> For the complete documentation index, see [llms.txt](https://studies-de-jure.gitbook.io/learn/llms.txt). Markdown versions of documentation pages are available by appending `.md` to page URLs; this page is available as [Markdown](https://studies-de-jure.gitbook.io/learn/sourcebooks/criminal-law/page-1.md).
# Page 1
## JPP 308 (in progress)
* Matthew L. Mac Kelly
## 3 Investigative Detensions 3 Investigative Detensions
## 3.1 Introductory Basics 3.1 Introductory Basics
## Investigative Detentions (Terry Stops)
| |
| --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| Sidebar
The rules for constitutional investigative detentions are separated into "two broad categories":
1. Grounds to detain: Officers must have had sufficient grounds to detain the suspect; i.e., reasonable suspicion.
2. Procedure: The procedures that officers utilized to confirm or dispel their suspicion and to protect themselves must have been objectively reasonable.
\~ Alvarez (2022)
|
Prior to 1968, encounters between law enforcement officers and citizens were categorized either as voluntary contacts, with no suspicion necessary, or arrests, which required probable cause. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court recognized a third type of police-citizen encounter, known as an investigative detention (“Terry” stop). An investigative detention is a compelled, brief, investigatory stop. To make an investigative detention, a law enforcement officer must have a reasonable, articulable suspicion that criminal activity is afoot and the person detained is somehow involved.\[^1]
\[^1] footnote
### **The Requirements**
To \[^2] conduct an investigative detention of a person, an officer must have “==reasonable suspicion”== that criminal activity is afoot. The officer does not have to know that a crime is being committed, or even that he or she is stopping the right suspect. In allowing investigatory detentions, Terry accepts the risk that officers may stop innocent people. While “reasonable suspicion” is a lower standard than “probable cause,” the officer must still have explainable (articulable) reasons to justify a temporary seizure of a person. “Criminal activity is afoot” means that the officer must reasonably suspect that:
* A crime is about to be committed;
* A crime is being committed; or
* A crime has been committed.
Some courts have disallowed investigative detentions for completed misdemeanors, unless some ongoing danger to the public still exists (e.g., recent reckless driving). However, if there is no other way to identify the subject who committed a misdemeanor, the court may still find the detention reasonable. Detentions to prevent or stop a misdemeanor from occurring are, of course, permissible with reasonable suspicion. When an officer has reasonable suspicion that a piece of personal property, such as luggage, contains contraband or evidence of a crime, he or she may detain it in the same manner that the officer may detain a person.
To determine whether reasonable suspicion exists, courts look at the “==totality of the circumstances==” of each case. An officer must be able to ==articulate facts establishing the possibility that the person stopped is connected to criminal activity==. The “totality of the circumstances” ==includes an officer’s specialized training and experience, which together with the facts, might lead the officer to a conclusion that an untrained person would not reach.== For example, the officer may observe conduct that he or she believes is consistent with “casing” a store for a robbery. In such a situation, the officer’s training and experience allows him or her to determine that reasonable suspicion of criminal activity exists, even though all of the suspect’s conduct might appear perfectly innocent to an untrained observer.
### **Establishing Reasonable Suspicion**
Law enforcement officers may use a variety of different investigative techniques to obtain enough information to establish reasonable suspicion to detain a person. For example, an officer’s personal observations may establish reasonable suspicion to conduct an investigative detention. Courts give a great deal of deference to an officer’s personal observations. Additionally, officers may establish reasonable suspicion from information provided by other law enforcement officers, sometimes referred to as “collective knowledge.” Information from an identified third party, such as a victim or witness, can also provide the facts to establish reasonable suspicion. Finally, officers may use information provided by reliable informants to establish reasonable suspicion for an investigative detention.
Often, informants or anonymous sources provide the information to establish reasonable suspicion. While this is permissible, an officer sometimes needs to corroborate the informant’s information. ==The reliability of a tip provided by an informant depends on both the “quantity” and “quality” of the information.== A tip from a confidential informant with an established, positive track record is usually considered reliable enough to establish reasonable suspicion with little or no corroboration. An anonymous tip can be insufficient, especially when the source’s truthfulness and basis of knowledge (i.e., how did the source acquire the information?) is unknown. In determining whether a tip contains enough verifiable information to establish reasonable suspicion, courts look to and rely upon the following factors:
* The amount of detail the source provided;
* Whether the source accurately predicted the suspect’s future behavior;
* Whether and to what extent law enforcement officers corroborate the source’s information;
* Whether the information is based on the source’s firsthand observations;
* Whether, by providing the information, the source is putting his or her anonymity in jeopardy;
* Whether the source provided the information in a face-to-face encounter with law enforcement officials; and
* The timeliness of the source’s report, that is, whether the information is “stale.”
Reasonable suspicion is a lower standard than probable cause, both as to the amount of evidence needed \[“quantity”] as well as how strongly it establishes that criminal activity is afoot \[“quality”].
### **Factors Justifying Investigative Detentions**
The officer must be able to explain to a court why he or she decided to conduct an investigative detention of a suspect (i.e., what the officer heard, saw, or learned that led the officer to reasonably suspect that criminal activity was afoot). Many factors can justify an investigative detention. Even seemingly innocent or wholly lawful conduct can, in appropriate instances, establish reasonable suspicion that criminal activity is afoot. For example, an officer may reach different conclusions about the legal purchase of a crowbar by a person with an extensive criminal record for burglary than the same purchase by a carpenter with no criminal record. Some common factors officers can use to justify investigative detentions include, but are not limited to:
* A suspect’s nervous behavior, although this factor alone is of limited value and the officer should consider it in conjunction with the surrounding circumstances;
* A suspect’s criminal history, although standing alone, this factor will not establish reasonable suspicion;
* An officer’s knowledge of recent criminal conduct;
* The time and location of the situation;
* A suspect’s flight upon observing law enforcement officers, at least when combined with other factors;
* A suspect’s presence in a high crime area, at least when combined with other factors; and
* A suspect’s non-responsive behavior.
### **Duration of an Investigative Detention**
An investigative detention must be reasonable in length. It is a temporary detention and ==can last no longer than needed to carry out the stop’s purpose==. The officer should use the least intrusive investigative methods reasonably available to confirm or dispel the officer’s suspicion in a short time period. There is no “bright-line” rule as to the time limit for an investigative detention. The courts consider whether the officer diligently and reasonably pursued the investigation to confirm or dispel suspicions. The court may also consider the amount of force the officer used and the level of restriction the officer placed on the subject’s movement. A Terry stop must be reasonable in time, place, and manner.
### **Use of Force During an Investigative Detention**
An officer’s use of force during an investigative detention must be ==objectively reasonable based on the totality of the circumstances known to the officer at the time==. The Supreme Court has long recognized that the right to make an investigatory stop includes the right to use some degree of physical coercion, if needed, to carry out the stop. For example, an officer may handcuff a subject who will not comply with lawful orders or point a gun at a suspect the officer believes to be armed and dangerous.
To determine whether the amount of force used during an investigative detention has turned a stop based on reasonable suspicion into an arrest, which requires probable cause, courts consider a number of factors, including:
* The number of officers involved;
* The nature of the crime and whether there is reason to believe the suspect is armed;
* The strength of the articulable, objective suspicions;
* The need for immediate action; and
* The presence or lack of suspicious behavior or movement by the person under observation.
### **Going From Investigative Detention to Arrest**
An investigative detention may lead to a lawful arrest only if the officer develops probable cause to arrest. While an investigative detention only requires reasonable suspicion that criminal activity is afoot, an arrest requires probable cause that a crime is being, or has been, committed.
\==If an officer extends an investigative detention beyond the time it would take a reasonable officer to confirm or dispel her suspicions, a judge may find that the officer has made a== *==de facto==* ==arrest.== In determining whether an officer has made a de facto arrest, courts will consider a variety of factors, including:
* The purpose of the stop and the nature of the crime;
* Whether the officer diligently conducted the detention;
* The amount of force the officer used, and the need for such force;
* The extent to which the officer restrained an individual’s freedom of movement;
* The number of officers involved;
* The length and intensity of the stop;
* The time and location of the stop; and
* The need for immediate action.
A *de facto* arrest not supported by probable cause is an illegal seizure.
Any evidence the officer obtained as a result of the unlawful arrest (for example, evidence the officer found in the suspect’s pocket in the search incident to arrest) will be inadmissible.
*Attributions.* Unless otherwise indicated above, this page's content was adapted from the following public domain source: [*Legal Training Handbook*](https://www.fletc.gov/sites/default/files/st-1000-fy23-with-cover.pdf) (2023), § 18.4.3, by Federal Lawful Enforcement Training Centers, Office of Chief Counsel, Amanda Barak & Lindsey Brower, Editors.
## 3.2. Investigative Detentions (by Alvarez)
[Investigative Detentions (by Alvarez)](https://workforce.libretexts.org/Bookshelves/Corrections/Principles_and_Procedures_of_the_Justice_System_\(Alvarez\)/04%3A_Detentions_Based_on_Reasonable_Suspicion/4.1%3A_Investigative_Detentions?readerView)
## 3.3 Untitled 3.3 Untitled
## 3.3.1 fasdfasdf 3.3.1 fasdfasdf
## 3.3.1.1 More on De Facto Arrests 3.3.1.1 More on De Facto Arrests
## Investigative Detentions (Terry Stops)
| |
| --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| Sidebar
The rules for constitutional investigative detentions are separated into "two broad categories":
1. Grounds to detain: Officers must have had sufficient grounds to detain the suspect; i.e., reasonable suspicion.
2. Procedure: The procedures that officers utilized to confirm or dispel their suspicion and to protect themselves must have been objectively reasonable.
\~ Alvarez (2022)
|
Prior to 1968, encounters between law enforcement officers and citizens were categorized either as voluntary contacts, with no suspicion necessary, or arrests, which required probable cause. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court recognized a third type of police-citizen encounter, known as an investigative detention (“Terry” stop). An investigative detention is a compelled, brief, investigatory stop. To make an investigative detention, a law enforcement officer must have a reasonable, articulable suspicion that criminal activity is afoot and the person detained is somehow involved.
