such a conclusion. The simple
message of the “talking back and forth” between Gleckman and McKenna was that they had to
find the shotgun to avert a child’s death.
One can scarcely imagine a stronger appeal to the conscience of a suspect—any suspect—than
the assertion that if the weapon is not found an innocent person will be hurt or killed. And not
just any innocent person, but an innocent child—a little girl—a helpless, handicapped little girl
on her way to school. The notion that such an appeal could not be expected to have any effect
unless the suspect were known to have some special interest in handicapped children verges on
the ludicrous. As a matter of fact, the appeal to a suspect to confess for the sake of others, to
“display some evidence of decency and honor,” is a classic interrogation technique.
Gleckman’s remarks would obviously have constituted interrogation if they had been explicitly
directed to respondent, and the result should not be different because they were nominally
addressed to McKenna. This is not a case where police officers speaking among themselves are
accidentally overheard by a suspect. These officers were “talking back and forth” in close quarters
with the handcuffed suspect, traveling past the very place where they believed the weapon was
located. They knew respondent would hear and attend to their conversation, and they are
chargeable with knowledge of and responsibility for the pressures to speak which they created.
I firmly believe that this case is simply an aberration, and that in future cases the Court will apply
the standard adopted today in accordance with its plain meaning.
Mr. Justice STEVENS, dissenting.
An original definition of an old term coupled with an original finding of fact on a cold record
makes it possible for this Court to vacate the judgment of the Supreme Court of Rhode Island.
That court, on the basis of the facts in the record before it, concluded that members of the
Providence, R.I., police force had interrogated respondent, who was clearly in custody at the
Chapter 25 — Page 551

time, in the absence of counsel after he had requested counsel. In my opinion the state court’s
conclusion that there was interrogation rests on a proper interpretation of both the facts and the
law; thus, its determination that the products of the interrogation were inadmissible at trial
should be affirmed.
In short, in order to give full protection to a suspect’s right to be free from any interrogation at
all, the definition of “interrogation” must include any police statement or conduct that has the
same purpose or effect as a direct question. Statements that appear to call for a response from
the suspect, as well as those that are designed to do so, should be considered interrogation. By
prohibiting only those relatively few statements or actions that a police officer should know are
likely to elicit an incriminating response, the Court today accords a suspect considerably less
protection. Indeed, since I suppose most suspects are unlikely to incriminate themselves even
when questioned directly, this new definition will almost certainly exclude every statement that
is not punctuated with a question mark from the concept of “interrogation.”
The difference between the approach required by a faithful adherence to Miranda and the
stinted test applied by the Court today can be illustrated by comparing three different ways in
which Officer Gleckman could have communicated his fears about the possible dangers posed
by the shotgun to handicapped children. He could have:
(1) directly asked Innis:
Will you please tell me where the shotgun is so we can protect handicapped school children from
danger?
(2) announced to the other officers in the wagon:
If the man sitting in the back seat with me should decide to tell us where the gun is, we can
protect handicapped children from danger.
or (3) stated to the other officers:
It would be too bad if a little handicapped girl would pick up the gun that this man left in the
area and maybe kill herself.
In my opinion, all three of these statements should be considered interrogation because all three
appear to be designed to elicit a response from anyone who in fact knew where the gun was
located. Under the Court’s test, on the other hand, the form of the statements would be critical.
The third statement would not be interrogation because in the Court’s view there was no reason
for Officer Gleckman to believe that Innis was susceptible to this type of an implied appeal;
therefore, the statement would not be reasonably likely to elicit an incriminating response.
Assuming that this is true, then it seems to me that the first two statements, which would be just
as unlikely to elicit such a response, should also not be considered interrogation. But, because
the first statement is clearly an express question, it would be considered interrogation under the
Court’s test. The second statement, although just as clearly a deliberate appeal to Innis to reveal
the location of the gun, would presumably not be interrogation because (a) it was not in form a

Chapter 25 — Page 552

direct question and (b) it does not fit within the “reasonably likely to elicit an incriminating
response” category that applies to indirect interrogation.
As this example illustrates, the Court’s test creates an incentive for police to ignore a suspect’s
invocation of his rights in order to make continued attempts to extract information from him. If
a suspect does not appear to be susceptible to a particular type of psychological pressure, the
police are apparently free to exert that pressure on him despite his request for counsel, so long
as they are careful not to punctuate their statements with question marks. And if, contrary to all
reasonable expectations, the suspect makes an incriminating statement, that statement can be
used against him at trial. The Court thus turns Miranda’s unequivocal rule against any
interrogation at all into a trap in which unwary suspects may be caught by police deception.
Notes, Comments, and Questions
Review the three questions presented by Justice Stevens. Can you articulate a rule under which
they are not all interrogations? Look closely at how the majority applies the “functional
equivalent” part of its interrogation rule. Will the application be easily transferred to other
scenarios?
Consider a suspect who invokes his right to counsel after receiving his Miranda warnings. When
the suspect’s wife arrives, a police officer stays in the room as the suspect and wife converse. The
officer secretly records the conversation. Is the creation of the recording (or, in slightly different
facts, having the officer listen carefully to the conversation without recording it) the “functional
equivalent” of interrogation? See Arizona v. Mauro, 481 U.S. 520 (1987).
Imagine that police arrest a suspect. They do not ask any questions. Instead, an officer tells the
suspect “that any cooperation would be brought to the attention of the Assistant United States
Attorney.” Is that “interrogation” under Innis? See United States v. Montana, 958 F.2d 516, 518
(2d Cir. 1992).
The next case concerns whether an undercover agent—that is, someone working for police
without a suspect’s knowledge—must deliver Miranda warnings before questioning a suspect
who is in custody.
Supreme Court of the United States
Illinois v. Lloyd Perkins
Decided June 4, 1990 – 496 U.S. 292
Justice KENNEDY delivered the opinion of the Court.
An undercover government agent was placed in the cell of respondent Perkins, who was
incarcerated on charges unrelated to the subject of the agent’s investigation. Respondent made
statements that implicated him in the crime that the agent sought to solve. Respondent claims
that the statements should be inadmissible because he had not been given Miranda warnings by
the agent. We hold that the statements are admissible. Miranda warnings are not required when

Chapter 25 — Page 553

the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary
statement.
I
In November 1984, Richard Stephenson was murdered in a suburb of East St. Louis, Illinois. The
murder remained unsolved until March 1986, when one Donald Charlton told police that he had
learned about a homicide from a fellow inmate at the Graham Correctional Facility, where
Charlton had been serving a sentence for burglary. The fellow inmate was Lloyd Perkins, who is
the respondent here. Charlton told police that, while at Graham, he had befriended respondent,
who told him in detail about a murder that respondent had committed in East St. Louis. On
hearing Charlton’s account, the police recognized details of the Stephenson murder that were
not well known, and so they treated Charlton’s story as a credible one.
By the time the police heard Charlton’s account, respondent had been released from Graham,
but police traced him to a jail in Montgomery County, Illinois, where he was being held pending
trial on a charge of aggravated battery, unrelated to the Stephenson murder. The police wanted
to investigate further respondent’s connection to the Stephenson murder, but feared that the use
of an eavesdropping device would prove impracticable and unsafe. They decided instead to place
an undercover agent in the cellblock with respondent and Charlton. The plan was for Charlton
and undercover agent John Parisi to pose as escapees from a work release program who had
been arrested in the course of a burglary. Parisi and Charlton were instructed to engage
respondent in casual conversation and report anything he said about the Stephenson murder.
Parisi, using the alias “Vito Bianco,” and Charlton, both clothed in jail garb, were placed in the
cellblock with respondent at the Montgomery County jail. The cellblock consisted of 12 separate
cells that opened onto a common room. Respondent greeted Charlton who, after a brief
conversation with respondent, introduced Parisi by his alias. Parisi told respondent that he
“wasn’t going to do any more time” and suggested that the three of them escape. Respondent
replied that the Montgomery County jail was “rinky-dink” and that they could “break out.” The
trio met in respondent’s cell later that evening, after the other inmates were asleep, to refine
their plan. Respondent said that his girlfriend could smuggle in a pistol. Charlton said: “Hey, I’m
not a murderer, I’m a burglar. That’s your guys’ profession.” After telling Charlton that he would
be responsible for any murder that occurred, Parisi asked respondent if he had ever “done”
anybody. Respondent said that he had and proceeded to describe at length the events of the
Stephenson murder. Parisi and respondent then engaged in some casual conversation before
respondent went to sleep. Parisi did not give respondent Miranda warnings before the
conversations.
Respondent was charged with the Stephenson murder. Before trial, he moved to suppress the
statements made to Parisi in the jail. The trial court granted the motion to suppress, and the
State appealed. The Appellate Court of Illinois affirmed, holding that Miranda v. Arizona
prohibits all undercover contacts with incarcerated suspects that are reasonably likely to elicit
an incriminating response.

Chapter 25 — Page 554

We granted certiorari to decide whether an undercover law enforcement officer must give
Miranda warnings to an incarcerated suspect before asking him questions that may elicit an
incriminating response. We now reverse.
II
Conversations between suspects and undercover agents do not implicate the concerns
underlying Miranda. The essential ingredients of a “police-dominated atmosphere” and
compulsion are not present when an incarcerated person speaks freely to someone whom he
believes to be a fellow inmate. Coercion is determined from the perspective of the suspect. When
a suspect considers himself in the company of cellmates and not officers, the coercive
atmosphere is lacking. There is no empirical basis for the assumption that a suspect speaking to
those whom he assumes are not officers will feel compelled to speak by the fear of reprisal for
remaining silent or in the hope of more lenient treatment should he confess.
It is the premise of Miranda that the danger of coercion results from the interaction of custody
and official interrogation. We reject the argument that Miranda warnings are required whenever
a suspect is in custody in a technical sense and converses with someone who happens to be a
government agent. Questioning by captors, who appear to control the suspect’s fate, may create
mutually reinforcing pressures that the Court has assumed will weaken the suspect’s will, but
where a suspect does not know that he is conversing with a government agent, these pressures
do not exist. The state court here mistakenly assumed that because the suspect was in custody,
no undercover questioning could take place. When the suspect has no reason to think that the
listeners have official power over him, it should not be assumed that his words are motivated by
the reaction he expects from his listeners. “[W]hen the agent carries neither badge nor gun and
wears not ‘police blue,’ but the same prison gray” as the suspect, there is no “interplay between
police interrogation and police custody.”
Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s
misplaced trust in one he supposes to be a fellow prisoner. As we recognized in Miranda:
“[C]onfessions remain a proper element in law enforcement. Any statement given freely and
voluntarily without any compelling influences is, of course, admissible in evidence.” Ploys to
mislead a suspect or lull him into a false sense of security that do not rise to the level of
compulsion or coercion to speak are not within Miranda’s concerns.
Miranda was not meant to protect suspects from boasting about their criminal activities in front
of persons whom they believe to be their cellmates. This case is illustrative. Respondent had no
reason to feel that undercover agent Parisi had any legal authority to force him to answer
questions or that Parisi could affect respondent’s future treatment. Respondent viewed the
cellmate-agent as an equal and showed no hint of being intimidated by the atmosphere of the
jail. In recounting the details of the Stephenson murder, respondent was motivated solely by the
desire to impress his fellow inmates. He spoke at his own peril.
The tactic employed here to elicit a voluntary confession from a suspect does not violate the SelfIncrimination Clause. This Court’s Sixth Amendment decisions [] also do not avail respondent.
We held in those cases that the government may not use an undercover agent to circumvent the
Sixth Amendment right to counsel once a suspect has been charged with the crime. After charges

Chapter 25 — Page 555

have been filed, the Sixth Amendment prevents the government from interfering with the
accused’s right to counsel. In the instant case no charges had been filed on the subject of the
interrogation, and our Sixth Amendment precedents are not applicable.
Respondent can seek no help from his argument that a bright-line rule for the application of
Miranda is desirable. Law enforcement officers will have little difficulty putting into practice our
holding that undercover agents need not give Miranda warnings to incarcerated suspects. The
use of undercover agents is a recognized law enforcement technique, often employed in the
prison context to detect violence against correctional officials or inmates, as well as for the
purposes served here. The interests protected by Miranda are not implicated in these cases, and
the warnings are not required to safeguard the constitutional rights of inmates who make
voluntary statements to undercover agents.
We hold that an undercover law enforcement officer posing as a fellow inmate need not give
Miranda warnings to an incarcerated suspect before asking questions that may elicit an
incriminating response. The statements at issue in this case were voluntary, and there is no
federal obstacle to their admissibility at trial. We now reverse and remand for proceedings not
inconsistent with our opinion.
Justice MARSHALL, dissenting.
This Court clearly and simply stated its holding in Miranda v. Arizona: “[T]he prosecution may
not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation
of the defendant unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination.” The Court reaches the contrary conclusion by fashioning
an exception to the Miranda rule that applies whenever “an undercover law enforcement officer
posing as a fellow inmate ... ask[s] questions that may elicit an incriminating response” from an
incarcerated suspect. This exception is inconsistent with the rationale supporting Miranda and
allows police officers intentionally to take advantage of suspects unaware of their constitutional
rights. I therefore dissent.
The Court does not dispute that the police officer here conducted a custodial interrogation of a
criminal suspect. Perkins was incarcerated in county jail during the questioning at issue here;
under these circumstances, he was in custody as that term is defined in Miranda. While Perkins
was confined, an undercover police officer, with the help of a police informant, questioned him
about a serious crime. Although the Court does not dispute that Perkins was interrogated, it
downplays the nature of the 35-minute questioning by disingenuously referring to it as a
“conversatio[n].” The officer’s narration of the “conversation” at Perkins’ suppression hearing
however, reveals that it clearly was an interrogation.
“[Agent:] You ever do anyone?
“[Perkins:] Yeah, once in East St. Louis, in a rich white neighborhood.
“Informant: I didn’t know they had any rich white neighborhoods in East St. Louis.
“Perkins: It wasn’t in East St. Louis, it was by a race track in Fairview Heights....

Chapter 25 — Page 556

“[Agent]: You did a guy in Fairview Heights?
“Perkins: Yeah in a rich white section where most of the houses look the same.
“[Informant]: If all the houses look the same, how did you know you had the right house?
“Perkins: Me and two guys cased the house for about a week. I knew exactly which house, the
second house on the left from the corner.
“[Agent]: How long ago did this happen?
“Perkins: Approximately about two years ago. I got paid $5,000 for that job.
“[Agent]: How did it go down?
“Perkins: I walked up [to] this guy[’s] house with a sawed-off under my trench coat.
“[Agent]: What type gun[?]
“Perkins: A .12 gauge Remmington [sic] Automatic Model 1100 sawed-off.”
The police officer continued the inquiry, asking a series of questions designed to elicit specific
information about the victim, the crime scene, the weapon, Perkins’ motive, and his actions
during and after the shooting. This interaction was not a “conversation”; Perkins, the officer, and
the informant were not equal participants in a free-ranging discussion, with each man offering
his views on different topics. Rather, it was an interrogation: Perkins was subjected to express
questioning likely to evoke an incriminating response.
Because Perkins was interrogated by police while he was in custody, Miranda required that the
officer inform him of his rights. In rejecting that conclusion, the Court finds that “conversations”
between undercover agents and suspects are devoid of the coercion inherent in station house
interrogations conducted by law enforcement officials who openly represent the State. Miranda
was not, however, concerned solely with police coercion. It dealt with any police tactics that may
operate to compel a suspect in custody to make incriminating statements without full awareness
of his constitutional rights. Thus, when a law enforcement agent structures a custodial
interrogation so that a suspect feels compelled to reveal incriminating information, he must
inform the suspect of his constitutional rights and give him an opportunity to decide whether or
not to talk.