### **The Requirements**
To conduct an investigative detention of a person, an officer must have “reasonable suspicion” that criminal activity is afoot. The officer does not have to know that a crime is being committed, or even that he or she is stop
## 3.4 Terry v. Ohio 3.4 Terry v. Ohio
Supreme Court of the United States
392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, 1968 U.S. LEXIS 1345, SCDB 1967-157
No. 67
1968-06-10
**TERRY *****v.***** OHIO.**
No. 67.
Argued December 12, 1967.
Decided June 10, 1968.
[\*4](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p4) \[…] ~~*Louis Stokes*~~ ~~argued the cause for petitioner. With him on the brief was~~ ~~*Jack G. Day.*~~
~~*Reuben M. Payne*~~ ~~argued the cause for respondent. With him on the brief was~~ ~~*John T. Corrigan.*~~
~~Briefs of~~ ~~*amici curiae,*~~ ~~urging reversal, were filed by~~ ~~*Jack Greenberg, James M. Nabrit III, Michael Meltsner, Melvyn Zarr,*~~ ~~and~~ ~~*Anthony G. Amsterdam*~~ ~~for the NAACP Legal Defense and Educational Fund, Inc., and by~~ ~~*Bernard A. Berkman, Melvin L. Wulf,*~~ ~~and~~ ~~*Alan H. Levine*~~ ~~for the American Civil Liberties Union et al.~~
~~Briefs of~~ ~~*amici curiae,*~~ ~~urging affirmance, were filed by~~ ~~*Solicitor General Griswold, Assistant Attorney General Vinson, Ralph S. Spritzer, Beatrice Rosenberg,*~~ ~~and~~ ~~*Mer-vyn Hamburg*~~ ~~for the United States; by~~ ~~*Louis J. Lejko-witz, pro se, Samuel A. Hirshowitz,*~~ ~~First Assistant Attorney General, and~~ ~~*Maria L. Marcus*~~ ~~and~~ ~~*Brenda Soloff,*~~ ~~Assistant Attorneys General, for the Attorney General of New York; by~~ ~~*Charles Moylan, Jr., Evelle J. Younger,*~~ ~~and~~ ~~*Harry Wood*~~ ~~for the National District Attorneys' Assn., and by~~ ~~*James R. Thompson*~~ ~~for Americans for Effective Law Enforceme~~nt.
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.[1](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_1) Following [\*5](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p5)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,[2](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_2) 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 [\*6](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p6)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 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 comer, 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 McEadden 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, iden[\*7](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p7)tified 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 [\*8](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p8)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 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, affirme \[…] ~~d.~~ ~~*State*~~ ~~v.~~ ~~*Terry,*~~ [~~5 Ohio App. 2d 122~~](https://cite.case.law/ohio-app-2d/5/122/)~~,~~ [~~214 N. E. 2d 114~~](https://cite.case.law/ne2d/214/114/) ~~(196~~6). The Supreme Court of Ohio dismissed their appeal on the ground that no “substantial constitutional question” was involved. We granted certior \[…] ~~ari,~~ [~~387 U. S. 929~~](https://cite.case.law/us/387/929/) ~~(1967~~), to determine whether the admission of the revolvers in evidence violated petitioner’s rights under the Fourth Amendment, made applicable to the States by the Fourteenth. *Mapp* v. *Ohio,* [367 U. S. 643](https://cite.case.law/us/367/643/) (1961). We affirm the conviction.
I.
The Fourth Amendment provides 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 . . . .” This inestimable right of [\*9](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p9)personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized,
> “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” *Union Pac. R. Co.* v. *Botsford,* [141 U. S. 250](https://cite.case.law/us/141/250/), 251 (1891).
We have recently held that “the Fourth Amendment protects people, not places,” *Katz* v. *United States,* [389 U. S. 347](https://cite.case.law/us/389/347/), 351 (1967), and wherever an individual may harbor a reasonable “expectation of privacy,” *id.,* at 361 (Mr. Justice Harlan, concurring), he is entitled to be free from unreasonable governmental intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted. For “what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.” *Elkins* v. *United States,* [364 U. S. 206](https://cite.case.law/us/364/206/), 222 (1960). Unquestionably petitioner was entitled to the protection of the Fourth Amendment as he walked down the street in Cleveland. *Beck* v. *Ohio,* [379 U. S. 89](https://cite.case.law/us/379/89/) (1964); *Rios* v. *United States,* [364 U. S. 253](https://cite.case.law/us/364/253/) (1960); *Henry* v. *United States,* [361 U. S. 98](https://cite.case.law/us/361/98/) (1959); *United States* v. *Di Re,* [332 U. S. 581](https://cite.case.law/us/332/581/) (1948); *Carroll* v. *United States,* [267 U. S. 132](https://cite.case.law/us/267/132/) (1925). The question is whether in all the circumstances of this on-the-street encounter, his 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 [\*10](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p10)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.” [3](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_3) Thus, it is argued, the police should be allowed to “stop” a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity. Upon suspicion that the person may be armed, the police should have the power to “frisk” him for weapons. If the “stop” and the “frisk” give rise to probable cause to believe that the suspect has committed a crime, then the police should be empowered to make a formal “arrest,” and a full incident “search” of the person. This scheme is justified in part upon the notion that a “stop” and a “frisk” amount to a mere “minor inconvenience and petty indignity,” [4](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_4) which can properly be imposed upon the [\*11](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p11)citizen in the interest of effective law enforcement on the basis of a police officer's suspicion.[5](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_5)
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 as it has developed to date in the traditional jurisprudence of the Fourth Amendment.[6](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_6) 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. The heart of the Fourth Amendment, the argument runs, is a severe requirement of specific justification for any intrusion upon protected personal security, coupled with á highly developed system of judicial controls to enforce upon the agents of the State the commands of the Constitution. Acquiescence by the courts in the compulsion inherent [\*12](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p12)in the field interrogation practices at issue here, it is urged, would constitute an abdication of judicial control over, and indeed an encouragement of, substantial interference with liberty and personal security by police officers whose judgment is necessarily colored by their primary involvement in “the often competitive enterprise of ferreting out crime.” *Johnson* v. *United States,* [333 U. S. 10](https://cite.case.law/us/333/10/), 14 (1948). This, it is argued, can only serve to exacerbate police-community tensions in the crowded centers of our Nation’s cities.[7](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_7)
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. The State has characterized the issue here as “the right of a police officer ... to make an on-the-street stop, interrogate and pat down for weapons (known in street vernacular as ‘stop and frisk’).”[8](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_8) But this is only partly accurate. For the issue is not the abstract propriety of the police conduct, but the admissibility against petitioner of the evidence uncovered by the search and seizure. Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct. See *Weeks* v. *United States,* [232 U. S. 383](https://cite.case.law/us/232/383/), 391-393 (1914). Thus its major thrust is a deterrent \[…] ~~one, see~~ ~~*Linkletter*~~ ~~v.~~ ~~*Walker,*~~ [~~381 U. S. 618~~](https://cite.case.law/us/381/618/)~~, 629-635 (1965~~), and experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that without it the constitutional guarantee against unreasonable searches and seizures would be a mere “form of words.” *Mapp* v. *Ohio,* [367 U. S. 643](https://cite.case.law/us/367/643/), 655 (1961). The rule also serves another vital function — “the imperative of judicial integrity.” *Elkins* [\*13](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p13)v. *United States,* [364 U. S. 206](https://cite.case.law/us/364/206/), 222 (1960). Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions. Thus in our system evidentiary rulings provide the context in which the judicial process of inclusion and exclusion approves some conduct as comporting with constitutional guarantees and disapproves other actions by state agents. A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur.
The exclusionary rule has its limitations, however, as a tool of judicial control. It cannot properly be invoked to exclude the products of legitimate police investigative techniques on the ground that much conduct which is closely similar involves unwarranted intrusions upon constitutional protections. Moreover, in some contexts the rule is ineffective as a deterrent. Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation. Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime.[9](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_9) Doubtless some [\*14](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p14)police “field interrogation” conduct violates the Fourth Amendment. But a stern refusal by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule. Regardless of how effective the rule may be where obtaining convictions is an important objective of the police,[10](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_10) it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal.
Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of these limitations. The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain,[11](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_11) will not be [\*15](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p15)stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime. 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 overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials. And, of course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate.
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. [\*16](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p16)Given the narrowness of this question, we have no occasion to canvass in detail the constitutional limitations upon the scope of a policeman’s power when he confronts a citizen without probable cause to arrest him.
\==II.==
\==Our first ta==sk is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must deci==de whether and when Officer McFadden “seized” Terry and whether and when he conducted a “searc==h.” 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.[12](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_12) We emphatically reject this notio==n. 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 perso==n. 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 [\*17](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p17)performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” [==13==](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_13) ==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 light==ly.[14](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_14)
\==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 twofol==d. It seeks to isolate from constitutional scrutiny the initial stages of the contact beween the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation.[15](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_15) This Court has held in [\*18](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p18)the past th \[…] ==at a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.== *==Kremen==* ==v.== *==United States,==* [==353 U. S. 346==](https://cite.case.law/us/353/346/) ==(1957);== *==Go-Bart Importing Co.==* ==v.== [==\*19==](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p19) *==United States,==* [==282 U. S. 344==](https://cite.case.law/us/282/344/)==, 356-358 (1931); see== *==United States==* ==v.== *==Di Re,==* [==332 U. S. 581==](https://cite.case.law/us/332/581/) \[…] ~~==, 586-587 (1948). The scope of the search must be “strictly tied to and justified by” the circumstances which rendered its initiation permissibl==e.~~ ~~*Warden*~~ ~~v.~~ ~~*Hayden,*~~ [~~387 U. S. 294~~](https://cite.case.law/us/387/294/)~~, 310 (1967) (Mr. Justice Fortas, concurring); see,~~ ~~*e. g., Preston*~~ ~~v.~~ ~~*United States,*~~ [~~376 U. S. 364~~](https://cite.case.law/us/376/364/)~~, 367-368 (1964);~~ ~~*Agnello*~~ ~~v.~~ ~~*United States,*~~ [~~269 U. S. 20~~](https://cite.case.law/us/269/20/)~~, 30-31 (192~~5).