Chapter 25 — Page 557

The Court’s holding today complicates a previously clear and straightforward doctrine. The
Court opines that “[l]aw enforcement officers will have little difficulty putting into practice our
holding that undercover agents need not give Miranda warnings to incarcerated suspects.”
Perhaps this prediction is true with respect to fact patterns virtually identical to the one before
the Court today. But the outer boundaries of the exception created by the Court are by no means
clear. Would Miranda be violated, for instance, if an undercover police officer beat a confession
out of a suspect, but the suspect thought the officer was another prisoner who wanted the
information for his own purposes?
The Court’s adoption of the “undercover agent” exception to the Miranda rule [] is necessarily
also the adoption of a substantial loophole in our jurisprudence protecting suspects’ Fifth
Amendment rights.
I dissent.
Notes, Comments, and Questions
The rule desired by the defendant in Perkins—which the Court rejected—would essentially have
prohibited undercover questioning of suspects who are in custody. Only the most foolish suspect
imaginable could be fooled by an “undercover” agent who recites the Miranda warnings to the
suspect. Students should note, however, that in the context of the Sixth Amendment right to the
assistance of counsel, the Court has proven willing to accept this consequence. (In other words,
the Court’s Sixth Amendment decisions have created constitutional law that makes certain
undercover questioning unlawful.) In Chapter 30, we will consider how the Court has regulated
interrogations under the Sixth Amendment after concluding our examination of the Miranda
Rule.
The Miranda Rule: Waiver of Rights
After setting forth the warnings police must deliver before conducting “custodial interrogation,”
the Miranda Court wrote, “The defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and intelligently.” The Court did not, however, define
“waiver.” In the next two cases, the Court begins to answer what counts as waiver, explaining
how police officers can determine when interrogation is permissible after a suspect has been
warned.
Supreme Court of the United States
North Carolina v. Willie Thomas Butler
Decided April 24, 1979 – 441 U.S. 369
Mr. Justice STEWART delivered the opinion of the Court.
In evident conflict with the present view of every other court that has considered the issue, the
North Carolina Supreme Court has held that Miranda v. Arizona requires that no statement of
a person under custodial interrogation may be admitted in evidence against him unless, at the
time the statement was made, he explicitly waived the right to the presence of a lawyer. We
Chapter 25 — Page 558

granted certiorari to consider whether this per se rule reflects a proper understanding of the
Miranda decision.
The respondent was convicted in a North Carolina trial court of kidnaping, armed robbery, and
felonious assault. The evidence at his trial showed that he and a man named Elmer Lee had
robbed a gas station in Goldsboro, N.C., in December 1976, and had shot the station attendant
as he was attempting to escape. The attendant was paralyzed, but survived to testify against the
respondent.
The prosecution also produced evidence of incriminating statements made by the respondent
shortly after his arrest by Federal Bureau of Investigation agents in the Bronx, N.Y., on the basis
of a North Carolina fugitive warrant. Outside the presence of the jury, FBI Agent Martinez
testified that at the time of the arrest he fully advised the respondent of the rights delineated in
the Miranda case. According to the uncontroverted testimony of Martinez, the agents then took
the respondent to the FBI office in nearby New Rochelle, N.Y. There, after the agents determined
that the respondent had an 11th grade education and was literate, he was given the Bureau’s
“Advice of Rights” form which he read. When asked if he understood his rights, he replied that
he did. The respondent refused to sign the waiver at the bottom of the form. He was told that he
need neither speak nor sign the form, but that the agents would like him to talk to them. The
respondent replied: “I will talk to you but I am not signing any form.” He then made inculpatory
statements. Agent Martinez testified that the respondent said nothing when advised of his right
to the assistance of a lawyer. At no time did the respondent request counsel or attempt to
terminate the agents’ questioning.
At the conclusion of this testimony the respondent moved to suppress the evidence of his
incriminating statements on the ground that he had not waived his right to the assistance of
counsel at the time the statements were made. The court denied the motion, finding that
“the statement made by the defendant, William Thomas Butler, to Agent David C. Martinez, was
made freely and voluntarily to said agent after having been advised of his rights as required by
the Miranda ruling, including his right to an attorney being present at the time of the inquiry
and that the defendant, Butler, understood his rights; [and] that he effectively waived his rights,
including the right to have an attorney present during the questioning by his indication that he
was willing to answer questions, having read the rights form together with the Waiver of Rights
….”
The respondent’s statements were then admitted into evidence, and the jury ultimately found
the respondent guilty of each offense charged.
On appeal, the North Carolina Supreme Court reversed the convictions and ordered a new trial.
It found that the statements had been admitted in violation of the requirements of the Miranda
decision, noting that the respondent had refused to waive in writing his right to have counsel
present and that there had not been a specific oral waiver.
We conclude that the North Carolina Supreme Court erred in its reading of the Miranda opinion.
[T]he Court held that an express statement can constitute a waiver, and that silence alone after
such warnings cannot do so. But the Court did not hold that such an express statement is
indispensable to a finding of waiver.

Chapter 25 — Page 559

An express written or oral statement of waiver of the right to remain silent or of the right to
counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary
or sufficient to establish waiver. The question is not one of form, but rather whether the
defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.
As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the
defendant’s silence, coupled with an understanding of his rights and a course of conduct
indicating waiver, may never support a conclusion that a defendant has waived his rights. The
courts must presume that a defendant did not waive his rights; the prosecution’s burden is great;
but in at least some cases waiver can be clearly inferred from the actions and words of the person
interrogated.
The Court’s opinion in Miranda explained the reasons for the prophylactic rules it created:
“We have concluded that without proper safeguards the process of in-custody interrogation of
persons suspected or accused of crime contains inherently compelling pressures which work to
undermine the individual’s will to resist and to compel him to speak where he would not
otherwise do so freely. In order to combat these pressures and to permit a full opportunity to
exercise the privilege against self-incrimination, the accused must be adequately and effectively
apprised of his rights and the exercise of those rights must be fully honored.”
The per se rule that the North Carolina Supreme Court has found in Miranda does not speak to
these concerns. There is no doubt that this respondent was adequately and effectively apprised
of his rights. The only question is whether he waived the exercise of one of those rights, the right
to the presence of a lawyer. Neither the state court nor the respondent has offered any reason
why there must be a negative answer to that question in the absence of an express waiver. This
is not the first criminal case to question whether a defendant waived his constitutional rights. It
is an issue with which courts must repeatedly deal. Even when a right so fundamental as that to
counsel at trial is involved, the question of waiver must be determined on “the particular facts
and circumstances surrounding that case, including the background, experience, and conduct of
the accused.”
We see no reason to discard that standard and replace it with an inflexible per se rule in a case
such as this. As stated at the outset of this opinion, it appears that every court that has considered
this question has now reached the same conclusion. Ten of the eleven United States Courts of
Appeals and the courts of at least 17 States have held that an explicit statement of waiver is not
invariably necessary to support a finding that the defendant waived the right to remain silent or
the right to counsel guaranteed by the Miranda case. By creating an inflexible rule that no
implicit waiver can ever suffice, the North Carolina Supreme Court has gone beyond the
requirements of federal organic law. It follows that its judgment cannot stand, since a state court
can neither add to nor subtract from the mandates of the United States Constitution.
Accordingly, the judgment is vacated, and the case is remanded to the North Carolina Supreme
Court for further proceedings not inconsistent with this opinion.

Chapter 25 — Page 560

Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice STEVENS joins,
dissenting.
The rule announced by the Court today allows a finding of waiver based upon “infer[ence] from
the actions and words of the person interrogated.” The Court thus shrouds in half-light the
question of waiver, allowing courts to construct inferences from ambiguous words and gestures.
But the very premise of Miranda requires that ambiguity be interpreted against the interrogator.
That premise is the recognition of the “compulsion inherent in custodial” interrogation and of
its purpose “to subjugate the individual to the will of [his] examiner.” Under such conditions,
only the most explicit waivers of rights can be considered knowingly and freely given.
The instant case presents a clear example of the need for an express waiver requirement. As the
Court acknowledges, there is a disagreement over whether respondent was orally advised of his
rights at the time he made his statement. The fact that Butler received a written copy of his rights
is deemed by the Court to be sufficient basis to resolve the disagreement. But, unfortunately,
there is also a dispute over whether Butler could read. And, obviously, if Butler did not have his
rights read to him, and could not read them himself, there could be no basis upon which to
conclude that he knowingly waived them. Indeed, even if Butler could read there is no reason to
believe that his oral statements, which followed a refusal to sign a written waiver form, were
intended to signify relinquishment of his rights.
Faced with “actions and words” of uncertain meaning, some judges may find waivers where none
occurred. Others may fail to find them where they did. In the former case, the defendant’s rights
will have been violated; in the latter, society’s interest in effective law enforcement will have been
frustrated. A simple prophylactic rule requiring the police to obtain an express waiver of the right
to counsel before proceeding with interrogation eliminates these difficulties. And since the Court
agrees that Miranda requires the police to obtain some kind of waiver—whether express or
implied—the requirement of an express waiver would impose no burden on the police not
imposed by the Court’s interpretation. It would merely make that burden explicit. Had Agent
Martinez simply elicited a clear answer from Willie Butler to the question, “Do you waive your
right to a lawyer?” this journey through three courts would not have been necessary.
*

*

*

In the next case, the Court considered whether a “knowing” and “intelligent” waiver can be
obtained only if a suspect knows all the crimes about which police might question him. In other
words, is it enough that he be warned that anything he might say can be used to incriminate him,
or must police also inform him of every crime he is suspected of having committed?

Chapter 25 — Page 561

Supreme Court of the United States
Colorado v. John Leroy Spring
Decided Jan. 27, 1987 – 479 U.S. 564
Justice POWELL delivered the opinion of the Court.
This case presents the question whether the suspect’s awareness of all the crimes about which
he may be questioned is relevant to determining the validity of his decision to waive the Fifth
Amendment privilege.
I
In February 1979, respondent John Leroy Spring and a companion shot and killed Donald
Walker during a hunting trip in Colorado. Shortly thereafter, an informant told agents of the
Bureau of Alcohol, Tobacco, and Firearms (ATF) that Spring was engaged in the interstate
transportation of stolen firearms. The informant also told the agents that Spring had discussed
his participation in the Colorado killing. At the time the ATF agents received this information,
Walker’s body had not been found and the police had received no report of his disappearance.
Based on the information received from the informant relating to the firearms violations, the
ATF agents set up an undercover operation to purchase firearms from Spring. On March 30,
1979, ATF agents arrested Spring in Kansas City, Missouri, during the undercover purchase.
An ATF agent on the scene of the arrest advised Spring of his Miranda rights. Spring was advised
of his Miranda rights a second time after he was transported to the ATF office in Kansas City. At
the ATF office, the agents also advised Spring that he had the right to stop the questioning at any
time or to stop the questioning until the presence of an attorney could be secured. Spring then
signed a written form stating that he understood and waived his rights, and that he was willing
to make a statement and answer questions.
ATF agents first questioned Spring about the firearms transactions that led to his arrest. They
then asked Spring if he had a criminal record. He admitted that he had a juvenile record for
shooting his aunt when he was 10 years old. The agents asked if Spring had ever shot anyone
else. Spring ducked his head and mumbled, “I shot another guy once.” The agents asked Spring
if he had ever been to Colorado. Spring said no. The agents asked Spring whether he had shot a
man named Walker in Colorado and thrown his body into a snowbank. Spring paused and then
ducked his head again and said no. The interview ended at this point.
On May 26, 1979, Colorado law enforcement officials visited Spring while he was in jail in Kansas
City pursuant to his arrest on the firearms offenses. The officers gave Spring the Miranda
warnings, and Spring again signed a written form indicating that he understood his rights and
was willing to waive them. The officers informed Spring that they wanted to question him about
the Colorado homicide. Spring indicated that he “wanted to get it off his chest.” In an interview
that lasted approximately 1 ½ hours, Spring confessed to the Colorado murder. During that time,
Spring talked freely to the officers, did not indicate a desire to terminate the questioning, and
never requested counsel. The officers prepared a written statement summarizing the interview.
Spring read, edited, and signed the statement.

Chapter 25 — Page 562

Spring was charged in Colorado state court with first-degree murder. Spring moved to suppress
both statements on the ground that his waiver of Miranda rights was invalid. The trial court
found that the ATF agents’ failure to inform Spring before the March 30 interview that they
would question him about the Colorado murder did not affect his waiver of his Miranda rights.
Accordingly, the trial court concluded that the March 30 statement should not be suppressed on
Fifth Amendment grounds. The trial court, however, subsequently ruled that Spring’s statement
that he “shot another guy once” was irrelevant, and that the context of the discussion did not
support the inference that the statement related to the Walker homicide. For that reason, the
March 30 statement was not admitted at Spring’s trial. The court concluded that the May 26
statement “was made freely, voluntarily, and intelligently, after [Spring’s] being properly and
fully advised of his rights, and that the statement should not be suppressed, but should be
admitted in evidence.” The May 26 statement was admitted into evidence at trial, and Spring
was convicted of first-degree murder.
Spring argued on appeal that his waiver of Miranda rights before the March 30 statement was
invalid because he was not informed that he would be questioned about the Colorado murder.
Although this statement was not introduced at trial, he claimed that its validity was relevant
because the May 26 statement that was admitted against him was the illegal “fruit” of the March
30 statement and therefore should have been suppressed. The Colorado Court of Appeals agreed
with Spring, holding that the ATF agents “had a duty to inform Spring that he was a suspect, or
to readvise him of his Miranda rights, before questioning him about the murder.”
The Colorado Supreme Court affirmed the judgment of the Court of Appeals. The court
concluded:
“Here, the absence of an advisement to Spring that he would be questioned about the Colorado
homicide, and the lack of any basis to conclude that at the time of the execution of the waiver, he
reasonably could have expected that the interrogation would extend to that subject, are
determinative factors in undermining the validity of the waiver.”
We granted certiorari to resolve an arguable Circuit conflict and to review the Colorado Supreme
Court’s determination that a suspect’s awareness of the possible subjects of questioning is a
relevant and sometimes determinative consideration in assessing whether a waiver of the Fifth
Amendment privilege is valid. We now reverse.
II
There is no dispute that the police obtained the May 26 confession after complete Miranda
warnings and after informing Spring that he would be questioned about the Colorado homicide.
The Colorado Supreme Court nevertheless held that the confession should have been suppressed
because it was the illegal “fruit” of the March 30 statement. A confession cannot be “fruit of the
poisonous tree” if the tree itself is not poisonous. Our inquiry, therefore, centers on the validity
of the March 30 statement.

Chapter 25 — Page 563

A
The Court’s fundamental aim in designing the Miranda warnings was “to assure that the
individual’s right to choose between silence and speech remains unfettered throughout the
interrogation process.”
Consistent with this purpose, a suspect may waive his Fifth Amendment privilege, “provided the
waiver is made voluntarily, knowingly and intelligently.” In this case, the law enforcement
officials twice informed Spring of his Fifth Amendment privilege in precisely the manner
specified by Miranda. As we have noted, Spring indicated that he understood the enumerated
rights and signed a written form expressing his intention to waive his Fifth Amendment
privilege. The trial court specifically found that “there was no element of duress or coercion used
to induce Spring’s statements [on March 30, 1978].” Despite the explicit warnings and the
finding by the trial court, Spring argues that his March 30 statement was in effect compelled in
violation of his Fifth Amendment privilege because he signed the waiver form without being
aware that he would be questioned about the Colorado homicide. Spring’s argument strains the
meaning of compulsion past the breaking point.
B
A statement is not “compelled” within the meaning of the Fifth Amendment if an individual
“voluntarily, knowingly and intelligently” waives his constitutional privilege. The inquiry
whether a waiver is coerced “has two distinct dimensions.”
“First the relinquishment of the right must have been voluntary in the sense that it was the
product of a free and deliberate choice rather than intimidation, coercion, or deception. Second,
the waiver must have been made with a full awareness both of the nature of the right being
abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the
circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite
level of comprehension may a court properly conclude that the Miranda rights have been
waived.”
There is no doubt that Spring’s decision to waive his Fifth Amendment privilege was voluntary.
He alleges no “coercion of a confession by physical violence or other deliberate means calculated
to break [his] will” and the trial court found none. His allegation that the police failed to supply
him with certain information does not relate to any of the traditional indicia of coercion: “the
duration and conditions of detention ..., the manifest attitude of the police toward him, his
physical and mental state, the diverse pressures which sap or sustain his powers of resistance
and self-control.” Absent evidence that Spring’s “will [was] overborne and his capacity for selfdetermination critically impaired” because of coercive police conduct, his waiver of his Fifth
Amendment privilege was voluntary under this Court’s decision in Miranda.
There also is no doubt that Spring’s waiver of his Fifth Amendment privilege was knowingly and
intelligently made: that is, that Spring understood that he had the right to remain silent and that
anything he said could be used as evidence against him. The Constitution does not require that
a criminal suspect know and understand every possible consequence of a waiver of the Fifth
Amendment privilege. The Fifth Amendment’s guarantee is both simpler and more

Chapter 25 — Page 564

fundamental: A defendant may not be compelled to be a witness against himself in any respect.
The Miranda warnings protect this privilege by ensuring that a suspect knows that he may
choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue
talking at any time. The Miranda warnings ensure that a waiver of these rights is knowing and
intelligent by requiring that the suspect be fully advised of this constitutional privilege, including
the critical advice that whatever he chooses to say may be used as evidence against him.
In this case there is no allegation that Spring failed to understand the basic privilege guaranteed
by the Fifth Amendment. Nor is there any allegation that he misunderstood the consequences of
speaking freely to the law enforcement officials. In sum, we think that the trial court was
indisputably correct in finding that Spring’s waiver was made knowingly and intelligently within
the meaning of Miranda.
III
A
Spring relies on this Court’s statement in Miranda that “any evidence that the accused was
threatened, tricked, or cajoled into a waiver will ... show that the defendant did not voluntarily
waive his privilege.” He contends that the failure to inform him of the potential subjects of
interrogation constitutes the police trickery and deception condemned in Miranda, thus
rendering his waiver of Miranda rights invalid. Spring, however, reads this statement in
Miranda out of context and without due regard to the constitutional privilege the Miranda
warnings were designed to protect.
We note first that the Colorado courts made no finding of official trickery. In fact, as noted above,
the trial court expressly found that “there was no element of duress or coercion used to induce
Spring’s statements.” Spring nevertheless insists that the failure of the ATF agents to inform him
that he would be questioned about the murder constituted official “trickery” sufficient to
invalidate his waiver of his Fifth Amendment privilege, even if the official conduct did not
amount to “coercion.” Even assuming that Spring’s proposed distinction has merit, we reject his
conclusion. This Court has never held that mere silence by law enforcement officials as to the
subject matter of an interrogation is “trickery” sufficient to invalidate a suspect’s waiver of
Miranda rights, and we expressly decline so to hold today.
Once Miranda warnings are given, it is difficult to see how official silence could cause a suspect
to misunderstand the nature of his constitutional right—“his right to refuse to answer any
question which might incriminate him.” “Indeed, it seems self-evident that one who is told he is
free to refuse to answer questions is in a curious posture to later complain that his answers were
compelled.” We have held that a valid waiver does not require that an individual be informed of
all information “useful” in making his decision or all information that “might ... affec[t] his
decision to confess.” “[W]e have never read the Constitution to require that the police supply a
suspect with a flow of information to help him calibrate his self-interest in deciding whether to
speak or stand by his rights.” Here, the additional information could affect only the wisdom of a
Miranda waiver, not its essentially voluntary and knowing nature. Accordingly, the failure of the
law enforcement officials to inform Spring of the subject matter of the interrogation could not
affect Spring’s decision to waive his Fifth Amendment privilege in a constitutionally significant
manner.