The distinctions of classical “stop-and-frisk” theory thus serve to divert attention fr==om the central inquiry under the Fourth Amendment — the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal securit==y. “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 c==ase 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 cloth==ing. We must dec==ide whether at that point it was reasonable for Officer McFadden to have interfered with petitioner’s personal security as he d==id.[16](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_16) And in determining whether the seizure and search were “unreasonable” our inquiry [\*20](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p20)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.
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. We do not retreat from our holdings that the police mu \[…] ==st, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, see,== *==e. g., Katz==* ==v.== *==United States,==* [==389 U. S. 347==](https://cite.case.law/us/389/347/) ==(1967);== *==Beck==* ==v.== *==Ohio,==* [==379 U. S. 89==](https://cite.case.law/us/379/89/)==, 96 (1964);== *==Chapman==* ==v.== *==United States,==* [==365 U. S. 610==](https://cite.case.law/us/365/610/) ==(1961), or that in most instances failure to comply with the warrant requirement can only be excused by exigent circumstanc==es, see, *e. g., Warden* v. *Hayden,* [387 U. S. 294](https://cite.case.law/us/387/294/) (1967) (hot pursu \[…] ~~it); cf.~~ ~~*Preston*~~ ~~v.~~ ~~*United States,*~~ [~~376 U. S. 364~~](https://cite.case.law/us/376/364/)~~, 367-368 (19~~64). B==ut we 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 proced==ure. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.[17](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_17)
Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant in this contex==t. In order to assess the reasonablene==ss of Officer McFadden’s conduct as a general propositio==n, it is necessary “first to focus upon== [==\*21==](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p21)==the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citize==n,” 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] entail==s \[…] ~~.”~~ ~~*Camara*~~ ~~v.~~ ~~*Municipal Court,*~~ [~~387 U. S. 523~~](https://cite.case.law/us/387/523/)~~, 534-535, 536-537 (1967~~). And in justifying the particular intrusi==on 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 intrusi==on.[18](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_18) The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.[19](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_19) And in making that assessme==nt it is imperative that the facts be judged against an objective standard: would the facts== [==\*22==](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p22)==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 appropria==t \[…] ~~e? Cf.~~ ~~*Carroll*~~ ~~v.~~ ~~*United States,*~~ [~~267 U. S. 132~~](https://cite.case.law/us/267/132/) ~~(1925);~~ ~~*Beck*~~ ~~v.~~ ~~*Ohio,*~~ [~~379 U. S. 89~~](https://cite.case.law/us/379/89/)~~, 96-97 (1964).~~[==20==](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_20) \[…] ~~==Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantia] than inarticulate hunches, a result this Court has. consistently refused to sancti==on. See,~~ ~~*e. g., Beck*~~ ~~v.~~ ~~*Ohio, supra; Rios*~~ ~~v.~~ ~~*United States,*~~ [~~364 U. S. 253~~](https://cite.case.law/us/364/253/) ~~(1960);~~ ~~*Henry*~~ ~~v.~~ ~~*United States,*~~ [~~361 U. S. 98~~](https://cite.case.law/us/361/98/) ~~(195~~9). A==nd 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 \[…] ~~.”~~ ~~*Beck*~~ ~~v.~~ ~~*Ohio, supra,*~~ ~~at~~ 97.
Applying these principles to this ca==se, we consider first the nature and extent of the governmental interests invol==ved. One general interest is of course that of effecti==ve crime prevention and detecti==on; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arres==t. It was this legitimate investigative functi==on Officer McFadden was discharging when he decided to approach petitioner and his companions. He h==ad observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigat==ion. There is nothing unusual in two men standing together on a street corner, perhaps waiting for someone. Nor is there anything suspicious about people [\*23](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p23)in such circumstances strolling up and down the street, singly or in pairs. Store windows, moreover, are made to be looked in. But the story is quite different where, as here, two men hover about a street corner for an extended period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything ; where these men pace alternately along an identical route, pausing to stare in the same store window roughly 24 times; where each completion of this route is followed immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly; and where the two men finally follow the third and rejoin him a couple of blocks away. It would have been poor police work indeed for an officer of 30 years’ experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior furth==er.==
\==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 investigati==on. We are now concerned with more than the governmental interest in investigating cri==me; 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 ris==ks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. [\*24](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p24)Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.[21](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_21)
In view of these facts, we 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 ha==rm.==
\==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 lackin==g. Even a limited search of the outer clothing for weapons constitutes a severe, [\*25](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p25)though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience. Petitioner contends that such an intrusion is permissible only incident to a lawful arrest, either for a crime involving the possession of weapons or for a crime the commission of which led the officer to investigate in the first place. However, this argument must be closely examined.
Petitioner does not argue that a police officer should refrain from making any investigation of suspicious circumstances until such time as he has probable cause to make an arrest; nor does he deny that police officers in properly discharging their investigative function may find themselves confronting persons who might well be armed and dangerous. Moreover, he does not say that an officer is always unjustified in searching a suspect to discover weapons. Rather, he says it is unreasonable for the policeman to take that step until such time as the situation evolves to a point where there is probable cause to make an arrest. When that point has been reached, petitioner would concede the officer’s right to conduct a search of the suspect for weapons, fruits or instrumentalities of the crime, or “mere” evidence, incident to the arrest.
There are two weaknesses in this line of reasoning, however. First, it fails to take account of traditional limitations upon the scope of searches, and thus recognizes no distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons. The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapo \[…] ~~n,~~ ~~*Preston*~~ ~~v.~~ ~~*United States,*~~ [~~376 U. S. 364~~](https://cite.case.law/us/376/364/)~~, 367 (1964), is also justified on other grounds,~~ ~~*ibid*~~*.,* and can therefore involve a relatively extensive exploration of the pers==on. A search for weapons in the absence of probable cause to== [==\*26==](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p26)==arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiat==io \[…] ~~n.~~ ~~*Warden*~~ ~~v.~~ ~~*Hayden,*~~ [~~387 U. S. 294~~](https://cite.case.law/us/387/294/)~~, 310 (1967) (Mr. Justice Fortas, concurring~~). Th==us it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a “full” sea==rch, even though it remains a serious intrusion.
A second, and related, objection to petitioner’s argument is that it assumes that the law of arrest has already worked out the balance between the particular interests involved here — the neutralization of danger to the policeman in the investigative circumstance and the sanctity of the individual. But this is not so. An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society’s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows.[==22==](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_22) ==The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the perso==n. It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for [\*27](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p27)the purpose of prosecuting him for a crime. Petitioner’s reliance on cases which have worked out standards of reasonableness with regard to “seizures” constituting arrests and searches incident thereto is thus misplaced. It assumes that the interests sought to be vindicated and the invasions of personal security may be equated in the two cases, and thereby ignores a vital aspect of the analysis of the reasonableness of particular types of conduct under the Fourth Amendment. See *Camara* v. *Municipal Court, supra.*
\==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 individu==al, 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 arm \[…] ==ed; 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. Cf.== *==Beck==* ==v.== *==Ohio,==* [==379 U. S. 89==](https://cite.case.law/us/379/89/)==, 91== *==(1964); Brinegar==* ==v.== *==United States,==* [==338 U. S. 160==](https://cite.case.law/us/338/160/)==, 174-176 (1949);== *==Stacey==* ==v.== *==Emery,==* [==97 U. S. 642==](https://cite.case.law/us/97/642/)==, 645 (1878).==[==23==](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_23) ==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 experien==ce. Cf. *Brinegar* v. *United States supra.* IV
IY.
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 in[\*28](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p28)ception 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 thi==nk on the facts and circumstanc==es Officer McFadden detailed before the trial ju==dge 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 behav==ior. The actions of Terry and Chilton we==re 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 hypothe==sis. Although the trio had departed the original scene, there was nothing to indicate abandonment of an intent to commit a robbery at some point. Thus, when Officer McFadden approached the three men gathered before the display window at Zucker’s sto==re 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 beli==ef. 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.
The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all. The Fourth Amendment proceeds as much by limitations upon the [\*29](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p29)scope of governmental action as by imposing preconditions upon its initiatio \[…] ~~n. Compare~~ ~~*Katz*~~ ~~v.~~ ~~*United States,*~~ [~~389 U. S. 347~~](https://cite.case.law/us/389/347/)~~, 354-356 (1967~~). The entire deterrent purpose of the rule excluding evidence seized in violation of the Fourth Amendment rests on the assumption that “limitations upon the fruit to be gathered tend to limit the quest itself.” *United States* v. *Poller,* [43 F. 2d 911](https://cite.case.law/f2d/43/911/), 914 (C. A. 2d Cir. 19 \[…] ~~30); see,~~ ~~*e. g., Linkletter*~~ ~~v.~~ ~~*Walker,*~~ [~~381 U. S. 618~~](https://cite.case.law/us/381/618/)~~, 629-635 (1965);~~ ~~*Mapp*~~ ~~v.~~ ~~*Ohio,*~~ [~~367 U. S. 643~~](https://cite.case.law/us/367/643/) ~~(1961);~~ ~~*Elkins*~~ ~~v.~~ ~~*United States,*~~ [~~364 U. S. 206~~](https://cite.case.law/us/364/206/)~~, 216-221 (1960~~). Thus, evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiatio \[…] ~~n.~~ ~~*Warden*~~ ~~v.~~ ~~*Hayden,*~~ [~~387 U. S. 294~~](https://cite.case.law/us/387/294/)~~, 310 (1967) (Mr. Justice Fortas, concurrin~~g).
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 case \[…] ~~s. See~~ ~~*Sibron*~~ ~~v.~~ ~~*New York, post,*~~ ~~p. 40, decided toda~~y. 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 cri \[…] ~~me. See~~ ~~*Preston*~~ ~~v.~~ ~~*United States,*~~ [~~376 U. S. 364~~](https://cite.case.law/us/376/364/)~~, 367 (1964~~). 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.
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 [\*30](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p30)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 pat-down 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. [\*31](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p31)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. *Affirmed.* \[…]
~~Mr. Justice Black concurs in the judgment and the opinion except where the opinion quotes from and relies upon this Court’s opinion in~~ ~~*Katz*~~ ~~v.~~ ~~*United States*~~ ~~and the concurring opinion in~~ ~~*Warden*~~ ~~v.~~ ~~*Hayd*~~*en.*
[1](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_1) Ohio Rev. Code §2923.01 (1953) provides in part that “\[n]o person shall carry a pistol, bowie knife, dirk, or other dangerous weapon concealed on or about his person.” An exception is made for properly authorized law enforcement officers.
[2](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_2) Terry and Chilton were arrested, indicted, tried, and convicted together. They were represented by the same attorney, and they made a joint motion to suppress the guns. After the motion was denied, evidence was taken in the case against Chilton. This evidence consisted of the testimony of the arresting officer and of Chilton. It was then stipulated that this testimony would be applied to t~~he ea~~casese against Terry, and no further evidence was introduced in that case. The trial judge considered the two eases together, rendered the decisions at the same time and sentenced the two men at the same time. They prosecuted their state court appeals together through the same attorney, and they petitioned this Court for cer-tiorari together. Following the grant of the writ upon this joint petition, Chilton died. Thus, only Terry’s conviction is here for review.
[3](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_3) Both the trial court and the Ohio Court of Appeals in this case relied upon such a distinction. *State* v. *Terry,* [5 Ohio App. 2d 122](https://cite.case.law/ohio-app-2d/5/122/), 125-130, [214 N. E. 2d 114](https://cite.case.law/ne2d/214/114/), 117-120 (1966). See also, e. *g., People* v. *Rivera,* [14 N. Y. 2d 441](https://cite.case.law/ny2d/14/441/), [201 N. E. 2d 32](https://cite.case.law/ne2d/201/32/), [252 N. Y. S. 2d 458](https://cite.case.law/nys2d/252/458/) (1964), cert. denied, [379 U. S. 978](https://cite.case.law/us/379/978/) (1965); Aspen, Arrest and Arrest Alternatives: Recent Trends, 1966 U. Ill. L. F. 241, 249-254; Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315 (1942); Note, Stop and Frisk in California, [18 Hastings L. J. 623](https://cite.case.law/hastings-lj/18/623/), 629-632 (1967).
[4](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_4) *People* v. *Rivera, supra,* n. 3, at 447, [201 N. E. 2d, at 36](https://cite.case.law/ne2d/201/36/), [252 N. Y. S. 2d, at 464](https://cite.case.law/nys2d/252/464/).
[5](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_5) The theory is well laid out in the *Rivera* opinion:
> “\[T]he evidence needed to make the inquiry is not of the same degree of conclusiveness as that required for an arrest. The stopping of the individual to inquire is not an arrest and the ground upon which the police may make the inquiry may be less incriminating than the ground for an arrest for a crime known to have been committed. . . .
> “And as the right to stop and inquire is to be justified for a cause less conclusive than that which would sustain an arrest, so the right to frisk may be justified as an incident to inquiry upon grounds of elemental safety and precaution which might not initially sustain a search. Ultimately the validity of the frisk narrows down to whether there is or is not a right by the police to touch the person questioned. The sense of exterior touch here involved is not very far different from the sense of sight or hearing — senses upon which police customarily act.” *People* v. *Rivera,* [14 N. Y. 2d 441](https://cite.case.law/ny2d/14/441/), 445, 447, [201 N. E. 2d 32](https://cite.case.law/ne2d/201/32/), 34, 35, [252 N. Y. S. 2d 458](https://cite.case.law/nys2d/252/458/), 461, 463 (1964), cert. denied, [379 U. S. 978](https://cite.case.law/us/379/978/) (1965).
[6](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_6) See, *e. g.,* Foote, The Fourth Amendment: Obstacle or Necessity in the Law of Arrest?, 51 J. Crim. L. C. & P. S. 402 (1960).
[7](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_7) See n. 11, *infra.*
[8](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_8) Brief for Respondent 2.
[9](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_9) See L. Tiffany, D. McIntyre *&* D. Rotenberg, Detection of Crime: Stopping and Questioning, Search and Seizure, Encouragement and Entrapment 18-56 (1967). This sort of police conduct may, for example, be designed simply to help an intoxicated person find his way home, with no intention of arresting him unless he becomes obstreperous. Or the police may be seeking to mediate a domestic [\*14](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p14)quarrel which threatens to erupt into violence. They may accost a woman in an area known for prostitution as part of a harassment campaign designed to drive prostitutes away without the considerable difficulty involved in prosecuting them. Or they may be conducting a dragnet search of all teenagers in a particular section of the city for weapons because they have heard rumors of an impending gang fight.
[10](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_10) See Tiffany, McIntyre & Rotenberg, *supra,* n. 9, at 100-101; Comment, 47 Nw. U. L. Rev. 493, 497-499 (1952).
[11](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_11) The President’s Commission on Law Enforcement and Administration of Justice found that “\[i]n many communities, field interrogations are a major source of friction between the police and minority groups.” President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police 183 (1967). It was reported that the friction caused by “\[mjisuse of field interrogations” increases “as more police departments adopt ‘aggressive patrol’ in which officers are encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose for being abroad is not readily evident.” *Id.,* at 184. While the frequency with which “frisking” forms a part of field interrogation practice varies tremendously with the locale, the objective of the interrogation, and the particular officer, see Tiffany, McIntyre & Rotenberg, *supra,* n. 9, at 47-48, it cannot help but be a severely exacerbating factor in police-community ten[\*15](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p15)sions. This is particularly true in situations where the “stop and frisk” of youths or minority group members is “motivated by the officers’ perceived need to maintain the power image of the beat officer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets.” *Ibid.*
[12](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_12) In this case, for example, the Ohio Court of Appeals stated that “we must be careful to distinguish that the ‘frisk’ authorized herein includes only a ‘frisk’ for a dangerous weapon. It by no means authorizes a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest. Such a search is controlled by the requirements of the Fourth Amendment, and probable cause is essential.” *State* v. *Terry,* [5 Ohio App. 2d 122](https://cite.case.law/ohio-app-2d/5/122/), 130, [214 N. E. 2d 114](https://cite.case.law/ne2d/214/114/), 120 (1966). See also, *e. g., Ellis* v. *United States,* [105 U. S. App. D. C.](https://cite.case.law/us-app-dc/105/86/) [*86*](https://cite.case.law/us-app-dc/105/86/)*, 88,* [*264 F. 2d*](https://cite.case.law/f2d/264/372/) [372](https://cite.case.law/f2d/264/372/), 374 (1959); Comment, 65 Col. L. Rev. 848, 860, and n. 81 (1965).
[13](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_13) Consider the following apt description:
> “\[T]he officer must feel with sensitive fingers every portion of the prisoner’s body. A thorough search must be made of the prisoner’s arms and armpits, waistline and .back, the groin and area about the testicles, and entire surface of the legs down to the feet.” Priar & Martin, Searching and Disarming Criminals, 45 J. Crim. L. C. & P. S. 481 (1954).
[14](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_14) See n. 11, *supra,* and accompanying text.
We have noted that the abusive practices which play a major, though by no means exclusive, role in creating this friction are not susceptible of control by means of the exclusionary rule, and cannot properly dictate our decision with respect to the powers of the police in genuine investigative and preventive situations. However, the degree of community resentment aroused by particular practices is clearly relevant to an assessment of the quality of the intrusion upon reasonable expectations of personal security caused by those practices.
[15](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_15) These dangers are illustrated in part by the course of adjudication in the Court of Appeals of New York. Although its first decision in this area, *People* v. *Rivera,* [14 N. Y. 2d 441](https://cite.case.law/ny2d/14/441/), [201 N. E. 2d 32](https://cite.case.law/ne2d/201/32/), [252 N. Y. S. 2d 458](https://cite.case.law/nys2d/252/458/) (1964), cert. denied, [379 U. S. 978](https://cite.case.law/us/379/978/) (1965), rested squarely on the notion that a “frisk” was not a “search,” see nn. 3-5, *supra,* it was compelled to recognize in *People* v. *Taggart,* [\*18](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p18)[20 N. Y. 2d 335](https://cite.case.law/ny2d/20/335/), 342, [229 N. E. 2d 581](https://cite.case.law/ne2d/229/581/), 586, [283 N. Y. S. 2d 1](https://cite.case.law/nys2d/283/1/), 8 (1967), that what it had actually authorized in *Rivera* and subsequent decisions, see, e. *g., People* v. *Pugach,* [15 N. Y. 2d 65](https://cite.case.law/ny2d/15/65/), [204 N. E. 2d 176](https://cite.case.law/ne2d/204/176/), [255 N. Y. S. 2d 833](https://cite.case.law/nys2d/255/833/) (1964), cert. denied, [380 U. S. 936](https://cite.case.law/us/380/936/) (1965), was a "search” upon less than probable cause. However, in acknowledging that no valid distinction could be maintained on the basis of its cases, the Court of Appeals continued to distinguish between the two in theory. It still defined “search” as it had in *Rivera* — as an essentially unlimited examination of the person for any and all seizable items — and merely noted that the cases had upheld police intrusions which went far beyond the original limited conception of a “frisk.” Thus, principally because it failed to consider limitations upon the scope of searches in individual cases as a potential mode of regulation, the Court of Appeals in three short years arrived at the position that the Constitution must, in the name of necessity, be held to permit unrestrained rummaging about a person and his effects upon mere suspicion. It did apparently limit its holding to “cases involving serious personal injury or grave irreparable property damage,” thus excluding those involving “the enforcement of sumptuary laws, such as gambling, and laws of limited public consequence, such as narcotics violations, prostitution, larcenies of the ordinary kind, and the like.” *People* v. *Taggart, supra,* at 340, [214 N. E. 2d, at 584](https://cite.case.law/ne2d/214/584/), [283 N. Y. S. 2d, at 6](https://cite.case.law/nys2d/283/6/).