Chapter 25 — Page 565

B
This Court’s holding in Miranda specifically required that the police inform a criminal suspect
that he has the right to remain silent and that anything he says may be used against him. There
is no qualification of this broad and explicit warning. The warning, as formulated in Miranda,
conveys to a suspect the nature of his constitutional privilege and the consequences of
abandoning it. Accordingly, we hold that a suspect’s awareness of all the possible subjects of
questioning in advance of interrogation is not relevant to determining whether the suspect
voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.
IV
The judgment of the Colorado Supreme Court is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
[T]he Court[] hold[s] today: “[A] suspect’s awareness of all the possible subjects of questioning
in advance of interrogation is not relevant to determining” the validity of his waiver. This careful
phraseology avoids the important question whether the lack of any indication of the identified
subjects for questioning is relevant to determining the validity of the suspect’s waiver.
I would include among the relevant factors for consideration whether before waiving his Fifth
Amendment rights the suspect was aware, either through the circumstances surrounding his
arrest or through a specific advisement from the arresting or interrogating officers, of the crime
or crimes he was suspected of committing and about which they intended to ask questions. To
hold that such knowledge is relevant would not undermine the “‘virtue of informing police and
prosecutors with specificity’ as to how a pretrial questioning of a suspect must be conducted,”
nor would it interfere with the use of legitimate interrogation techniques. Indeed, requiring the
officers to articulate at a minimum the crime or crimes for which the suspect has been arrested
could contribute significantly toward ensuring that the arrest was in fact lawful and the suspect’s
statement not compelled because of an error at this stage alone.
The interrogation tactics utilized in this case demonstrate the relevance of the information
Spring did not receive. The agents evidently hoped to obtain from Spring a valid confession to
the federal firearms charge for which he was arrested and then parlay this admission into an
additional confession of first-degree murder. Spring could not have expected questions about
the latter, separate offense when he agreed to waive his rights, as it occurred in a different State
and was a violation of state law outside the normal investigative focus of federal Alcohol,
Tobacco, and Firearms agents.
The coercive aspects of the psychological ploy intended in this case, when combined with an
element of surprise which may far too easily rise to a level of deception, cannot be justified in
light of Miranda’s strict requirements that the suspect’s waiver and confession be voluntary,
knowing, and intelligent. If a suspect has signed a waiver form with the intention of making a
statement regarding a specifically alleged crime, the Court today would hold this waiver valid

Chapter 25 — Page 566

with respect to questioning about any other crime, regardless of its relation to the charges the
suspect believes he will be asked to address. Yet once this waiver is given and the intended
statement made, the protections afforded by Miranda against the “inherently compelling
pressures” of the custodial interrogation have effectively dissipated. Additional questioning
about entirely separate and more serious suspicions of criminal activity can take unfair
advantage of the suspect’s psychological state, as the unexpected questions cause the compulsive
pressures suddenly to reappear. Given this technique of interrogation, a suspect’s understanding
of the topics planned for questioning is, therefore, at the very least “relevant” to assessing
whether his decision to talk to the officers was voluntarily, knowingly, and intelligently made.
I dissent.
*

*

*

In our next chapter, we will continue our examination of waiver of Miranda rights. Students
should beware that the requirements set forth in North Carolina v. Butler have been watered
down in subsequent cases.

Chapter 25 — Page 567

INTERROGATIONS
Chapter 26
The Miranda Rule: Waiver
In North Carolina v. Butler (Chapter 25), the Court stated that a “defendant’s silence, coupled
with an understanding of his rights and a course of conduct indicating waiver,” can sometimes
be sufficient to count as waiver of Miranda rights, even absent an express waiver.
In this chapter, we see that the Court has defined “a course of conduct indicating waiver”
expansively, effectively holding that “defendant’s silence, coupled with an understanding of his
rights” and an uncoerced statement to police constitutes waiver. In other words, an “uncoerced
statement” will suffice as the “course of conduct indicating waiver” required by Butler.
In the next case, the Court considered whether police must inform a suspect that his attorney
has been trying to reach him. More specifically, the issue was whether failure to do so invalidates
an otherwise adequate waiver of Miranda rights.
Supreme Court of the United States
John Moran v. Brian K. Burbine
Decided March 10, 1986 – 475 U.S. 412
Justice O’CONNOR delivered the opinion of the Court.
After being informed of his rights pursuant to Miranda v. Arizona, and after executing a series
of written waivers, respondent confessed to the murder of a young woman. At no point during
the course of the interrogation, which occurred prior to arraignment, did he request an attorney.
While he was in police custody, his sister attempted to retain a lawyer to represent him. The
attorney telephoned the police station and received assurances that respondent would not be
questioned further until the next day. In fact, the interrogation session that yielded the
inculpatory statements began later that evening. The question presented is whether either the
conduct of the police or respondent’s ignorance of the attorney’s efforts to reach him taints the
validity of the waivers and therefore requires exclusion of the confessions.
I
On the morning of March 3, 1977, Mary Jo Hickey was found unconscious in a factory parking
lot in Providence, Rhode Island. Suffering from injuries to her skull apparently inflicted by a
metal pipe found at the scene, she was rushed to a nearby hospital. Three weeks later she died
from her wounds.
Several months after her death, the Cranston, Rhode Island, police arrested respondent and two
others in connection with a local burglary. Shortly before the arrest, Detective Ferranti of the
Cranston police force had learned from a confidential informant that the man responsible for
Ms. Hickey’s death lived at a certain address and went by the name of “Butch.” Upon discovering
that respondent lived at that address and was known by that name, Detective Ferranti informed
Chapter 26 — Page 568

respondent of his Miranda rights. When respondent refused to execute a written waiver,
Detective Ferranti spoke separately with the two other suspects arrested on the breaking and
entering charge and obtained statements further implicating respondent in Ms. Hickey’s
murder. At approximately 6 p.m., Detective Ferranti telephoned the police in Providence to
convey the information he had uncovered. An hour later, three officers from that department
arrived at the Cranston headquarters for the purpose of questioning respondent about the
murder.
That same evening, at about 7:45 p.m., respondent’s sister telephoned the Public Defender’s
Office to obtain legal assistance for her brother. Her sole concern was the breaking and entering
charge, as she was unaware that respondent was then under suspicion for murder. She asked for
Richard Casparian who had been scheduled to meet with respondent earlier that afternoon to
discuss another charge unrelated to either the break-in or the murder. As soon as the
conversation ended, the attorney who took the call attempted to reach Mr. Casparian. When
those efforts were unsuccessful, she telephoned Allegra Munson, another Assistant Public
Defender, and told her about respondent’s arrest and his sister’s subsequent request that the
office represent him.
At 8:15 p.m., Ms. Munson telephoned the Cranston police station and asked that her call be
transferred to the detective division. In the words of the Supreme Court of Rhode Island, whose
factual findings we treat as presumptively correct, the conversation proceeded as follows:
“A male voice responded with the word ‘Detectives.’ Ms. Munson identified herself and asked if
Brian Burbine was being held; the person responded affirmatively. Ms. Munson explained to the
person that Burbine was represented by attorney Casparian who was not available; she further
stated that she would act as Burbine’s legal counsel in the event that the police intended to place
him in a lineup or question him. The unidentified person told Ms. Munson that the police would
not be questioning Burbine or putting him in a lineup and that they were through with him for
the night. Ms. Munson was not informed that the Providence Police were at the Cranston police
station or that Burbine was a suspect in Mary’s murder.”
At all relevant times, respondent was unaware of his sister’s efforts to retain counsel and of the
fact and contents of Ms. Munson’s telephone conversation.
Less than an hour later, the police brought respondent to an interrogation room and conducted
the first of a series of interviews concerning the murder. Prior to each session, respondent was
informed of his Miranda rights, and on three separate occasions he signed a written form
acknowledging that he understood his right to the presence of an attorney and explicitly
indicating that he “[did] not want an attorney called or appointed for [him]” before he gave a
statement. Uncontradicted evidence at the suppression hearing indicated that at least twice
during the course of the evening, respondent was left in a room where he had access to a
telephone, which he apparently declined to use. Eventually, respondent signed three written
statements fully admitting to the murder.
Prior to trial, respondent moved to suppress the statements. The court denied the motion,
finding that respondent had received the Miranda warnings and had “knowingly, intelligently,
and voluntarily waived his privilege against self-incrimination [and] his right to counsel.”

Chapter 26 — Page 569

Rejecting the contrary testimony of the police, the court found that Ms. Munson did telephone
the detective bureau on the evening in question, but concluded that “there was no ... conspiracy
or collusion on the part of the Cranston Police Department to secrete this defendant from his
attorney.” In any event, the court held, the constitutional right to request the presence of an
attorney belongs solely to the defendant and may not be asserted by his lawyer. Because the
evidence was clear that respondent never asked for the services of an attorney, the telephone call
had no relevance to the validity of the waiver or the admissibility of the statements.
The jury found respondent guilty of murder in the first degree, and he appealed to the Supreme
Court of Rhode Island. A divided court rejected his contention that the Fifth and Fourteenth
Amendments to the Constitution required the suppression of the inculpatory statements and
affirmed the conviction. Failure to inform respondent of Ms. Munson’s efforts to represent him,
the court held, did not undermine the validity of the waivers. “It hardly seems conceivable that
the additional information that an attorney whom he did not know had called the police station
would have added significantly to the quantum of information necessary for the accused to make
an informed decision as to waiver.” Nor, the court concluded, did Miranda v. Arizona or any
other decision of this Court independently require the police to honor Ms. Munson’s request that
interrogation not proceed in her absence. In reaching that conclusion, the court noted that
because two different police departments were operating in the Cranston station house on the
evening in question, the record supported the trial court’s finding that there was no “conspiracy
or collusion” to prevent Ms. Munson from seeing respondent. In any case, the court held, the
right to the presence of counsel belongs solely to the accused and may not be asserted by “benign
third parties, whether or not they happen to be attorneys.”
After unsuccessfully petitioning the United States District Court for the District of Rhode Island
for a writ of habeas corpus, respondent appealed to the Court of Appeals for the First Circuit.
That court reversed. Finding it unnecessary to reach any arguments under the Sixth and
Fourteenth Amendments, the court held that the police’s conduct had fatally tainted
respondent’s “otherwise valid” waiver of his Fifth Amendment privilege against selfincrimination and right to counsel. The court reasoned that by failing to inform respondent that
an attorney had called and that she had been assured that no questioning would take place until
the next day, the police had deprived respondent of information crucial to his ability to waive his
rights knowingly and intelligently. The court also found that the record would support “no other
explanation for the refusal to tell Burbine of Attorney Munson’s call than ... deliberate or reckless
irresponsibility.” This kind of “blameworthy action by the police,” the court concluded, together
with respondent’s ignorance of the telephone call, “vitiate[d] any claim that [the] waiver of
counsel was knowing and voluntary.”
We granted certiorari to decide whether a prearraignment confession preceded by an otherwise
valid waiver must be suppressed either because the police misinformed an inquiring attorney
about their plans concerning the suspect or because they failed to inform the suspect of the
attorney’s efforts to reach him. We now reverse.
II
Respondent does not dispute that the Providence police followed the[] [Miranda] procedures
with precision. The record amply supports the state-court findings that the police administered

Chapter 26 — Page 570

the required warnings, sought to assure that respondent understood his rights, and obtained an
express written waiver prior to eliciting each of the three statements. Nor does respondent
contest the Rhode Island courts’ determination that he at no point requested the presence of a
lawyer. He contends instead that the confessions must be suppressed because the police’s failure
to inform him of the attorney’s telephone call deprived him of information essential to his ability
to knowingly waive his Fifth Amendment rights. In the alternative, he suggests that to fully
protect the Fifth Amendment values served by Miranda, we should extend that decision to
condemn the conduct of the Providence police. We address each contention in turn.
A
Miranda holds that “[t]he defendant may waive effectuation” of the rights conveyed in the
warnings “provided the waiver is made voluntarily, knowingly and intelligently.” The inquiry has
two distinct dimensions. First, the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than intimidation, coercion,
or deception. Second, the waiver must have been made with a full awareness of both the nature
of the right being abandoned and the consequences of the decision to abandon it. Only if the
“totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice
and the requisite level of comprehension may a court properly conclude that the Miranda rights
have been waived.
Under this standard, we have no doubt that respondent validly waived his right to remain silent
and to the presence of counsel. The voluntariness of the waiver is not at issue. As the Court of
Appeals correctly acknowledged, the record is devoid of any suggestion that police resorted to
physical or psychological pressure to elicit the statements. Indeed it appears that it was
respondent, and not the police, who spontaneously initiated the conversation that led to the first
and most damaging confession. Nor is there any question about respondent’s comprehension of
the full panoply of rights set out in the Miranda warnings and of the potential consequences of
a decision to relinquish them. Nonetheless, the Court of Appeals believed that the “[d]eliberate
or reckless” conduct of the police, in particular their failure to inform respondent of the
telephone call, fatally undermined the validity of the otherwise proper waiver. We find this
conclusion untenable as a matter of both logic and precedent.
Events occurring outside of the presence of the suspect and entirely unknown to him surely can
have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.
Under the analysis of the Court of Appeals, the same defendant, armed with the same
information and confronted with precisely the same police conduct, would have knowingly
waived his Miranda rights had a lawyer not telephoned the police station to inquire about his
status. Nothing in any of our waiver decisions or in our understanding of the essential
components of a valid waiver requires so incongruous a result. No doubt the additional
information would have been useful to respondent; perhaps even it might have affected his
decision to confess. But we have never read the Constitution to require that the police supply a
suspect with a flow of information to help him calibrate his self-interest in deciding whether to
speak or stand by his rights. Once it is determined that a suspect’s decision not to rely on his
rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and
that he was aware of the State’s intention to use his statements to secure a conviction, the

Chapter 26 — Page 571

analysis is complete and the waiver is valid as a matter of law. The Court of Appeals’ conclusion
to the contrary was in error.
Nor do we believe that the level of the police’s culpability in failing to inform respondent of the
telephone call has any bearing on the validity of the waivers. In light of the state-court findings
that there was no “conspiracy or collusion” on the part of the police, we have serious doubts
about whether the Court of Appeals was free to conclude that their conduct constituted
“deliberate or reckless irresponsibility.” But whether intentional or inadvertent, the state of mind
of the police is irrelevant to the question of the intelligence and voluntariness of respondent’s
election to abandon his rights. Although highly inappropriate, even deliberate deception of an
attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless he were
at least aware of the incident. Nor was the failure to inform respondent of the telephone call the
kind of “trick[ery]” that can vitiate the validity of a waiver. Granting that the “deliberate or
reckless” withholding of information is objectionable as a matter of ethics, such conduct is only
relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential
to his ability to understand the nature of his rights and the consequences of abandoning them.
Because respondent’s voluntary decision to speak was made with full awareness and
comprehension of all the information Miranda requires the police to convey, the waivers were
valid.
B
At oral argument respondent acknowledged that a constitutional rule requiring the police to
inform a suspect of an attorney’s efforts to reach him would represent a significant extension of
our precedents. He contends, however, that the conduct of the Providence police was so inimical
to the Fifth Amendment values Miranda seeks to protect that we should read that decision to
condemn their behavior. Regardless of any issue of waiver, he urges, the Fifth Amendment
requires the reversal of a conviction if the police are less than forthright in their dealings with an
attorney or if they fail to tell a suspect of a lawyer’s unilateral efforts to contact him. Because the
proposed modification ignores the underlying purposes of the Miranda rules and because we
think that the decision as written strikes the proper balance between society’s legitimate law
enforcement interests and the protection of the defendant’s Fifth Amendment rights, we decline
the invitation to further extend Miranda’s reach.
At the outset, while we share respondent’s distaste for the deliberate misleading of an officer of
the court, reading Miranda to forbid police deception of an attorney “would cut [the decision]
completely loose from its own explicitly stated rationale.” As is now well established, “[t]he ...
Miranda warnings are ‘not themselves rights protected by the Constitution but [are] instead
measures to insure that the [suspect’s] right against compulsory self-incrimination [is]
protected.’” Their objective is not to mold police conduct for its own sake. Nothing in the
Constitution vests in us the authority to mandate a code of behavior for state officials wholly
unconnected to any federal right or privilege. The purpose of the Miranda warnings instead is
to dissipate the compulsion inherent in custodial interrogation and, in so doing, guard against
abridgment of the suspect’s Fifth Amendment rights. Clearly, a rule that focuses on how the
police treat an attorney—conduct that has no relevance at all to the degree of compulsion
experienced by the defendant during interrogation—would ignore both Miranda’s mission and
its only source of legitimacy.