In our view the sounder course is to recognize that the Eourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness. Cf. *Brinegar* v. *United States,* [338 U. S. 160](https://cite.case.law/us/338/160/), 183 (1949) (Mr. Justice Jackson, dissenting). Compare *Camara* v. *Municipal Court,* [387 U. S. 523](https://cite.case.law/us/387/523/), 537 (1967). This seems preferable to an approach which attributes too much significance to an overly technical definition of “search,” and which turns in part upon a judge-made hierarchy of legislative enactments in the criminal sphere. Focusing the inquiry squarely on the dangers and demands of the particular situation also seems more likely to produce rules which are intelligible to the police and the public alike than requiring the officer in the heat of an unfolding encounter on the street to make a judgment as to which laws are "of limited public consequence.”
[16](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_16) We thus decide nothing today concerning the constitutional propriety of an investigative “seizure” upon less than probable cause for purposes of “detention” and/or interrogation. Obviously, 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 cannot tell with any certainty upon this record whether any such “seizure” took place here prior to Officer McPadden’s initiation of physical contact for purposes of searching Terry for weapons, and we thus may assume that up to that point no intrusion upon constitutionally protected rights had occurred.
[17](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_17) See generally Leagre, The Fourth Amendment and the Law of Arrest, 54 J. Crim. L. C. & P. S. 393, 396-403 (1963).
[18](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_18) This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence. See *Beck* v. *Ohio,* [379 U. S. 89](https://cite.case.law/us/379/89/), 96-97 (1964); *Ker* v. *California,* [374 U. S. 23](https://cite.case.law/us/374/23/), 34-37 (1963); *Wong Sun* v. *United States,* [371 U. S. 471](https://cite.case.law/us/371/471/), 479-484 (1963); *Rios* v. *United States,* [364 U. S. 253](https://cite.case.law/us/364/253/), 261-262 (1960); *Henry* v. *United States,* [361 U. S. 98](https://cite.case.law/us/361/98/), 100-102 (1959); *Draper* v. *United States,* [358 U. S. 307](https://cite.case.law/us/358/307/), 312-314 (1959); *Brinegar* v. *United States,* [338 U. S. 160](https://cite.case.law/us/338/160/), 175-178 (1949); *Johnson v. United States,* [333 U. S. 10](https://cite.case.law/us/333/10/), 15-17 (1948); *United States* v. *Di Re,* [332 U. S. 581](https://cite.case.law/us/332/581/), 593-595 (1948); *Husty* v. *United States,* [282 U. S. 694](https://cite.case.law/us/282/694/), 700-701 (1931); *Dumbra* v. *United States,* [268 U. S. 435](https://cite.case.law/us/268/435/), 441 (1925); *Carroll* v. *United States,* [267 U. S. 132](https://cite.case.law/us/267/132/), 159-162 (1925); *Stacey* v. *Emery,* [97 U. S. 642](https://cite.case.law/us/97/642/), 645 (1878).
[19](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_19) See, e. *g., Katz* v. *United States,* [389 U. S. 347](https://cite.case.law/us/389/347/), 354-357 (1967) ; *Berger* v. *New York,* [388 U. S. 41](https://cite.case.law/us/388/41/), 54-60 (1967); *Johnson* v. *United States,* [333 U. S. 10](https://cite.case.law/us/333/10/), 13-15 (1948); cf. *Wong Sun* v. *United States,* [371 U. S. 471](https://cite.case.law/us/371/471/), 479-480 (1963). See also *Aguilar* v. *Texas,* [378 U. S. 108](https://cite.case.law/us/378/108/), 110-115 (1964).
[20](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_20) See also cases cited in n. 18, *supra.*
[21](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_21) Fifty-seven law enforcement officers were killed in the line of duty in this country in 1966, bringing the total to 335 for the seven-year period beginning with 1960. Also in 1966, there were 23,851 assaults on police officers, 9,113 of which resulted in injuries to the policemen. Fifty-five of the 57 officers killed in 1966 died from gunshot wounds, 41 of them inflicted by handguns easily secreted about the person. The remaining two murders were perpetrated by knives. See Federal Bureau of Investigation, Uniform Crime Reports for the United States — 1966, at 45-48, 152 and Table 51.
The easy availability of firearms to potential criminals in this country is well known and has provoked much debate. See, *e. g.,* President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 239-243 (1967). Whatever the merits of gun-control proposals, this fact is relevant to an assessment of the need for some form of self-protective search power.
[22](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_22) See generally *W.* LaFave, Arrest — The Decision to Take a Suspect into Custody 1-13 (1965).
[23](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_23) See also cases cited in n. 18, *supra.*
\[…]
~~Mr. Justice Harlan,~~
~~concurring.~~
~~While I unreservedly agree with the Court’s ultimate holding in this case, I am constrained to fill in a few gaps, as I see them, in its opinion. I do this because what is said by this Court today will serve as initial guidelines for law enforcement authorities and courts throughout the land as this important new field of law develops.~~
~~A police officer’s right to make an on-the-street “stop” and an accompanying “frisk” for weapons is of course bounded by the protections afforded by the Fourth and Fourteenth Amendments. The Court holds, and I agree, that while the right does not depend upon possession by the officer of a valid warrant, nor upon the existence of probable cause, such activities must be reasonable under the circumstances as the officer credibly relates them in court. Since the question in this and most cases is whether evidence produced by a frisk is admissible, the problem is to determine what makes a frisk reasonable.~~
~~If the State of Ohio were to provide that police officers could, on articulable suspicion less than probable cause, forcibly frisk and disarm persons thought to be carrying concealed weapons, I would have little doubt that action taken pursuant to such authority could be constitutionally reasonable. Concealed weapons create an im~~[~~\*32~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p32)~~mediate and severe danger to the public, and though that danger might not warrant routine general weapons checks, it could well warrant action on less than a “probability.” I mention this line of analysis because I think it vital to point out that it cannot be applied in this case. On the record before us Ohio has not clothed its policemen with routine authority to frisk and disarm on suspicion; in the absence of state authority, policemen have no more right to “pat down” the outer clothing of passers-by, or of persons to whom they address casual questions, than does any other citizen. Consequently, the Ohio courts did not rest the constitutionality of this frisk upon any general authority in Officer McFadden to take reasonable steps to protect the citizenry, including himself, from dangerous weapons.~~
~~The state courts held, instead, that when an officer is lawfully confronting a possibly hostile person in the line of duty he has a right, springing only from the necessity of the situation and not from any broader right to disarm, to frisk for his own protection. This holding, with which I agree and with which I think the Court agrees, offers the only satisfactory basis I can think of for affirming this conviction. The holding has, however, two logical corollaries that I do not think the Court has fully expressed.~~
~~In the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a~~ ~~*forcible*~~ ~~stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person~~ [~~\*33~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p33)~~addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner’s protection. I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime.~~
~~Where such a stop is reasonable, however, the right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence. Just as a full search incident to a lawful arrest requires no additional justification, a limited frisk incident to a lawful stop must often be rapid and routine. There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.~~
~~The facts of this case are illustrative of a proper stop and an incident frisk. Officer McFadden had no probable cause to arrest Terry for anything, but he had observed circumstances that would reasonably lead an experienced, prudent policeman to suspect that Terry was about to engage in burglary or robbery. His justifiable suspicion afforded a proper constitutional basis for accosting Terry, restraining his liberty of movement briefly, and addressing questions to him, and Officer McFadden did so. When he did, he had no reason whatever to suppose that Terry might be armed, apart from the fact that he suspected him of planning a violent crime. McFadden asked Terry his name, to which Terry “mumbled something.” Whereupon McFadden, without asking Terry to speak louder and without giving him any chance to explain his presence or his actions, forcibly frisked him.~~
~~I would affirm this conviction for what I believe to be the same reasons the Court relies on. I would, however, make explicit what I think is implicit in affirmance on~~ [~~\*34~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p34)~~the present facts. Officer McFadden’s right to interrupt Terry’s freedom of movement and invade his privacy arose only because circumstances warranted forcing an encounter with Terry in an effort to prevent or investigate a crime. Once that forced encounter was justified, however, the officer's right to take suitable measures for his own safety followed automatically.~~
~~Upon the foregoing premises, I join the opinion of the Court.~~
~~Mr. Justice White,~~
~~concurring.~~
~~I join the opinion of the Court, reserving judgment, however, on some of the Court’s general remarks about the scope and purpose of the exclusionary rule which the Court has fashioned in the process of enforcing the Fourth Amendment.~~
~~Also, although the Court puts the matter aside in the context of this case, I think an additional word is in order concerning the matter of interrogation during an investigative stop. There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. 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. In my view, it is temporary detention, warranted by the circumstances, which chiefly justifies the protective frisk for weapons. Perhaps the frisk itself, where proper, will have beneficial results whether questions are asked or not. If weapons are found, an arrest will fol~~[~~\*35~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p35)~~low. If none are found, the frisk may nevertheless serve preventive ends because of its unmistakable message that suspicion has been aroused. But if the investigative stop is sustainable at all, constitutional rights are not necessarily violated if pertinent questions are asked and the person is restrained briefly in the proce~~ss.
\[…]
~~Mr. Justice Douglas-,~~
~~dissenting.~~
~~I agree that petitioner was “seized” within the meaning of the Fourth Amendment. I also agree that frisking petitioner and his companions for guns was a “search.” But it is a mystery how that “search” and that “seizure” can be constitutional by Fourth Amendment standards, unless there was “probable cause”~~ [~~1~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_4_1) ~~to believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed.~~
~~The opinion of the Court disclaims the existence of “probable cause.” If loitering were in issue and that~~ [~~\*36~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p36)~~was the offense charged, there would be “probable cause” shown. But the crime here is carrying concealed weapons;~~ [~~2~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_4_2) ~~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.~~[~~3~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_4_3)
[~~\*37~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p37)~~In other words, police 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.” Moreover, the meaning of “probable cause” is deeply imbedded in our constitutional history. As we stated in~~ ~~*Henry*~~ ~~v.~~ ~~*United States,*~~ [~~361 U. S. 98~~](https://cite.case.law/us/361/98/)~~, 100-102:~~
> ~~“The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of 'probable cause’ before a magistrate was required.~~
> ~~“That philosophy \[rebelling against these practices] later was reflected in the Fourth Amendment. And as the early American decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even ‘strong reason to suspect’ was not adequate to support a warrant~~ [~~\*38~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p38)~~for arrest. And that principle has survived to this day. . . .~~
> ~~“. . . It is important, we think, that this requirement \[of probable cause] be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. . . . And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. . . . This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen.”~~
~~The infringement on personal liberty of any “seizure” of a person can only be “reasonable” under the Fourth Amendment if we require the police to possess “probable cause” before they seize him. Only that line draws a meaningful distinction between an officer’s mere inkling and the presence of facts within the officer’s personal knowledge which would convince a reasonable man that the person seized has committed, is committing, or is about to commit a particular crime. “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.”~~ ~~*Brinegar*~~ ~~v.~~ ~~*United States,*~~ [~~338 U. S. 160~~](https://cite.case.law/us/338/160/)~~, 175.~~
~~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.~~ [~~\*39~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p39)~~Until the Fourth Amendment, which is closely allied with the Fifth,~~[~~4~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_4_4) ~~is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.~~
~~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.~~
[~~1~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_4_1) ~~The meaning of “probable cause” has been developed in cases where an officer has reasonable grounds to believe that a crime has been or is being committed. See,~~ ~~*e. g., The Thompson,*~~ [~~3 Wall. 155~~](https://cite.case.law/us/70/155/)~~;~~ ~~*Stacey*~~ ~~v.~~ ~~*Emery,*~~ [~~97 U. S. 642~~](https://cite.case.law/us/97/642/)~~;~~ ~~*Director General*~~ ~~v.~~ ~~*Kastenbaum,*~~ [~~263 U. S. 25~~](https://cite.case.law/us/263/25/)~~;~~ ~~*Carroll*~~ ~~v.~~ ~~*United States,*~~ [~~267 U. S. 132~~](https://cite.case.law/us/267/132/)~~;~~ ~~*United States*~~ ~~v.~~ ~~*Di Re,*~~ [~~332 U. S. 581~~](https://cite.case.law/us/332/581/)~~;~~ ~~*Brinegar*~~ ~~v.~~ ~~*United States,*~~ [~~338 U. S. 160~~](https://cite.case.law/us/338/160/)~~;~~ ~~*Draper*~~ ~~v.~~ ~~*United States,*~~ [~~358 U. S. 307~~](https://cite.case.law/us/358/307/)~~;~~ ~~*Henry*~~ ~~v.~~ ~~*United States,*~~ [~~361 U. S. 98~~](https://cite.case.law/us/361/98/)~~. In such cases, of course, the officer may-make an “arrest” which results in charging the individual with commission of a crime. But while arresting persons who have already committed crimes is an important task of law enforcement, an equally if not more important fimction is crime prevention and deterrence of would-be criminals. “\[T]here is no war between the Constitution and common sense,”~~ ~~*Mapp*~~ ~~v.~~ ~~*Ohio,*~~ [~~367 U. S. 643~~](https://cite.case.law/us/367/643/)~~, 657. Police officers need not wait until they see a person actually commit a crime before they are able to “seize” that person. Respect for our constitutional system and personal liberty demands in return, however, that such a “seizure” be made only upon “probable cause.”~~
[~~2~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_4_2) ~~Ohio Rev.~~ ~~*Code*~~ ~~§ 2923.01.~~
[~~3~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_4_3) ~~This Court has always used the language of “probable cause” in determining the constitutionality of an arrest without a warrant. See, e.~~ ~~*g., Carroll*~~ ~~v.~~ ~~*United States,*~~ [~~267 U. S. 132~~](https://cite.case.law/us/267/132/)~~, 156, 161-162;~~ ~~*Johnson*~~ ~~v.~~ ~~*United States,*~~ [~~333 U. S. 10~~](https://cite.case.law/us/333/10/)~~, 13-15;~~ ~~*McDonald*~~ ~~v.~~ ~~*United States,*~~ [~~335 U. S. 451~~](https://cite.case.law/us/335/451/)~~, 455-456;~~ ~~*Henry v. United States,*~~ [~~361 U. S. 98~~](https://cite.case.law/us/361/98/)~~;~~ ~~*Wong Sun*~~ ~~v.~~ ~~*United States,*~~ [~~371 U. S. 471~~](https://cite.case.law/us/371/471/)~~, 479-484. To give power to the police to seize a person on some grounds different from or less than “probable cause” would be handing them~~ ~~*more*~~ ~~authority than could be exercised by a magistrate in issuing a warrant to seize a person. As we~~ ~~*stated*~~ ~~in~~ ~~*Wong Sun*~~ ~~v.~~ ~~*United States,*~~ [~~371 U. S. 471~~](https://cite.case.law/us/371/471/)~~, with respect to requirements for arrests without warrants: “Whether or not the requirements of reliability and particularity of the information on which an officer may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent than where an arrest warrant is obtained.”~~ ~~*Id.,*~~ ~~at 479. And we said in~~ ~~*Brinegar*~~ ~~v.~~ ~~*United States,*~~ [~~338 U. S. 160~~](https://cite.case.law/us/338/160/)~~, 176:~~
> ~~“These long-prevailing standards \[for probable cause] seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Re~~[~~\*37~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p37)~~quiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.”~~
~~And see~~ ~~*Johnson*~~ ~~v.~~ ~~*United States,*~~ [~~333 U. S. 10~~](https://cite.case.law/us/333/10/)~~, 14-15;~~ ~~*Wrightson*~~ ~~v.~~ ~~*United States,*~~ [~~95 U. S. App. D. C. 390~~](https://cite.case.law/us-app-dc/95/390/)~~, 393-394,~~ [~~222 F. 2d 556~~](https://cite.case.law/f2d/222/556/)~~, 559-560 (1955).~~
[~~4~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_4_4) ~~See~~ ~~*Boyd*~~ ~~v.~~ ~~*United States,*~~ [~~116 U. S. 616~~](https://cite.case.law/us/116/616/)~~, 633:~~
> ~~“For the ‘unreasonable searches and seizures’ condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man ‘in a criminal case to be a witness against himself,’ which is condemned in the Fifth Amendment, throws light on the question as to what is an ‘unreasonable search and seizure’ within the meaning of the Fourth Amendmen~~t.”
* IV
* case
## 3.5 Minnesota v. Dickerson 3.5 Minnesota v. Dickerson
Supreme Court of the United States
508 U.S. 366, 124 L. Ed. 2d 334, 113 S. Ct. 2130, SCDB 1992-085, 1993 U.S. LEXIS 4018
No. 91-2019
1993-06-07
**MINNESOTA v. DICKERSON**
No. 91-2019.
Argued March 3, 1993
Decided June 7, 1993
[\*368](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p368-32044038594933_0023) \[…] ~~*Michael 0. Freeman*~~ ~~argued the cause for petitioner. With him on the briefs were~~ ~~*Hubert H Humphrey III,*~~ ~~Attorney General of Minnesota,~~ ~~*Patrick C. Diamond,*~~ ~~and~~ ~~*Beverly J. Wolfe.*~~
~~*Richard H. Beamon*~~ ~~argued the cause for the United States as~~ ~~*amicus curiae*~~ ~~urging reversal. With him on the brief were~~ ~~*Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson,*~~ ~~and~~ ~~*Kathleen A. Felton.*~~
~~*Peter W. Gorman*~~ ~~argued the cause for respondent. With him on the brief were~~ ~~*William R. Kennedy, David H. Knutson, Warren R. Sagstuen,*~~ ~~and~~ ~~*Renée J.*~~ ~~Bergeron.~~[~~\*~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_0_1-32044038594933_0023)
[~~\*~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_0_1-32044038594933_0023)
~~*Fred E. Inbau, Wayne W. Schmidt, James P. Manak,*~~ ~~and~~ ~~*Robert H. Macy*~~ ~~filed a brief for Americans for Effective Law Enforcement, Inc., et al. urging reversal.~~
~~Briefs of~~ ~~*amici curiae*~~ ~~urging affirmance were filed for the American Civil Liberties Union et al. by~~ ~~*John F. Savarese, Steven R. Shapiro,*~~ ~~and~~ ~~*Deborah Gilman;*~~ ~~and for the National Association of Criminal Defense Lawyers by~~ ~~*David M. Eldridge.*~~
Justice White
delivered the opinion of the Court.
In this ease, 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 spot[\*369](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p369-32044038594933_0023)ting the squad ear 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.” Tr. 9 (Feb. 20,1990).
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](https://cite.case.law/us/392/1/) (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:
> “To this Court there is no distinction as to which sensory perception the officer uses to conclude that the ma[\*370](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p370-32044038594933_0023)terial is contraband. An experienced officer may rely upon his sense of smell in DWI stops or in recognizing the smell of burning marijuana in an automobile. The sound of a shotgun being racked would clearly support certain reactions by an officer. The sense of touch, grounded in experience and training, is as reliable as perceptions drawn from other senses. ‘Plain feel/ therefore, is no different than plain view and will equally support the seizure here.” App. to Pet. for Cert. C-5.
His suppression motion having failed, respondent proceeded to trial and was found guilty.