Chapter 26 — Page 572

Nor are we prepared to adopt a rule requiring that the police inform a suspect of an attorney’s
efforts to reach him. While such a rule might add marginally to Miranda’s goal of dispelling the
compulsion inherent in custodial interrogation, overriding practical considerations counsel
against its adoption.
Moreover, problems of clarity to one side, reading Miranda to require the police in each instance
to inform a suspect of an attorney’s efforts to reach him would work a substantial and, we think,
inappropriate shift in the subtle balance struck in that decision. Custodial interrogations
implicate two competing concerns. On the one hand, “the need for police questioning as a tool
for effective enforcement of criminal laws” cannot be doubted. Admissions of guilt are more than
merely “desirable”; they are essential to society’s compelling interest in finding, convicting, and
punishing those who violate the law. On the other hand, the Court has recognized that the
interrogation process is “inherently coercive” and that, as a consequence, there exists a
substantial risk that the police will inadvertently traverse the fine line between legitimate efforts
to elicit admissions and constitutionally impermissible compulsion. Miranda attempted to
reconcile these opposing concerns by giving the defendant the power to exert some control over
the course of the interrogation. Declining to adopt the more extreme position that the actual
presence of a lawyer was necessary to dispel the coercion inherent in custodial interrogation, the
Court found that the suspect’s Fifth Amendment rights could be adequately protected by less
intrusive means. Police questioning, often an essential part of the investigatory process, could
continue in its traditional form, the Court held, but only if the suspect clearly understood that,
at any time, he could bring the proceeding to a halt or, short of that, call in an attorney to give
advice and monitor the conduct of his interrogators.
The position urged by respondent would upset this carefully drawn approach in a manner that
is both unnecessary for the protection of the Fifth Amendment privilege and injurious to
legitimate law enforcement. Because, as Miranda holds, full comprehension of the rights to
remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in
the interrogation process, a rule requiring the police to inform the suspect of an attorney’s efforts
to contact him would contribute to the protection of the Fifth Amendment privilege only
incidentally, if at all. This minimal benefit, however, would come at a substantial cost to society’s
legitimate and substantial interest in securing admissions of guilt. Indeed, the very premise of
the Court of Appeals was not that awareness of Ms. Munson’s phone call would have dissipated
the coercion of the interrogation room, but that it might have convinced respondent not to speak
at all. Because neither the letter nor purposes of Miranda require this additional handicap on
otherwise permissible investigatory efforts, we are unwilling to expand the Miranda rules to
require the police to keep the suspect abreast of the status of his legal representation.
III
[The Court analyzed and rejected respondent’s Sixth Amendment argument because “the events
that led to the inculpatory statements preceded the formal initiation of adversary judicial
proceedings.”]

Chapter 26 — Page 573

IV
[The Court rejected respondent’s Due Process argument because “the challenged conduct falls
short of the kind of misbehavior that so shocks the sensibilities of civilized society as to warrant
a federal intrusion into the criminal processes of the States.”]
We hold therefore that the Court of Appeals erred in finding that the Federal Constitution
required the exclusion of the three inculpatory statements. Accordingly, we reverse and remand
for proceedings consistent with this opinion.
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
This case poses fundamental questions about our system of justice. As this Court has long
recognized “ours is an accusatorial and not an inquisitorial system.” The Court’s opinion today
represents a startling departure from that basic insight.
The recognition that ours is an accusatorial, and not an inquisitorial system [] requires that the
government’s actions, even in responding to this brutal crime, respect those liberties and rights
that distinguish this society from most others. As Justice Jackson observed shortly after his
return from Nuremberg, cases of this kind present “a real dilemma in a free society ... for the
defendant is shielded by such safeguards as no system of law except the Anglo-American
concedes to him.” Justice Frankfurter similarly emphasized that it is “a fair summary of history
to say that the safeguards of liberty have been forged in controversies involving not very nice
people.” And, almost a century and a half ago, Macaulay observed that the guilt of Titus Oates
could not justify his conviction by improper methods: “That Oates was a bad man is not a
sufficient excuse; for the guilty are almost always the first to suffer those hardships which are
afterwards used as precedents against the innocent.”
It is not only the Court’s ultimate conclusion that is deeply disturbing; it is also its manner of
reaching that conclusion. The Court completely rejects an entire body of law on the subject—the
many carefully reasoned state decisions that have come to precisely the opposite conclusion. The
Court similarly dismisses the fact that the police deception which it sanctions quite clearly
violates the American Bar Association’s Standards for Criminal Justice—Standards which THE
CHIEF JUSTICE has described as “the single most comprehensive and probably the most
monumental undertaking in the field of criminal justice ever attempted by the American legal
profession in our national history,” and which this Court frequently finds helpful. And, of course,
the Court dismisses the fact that the American Bar Association has emphatically endorsed the
prevailing state-court position and expressed its serious concern about the effect that a contrary
view—a view, such as the Court’s, that exalts incommunicado interrogation, sanctions police
deception, and demeans the right to consult with an attorney—will have in police stations and
courtrooms throughout this Nation. Of greatest importance, the Court misapprehends or rejects
the central principles that have, for several decades, animated this Court’s decisions concerning
incommunicado interrogation.
This case turns on a proper appraisal of the role of the lawyer in our society. If a lawyer is seen
as a nettlesome obstacle to the pursuit of wrongdoers—as in an inquisitorial society—then the
Court’s decision today makes a good deal of sense. If a lawyer is seen as an aid to the

Chapter 26 — Page 574

understanding and protection of constitutional rights—as in an accusatorial society—then
today’s decision makes no sense at all.
Like the conduct of the police in the Cranston station on the evening of June 29, 1977, the Court’s
opinion today serves the goal of insuring that the perpetrator of a vile crime is punished. Like
the police on that June night as well, however, the Court has trampled on well-established legal
principles and flouted the spirit of our accusatorial system of justice.
I respectfully dissent.
Notes, Comments, and Questions
In Miranda, the Court stated that a waiver of rights obtained by trickery will not be valid. “[A]ny
evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show
that the defendant did not voluntarily waive his privilege.” With the decisions in Colorado v.
Spring (Chapter 25) and in Moran v. Burbine (above), the Court announced that mere failure to
give useful information to a suspect is not the sort of “trick” that renders a waiver invalid.
Imagine, however, that instead of merely failing to mention the lawyer hired by the sister of their
suspect, Burbine, the Cranston police instead lied about the lawyer’s existence. In other words,
imagine that Burbine asks a detective, “Has my sister gotten me a lawyer?” The detective replies,
despite knowing about the sister’s call, “We haven’t heard from your sister about a lawyer or
anything else.” Is that the sort of trick that would make Burbine’s subsequent waiver invalid?
Similarly, imagine that instead of police simply staying quiet about the “real” crime that
interested them, officers lied to Spring about it. That is, Spring asks, “Is this really about some
firearms charge, or are you holding me for some other reason?” Then an officer replies, despite
secretly desiring to question Spring about a shooting, “I can’t think of any other reason.” If
officers eventually do ask about the shooting, is that the sort of trick that would make Spring’s
subsequent waiver invalid?
In the next case, the Court considers what the prosecution must show to demonstrate that a
suspect engaged in a “course of conduct indicating waiver” such that a court can find a waiver of
Miranda rights without an express oral or written waiver.
Supreme Court of the United States
Mary Berghuis v. Van Chester Thomkins
Decided June 1, 2010 – 560 U.S. 370
Justice KENNEDY delivered the opinion of the Court.
The United States Court of Appeals for the Sixth Circuit, in a habeas corpus proceeding
challenging a Michigan conviction for first-degree murder and certain other offenses, ruled that
there had been two separate constitutional errors in the trial that led to the jury’s guilty verdict.
First, the Court of Appeals determined that a statement by the accused, relied on at trial by the

Chapter 26 — Page 575

prosecution, had been elicited in violation of Miranda v. Arizona. Second, it found that failure
to ask for an instruction relating to testimony from an accomplice was ineffective assistance by
defense counsel. Both of these contentions had been rejected in Michigan courts and in the
habeas corpus proceedings before the United States District Court. Certiorari was granted to
review the decision by the Court of Appeals on both points. The warden of a Michigan
correctional facility is the petitioner here, and Van Chester Thompkins, who was convicted, is
the respondent.
I
A
On January 10, 2000, a shooting occurred outside a mall in Southfield, Michigan. Among the
victims was Samuel Morris, who died from multiple gunshot wounds. The other victim,
Frederick France, recovered from his injuries and later testified. Thompkins, who was a suspect,
fled. About one year later he was found in Ohio and arrested there.
Two Southfield police officers traveled to Ohio to interrogate Thompkins, then awaiting transfer
to Michigan. The interrogation began around 1:30 p.m. and lasted about three hours. The
interrogation was conducted in a room that was 8 by 10 feet, and Thompkins sat in a chair that
resembled a school desk (it had an arm on it that swings around to provide a surface to write
on). At the beginning of the interrogation, one of the officers, Detective Helgert, presented
Thompkins with a form derived from the Miranda rule. It stated:
“NOTIFICATION OF CONSTITUTIONAL RIGHTS AND STATEMENT
“1. You have the right to remain silent.
“2. Anything you say can and will be used against you in a court of law.
“3. You have a right to talk to a lawyer before answering any questions and you have the right to
have a lawyer present with you while you are answering any questions.
“4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any
questioning, if you wish one.
“5. You have the right to decide at any time before or during questioning to use your right to
remain silent and your right to talk with a lawyer while you are being questioned.”
Helgert asked Thompkins to read the fifth warning out loud. Thompkins complied. Helgert later
said this was to ensure that Thompkins could read, and Helgert concluded that Thompkins
understood English. Helgert then read the other four Miranda warnings out loud and asked
Thompkins to sign the form to demonstrate that he understood his rights. Thompkins declined
to sign the form. The record contains conflicting evidence about whether Thompkins then
verbally confirmed that he understood the rights listed on the form.

Chapter 26 — Page 576

Officers began an interrogation. At no point during the interrogation did Thompkins say that he
wanted to remain silent, that he did not want to talk with the police, or that he wanted an
attorney. Thompkins was “[l]argely” silent during the interrogation, which lasted about three
hours. He did give a few limited verbal responses, however, such as “yeah,” “no,” or “I don’t
know.” And on occasion he communicated by nodding his head. Thompkins also said that he
“didn’t want a peppermint” that was offered to him by the police and that the chair he was “sitting
in was hard.”
About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins, “Do you believe
in God?” Thompkins made eye contact with Helgert and said “Yes,” as his eyes “well[ed] up with
tears.” Helgert asked, “Do you pray to God?” Thompkins said “Yes.” Helgert asked, “Do you pray
to God to forgive you for shooting that boy down?” Thompkins answered “Yes” and looked away.
Thompkins refused to make a written confession, and the interrogation ended about 15 minutes
later.
Thompkins was charged with first-degree murder, assault with intent to commit murder, and
certain firearms-related offenses. He moved to suppress the statements made during the
interrogation. He argued that he had invoked his Fifth Amendment right to remain silent,
requiring police to end the interrogation at once, that he had not waived his right to remain
silent, and that his inculpatory statements were involuntary. The trial court denied the motion.
The jury found Thompkins guilty on all counts. He was sentenced to life in prison without parole.
B
The trial court denied a motion for new trial filed by Thompkins’ appellate counsel. Thompkins
appealed [] the trial court’s refusal to suppress his pretrial statements under Miranda. The
Michigan Court of Appeals rejected the Miranda claim, ruling that Thompkins had not invoked
his right to remain silent and had waived it. The Michigan Supreme Court denied discretionary
review.
Thompkins filed a petition for a writ of habeas corpus in the United States District Court for the
Eastern District of Michigan. The District Court rejected Thompkins’ Miranda [] claim[]. The
District Court reasoned that Thompkins did not invoke his right to remain silent and was not
coerced into making statements during the interrogation. It held further that the Michigan Court
of Appeals was not unreasonable in determining that Thompkins had waived his right to remain
silent.
The United States Court of Appeals for the Sixth Circuit reversed, ruling for Thompkins on [] his
Miranda … claim[]. The Court of Appeals ruled that the state court, in rejecting Thompkins’
Miranda claim, unreasonably applied clearly established federal law and based its decision on
an unreasonable determination of the facts. The Court of Appeals acknowledged that a waiver of
the right to remain silent need not be express, as it can be “‘inferred from the actions and words
of the person interrogated.’” The panel held, nevertheless, that the state court was unreasonable
in finding an implied waiver in the circumstances here. The Court of Appeals found that the state
court unreasonably determined the facts because “the evidence demonstrates that Thompkins
was silent for two hours and forty-five minutes.” According to the Court of Appeals, Thompkins’

Chapter 26 — Page 577

“persistent silence for nearly three hours in response to questioning and repeated invitations to
tell his side of the story offered a clear and unequivocal message to the officers: Thompkins did
not wish to waive his rights.”
We granted certiorari.
III
All concede that the warning given in this case was in full compliance with the [Miranda]
requirements. The dispute centers on the response—or nonresponse—from the suspect.
A
Thompkins makes various arguments that his answers to questions from the detectives were
inadmissible. He first contends that he “invoke[d] his privilege” to remain silent by not saying
anything for a sufficient period of time, so the interrogation should have “cease[d]” before he
made his inculpatory statements.
This argument is unpersuasive. In the context of invoking the Miranda right to counsel, the
Court [has] held that a suspect must do so “unambiguously.” If an accused makes a statement
concerning the right to counsel “that is ambiguous or equivocal” or makes no statement, the
police are not required to end the interrogation, or ask questions to clarify whether the accused
wants to invoke his or her Miranda rights.
The Court has not yet stated whether an invocation of the right to remain silent can be ambiguous
or equivocal, but there is no principled reason to adopt different standards for determining when
an accused has invoked the Miranda right to remain silent and the Miranda right to counsel.
Both protect the privilege against compulsory self-incrimination by requiring an interrogation
to cease when either right is invoked.
There is good reason to require an accused who wants to invoke his or her right to remain silent
to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results
in an objective inquiry that “avoid[s] difficulties of proof and ... provide[s] guidance to officers”
on how to proceed in the face of ambiguity. If an ambiguous act, omission, or statement could
require police to end the interrogation, police would be required to make difficult decisions about
an accused’s unclear intent and face the consequence of suppression “if they guess wrong.”
Suppression of a voluntary confession in these circumstances would place a significant burden
on society’s interest in prosecuting criminal activity. Treating an ambiguous or equivocal act,
omission, or statement as an invocation of Miranda rights “might add marginally to Miranda’s
goal of dispelling the compulsion inherent in custodial interrogation.” But “as Miranda holds,
full comprehension of the rights to remain silent and request an attorney are sufficient to dispel
whatever coercion is inherent in the interrogation process.”
Thompkins did not say that he wanted to remain silent or that he did not want to talk with the
police. Had he made either of these simple, unambiguous statements, he would have invoked his
“‘right to cut off questioning.’” Here he did neither, so he did not invoke his right to remain silent.