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 “deeline\[d] to adopt the plain feel exception” to the warrant requirement. \[…] [~~469 N. W. 2d 462~~](https://cite.case.law/nw2d/469/462/#p466)~~, 466 (1991).~~
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 ~~\[Fjourth \[AJmendment~~\[Fourth Amendment].” [481 N. W. 2d 840](https://cite.case.law/nw2d/481/840/), 845 (1992). The court thus appeared to adopt a categorical rule barring the seizure of any contraband detected by an officer through the sense of touch during a patdown search for weapons. The court further noted that “\[e]ven if we recognized a ‘plain feel’ ex[\*371](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p371-32044038594933_0023)ception, the search in this case would not qualify” because “\[t]he pat search of the defendant went far beyond what is permissible under *Terry.” \[…]* [~~*Id.,*~~](https://cite.case.law/nw2d/481/840/) [~~at 843, 844, n. 1~~](https://cite.case.law/nw2d/481/840/)~~.~~ As the State Supreme Court read the record, the officer conducting the search ascertained that the lump in respondent’s jacket was contraband only after probing and investigating what he certainly knew was not a weapon. \[…] ~~See~~ [~~*id.,*~~](https://cite.case.law/nw2d/481/840/) [~~at 844~~](https://cite.case.law/nw2d/481/840/)~~.~~
We granted certiorari \[…] ~~,~~ [~~506 U. S. 814~~](https://cite.case.law/us/506/814/) ~~(1992),~~ 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.[1](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_1-32044038594933_0023) We now affirm.[2](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_2-32044038594933_0023)
[\*372](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p372-32044038594933_0023)II
A
The Fourth Amendment, made applicable to the States by way of the Fourteenth Amendment, *Mapp* v. *Ohio,* [367 U. S. 643](https://cite.case.law/us/367/643/) (1961), guarantees “\[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Time and again, this Court has observed that searches and seizures “ ‘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\~\~/~~'” *Thompson* v. *Louisiana,*~~ [~~469 U. S. 17~~](https://cite.case.law/us/469/17/#p19)~~, 19-20 (1984) \[…] *(per curiam)* (quoting *Katz* v. *United States,*~~ [~~389 U. S. 347~~](https://cite.case.law/us/389/347/#p357), 357 (1967) (footnotes omitted));\~\~ ~~*Mincey*~~ ~~v.~~ ~~*Arizona,*~~ [~~437 U. S. 385~~](https://cite.case.law/us/437/385/#p390)~~, 390 (1978); see also~~ ~~*United States*~~ ~~v.~~ ~~*Place,*~~ [~~462 U. S. 696~~](https://cite.case.law/us/462/696/#p701)~~, 701 (1983)~~. One such exception was [\*373](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p373-32044038594933_0023)recognized in *Terry* v. *Ohio,* [392 U. S. 1](https://cite.case.law/us/392/1/) (1968), which held 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 . . . ,” the officer may briefly stop the suspicious person and make “reasonable inquiries” aimed at confirming or dispelling his suspicions. [*Id.,*](https://cite.case.law/us/392/1/) [at 30](https://cite.case.law/us/392/1/) \[…] ~~; see also~~ ~~*Adams*~~ ~~v.~~ ~~*Williams,*~~ [~~407 U. S. 143~~](https://cite.case.law/us/407/143/#p145)~~, 145-146 (1972)~~.
*Terry* further held that “\[w]hen 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,” the officer may conduct a patdown search “to determine whether the person is in fact carrying a weapon.” [392 U. S., at 24](https://cite.case.law/us/392/1/). “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . .” \[…] ~~*Adams,*~~ [~~*supra,*~~](https://cite.case.law/us/407/143/#p145) [~~at 146~~](https://cite.case.law/us/407/143/#p145)~~.~~ Rather, a protective search — permitted without a warrant and on the basis of reasonable suspicion less than probable cause — must be strictly “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” *Terry,* [*supra,*](https://cite.case.law/us/392/1/) [at 26](https://cite.case.law/us/392/1/) \[…] ~~; see also~~ ~~*Michigan*~~ ~~v.~~ ~~*Long,*~~ [~~463 U. S. 1032~~](https://cite.case.law/us/463/1032/#p1049)~~, 1049, and 1052, n. 16 (1983);~~ ~~*Ybarra*~~ ~~v.~~ ~~*Illinois,*~~ [~~444 U. S. 85~~](https://cite.case.law/us/444/85/#p93)~~, 93-94 (1979).~~ If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under *Terry* and its fruits will be suppressed. *Sibron* v. *New York,* [392 U. S. 40](https://cite.case.law/us/392/40/#p65), 65-66 (1968).
These principles were settled 25 years ago when, on the same day, the Court announced its decisions in *Terry* and *Sibron.* 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.*
[\*374](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p374-32044038594933_0023)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. In *Michigan* v. *Long, \[…]* [~~*supra,*~~](https://cite.case.law/us/463/1032/#p1049) for example, police approached a man who had driven his car into a ditch and who appeared to be under the influence of some intoxicant. As the man moved to reenter the car from the roadside, police spotted a knife on the floorboard. The officers stopped the man, subjected him to a patdown search, and then inspected the interior of the vehicle for other weapons. During the search of the passenger compartment, the police discovered an open pouch containing marijuana and seized it. This Court upheld the validity of the search and seizure under *Terry.* The Court held first that, in the context of a roadside encounter, where police have reasonable suspicion based on specific and articulable facts to believe that a driver may be armed and dangerous, they may conduct a protective search for weapons not only of the driver’s person but also of the passenger compartment of the automobile. \[…] [~~463 U. S., at 1049~~](https://cite.case.law/us/463/1032/#p1049)~~.~~ Of course, the protective search of the vehicle, being justified solely by the danger that weapons stored there could be used against the officers or bystanders, must be “limited to those areas in which a weapon may be placed or hidden.” *\[…]* [~~*Ibid.*~~](https://cite.case.law/us/463/1032/#p1049) The Court then held: “If, while conducting a legitimate *Terry* search of the interior of the automobile, the officer should, as here, dis-. cover 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.” [*Id.,*](https://cite.case.law/us/463/1032/#p1049) [at 1050](https://cite.case.law/us/463/1032/#p1049) \[…] ~~; accord,~~ ~~*Sibron,*~~ [~~392 U. S., at 69-70~~](https://cite.case.law/us/392/40/#p65) ~~(White, J., concurring);~~ [~~*id.,*~~](https://cite.case.law/us/392/40/#p65) [~~at 79~~](https://cite.case.law/us/392/40/#p65) ~~(Harlan, J., concurring in result)~~.
The Court in *Long* justified this latter holding by reference to our cases under the “plain-view” doctrine. See *Long,* [*supra,*](https://cite.case.law/us/463/1032/#p1049) [at 1050](https://cite.case.law/us/463/1032/#p1049) \[…] ~~; see also~~ ~~*United States*~~ ~~v.~~ ~~*Hensley,*~~ [~~469 U. S. 221~~](https://cite.case.law/us/469/221/#p235)~~, 235 (1985) (upholding plain-view seizure in context~~ [~~\*375~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p375-32044038594933_0023)~~of~~ ~~*Terry*~~ ~~stop).~~ 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. \[…] ~~See~~ ~~*Horton*~~ ~~v.~~ ~~*California,*~~ [~~496 U. S. 128~~](https://cite.case.law/us/496/128/#p136)~~, 136-137 (1990);~~ ~~*Texas*~~ ~~v.~~ ~~*Brown,*~~ [~~460 U. S. 730~~](https://cite.case.law/us/460/730/#p739)~~, 739 (1983) (plurality opinion).~~ 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,’” \[…] ~~*Horton,*~~ [~~*supra,*~~](https://cite.case.law/us/496/128/#p136) ~~at 136~~—the plain-view doctrine cannot justify its seizure. \[…] ~~*Arizona*~~ ~~v.~~ ~~*Hicks,*~~ [~~480 U. S. 321~~](https://cite.case.law/us/480/321/) ~~(1987)~~.
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 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. \[…] ~~See~~ ~~*Illinois*~~ ~~v.~~ ~~*Andreas,*~~ [~~463 U. S. 765~~](https://cite.case.law/us/463/765/#p771)~~, 771 (1983);~~ ~~*Texas*~~ ~~v.~~ ~~*Brown,*~~ [~~*supra,*~~](https://cite.case.law/us/460/730/#p739) [~~at 740~~](https://cite.case.law/us/460/730/#p739)~~.~~ 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. \[…] ~~See~~ ~~*Hicks,*~~ [~~*supra,*~~](https://cite.case.law/us/480/321/) [~~at 326-327~~](https://cite.case.law/us/480/321/)~~;~~ ~~*Coolidge*~~ ~~v.~~ ~~*New Hampshire,*~~ [~~403 U. S. 443~~](https://cite.case.law/us/403/443/#p467)~~, 467-468, 469-470 (1971) (opinion of Stewart, J.).~~ 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 [\*376](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p376-32044038594933_0023)would be justified by the same practical considerations that inhere in the plain-view context.[3](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_3-32044038594933_0023)
The Minnesota Supreme Court rejected an analogy to the plain-view doctrine on two grounds: first, its belief that “the sense of touch is inherently less immediate and less reliable than the sense of sight,” and second, that “the sense of touch is far more intrusive into the personal privacy that is at the core of the ~~\[Fjourth \[Ajmendment~~\[Fourth Amendment].” \[…] [~~481 N. W. 2d, at 845~~](https://cite.case.law/nw2d/481/840/)~~.~~ We have a somewhat different view. First, *Terry* itself demonstrates that the sense of touch is capable of revealing the nature of an object with sufficient reliability to support a seizure. The very premise of *Terry,* after all, is that officers will be able to detect the presence of weapons through the sense of touch and *Terry* upheld precisely such a seizure. Even if it were true that the sense of touch is generally less reliable than the sense of sight, that only suggests that officers will less often be able to justify seizures of unseen contraband. Regardless of whether the officer detects the contraband by sight or by touch, however, the Fourth Amendment’s requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures.[4](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_4-32044038594933_0023) The [\*377](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p377-32044038594933_0023)court’s second concern — that touch is more intrusive into privacy than is sight — is inapposite in light of the fact that the intrusion the court fears has already been authorized by the lawful search for weapons. The seizure of an item whose identity is already known occasions no further invasion of privacy. \[…] ~~See~~ ~~*Soldal*~~ ~~v.~~ ~~*Cook County,*~~ [~~506 U. S. 56~~](https://cite.case.law/us/506/56/#p66)~~, 66 (1992);~~ ~~*Horton,*~~ [~~*supra,*~~](https://cite.case.law/us/496/128/#p136) [~~at 141~~](https://cite.case.law/us/496/128/#p136)~~;~~ ~~*United States*~~ ~~v.~~ ~~*Jacobsen,*~~ [~~466 U. S. 109~~](https://cite.case.law/us/466/109/#p120)~~, 120 (1984).~~ Accordingly, the suspect’s privacy interests are not advanced by a categorical rule barring the seizure of contraband plainly detected through the sense of touch.