Chapter 26 — Page 578

B
We next consider whether Thompkins waived his right to remain silent. The course of decisions
since Miranda, informed by the application of Miranda warnings in the whole course of law
enforcement, demonstrates that waivers can be established even absent formal or express
statements of waiver that would be expected in, say, a judicial hearing to determine if a guilty
plea has been properly entered. The main purpose of Miranda is to ensure that an accused is
advised of and understands the right to remain silent and the right to counsel. Thus, “[i]f
anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law
enforcement while reaffirming the decision’s core ruling that unwarned statements may not be
used as evidence in the prosecution’s case in chief.”
The prosecution [] does not need to show that a waiver of Miranda rights was express. An
“implicit waiver” of the “right to remain silent” is sufficient to admit a suspect’s statement into
evidence. If the State establishes that a Miranda warning was given and the accused made an
uncoerced statement, this showing, standing alone, is insufficient to demonstrate “a valid
waiver” of Miranda rights. The prosecution must make the additional showing that the accused
understood these rights. Where the prosecution shows that a Miranda warning was given and
that it was understood by the accused, an accused’s uncoerced statement establishes an implied
waiver of the right to remain silent.
Although Miranda imposes on the police a rule that is both formalistic and practical when it
prevents them from interrogating suspects without first providing them with a Miranda
warning, it does not impose a formalistic waiver procedure that a suspect must follow to
relinquish those rights. As a general proposition, the law can presume that an individual who,
with a full understanding of his or her rights, acts in a manner inconsistent with their exercise
has made a deliberate choice to relinquish the protection those rights afford. Miranda rights can
[] be waived through means less formal than a typical waiver on the record in a courtroom, given
the practical constraints and necessities of interrogation and the fact that Miranda’s main
protection lies in advising defendants of their rights.
The record in this case shows that Thompkins waived his right to remain silent. First, there is no
contention that Thompkins did not understand his rights; and from this it follows that he knew
what he gave up when he spoke. There was more than enough evidence in the record to conclude
that Thompkins understood his Miranda rights. Thompkins received a written copy of the
Miranda warnings; Detective Helgert determined that Thompkins could read and understand
English; and Thompkins was given time to read the warnings. Thompkins, furthermore, read
aloud the fifth warning, which stated that “you have the right to decide at any time before or
during questioning to use your right to remain silent and your right to talk with a lawyer while
you are being questioned.” He was thus aware that his right to remain silent would not dissipate
after a certain amount of time and that police would have to honor his right to be silent and his
right to counsel during the whole course of interrogation. Those rights, the warning made clear,
could be asserted at any time. Helgert, moreover, read the warnings aloud.
Second, Thompkins’ answer to Detective Helgert’s question about whether Thompkins prayed
to God for forgiveness for shooting the victim is a “course of conduct indicating waiver” of the
right to remain silent. If Thompkins wanted to remain silent, he could have said nothing in

Chapter 26 — Page 579

response to Helgert’s questions, or he could have unambiguously invoked his Miranda rights
and ended the interrogation. The fact that Thompkins made a statement about three hours after
receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct
indicating waiver. Police are not required to rewarn suspects from time to time. Thompkins’
answer to Helgert’s question about praying to God for forgiveness for shooting the victim was
sufficient to show a course of conduct indicating waiver. This is confirmed by the fact that before
then Thompkins had given sporadic answers to questions throughout the interrogation.
Third, there is no evidence that Thompkins’ statement was coerced. Thompkins does not claim
that police threatened or injured him during the interrogation or that he was in any way fearful.
The interrogation was conducted in a standard-sized room in the middle of the afternoon. It is
true that apparently he was in a straight-backed chair for three hours, but there is no authority
for the proposition that an interrogation of this length is inherently coercive. Indeed, even where
interrogations of greater duration were held to be improper, they were accompanied, as this one
was not, by other facts indicating coercion, such as an incapacitated and sedated suspect, sleep
and food deprivation, and threats. The fact that Helgert’s question referred to Thompkins’
religious beliefs also did not render Thompkins’ statement involuntary. “[T]he Fifth Amendment
privilege is not concerned ‘with moral and psychological pressures to confess emanating from
sources other than official coercion.’” In these circumstances, Thompkins knowingly and
voluntarily made a statement to police, so he waived his right to remain silent.
C
Thompkins next argues that, even if his answer to Detective Helgert could constitute a waiver of
his right to remain silent, the police were not allowed to question him until they obtained a
waiver first. [North Carolina v.] Butler forecloses this argument. The Butler Court held that
courts can infer a waiver of Miranda rights “from the actions and words of the person
interrogated.” This principle would be inconsistent with a rule that requires a waiver at the
outset. This holding also makes sense given that “the primary protection afforded suspects
subject[ed] to custodial interrogation is the Miranda warnings themselves.” The Miranda rule
and its requirements are met if a suspect receives adequate Miranda warnings, understands
them, and has an opportunity to invoke the rights before giving any answers or admissions. Any
waiver, express or implied, may be contradicted by an invocation at any time. If the right to
counsel or the right to remain silent is invoked at any point during questioning, further
interrogation must cease.
Interrogation provides the suspect with additional information that can put his or her decision
to waive, or not to invoke, into perspective. As questioning commences and then continues, the
suspect has the opportunity to consider the choices he or she faces and to make a more informed
decision, either to insist on silence or to cooperate. When the suspect knows that Miranda rights
can be invoked at any time, he or she has the opportunity to reassess his or her immediate and
long-term interests. Cooperation with the police may result in more favorable treatment for the
suspect; the apprehension of accomplices; the prevention of continuing injury and fear;
beginning steps toward relief or solace for the victims; and the beginning of the suspect’s own
return to the law and the social order it seeks to protect.

Chapter 26 — Page 580

In order for an accused’s statement to be admissible at trial, police must have given the accused
a Miranda warning. If that condition is established, the court can proceed to consider whether
there has been an express or implied waiver of Miranda rights. In making its ruling on the
admissibility of a statement made during custodial questioning, the trial court, of course,
considers whether there is evidence to support the conclusion that, from the whole course of
questioning, an express or implied waiver has been established. Thus, after giving a Miranda
warning, police may interrogate a suspect who has neither invoked nor waived his or her
Miranda rights. On these premises, it follows the police were not required to obtain a waiver of
Thompkins’ Miranda rights before commencing the interrogation.
D
In sum, a suspect who has received and understood the Miranda warnings, and has not invoked
his Miranda rights, waives the right to remain silent by making an uncoerced statement to the
police. Thompkins did not invoke his right to remain silent and stop the questioning.
Understanding his rights in full, he waived his right to remain silent by making a voluntary
statement to the police. The police, moreover, were not required to obtain a waiver of
Thompkins’ right to remain silent before interrogating him. The state court’s decision rejecting
Thompkins’ Miranda claim was thus correct.
IV
[The Court held that Thomkins could not show prejudice from ineffective assistance of counsel.]
The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to
deny the petition.
Justice SOTOMAYOR, with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER
join, dissenting.
The Court concludes today that a criminal suspect waives his right to remain silent if, after sitting
tacit and uncommunicative through nearly three hours of police interrogation, he utters a few
one-word responses. The Court also concludes that a suspect who wishes to guard his right to
remain silent against such a finding of “waiver” must, counterintuitively, speak—and must do so
with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the
police. Both propositions mark a substantial retreat from the protection against compelled selfincrimination that Miranda v. Arizona has long provided during custodial interrogation.
This Court’s decisions subsequent to Miranda have emphasized the prosecution’s “heavy
burden” in proving waiver. We have also reaffirmed that a court may not presume waiver from
a suspect’s silence or from the mere fact that a confession was eventually obtained.
Even in concluding that Miranda does not invariably require an express waiver of the right to
silence or the right to counsel, this Court in Butler made clear that the prosecution bears a
substantial burden in establishing an implied waiver.

Chapter 26 — Page 581

It is undisputed here that Thompkins never expressly waived his right to remain silent. His
refusal to sign even an acknowledgment that he understood his Miranda rights evinces, if
anything, an intent not to waive those rights. That Thompkins did not make the inculpatory
statements at issue until after approximately 2 hours and 45 minutes of interrogation serves as
“strong evidence” against waiver. Miranda and Butler expressly preclude the possibility that the
inculpatory statements themselves are sufficient to establish waiver.
In these circumstances, Thompkins’ “actions and words” preceding the inculpatory statements
simply do not evidence a “course of conduct indicating waiver” sufficient to carry the
prosecution’s burden. Although the Michigan court stated that Thompkins “sporadically”
participated in the interview, that court’s opinion and the record before us are silent as to the
subject matter or context of even a single question to which Thompkins purportedly responded,
other than the exchange about God and the statements respecting the peppermint and the chair.
Unlike in Butler, Thompkins made no initial declaration akin to “I will talk to you.” Indeed,
Michigan and the United States concede that no waiver occurred in this case until Thompkins
responded “yes” to the questions about God. I believe it is objectively unreasonable under our
clearly established precedents to conclude the prosecution met its “heavy burden” of proof on a
record consisting of three one-word answers, following 2 hours and 45 minutes of silence
punctuated by a few largely nonverbal responses to unidentified questions.
Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously
invoke their right to remain silent—which, counterintuitively, requires them to speak. At the
same time, suspects will be legally presumed to have waived their rights even if they have given
no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda
or our subsequent cases and are inconsistent with the fair-trial principles on which those
precedents are grounded. Today’s broad new rules are all the more unfortunate because they are
unnecessary to the disposition of the case before us. I respectfully dissent.
*

*

*

What Counts as an Unambiguous Invocation of Miranda Rights?
As the Court noted in Berghuis v. Thomkins, only an “unambiguous invocation of Miranda
rights” by a suspect is effective. Interrogation must cease upon an unambiguous invocation of
either the right to counsel or the right to silence. In the next case, the Court considered what
qualifies as an unambiguous invocation.
Supreme Court of the United States
Robert L. Davis v. United States
Decided June 24, 1994 – 512 U.S. 452
Justice O’CONNOR delivered the opinion of the Court.
In Edwards v. Arizona, 451 U.S. 477, (1981), we held that law enforcement officers must
immediately cease questioning a suspect who has clearly asserted his right to have counsel
present during custodial interrogation. In this case we decide how law enforcement officers
Chapter 26 — Page 582

should respond when a suspect makes a reference to counsel that is insufficiently clear to invoke
the Edwards prohibition on further questioning.
I
Pool brought trouble—not to River City, but to the Charleston Naval Base. Petitioner, a member
of the United States Navy, spent the evening of October 2, 1988, shooting pool at a club on the
base. Another sailor, Keith Shackleton, lost a game and a $30 wager to petitioner, but Shackleton
refused to pay. After the club closed, Shackleton was beaten to death with a pool cue on a loading
dock behind the commissary. The body was found early the next morning.
The investigation by the Naval Investigative Service (NIS) gradually focused on petitioner.
Investigative agents determined that petitioner was at the club that evening, and that he was
absent without authorization from his duty station the next morning. The agents also learned
that only privately owned pool cues could be removed from the club premises, and that petitioner
owned two cues—one of which had a bloodstain on it. The agents were told by various people
that petitioner either had admitted committing the crime or had recounted details that clearly
indicated his involvement in the killing.
On November 4, 1988, petitioner was interviewed at the NIS office. As required by military law,
the agents advised petitioner that he was a suspect in the killing, that he was not required to
make a statement, that any statement could be used against him at a trial by court-martial, and
that he was entitled to speak with an attorney and have an attorney present during questioning.
Petitioner waived his rights to remain silent and to counsel, both orally and in writing.
About an hour and a half into the interview, petitioner said, “Maybe I should talk to a lawyer.”
According to the uncontradicted testimony of one of the interviewing agents, the interview then
proceeded as follows:
“[We m]ade it very clear that we’re not here to violate his rights, that if he wants a lawyer, then
we will stop any kind of questioning with him, that we weren’t going to pursue the matter unless
we have it clarified is he asking for a lawyer or is he just making a comment about a lawyer, and
he said, [‘]No, I’m not asking for a lawyer,’ and then he continued on, and said, ‘No, I don’t want
a lawyer.’”
After a short break, the agents reminded petitioner of his rights to remain silent and to counsel.
The interview then continued for another hour, until petitioner said, “I think I want a lawyer
before I say anything else.” At that point, questioning ceased.
At his general court-martial, petitioner moved to suppress statements made during the
November 4 interview. The Military Judge denied the motion, holding that “the mention of a
lawyer by [petitioner] during the course of the interrogation [was] not in the form of a request
for counsel and ... the agents properly determined that [petitioner] was not indicating a desire
for or invoking his right to counsel.” Petitioner was convicted on one specification of
unpremeditated murder.

Chapter 26 — Page 583

The United States Court of Military Appeals granted discretionary review and affirmed. The
court recognized that the state and federal courts have developed three different approaches to
a suspect’s ambiguous or equivocal request for counsel:
“Some jurisdictions have held that any mention of counsel, however ambiguous, is sufficient to
require that all questioning cease. Others have attempted to define a threshold standard of clarity
for invoking the right to counsel and have held that comments falling short of the threshold do
not invoke the right to counsel. Some jurisdictions ... have held that all interrogation about the
offense must immediately cease whenever a suspect mentions counsel, but they allow
interrogators to ask narrow questions designed to clarify the earlier statement and the
[suspect’s] desires respecting counsel.”
Applying the third approach, the court held that petitioner’s comment was ambiguous, and that
the NIS agents properly clarified petitioner’s wishes with respect to counsel before continuing
questioning him about the offense.
Although we have twice previously noted the varying approaches the lower courts have adopted
with respect to ambiguous or equivocal references to counsel during custodial interrogation, we
have not addressed the issue on the merits. We granted certiorari to do so.
II
The Sixth Amendment right to counsel attaches only at the initiation of adversary criminal
proceedings, and before proceedings are initiated a suspect in a criminal investigation has no
constitutional right to the assistance of counsel. Nevertheless, we held in Miranda v. Arizona
that a suspect subject to custodial interrogation has the right to consult with an attorney and to
have counsel present during questioning, and that the police must explain this right to him
before questioning begins. The right to counsel established in Miranda was one of a “series of
recommended ‘procedural safeguards’ ... [that] were not themselves rights protected by the
Constitution but were instead measures to insure that the right against compulsory selfincrimination was protected.”
The right to counsel recognized in Miranda is sufficiently important to suspects in criminal
investigations, we have held, that it “requir[es] the special protection of the knowing and
intelligent waiver standard.” If the suspect effectively waives his right to counsel after receiving
the Miranda warnings, law enforcement officers are free to question him. But if a suspect
requests counsel at any time during the interview, he is not subject to further questioning until
a lawyer has been made available or the suspect himself reinitiates conversation. This “second
layer of prophylaxis for the Miranda right to counsel” is “designed to prevent police from
badgering a defendant into waiving his previously asserted Miranda rights.” To that end, we
have held that a suspect who has invoked the right to counsel cannot be questioned regarding
any offense unless an attorney is actually present.
The applicability of [this rule] requires courts to “determine whether the accused actually
invoked his right to counsel.” To avoid difficulties of proof and to provide guidance to officers
conducting interrogations, this is an objective inquiry. Invocation of the Miranda right to
counsel “requires, at a minimum, some statement that can reasonably be construed to be an

Chapter 26 — Page 584

expression of a desire for the assistance of an attorney.” But if a suspect makes a reference to an
attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances
would have understood only that the suspect might be invoking the right to counsel, our
precedents do not require the cessation of questioning.
Rather, the suspect must unambiguously request counsel. As we have observed, “a statement
either is such an assertion of the right to counsel or it is not.” Although a suspect need not “speak
with the discrimination of an Oxford don,” post (SOUTER, J., concurring in judgment), he must
articulate his desire to have counsel present sufficiently clearly that a reasonable police officer
in the circumstances would understand the statement to be a request for an attorney. If the
statement fails to meet the requisite level of clarity, Edwards does not require that the officers
stop questioning the suspect.
We decline petitioner’s invitation to require law enforcement officers to cease questioning
immediately upon the making of an ambiguous or equivocal reference to an attorney. [T]he
police must respect a suspect’s wishes regarding his right to have an attorney present during
custodial interrogation. But when the officers conducting the questioning reasonably do not
know whether or not the suspect wants a lawyer, a rule requiring the immediate cessation of
questioning “would transform the Miranda safeguards into wholly irrational obstacles to
legitimate police investigative activity,” because it would needlessly prevent the police from
questioning a suspect in the absence of counsel even if the suspect did not wish to have a lawyer
present.
We recognize that requiring a clear assertion of the right to counsel might disadvantage some
suspects who—because of fear, intimidation, lack of linguistic skills, or a variety of other
reasons—will not clearly articulate their right to counsel although they actually want to have a
lawyer present. But the primary protection afforded suspects subject to custodial interrogation
is the Miranda warnings themselves. “[F]ull comprehension of the rights to remain silent and
request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation
process.” A suspect who knowingly and voluntarily waives his right to counsel after having that
right explained to him has indicated his willingness to deal with the police unassisted. Although
Edwards provides an additional protection—if a suspect subsequently requests an attorney,
questioning must cease—it is one that must be affirmatively invoked by the suspect.
In considering how a suspect must invoke the right to counsel, we must consider the other side
of the Miranda equation: the need for effective law enforcement. Although the courts ensure
compliance with the Miranda requirements through the exclusionary rule, it is police officers
who must actually decide whether or not they can question a suspect. The Edwards rule—
questioning must cease if the suspect asks for a lawyer—provides a bright line that can be applied
by officers in the real world of investigation and interrogation without unduly hampering the
gathering of information. But if we were to require questioning to cease if a suspect makes a
statement that might be a request for an attorney, this clarity and ease of application would be
lost. Police officers would be forced to make difficult judgment calls about whether the suspect
in fact wants a lawyer even though he has not said so, with the threat of suppression if they guess
wrong. We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law
enforcement officers may continue questioning until and unless the suspect clearly requests an
attorney.

Chapter 26 — Page 585

Of course, when a suspect makes an ambiguous or equivocal statement it will often be good
police practice for the interviewing officers to clarify whether or not he actually wants an
attorney. That was the procedure followed by the NIS agents in this case. Clarifying questions
help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and
will minimize the chance of a confession being suppressed due to subsequent judicial secondguessing as to the meaning of the suspect’s statement regarding counsel. But we decline to adopt
a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an
unambiguous or unequivocal request for counsel, the officers have no obligation to stop
questioning him.
To recapitulate: We held in Miranda that a suspect is entitled to the assistance of counsel during
custodial interrogation even though the Constitution does not provide for such assistance. We
held in Edwards that if the suspect invokes the right to counsel at any time, the police must
immediately cease questioning him until an attorney is present. But we are unwilling to create a
third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer.
Unless the suspect actually requests an attorney, questioning may continue.
The courts below found that petitioner’s remark to the NIS agents—“Maybe I should talk to a
lawyer”—was not a request for counsel, and we see no reason to disturb that conclusion. The NIS
agents therefore were not required to stop questioning petitioner, though it was entirely proper
for them to clarify whether petitioner in fact wanted a lawyer. Because there is no ground for
suppression of petitioner’s statements, the judgment of the Court of Military Appeals is
Affirmed.
Justice SOUTER, with whom Justice BLACKMUN, Justice STEVENS, and Justice GINSBURG
join, concurring in the judgment.
In the midst of his questioning by naval investigators, petitioner said “Maybe I should talk to a
lawyer.” The investigators promptly stopped questioning Davis about the killing of Keith
Shackleton and instead undertook to determine whether he meant to invoke his right to counsel.
According to testimony accepted by the courts below, Davis answered the investigators’
questions on that point by saying, “I’m not asking for a lawyer,” and “No, I don’t want to talk to
a lawyer.” Only then did the interrogation resume (stopping for good when petitioner said, “I
think I want a lawyer before I say anything else”).
I agree with the majority that the Constitution does not forbid law enforcement officers to pose
questions (like those directed at Davis) aimed solely at clarifying whether a suspect’s ambiguous
reference to counsel was meant to assert his Fifth Amendment right. Accordingly I concur in the
judgment affirming Davis’s conviction, resting partly on evidence of statements given after
agents ascertained that he did not wish to deal with them through counsel. I cannot, however,
join in my colleagues’ further conclusion that if the investigators here had been so inclined, they
were at liberty to disregard Davis’s reference to a lawyer entirely, in accordance with a general
rule that interrogators have no legal obligation to discover what a custodial subject meant by an
ambiguous statement that could reasonably be understood to express a desire to consult a
lawyer.

Chapter 26 — Page 586

Our own precedent, the reasonable judgments of the majority of the many courts already to have
addressed the issue before us, and the advocacy of a considerable body of law enforcement
officials are to the contrary. All argue against the Court’s approach today, which draws a sharp
line between interrogated suspects who “clearly” assert their right to counsel and those who say
something that may, but may not, express a desire for counsel’s presence, the former suspects
being assured that questioning will not resume without counsel present, the latter being left to
fend for themselves. The concerns of fairness and practicality that have long anchored our
Miranda case law point to a different response: when law enforcement officials “reasonably do
not know whether or not the suspect wants a lawyer,” they should stop their interrogation and
ask him to make his choice clear.
While the question we address today is an open one, its answer requires coherence with nearly
three decades of case law addressing the relationship between police and criminal suspects in
custodial interrogation. Throughout that period, two precepts have commanded broad assent:
that the Miranda safeguards exist “‘to assure that the individual’s right to choose between
speech and silence remains unfettered throughout the interrogation process,’” and that the
justification for Miranda rules, intended to operate in the real world, “must be consistent with
... practical realities.” A rule barring government agents from further interrogation until they
determine whether a suspect’s ambiguous statement was meant as a request for counsel fulfills
both ambitions. It assures that a suspect’s choice whether or not to deal with police through
counsel will be “scrupulously honored,” and it faces both the real-world reasons why
misunderstandings arise between suspect and interrogator and the real-world limitations on the
capacity of police and trial courts to apply fine distinctions and intricate rules.
Tested against the same two principles, the approach the Court adopts does not fare so well.
First, as the majority expressly acknowledges, criminal suspects who may (in Miranda’s words)
be “thrust into an unfamiliar atmosphere and run through menacing police interrogation
procedures,” would seem an odd group to single out for the Court’s demand of heightened
linguistic care. A substantial percentage of them lack anything like a confident command of the
English language, and many more will be sufficiently intimidated by the interrogation process
or overwhelmed by the uncertainty of their predicament that the ability to speak assertively will
abandon them. Indeed, the awareness of just these realities has, in the past, dissuaded the Court
from placing any burden of clarity upon individuals in custody, but has led it instead to require
that requests for counsel be “give[n] a broad, rather than a narrow, interpretation,” and that
courts “indulge every reasonable presumption” that a suspect has not waived his right to counsel
under Miranda.
The Court defends as tolerable the certainty that some poorly expressed requests for counsel will
be disregarded on the ground that Miranda warnings suffice to alleviate the inherent coercion
of the custodial interrogation. But, “[a] once-stated warning, delivered by those who will conduct
the interrogation, cannot itself suffice” to “assure that the ... right to choose between silence and
speech remains unfettered throughout the interrogation process.”
Indeed, it is easy, amidst the discussion of layers of protection, to lose sight of a real risk in the
majority’s approach, going close to the core of what the Court has held that the Fifth Amendment
provides. The experience of the timid or verbally inept suspect (whose existence the Court

Chapter 26 — Page 587

acknowledges) may not always closely follow that of the defendant in Edwards v. Arizona
(whose purported waiver of his right to counsel, made after having invoked the right, was held
ineffective, lest police be tempted to “badge[r]” others like him. When a suspect understands his
(expressed) wishes to have been ignored (and by hypothesis, he has said something that an
objective listener could “reasonably,” although not necessarily, take to be a request), in
contravention of the “rights” just read to him by his interrogator, he may well see further
objection as futile and confession (true or not) as the only way to end his interrogation.
Nor is it enough to say that a “‘statement either is ... an assertion of the right to counsel or it is
not.’” While it might be fair to say that every statement is meant either to express a desire to deal
with police through counsel or not, this fact does not dictate the rule that interrogators who hear
a statement consistent with either possibility may presume the latter and forge ahead; on the
contrary, clarification is the intuitively sensible course.
Our cases are best respected by a rule that when a suspect under custodial interrogation makes
an ambiguous statement that might reasonably be understood as expressing a wish that a lawyer
be summoned (and questioning cease), interrogators’ questions should be confined to verifying
whether the individual meant to ask for a lawyer. While there is reason to expect that trial courts
will apply today’s ruling sensibly (without requiring criminal suspects to speak with the
discrimination of an Oxford don) and that interrogators will continue to follow what the Court
rightly calls “good police practice” (compelled up to now by a substantial body of state and Circuit
law), I believe that the case law under Miranda does not allow them to do otherwise.
Notes, Comments, and Questions
A recent case from the Supreme Court of Louisiana demonstrates how easily a court can find a
suspect’s request for counsel to be “ambiguous.” In State v. Demesme, No. 2017-KK-0954, 2017
WL 4876733 (La. Oct. 27, 2017), the defendant argued he was improperly questioned after
invoking his right to counsel. The Court rejected his claim, and Justice Scott J. Crichton wrote
separately as follows:
“I agree with the Court’s decision to deny the defendant’s writ application and write separately
to spotlight the very important constitutional issue regarding the invocation of counsel during a
law enforcement interview. The defendant voluntarily agreed to be interviewed twice regarding
his alleged sexual misconduct with minors. At both interviews detectives advised the defendant
of his Miranda rights and the defendant stated he understood and waived those rights.
Nonetheless, the defendant argues he invoked his right to counsel. And the basis for this comes
from the second interview, where I believe the defendant ambiguously referenced a lawyer—
prefacing that statement with ‘if y’all, this is how I feel, if y’all think I did it, I know that I didn’t
do it so why don’t you just give me a lawyer dog cause this is not what’s up.’”
“In my view, the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not
constitute an invocation of counsel that warrants termination of the interview and does not
violate Edwards v. Arizona.”

Chapter 26 — Page 588

Justice Crichton’s apparent belief that the defendant said “lawyer dog”—instead of perhaps
saying to the detective, “give me a lawyer, dawg”—inspired widespread ridicule. Note, however,
that even with a better understanding of common American vernacular, one might still find the
request in Demesme to be “ambiguous” under Davis. Because the suspect prefaced his request
with “if y’all think I did it,” it might lack sufficient clarity to impose any burden on police—either
to cease questioning or to clarify the suspect’s intention. Under the rule proposed in Justice
Souter’s concurrence in Davis, which attracted four votes, police would have been required to
verify whether the suspect meant to ask for a lawyer before continuing with interrogation.
*

*

*

In our next chapter, we will examine the consequences of a suspect’s successful invocation of
either the right to counsel or the right to silence.

Chapter 26 — Page 589

INTERROGATIONS
Chapter 27
The Miranda Rule: Effect of Invocations of Rights
In our previous chapter, we read that suspects must invoke their rights unambiguously;
otherwise, police have no duty to cease questioning or to clarify the suspect’s intent. In this
chapter, we examine what happens when suspects do successfully invoke their rights. As we will
see, the Court has treated an invocation of the right to silence differently from an invocation of
the right to counsel.
Invocation of the Right to Silence
We begin with a case in which a suspect invoked his right to remain silent. The question was how
the suspect’s invocation constrained the interrogation tactics of the police. In particular, the
Court considered the length of time after invocation that police must wait before again asking a
suspect whether he wishes to waive his right to silence.
Supreme Court of the United States
Michigan v. Richard Bert Mosley
Decided Dec. 9, 1975 – 423 U.S. 96
Mr. Justice STEWART delivered the opinion of the Court.
The respondent, Richard Bert Mosley, was arrested in Detroit, Mich., in the early afternoon of
April 8, 1971, in connection with robberies that had recently occurred at the Blue Goose Bar and
the White Tower Restaurant on that city’s lower east side. The arresting officer, Detective James
Cowie of the Armed Robbery Section of the Detroit Police Department, was acting on a tip
implicating Mosley and three other men in the robberies. After effecting the arrest, Detective
Cowie brought Mosley to the Robbery, Breaking and Entering Bureau of the Police Department,
located on the fourth floor of the departmental headquarters building. The officer advised
Mosley of his rights under this Court’s decision in Miranda v. Arizona and had him read and
sign the department’s constitutional rights notification certificate. After filling out the necessary
arrest papers, Cowie began questioning Mosley about the robbery of the White Tower
Restaurant. When Mosley said he did not want to answer any questions about the robberies,
Cowie promptly ceased the interrogation. The completion of the arrest papers and the
questioning of Mosley together took approximately 20 minutes. At no time during the
questioning did Mosley indicate a desire to consult with a lawyer, and there is no claim that the
procedures followed to this point did not fully comply with the strictures of the Miranda opinion.
Mosley was then taken to a ninth-floor cell block.
Shortly after 6 p.m., Detective Hill of the Detroit Police Department Homicide Bureau brought
Mosley from the cell block to the fifth-floor office of the Homicide Bureau for questioning about
the fatal shooting of a man named Leroy Williams. Williams had been killed on January 9, 1971,
during a holdup attempt outside the 101 Ranch Bar in Detroit. Mosley had not been arrested on
this charge or interrogated about it by Detective Cowie. Before questioning Mosley about this
Chapter 27 — Page 590

homicide, Detective Hill carefully advised him of his “Miranda rights.” Mosley read the
notification form both silently and aloud, and Detective Hill then read and explained the
warnings to him and had him sign the form. Mosley at first denied any involvement in the
Williams murder, but after the officer told him that Anthony Smith had confessed to
participating in the slaying and had named him as the “shooter,” Mosley made a statement
implicating himself in the homicide.1 The interrogation by Detective Hill lasted approximately
15 minutes, and at no time during its course did Mosley ask to consult with a lawyer or indicate
that he did not want to discuss the homicide. In short, there is no claim that the procedures
followed during Detective Hill’s interrogation of Mosley, standing alone, did not fully comply
with the strictures of the Miranda opinion.
Mosley was subsequently charged in a one-count information with first-degree murder. Before
the trial he moved to suppress his incriminating statement on a number of grounds, among them
the claim that under the doctrine of the Miranda case it was constitutionally impermissible for
Detective Hill to question him about the Williams murder after he had told Detective Cowie that
he did not want to answer any questions about the robberies. The trial court denied the motion
to suppress after an evidentiary hearing, and the incriminating statement was subsequently
introduced in evidence against Mosley at his trial. The jury convicted Mosley of first-degree
murder, and the court imposed a mandatory sentence of life imprisonment.
On appeal to the Michigan Court of Appeals, Mosley renewed his previous objections to the use
of his incriminating statement in evidence. The appellate court reversed the judgment of
conviction, holding that Detective Hill’s interrogation of Mosley had been a per se violation of
the Miranda doctrine. Accordingly, without reaching Mosley’s other contentions, the Court
remanded the case for a new trial with instructions that Mosley’s statement be suppressed as
evidence. After further appeal was denied by the Michigan Supreme Court, the State filed a
petition for certiorari here. We granted the writ because of the important constitutional question
presented.
The issue in this case [] is whether the conduct of the Detroit police that led to Mosley’s
incriminating statement did in fact violate the Miranda “guidelines,” so as to render the
statement inadmissible in evidence against Mosley at his trial. Resolution of the question turns
almost entirely on the interpretation of a single passage in the Miranda opinion, upon which the
Michigan appellate court relied in finding a per se violation of Miranda:
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates
in any manner, at any time prior to or during questioning, that he wishes to remain silent, the
interrogation must cease. At this point he has shown that he intends to exercise his Fifth
Amendment privilege; any statement taken after the person invokes his privilege cannot be other
than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the
setting of in-custody interrogation operates on the individual to overcome free choice in
producing a statement after the privilege has been once invoked.”
This passage states that “the interrogation must cease” when the person in custody indicates that
“he wishes to remain silent.” It does not state under what circumstances, if any, a resumption of
1 [Footnote 3 by the Court] During cross-examination by Mosley’s counsel at the evidentiary hearing, Detective Hill

conceded that Smith in fact had not confessed but had “denied a physical participation in the robbery.”
Chapter 27 — Page 591

questioning is permissible. The passage could be literally read to mean that a person who has
invoked his “right to silence” can never again be subjected to custodial interrogation by any
police officer at any time or place on any subject. Another possible construction of the passage
would characterize “any statement taken after the person invokes his privilege” as “the product
of compulsion” and would therefore mandate its exclusion from evidence, even if it were
volunteered by the person in custody without any further interrogation whatever. Or the passage
could be interpreted to require only the immediate cessation of questioning, and to permit a
resumption of interrogation after a momentary respite.
It is evident that any of these possible literal interpretations would lead to absurd and
unintended results. To permit the continuation of custodial interrogation after a momentary
cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of
questioning to undermine the will of the person being questioned. At the other extreme, a
blanket prohibition against the taking of voluntary statements or a permanent immunity from
further interrogation, regardless of the circumstances, would transform the Miranda safeguards
into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of
an opportunity to make informed and intelligent assessments of their interests. Clearly,
therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be
read to create a per se proscription of indefinite duration upon any further questioning by any
police officer on any subject, once the person in custody has indicated a desire to remain silent.
A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of
the Court in that case to adopt “fully effective means ... to notify the person of his right of silence
and to assure that the exercise of the right will be scrupulously honored ....” The critical safeguard
identified in the passage at issue is a person’s “right to cut off questioning.” Through the exercise
of his option to terminate questioning he can control the time at which questioning occurs, the
subjects discussed, and the duration of the interrogation. The requirement that law enforcement
authorities must respect a person’s exercise of that option counteracts the coercive pressures of
the custodial setting. We therefore conclude that the admissibility of statements obtained after
the person in custody has decided to remain silent depends under Miranda on whether his “right
to cut off questioning” was “scrupulously honored.”
A review of the circumstances leading to Mosley’s confession reveals that his “right to cut off
questioning” was fully respected in this case. Before his initial interrogation, Mosley was
carefully advised that he was under no obligation to answer any questions and could remain
silent if he wished. He orally acknowledged that he understood the Miranda warnings and then
signed a printed notification-of-rights form. When Mosley stated that he did not want to discuss
the robberies, Detective Cowie immediately ceased the interrogation and did not try either to
resume the questioning or in any way to persuade Mosley to reconsider his position. After an
interval of more than two hours, Mosley was questioned by another police officer at another
location about an unrelated holdup murder. He was given full and complete Miranda warnings
at the outset of the second interrogation. He was thus reminded again that he could remain silent
and could consult with a lawyer, and was carefully given a full and fair opportunity to exercise
these options. The subsequent questioning did not undercut Mosley’s previous decision not to
answer Detective Cowie’s inquiries. Detective Hill did not resume the interrogation about the
White Tower Restaurant robbery or inquire about the Blue Goose Bar robbery, but instead
focused exclusively on the Leroy Williams homicide, a crime different in nature and in time and
Chapter 27 — Page 592

place of occurrence from the robberies for which Mosley had been arrested and interrogated by
Detective Cowie. Although it is not clear from the record how much Detective Hill knew about
the earlier interrogation, his questioning of Mosley about an unrelated homicide was quite
consistent with a reasonable interpretation of Mosley’s earlier refusal to answer any questions
about the robberies.
This is not a case, therefore, where the police failed to honor a decision of a person in custody to
cut off questioning, either by refusing to discontinue the interrogation upon request or by
persisting in repeated efforts to wear down his resistance and make him change his mind. In
contrast to such practices, the police here immediately ceased the interrogation, resumed
questioning only after the passage of a significant period of time and the provision of a fresh set
of warnings, and restricted the second interrogation to a crime that had not been a subject of the
earlier interrogation.
For these reasons, we conclude that the admission in evidence of Mosley’s incriminating
statement did not violate the principles of Miranda v. Arizona. Accordingly, the judgment of the
Michigan Court of Appeals is vacated, and the case is remanded to that court for further
proceedings not inconsistent with this opinion.
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
[T]he process of eroding Miranda rights [] continues with today’s holding that police may renew
the questioning of a suspect who has once exercised his right to remain silent, provided the
suspect’s right to cut off questioning has been “scrupulously honored.” Today’s distortion of
Miranda’s constitutional principles can be viewed only as yet another stop in the erosion and, I
suppose, ultimate overruling of Miranda’s enforcement of the privilege against selfincrimination.
The Miranda guidelines were necessitated by the inherently coercive nature of in-custody
questioning. As the Court today continues to recognize, under Miranda, the cost of assuring
voluntariness by procedural tests, independent of any actual inquiry into voluntariness, is that
some voluntary statements will be excluded. Thus the consideration in the task confronting the
Court is not whether voluntary statements will be excluded, but whether the procedures
approved will be sufficient to assure with reasonable certainty that a confession is not obtained
under the influence of the compulsion inherent in interrogation and detention. The procedures
approved by the Court today fail to provide that assurance.
We observed in Miranda: “In these circumstances the fact that the individual eventually made a
statement is consistent with the conclusion that the compelling influence of the interrogation
finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of
the privilege.” And, as that portion of Miranda which the majority finds controlling observed,
“the setting of in-custody interrogation operates on the individual to overcome free choice in
producing a statement after the privilege has been once invoked.” Thus, as to statements which
are the product of renewed questioning, Miranda established a virtually irrebuttable
presumption of compulsion and that presumption stands strongest where, as in this case, a
suspect, having initially determined to remain silent, is subsequently brought to confess his
crime. Only by adequate procedural safeguards could the presumption be rebutted.
Chapter 27 — Page 593

In formulating its procedural safeguard, the Court skirts the problem of compulsion and thereby
fails to join issue with the dictates of Miranda. The language which the Court finds controlling
in this case teaches that renewed questioning itself is part of the process which invariably
operates to overcome the will of a suspect. That teaching is embodied in the form of a
proscription on any further questioning once the suspect has exercised his right to remain silent.
Today’s decision uncritically abandons that teaching. The Court assumes, contrary to the
controlling language, that “scrupulously honoring” an initial exercise of the right to remain silent
preserves the efficaciousness of initial and future warnings despite the fact that the suspect has
once been subjected to interrogation and then has been detained for a lengthy period of time.
*

*

*

Invocation of the Right to Counsel
In comparison with an invocation of the right to silence, a suspect’s invocation of the right to
counsel is more powerful. When a suspect says, “I want a lawyer,” that statement restricts police
more effectively than something like, “I don’t want to talk to you”—or even something more
legalistic like, “I invoke my right to silence.”
Supreme Court of the United States
Robert Edwards v. Arizona
Decided May 18, 1981 – 451 U.S. 477
Justice WHITE delivered the opinion of the Court.
We granted certiorari in this case limited to Q 1 presented in the petition, which in relevant part
was “whether the Fifth, Sixth, and Fourteenth Amendments require suppression of a post-arrest
confession, which was obtained after Edwards had invoked his right to consult counsel before
further interrogation ....”
I
On January 19, 1976, a sworn complaint was filed against Edwards in Arizona state court
charging him with robbery, burglary, and first-degree murder. An arrest warrant was issued
pursuant to the complaint, and Edwards was arrested at his home later that same day. At the
police station, he was informed of his rights as required by Miranda v. Arizona. Petitioner stated
that he understood his rights, and was willing to submit to questioning. After being told that
another suspect already in custody had implicated him in the crime, Edwards denied
involvement and gave a taped statement presenting an alibi defense. He then sought to “make a
deal.” The interrogating officer told him that he wanted a statement, but that he did not have the
authority to negotiate a deal. The officer provided Edwards with the telephone number of a
county attorney. Petitioner made the call, but hung up after a few moments. Edwards then said:
“I want an attorney before making a deal.” At that point, questioning ceased and Edwards was
taken to county jail.

Chapter 27 — Page 594

At 9:15 the next morning, two detectives, colleagues of the officer who had interrogated Edwards
the previous night, came to the jail and asked to see Edwards. When the detention officer
informed Edwards that the detectives wished to speak with him, he replied that he did not want
to talk to anyone. The guard told him that “he had” to talk and then took him to meet with the
detectives. The officers identified themselves, stated they wanted to talk to him, and informed
him of his Miranda rights. Edwards was willing to talk, but he first wanted to hear the taped
statement of the alleged accomplice who had implicated him. After listening to the tape for
several minutes, petitioner said that he would make a statement so long as it was not taperecorded. The detectives informed him that the recording was irrelevant since they could testify
in court concerning whatever he said. Edwards replied: “I’ll tell you anything you want to know,
but I don’t want it on tape.” He thereupon implicated himself in the crime.
Prior to trial, Edwards moved to suppress his confession on the ground that his Miranda rights
had been violated when the officers returned to question him after he had invoked his right to
counsel. The trial court initially granted the motion to suppress, but reversed its ruling when
presented with a supposedly controlling decision of a higher Arizona court. The court stated
without explanation that it found Edwards’ statement to be voluntary. Edwards was tried twice
and convicted. Evidence concerning his confession was admitted at both trials.
On appeal, the Arizona Supreme Court held that Edwards had invoked both his right to remain
silent and his right to counsel during the interrogation conducted on the night of January 19.
The court then went on to determine, however, that Edwards had waived both rights during the
January 20 meeting when he voluntarily gave his statement to the detectives after again being
informed that he need not answer questions and that he need not answer without the advice of
counsel: “The trial court’s finding that the waiver and confession were voluntarily and knowingly
made is upheld.”
Because the use of Edwards’ confession against him at his trial violated his rights under the Fifth
and Fourteenth Amendments as construed in Miranda v. Arizona, we reverse the judgment of
the Arizona Supreme Court.2
II
Here, the critical facts as found by the Arizona Supreme Court are that Edwards asserted his
right to counsel and his right to remain silent on January 19, but that the police, without
furnishing him counsel, returned the next morning to confront him and as a result of the meeting
secured incriminating oral admissions. Contrary to the holdings of the state courts, Edwards
insists that having exercised his right on the 19th to have counsel present during interrogation,
he did not validly waive that right on the 20th. For the following reasons, we agree.
First, the Arizona Supreme Court applied an erroneous standard for determining waiver where
the accused has specifically invoked his right to counsel. It is reasonably clear under our cases
that waivers of counsel must not only be voluntary, but must also constitute a knowing and
intelligent relinquishment or abandonment of a known right or privilege, a matter which
2 [Footnote 7 by the Court] We thus need not decide Edwards’ claim that the State deprived him of his right to

counsel under the Sixth and Fourteenth Amendments.

Chapter 27 — Page 595

depends in each case “upon the particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the accused.”
Here, however sound the conclusion of the state courts as to the voluntariness of Edwards’
admission may be, neither the trial court nor the Arizona Supreme Court undertook to focus on
whether Edwards understood his right to counsel and intelligently and knowingly relinquished
it. It is thus apparent that the decision below misunderstood the requirement for finding a valid
waiver of the right to counsel, once invoked.
Second, although we have held that after initially being advised of his Miranda rights, the
accused may himself validly waive his rights and respond to interrogation, the Court has strongly
indicated that additional safeguards are necessary when the accused asks for counsel; and we
now hold that when an accused has invoked his right to have counsel present during custodial
interrogation, a valid waiver of that right cannot be established by showing only that he
responded to further police-initiated custodial interrogation even if he has been advised of his
rights. We further hold that an accused, such as Edwards, having expressed his desire to deal
with the police only through counsel, is not subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.
Miranda itself indicated that the assertion of the right to counsel was a significant event and that
once exercised by the accused, “the interrogation must cease until an attorney is present.” Our
later cases have not abandoned that view. We reconfirm [that] view[] and emphasize that it is
inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate
an accused in custody if he has clearly asserted his right to counsel.
In concluding that the fruits of the interrogation initiated by the police on January 20 could not
be used against Edwards, we do not hold or imply that Edwards was powerless to countermand
his election or that the authorities could in no event use any incriminating statements made by
Edwards prior to his having access to counsel. Had Edwards initiated the meeting on January
20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely
listening to his voluntary, volunteered statements and using them against him at the trial. The
Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial
interrogation. Absent such interrogation, there would have been no infringement of the right
that Edwards invoked and there would be no occasion to determine whether there had been a
valid waiver.
But this is not what the facts of this case show. Here, the officers conducting the interrogation
on the evening of January 19 ceased interrogation when Edwards requested counsel as he had
been advised he had the right to do. The Arizona Supreme Court was of the opinion that this was
a sufficient invocation of his Miranda rights, and we are in accord. It is also clear that without
making counsel available to Edwards, the police returned to him the next day. This was not at
his suggestion or request. Indeed, Edwards informed the detention officer that he did not want
to talk to anyone. At the meeting, the detectives told Edwards that they wanted to talk to him
and again advised him of his Miranda rights. Edwards stated that he would talk, but what
prompted this action does not appear. He listened at his own request to part of the taped
statement made by one of his alleged accomplices and then made an incriminating statement,
Chapter 27 — Page 596

which was used against him at his trial. We think it is clear that Edwards was subjected to
custodial interrogation on January 20 and that this occurred at the instance of the authorities.
His statement made without having had access to counsel, did not amount to a valid waiver and
hence was inadmissible.
Accordingly, the holding of the Arizona Supreme Court that Edwards had waived his right to
counsel was infirm, and the judgment of that court is reversed.
Notes, Comments, and Questions
Several years after deciding Arizona v. Edwards, the Court considered whether the rule applied
if a suspect invoked his right to counsel when questioned about one crime and police later
obtained a waiver of rights for the purpose of interrogating the suspect about a different crime.
For example, imagine that police arrest a suspect for larceny, and he invokes his right to counsel.
Then, another officer notices the suspect and recognizes him as someone police believe was
involved in an unrelated murder. May that officer read the suspect his Miranda warnings and
seek permission to question him about the murder?
In Arizona v. Roberson, 486 U.S. 675 (1988), the Court held that Edwards prohibits police from
seeking a waiver regardless of the crime they wish to discuss. Roberson concerned a suspect
arrested for one burglary who invoked his right to counsel and was later questioned about a
different burglary. Quoting an Arizona Supreme Court decision with approval, the Court stated,
“The only difference between Edwards and the appellant is that Edwards was questioned about
the same offense after a request for counsel while the appellant was reinterrogated about an
unrelated offense. We do not believe that this factual distinction holds any legal significance for
fifth amendment purposes.”
The Court reiterated “the virtues of a bright-line rule in cases following Edwards as well as
Miranda,” and it rejected arguments relying on Michigan v. Mosely, which concerned a waiver
obtained after a suspect had invoked his right to silence. The Court distinguished Mosely by
reasoning that a “suspect’s decision to cut off questioning, unlike his request for counsel, does
not raise the presumption that he is unable to proceed without a lawyer’s advice.” In other words,
if a suspect invokes his right to silence, he is asserting his own ability to decide how to act while
in custody, in addition to asserting that he does not wish to speak at that time. Because he
remains confident of his own judgment, he can change his mind without seeking advice, and
police may inquire—after a respectful delay—whether he wishes to change course. A suspect who
invokes his right to counsel, by contrast, is announcing his recognition that he needs help. Once
he does so, police cannot reasonably ask whether he has somehow gained new power to manage
the difficult situation without assistance.
In Minnick v. Mississippi, the Court reaffirmed and extended the rule of Edwards. The question
was whether the rule of Edwards applied once a suspect who invoked his right to counsel had
met with a lawyer, or if instead the meeting with counsel allowed the police to attempt to
reinitiate interrogation.

Chapter 27 — Page 597

Students should compare Roberson with McNeil v. Wisconsin (U.S. 1991), which appears in
Chapter 29. In McNeil, the Court held that a suspect’s appearance with a lawyer in court for one
crime (which causes the Sixth Amendment right to counsel to attach for that crime), does not
prevent officers from questioning the suspect about other crimes for which no charges had been
filed (and for which Sixth Amendment right had accordingly not yet attached). This will be easier
to understand once students have studied other Sixth Amendment cases. But because similar
facts yield different results under a Miranda analysis than they do under a Sixth Amendment
analysis, we flag the issue now so that students can note the contrast later.
Supreme Court of the United States
Robert S. Minnick v. Mississippi
Decided Dec. 3, 1990 – 498 U.S. 146
Justice KENNEDY delivered the opinion of the Court.
The issue in the case before us is whether Edwards’ protection ceases once the suspect has
consulted with an attorney.
Petitioner Robert Minnick and fellow prisoner James Dyess escaped from a county jail in
Mississippi and, a day later, broke into a mobile home in search of weapons. In the course of the
burglary they were interrupted by the arrival of the trailer’s owner, Ellis Thomas, accompanied
by Lamar Lafferty and Lafferty’s infant son. Dyess and Minnick used the stolen weapons to kill
Thomas and the senior Lafferty. Minnick’s story is that Dyess murdered one victim and forced
Minnick to shoot the other. Before the escapees could get away, two young women arrived at the
mobile home. They were held at gunpoint, then bound hand and foot. Dyess and Minnick fled in
Thomas’ truck, abandoning the vehicle in New Orleans. The fugitives continued to Mexico, where
they fought, and Minnick then proceeded alone to California. Minnick was arrested in Lemon
Grove, California, on a Mississippi warrant, some four months after the murders.
The confession at issue here resulted from the last interrogation of Minnick while he was held in
the San Diego jail, but we first recount the events which preceded it. Minnick was arrested on
Friday, August 22, 1986. Petitioner testified that he was mistreated by local police during and
after the arrest. The day following the arrest, Saturday, two Federal Bureau of Investigation (FBI)
agents came to the jail to interview him. Petitioner testified that he refused to go to the interview,
but was told he would “have to go down or else.” The FBI report indicates that the agents read
petitioner his Miranda warnings, and that he acknowledged he understood his rights. He refused
to sign a rights waiver form, however, and said he would not answer “very many” questions.
Minnick told the agents about the jailbreak and the flight, and described how Dyess threatened
and beat him. Early in the interview, he sobbed “[i]t was my life or theirs,” but otherwise he
hesitated to tell what happened at the trailer. The agents reminded him he did not have to answer
questions without a lawyer present. According to the report, “Minnick stated ‘Come back
Monday when I have a lawyer,’ and stated that he would make a more complete statement then
with his lawyer present.” The FBI interview ended.

Chapter 27 — Page 598

After the FBI interview, an appointed attorney met with petitioner. Petitioner spoke with the
lawyer on two or three occasions, though it is not clear from the record whether all of these
conferences were in person.
On Monday, August 25, Deputy Sheriff J.C. Denham of Clarke County, Mississippi, came to the
San Diego jail to question Minnick. Minnick testified that his jailers again told him he would
“have to talk” to Denham and that he “could not refuse.” Denham advised petitioner of his rights,
and petitioner again declined to sign a rights waiver form. Petitioner told Denham about the
escape and then proceeded to describe the events at the mobile home. According to petitioner,
Dyess jumped out of the mobile home and shot the first of the two victims, once in the back with
a shotgun and once in the head with a pistol. Dyess then handed the pistol to petitioner and
ordered him to shoot the other victim, holding the shotgun on petitioner until he did so.
Petitioner also said that when the two girls arrived, he talked Dyess out of raping or otherwise
hurting them.
Minnick was tried for murder in Mississippi. He moved to suppress all statements given to the
FBI or other police officers, including Denham. The trial court denied the motion with respect
to petitioner’s statements to Denham, but suppressed his other statements. Petitioner was
convicted on two counts of capital murder and sentenced to death.
On appeal, petitioner argued that the confession to Denham was taken in violation of his rights
to counsel under the Fifth and Sixth Amendments. The Mississippi Supreme Court rejected the
claims. With respect to the Fifth Amendment aspect of the case, the court found “the Edwards
bright-line rule as to initiation” inapplicable. Relying on language in Edwards indicating that
the bar on interrogating the accused after a request for counsel applies “‘until counsel has been
made available to him,’” the court concluded that “[s]ince counsel was made available to
Minnick, his Fifth Amendment right to counsel was satisfied.” The court also rejected the Sixth
Amendment claim, finding that petitioner waived his Sixth Amendment right to counsel when
he spoke with Denham. We granted certiorari and, without reaching any Sixth Amendment
implications in the case, we decide that the Fifth Amendment protection of Edwards is not
terminated or suspended by consultation with counsel.
Edwards is “designed to prevent police from badgering a defendant into waiving his previously
asserted Miranda rights.” The rule ensures that any statement made in subsequent interrogation
is not the result of coercive pressures. Edwards conserves judicial resources which would
otherwise be expended in making difficult determinations of voluntariness, and implements the
protections of Miranda in practical and straightforward terms.
The merit of the Edwards decision lies in the clarity of its command and the certainty of its
application. We have confirmed that the Edwards rule provides “‘clear and unequivocal’
guidelines to the law enforcement profession.” Even before Edwards, we noted that Miranda’s
“relatively rigid requirement that interrogation must cease upon the accused’s request for an
attorney ... has the virtue of informing police and prosecutors with specificity as to what they
may do in conducting custodial interrogation, and of informing courts under what circumstances
statements obtained during such interrogation are not admissible. This gain in specificity, which
benefits the accused and the State alike, has been thought to outweigh the burdens that the
decision in Miranda imposes on law enforcement agencies and the courts by requiring the
Chapter 27 — Page 599

suppression of trustworthy and highly probative evidence even though the confession might be
voluntary under traditional Fifth Amendment analysis.” This pre-Edwards explanation applies
as well to Edwards and its progeny.
The Mississippi Supreme Court relied on our statement in Edwards that an accused who invokes
his right to counsel “is not subject to further interrogation by the authorities until counsel has
been made available to him....” We do not interpret this language to mean, as the Mississippi
court thought, that the protection of Edwards terminates once counsel has consulted with the
suspect. In context, the requirement that counsel be “made available” to the accused refers to
more than an opportunity to consult with an attorney outside the interrogation room.
In Edwards, we focused on Miranda’s instruction that when the accused invokes his right to
counsel, “the interrogation must cease until an attorney is present,” agreeing with Edwards’
contention that he had not waived his right “to have counsel present during custodial
interrogation.” Our emphasis on counsel’s presence at interrogation is not unique to Edwards.
It derives from Miranda, where we said that in the cases before us “[t]he presence of counsel ...
would be the adequate protective device necessary to make the process of police interrogation
conform to the dictates of the [Fifth Amendment] privilege. His presence would insure that
statements made in the government-established atmosphere are not the product of compulsion.”
Our cases following Edwards have interpreted the decision to mean that the authorities may not
initiate questioning of the accused in counsel’s absence. These descriptions of Edwards’ holding
are consistent with our statement that “[p]reserving the integrity of an accused’s choice to
communicate with police only through counsel is the essence of Edwards and its progeny.” In
our view, a fair reading of Edwards and subsequent cases demonstrates that we have interpreted
the rule to bar police-initiated interrogation unless the accused has counsel with him at the time
of questioning. Whatever the ambiguities of our earlier cases on this point, we now hold that
when counsel is requested, interrogation must cease, and officials may not reinitiate
interrogation without counsel present, whether or not the accused has consulted with his
attorney.
We consider our ruling to be an appropriate and necessary application of the Edwards rule. A
single consultation with an attorney does not remove the suspect from persistent attempts by
officials to persuade him to waive his rights, or from the coercive pressures that accompany
custody and that may increase as custody is prolonged. The case before us well illustrates the
pressures, and abuses, that may be concomitants of custody. Petitioner testified that though he
resisted, he was required to submit to both the FBI and the Denham interviews. In the latter
instance, the compulsion to submit to interrogation followed petitioner’s unequivocal request
during the FBI interview that questioning cease until counsel was present. The case illustrates
also that consultation is not always effective in instructing the suspect of his rights. One plausible
interpretation of the record is that petitioner thought he could keep his admissions out of
evidence by refusing to sign a formal waiver of rights. If the authorities had complied with
Minnick’s request to have counsel present during interrogation, the attorney could have
corrected Minnick’s misunderstanding, or indeed counseled him that he need not make a
statement at all. We decline to remove protection from police-initiated questioning based on
isolated consultations with counsel who is absent when the interrogation resumes.

Chapter 27 — Page 600

The exception to Edwards here proposed is inconsistent with Edwards’ purpose to protect the
suspect’s right to have counsel present at custodial interrogation. It is inconsistent as well with
Miranda, where we specifically rejected respondent’s theory that the opportunity to consult with
one’s attorney would substantially counteract the compulsion created by custodial interrogation.
We noted in Miranda that “[e]ven preliminary advice given to the accused by his own attorney
can be swiftly overcome by the secret interrogation process. Thus the need for counsel to protect
the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to
questioning, but also to have counsel present during any questioning if the defendant so desires.”
The exception proposed, furthermore, would undermine the advantages flowing from Edwards’
“clear and unequivocal” character. Respondent concedes that even after consultation with
counsel, a second request for counsel should reinstate the Edwards protection. We are invited
by this formulation to adopt a regime in which Edwards’ protection could pass in and out of
existence multiple times prior to arraignment, at which point the same protection might reattach
by virtue of our Sixth Amendment jurisprudence. Vagaries of this sort spread confusion through
the justice system and lead to a consequent loss of respect for the underlying constitutional
principle.
In addition, adopting the rule proposed would leave far from certain the sort of consultation
required to displace Edwards. Consultation is not a precise concept, for it may encompass
variations from a telephone call to say that the attorney is en route, to a hurried interchange
between the attorney and client in a detention facility corridor, to a lengthy in-person conference
in which the attorney gives full and adequate advice respecting all matters that might be covered
in further interrogations. And even with the necessary scope of consultation settled, the officials
in charge of the case would have to confirm the occurrence and, possibly, the extent of
consultation to determine whether further interrogation is permissible. The necessary inquiries
could interfere with the attorney-client privilege.
Added to these difficulties in definition and application of the proposed rule is our concern over
its consequence that the suspect whose counsel is prompt would lose the protection of Edwards,
while the one whose counsel is dilatory would not. There is more than irony to this result. There
is a strong possibility that it would distort the proper conception of the attorney’s duty to the
client and set us on a course at odds with what ought to be effective representation.
Both waiver of rights and admission of guilt are consistent with the affirmation of individual
responsibility that is a principle of the criminal justice system. It does not detract from this
principle, however, to insist that neither admissions nor waivers are effective unless there are
both particular and systemic assurances that the coercive pressures of custody were not the
inducing cause. The Edwards rule sets forth a specific standard to fulfill these purposes, and we
have declined to confine it in other instances. It would detract from the efficacy of the rule to
remove its protections based on consultation with counsel.

Chapter 27 — Page 601

Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has
been requested, provided the accused has initiated the conversation or discussions with the
authorities; but that is not the case before us. There can be no doubt that the interrogation in
question was initiated by the police; it was a formal interview which petitioner was compelled to
attend. Since petitioner made a specific request for counsel before the interview, the policeinitiated interrogation was impermissible. Petitioner’s statement to Denham was not admissible
at trial.
The judgment is reversed, and the case is remanded for further proceedings not inconsistent
with this opinion.
Justice SCALIA, with whom THE CHIEF JUSTICE joins, dissenting.
The Court today establishes an irrebuttable presumption that a criminal suspect, after invoking
his Miranda right to counsel, can never validly waive that right during any police-initiated
encounter, even after the suspect has been provided multiple Miranda warnings and has actually
consulted his attorney. Because I see no justification for applying the Edwards irrebuttable
presumption when a criminal suspect has actually consulted with his attorney, I respectfully
dissent.
The Court today reverses the trial court’s conclusion. It holds that, because Minnick had asked
for counsel during the interview with the FBI agents, he could not—as a matter of law—validly
waive the right to have counsel present during the conversation initiated by Denham. That
Minnick’s original request to see an attorney had been honored, that Minnick had consulted with
his attorney on several occasions, and that the attorney had specifically warned Minnick not to
speak to the authorities, are irrelevant. That Minnick was familiar with the criminal justice
system in general or Miranda warnings in particular (he had previously been convicted of
robbery in Mississippi and assault with a deadly weapon in California) is also beside the point.
The confession must be suppressed, not because it was “compelled,” nor even because it was
obtained from an individual who could realistically be assumed to be unaware of his rights, but
simply because this Court sees fit to prescribe as a “systemic assuranc[e]” that a person in
custody who has once asked for counsel cannot thereafter be approached by the police unless
counsel is present. Of course the Constitution’s proscription of compelled testimony does not
remotely authorize this incursion upon state practices; and even our recent precedents are not a
valid excuse.
In this case [] we have not been called upon to reconsider Edwards, but simply to determine
whether its irrebuttable presumption should continue after a suspect has actually consulted with
his attorney. Whatever justifications might support Edwards are even less convincing in this
context.
The existence and the importance of the Miranda-created right “to have counsel present” are
unquestioned here. What is questioned is why a State should not be given the opportunity to
prove that the right was voluntarily waived by a suspect who, after having been read his
Miranda rights twice and having consulted with counsel at least twice, chose to speak to a police
officer (and to admit his involvement in two murders) without counsel present.
Chapter 27 — Page 602

Edwards did not assert the principle that no waiver of the Miranda right “to have counsel
present” is possible. It simply adopted the presumption that no waiver is voluntary in certain
circumstances, and the issue before us today is how broadly those circumstances are to be
defined. They should not, in my view, extend beyond the circumstances present in Edwards
itself—where the suspect in custody asked to consult an attorney and was interrogated before
that attorney had ever been provided. In those circumstances, the Edwards rule rests upon an
assumption similar to that of Miranda itself: that when a suspect in police custody is first
questioned he is likely to be ignorant of his rights and to feel isolated in a hostile environment.
This likelihood is thought to justify special protection against unknowing or coerced waiver of
rights. After a suspect has seen his request for an attorney honored, however, and has actually
spoken with that attorney, the probabilities change. The suspect then knows that he has an
advocate on his side, and that the police will permit him to consult that advocate. He almost
certainly also has a heightened awareness (above what the Miranda warning itself will provide)
of his right to remain silent—since at the earliest opportunity “any lawyer worth his salt will tell
the suspect in no uncertain terms to make no statement to the police under any circumstances.”
Under these circumstances, an irrebuttable presumption that any police-prompted confession is
the result of ignorance of rights, or of coercion, has no genuine basis in fact. After the first
consultation, therefore, the Edwards exclusionary rule should cease to apply.
One should not underestimate the extent to which the Court’s expansion of Edwards constricts
law enforcement. Today’s ruling, that the invocation of a right to counsel permanently prevents
a police-initiated waiver, makes it largely impossible for the police to urge a prisoner who has
initially declined to confess to change his mind—or indeed, even to ask whether he has changed
his mind. Many persons in custody will invoke the Miranda right to counsel during the first
interrogation, so that the permanent prohibition will attach at once. Those who do not do so will
almost certainly request or obtain counsel at arraignment. We have held that a general request
for counsel, after the Sixth Amendment right has attached, also triggers the Edwards prohibition
of police-solicited confessions, and I presume that the perpetuality of prohibition announced in
today’s opinion applies in that context as well. “Perpetuality” is not too strong a term, since,
although the Court rejects one logical moment at which the Edwards presumption might end, it
suggests no alternative. In this case Minnick was reapproached by the police three days after he
requested counsel, but the result would presumably be the same if it had been three months, or
three years, or even three decades. This perpetual irrebuttable presumption will apply, I might
add, not merely to interrogations involving the original crime, but to those involving other
subjects as well.
Today’s extension of the Edwards prohibition is the latest stage of prophylaxis built upon
prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon
law enforcement. This newest tower, according to the Court, is needed to avoid “inconsisten[cy]
with [the] purpose” of Edwards’ prophylactic rule, which was needed to protect Miranda’s
prophylactic right to have counsel present, which was needed to protect the right against
compelled self-incrimination found (at last!) in the Constitution.
It seems obvious to me that, even in Edwards itself but surely in today’s decision, we have gone
far beyond any genuine concern about suspects who do not know their right to remain silent, or
who have been coerced to abandon it. Both holdings are explicable, in my view, only as an effort
Chapter 27 — Page 603

to protect suspects against what is regarded as their own folly. The sharp-witted criminal would
know better than to confess; why should the dull-witted suffer for his lack of mental endowment?
Providing him an attorney at every stage where he might be induced or persuaded (though not
coerced) to incriminate himself will even the odds. Apart from the fact that this protective
enterprise is beyond our authority under the Fifth Amendment or any other provision of the
Constitution, it is unwise. The procedural protections of the Constitution protect the guilty as
well as the innocent, but it is not their objective to set the guilty free. That some clever criminals
may employ those protections to their advantage is poor reason to allow criminals who have not
done so to escape justice.
Thus, even if I were to concede that an honest confession is a foolish mistake, I would welcome
rather than reject it; a rule that foolish mistakes do not count would leave most offenders not
only unconvicted but undetected. More fundamentally, however, it is wrong, and subtly
corrosive of our criminal justice system, to regard an honest confession as a “mistake.” While
every person is entitled to stand silent, it is more virtuous for the wrongdoer to admit his offense
and accept the punishment he deserves. Not only for society, but for the wrongdoer himself,
“admissio[n] of guilt ..., if not coerced, [is] inherently desirable,” because it advances the goals
of both “justice and rehabilitation.” A confession is rightly regarded by the Sentencing
Guidelines as warranting a reduction of sentence, because it “demonstrates a recognition and
affirmative acceptance of personal responsibility for ... criminal conduct,” which is the beginning
of reform. We should, then, rejoice at an honest confession, rather than pity the “poor fool” who
has made it; and we should regret the attempted retraction of that good act, rather than seek to
facilitate and encourage it. To design our laws on premises contrary to these is to abandon belief
in either personal responsibility or the moral claim of just government to obedience. Today’s
decision is misguided.
Notes, Comments, and Questions
In Maryland v. Shatzer, the Court considered whether the rule of Arizona v. Edwards—which
prohibits police from attempting to question a suspect absent counsel once that suspect has
invoked the right to counsel—applies after a “break in custody.” The facts of the case made it an
odd vehicle for the Court to reach this question. Shatzer was in prison during his interrogation,
meaning he was “in custody” as that term is normally used, and he was never at liberty (out of
custody) during any of the events relevant to the Miranda issue in the case. Students should read
the case carefully to see how the Court found a “break in custody.”
Students should realize, too, that the rule of Shatzer applies in the following more common
scenario: (1) A suspect is taken into custody and read the Miranda warnings, (2) the suspect
invokes his right to counsel, and interrogation stops, (3) the suspect is released, perhaps after a
bail hearing, and (4) later, perhaps after several weeks, the suspect is arrested and taken back
into custody. The question before the Court was whether the invocation during the suspect’s
earlier custodial interrogation prohibits police efforts to question the suspect after the new
arrest.

Chapter 27 — Page 604

What are the advantages of the bright-line rule advocated by Justice Kennedy in Minnick? Why
do you think the Court treats the suspect’s invocation of her right to counsel differently than her
invocation of her right to remain silent?
Supreme Court of the United States
Maryland v. Michael Blaine Shatzer, Sr.
Decided Feb. 24, 2010 – 559 U.S. 98
Justice SCALIA delivered the opinion of the Court.
We consider whether a break in custody ends the presumption of involuntariness established in
Edwards v. Arizona.
I
In August 2003, a social worker assigned to the Child Advocacy Center in the Criminal
Investigation Division of the Hagerstown Police Department referred to the department
allegations that respondent Michael Shatzer, Sr., had sexually abused his 3-year-old son. At that
time, Shatzer was incarcerated at the Maryland Correctional Institution–Hagerstown, serving a
sentence for an unrelated child-sexual-abuse offense. Detective Shane Blankenship was assigned
to the investigation and interviewed Shatzer at the correctional institution on August 7, 2003.
Before asking any questions, Blankenship reviewed Shatzer’s Miranda rights with him, and
obtained a written waiver of those rights. When Blankenship explained that he was there to
question Shatzer about sexually abusing his son, Shatzer expressed confusion—he had thought
Blankenship was an attorney there to discuss the prior crime for which he was incarcerated.
Blankenship clarified the purpose of his visit, and Shatzer declined to speak without an attorney.
Accordingly, Blankenship ended the interview, and Shatzer was released back into the general
prison population. Shortly thereafter, Blankenship closed the investigation.
Two years and six months later, the same social worker referred more specific allegations to the
department about the same incident involving Shatzer. Detective Paul Hoover, from the same
division, was assigned to the investigation. He and the social worker interviewed the victim, then
eight years old, who described the incident in more detail. With this new information in hand,
on March 2, 2006, they went to the Roxbury Correctional Institute, to which Shatzer had since
been transferred, and interviewed Shatzer in a maintenance room outfitted with a desk and three
chairs. Hoover explained that he wanted to ask Shatzer about the alleged incident involving
Shatzer’s son. Shatzer was surprised because he thought that the investigation had been closed,
but Hoover explained they had opened a new file. Hoover then read Shatzer his Miranda rights
and obtained a written waiver on a standard department form.
Hoover interrogated Shatzer about the incident for approximately 30 minutes. Shatzer denied
ordering his son to perform fellatio on him, but admitted to masturbating in front of his son from
a distance of less than three feet. Before the interview ended, Shatzer agreed to Hoover’s request
that he submit to a polygraph examination. At no point during the interrogation did Shatzer
request to speak with an attorney or refer to his prior refusal to answer questions without one.
Chapter 27 — Page 605

Five days later, on March 7, 2006, Hoover and another detective met with Shatzer at the
correctional facility to administer the polygraph examination. After reading Shatzer his Miranda
rights and obtaining a written waiver, the other detective administered the test and concluded
that Shatzer had failed. When the detectives then questioned Shatzer, he became upset, started
to cry, and incriminated himself by saying, “‘I didn’t force him. I didn’t force him.’” After making
this inculpatory statement, Shatzer requested an attorney, and Hoover promptly ended the
interrogation.
The State’s Attorney for Washington County charged Shatzer with second-degree sexual offense,
sexual child abuse, second-degree assault, and contributing to conditions rendering a child in
need of assistance. Shatzer moved to suppress his March 2006 statements pursuant to Edwards.
The trial court held a suppression hearing and later denied Shatzer’s motion. The Edwards
protections did not apply, it reasoned, because Shatzer had experienced a break in custody for
Miranda purposes between the 2003 and 2006 interrogations. Shatzer pleaded not guilty,
waived his right to a jury trial, and proceeded to a bench trial based on an agreed statement of
facts. In accordance with the agreement, the State described the interview with the victim and
Shatzer’s 2006 statements to the detectives. Based on the proffered testimony of the victim and
the “admission of the defendant as to the act of masturbation,” the trial court found Shatzer
guilty of sexual child abuse of his son.
Over the dissent of two judges, the Court of Appeals of Maryland reversed and remanded. The
court held that “the passage of time alone is insufficient to [end] the protections afforded by
Edwards,” and that, assuming, arguendo, a break-in-custody exception to Edwards existed,
Shatzer’s release back into the general prison population between interrogations did not
constitute a break in custody. We granted certiorari.
II
The rationale of Edwards is that once a suspect indicates that “he is not capable of undergoing
[custodial] questioning without advice of counsel,” “any subsequent waiver that has come at the
authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently
compelling pressures’ and not the purely voluntary choice of the suspect.” Under this rule, a
voluntary Miranda waiver is sufficient at the time of an initial attempted interrogation to protect
a suspect’s right to have counsel present, but it is not sufficient at the time of subsequent
attempts if the suspect initially requested the presence of counsel. The implicit assumption, of
course, is that the subsequent requests for interrogation pose a significantly greater risk of
coercion. That increased risk results not only from the police’s persistence in trying to get the
suspect to t
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