~~Ill~~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.” \[…] ~~App. to Pet. for Cert. C-2.~~ The [\*378](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p378-32044038594933_0023)District Court also noted that the officer made “no claim that he suspected this object to be a weapon,” *\[…]* [~~*id.,*~~](https://cite.case.law/us/466/109/#p120) ~~at C-5,~~ a finding affirmed on appeal \[…] ~~, see~~ [~~469 N. W. 2d, at 464~~](https://cite.case.law/nw2d/469/462/#p466) (the officer “never thought the lump was a weapon”). 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. \[…] ~~See~~ [~~481 N. W. 2d, at 844~~](https://cite.case.law/nw2d/481/840/)~~.~~ 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. *\[…]* [~~*Ibid.*~~](https://cite.case.law/nw2d/481/840/)
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 ease overstepped the bounds of the “strictly circumscribed” search for weapons allowed under *Terry.* See *Terry,* [392 U. S., at 26](https://cite.case.law/us/392/1/). 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.” *Texas* v. *Brown,* [460 U. S., at 748](https://cite.case.law/us/460/730/#p739) \[…] ~~(Stevens, J., concurring in judgment)~~. 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:]. ..~~ \[under Terry:]the protection of the police officer and others nearby.” 392 U. S., at 29. It therefore amounted to the sort of evidentiary search that *Terry* expressly refused to authorize, \[…] ~~see~~ ~~*id.,*~~ ~~at 26,~~ and that we have condemned in subsequent cases. See *Michigan* v. *Long,* [463 U. S., at 1049, n. 14](https://cite.case.law/us/463/1032/#p1049); *Sibron,* [392 U. S., at 65-66](https://cite.case.law/us/392/40/#p65).
Once again, the analogy to the plain-view doctrine is apt. In *Arizona* v. *Hicks,* [480 U. S. 321](https://cite.case.law/us/480/321/) (1987), this Court held invalid the seizure of stolen stereo equipment found by police while executing a valid search for other evidence. Although [\*379](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p379-32044038594933_0023)the police were lawfully on the premises, they obtained probable cause to believe that the stereo equipment was contraband only after moving the equipment to permit officers to read its serial numbers. The subsequent seizure of the equipment could not be justified by the plain-view doctrine, this Court explained, because the incriminating character of the stereo equipment was not immediately apparent; rather, probable cause to believe that the equipment was stolen arose only as a result of a further search — the moving of the equipment — that was not authorized by a search warrant or by any exception to the warrant requirement. The facts of this case are very similar. Although the officer was lawfully in a position to feel the lump in respondent’s pocket, because *Terry* entitled him to place his hands upon respondent’s jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by *Terry* or by any other exception to the warrant requirement. Because this further search of respondent’s pocket was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional. \[…] ~~*Horton,*~~ [~~496 U. S., at 140~~](https://cite.case.law/us/496/128/#p136)~~.~~
IV
For these reasons, the judgment of the Minnesota Supreme Court is
*Affirmed.*
[1](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_1-32044038594933_0023)
Most state and federal courts have recognized a so-called “plain-feel” or “plain-touch” corollary to the plain-view doctrine. See *United States* v. *Coleman,* [969 F. 2d 126](https://cite.case.law/f2d/969/126/#p132), 132 (CA5 1992); *United States* v. *Salazar,* [945 F. 2d 47](https://cite.case.law/f2d/945/47/#p51), 51 (CA2 1991), cert. denied, [504 U. S. 923](https://cite.case.law/us/504/923/) (1992); *United States* v. *Buchannon,* [878 F. 2d 1065](https://cite.case.law/f2d/878/1065/#p1067), 1067 (CA8 1989); *United States* v. *Williams,* [262 U. S. App. D. C. 112](https://cite.case.law/us-app-dc/262/112/#p119), 119-124, [822 F. 2d 1174](https://cite.case.law/f2d/822/1174/), 1181-1186 (1987); *United States* v. *Norman,* [701 F. 2d 295](https://cite.case.law/f2d/701/295/#p297), 297 (CA4), cert. denied, [464 U. S. 820](https://cite.case.law/us/464/820/) (1983); *People* v. *Chavers,* [33 Cal. 3d 462](https://cite.case.law/cal-3d/33/462/#p471), 471-473, [658 P. 2d 96](https://cite.case.law/citations/?q=658%20P.2d%2096), 102-104 (1983); *Dickerson* v. *State,* No. 228, 1993 Del. LEXIS 12, \*3-\*4 (Jan. 26, 1993); *State* v. *Guy,* [172 Wis. 2d 86](https://cite.case.law/wis-2d/172/86/#p101), 101-102, [492 N. W. 2d 311](https://cite.case.law/wis-2d/172/86/#p101), 317-318 (1992). Some state courts, however, like the Minnesota court in this case, have rejected such a corollary. See *People* v. *Diaz,* [81 N. Y. 2d 106](https://cite.case.law/ny2d/81/106/), [612 N. E. 2d 298](https://cite.case.law/citations/?q=612%20N.E.2d%20298) (1993); *State* v. *Collins,* [139 Ariz. 434](https://cite.case.law/ariz/139/434/#p435), 435-438, [679 P. 2d 80](https://cite.case.law/ariz/139/434/#p435), 81-84 (Ct. App. 1983); *People* v. *McCarty,* [11 Ill. App. 3d 421](https://cite.case.law/ill-app-3d/11/421/#p422), 422, [296 N. E. 2d 862](https://cite.case.law/citations/?q=296%20N.E.2d%20862), 863 (1973); *State* v. *Rhodes,* [788 P 2d 1380](https://cite.case.law/p2d/788/1380/#p1381), 1381 (Okla. Crim. App. 1990); *State* v. *Broadnax,* [98 Wash. 2d 289](https://cite.case.law/wash-2d/98/289/#p296), 296-301, [654 P. 2d 96](https://cite.case.law/citations/?q=654%20P.2d%2096), 101-103 (1982); cf. *Commonwealth v. Marconi,* [408 Pa. Super. 601](https://cite.case.law/pa-super-ct/408/601/#p611), 611-615, and n. 17, [597 A. 2d 616](https://cite.case.law/pa-super-ct/408/601/#p611), 621-623, and n. 17 (1991), appeal denied, [531 Pa. 638](https://cite.case.law/citations/?q=531%20Pa.%20638), [611 A. 2d 711](https://cite.case.law/citations/?q=611%20A.2d%20711) (1992).
[2](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_2-32044038594933_0023)
Before reaching the merits of the Fourth Amendment issue, we must address respondent’s contention that the case is moot. After respondent was found guilty of the drug possession charge, the trial court sentenced respondent under a diversionary sentencing statute to a 2-year period of probation. As allowed by the diversionary scheme, no judgment of conviction was entered and, upon respondent’s successful completion of probation, the original charges were dismissed. See [Minn. Stat. § 152.18](https://cite.case.law/citations/?q=Minn.%20Stat.%20%C2%A7%20152.18) (1992). Respondent argues that the case has been rendered moot by the dismissal of the original criminal charges. We often have observed, however, that [\*372](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p372-32044038594933_0023)"the possibility of a criminal defendant’s suffering ‘collateral legal consequences’ from a sentence already served” precludes a finding of mootness. *Pennsylvania* v. *Minims,* [434 U. S. 106](https://cite.case.law/us/434/106/#p108), 108, it 3 (1977) *(per curiam);* see also *Evitts* v. *Lucey,* [469 U. S. 387](https://cite.case.law/us/469/387/#p391), 391, n. 4 (1985); *Sibron* v. *New York,* [392 U. S. 40](https://cite.case.law/us/392/40/#p65), 53-58 (1968). In this case, Minnesota law provides that the proceeding which culminated in finding respondent guilty “shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose.” [Minn. Stat. § 152.18](https://cite.case.law/citations/?q=Minn.%20Stat.%20%C2%A7%20152.18) (1992). The statute also provides, however, that a nonpublic record of the charges dismissed pursuant to the statute “shall be retained by the department of public safety for the purpose of use by the courts in determining the merits of subsequent proceedings” against the respondent. [*Ibid.*](https://cite.case.law/citations/?q=Minn.%20Stat.%20%C2%A7%20152.18) Construing this provision, the Minnesota Supreme Court has held that “\[t]he statute contemplates use of the record should \[a] defendant have ‘future difficulties with the law.’” *State* v. *Goodrich,* [256 N. W. 2d 506](https://cite.case.law/nw2d/256/506/#p512), 512 (1977). Moreover, the Court of Appeals for the Eighth Circuit has held that a diversionary disposition under § 152.18 may be included in calculating a defendant’s criminal history category in the event of a subsequent federal conviction. *United States* v. *Frank,* [932 F. 2d 700](https://cite.case.law/f2d/932/700/#p701), 701 (1991). Thus, we must conclude that reinstatement of the record of the charges against respondent would carry collateral legal consequences and that, therefore, a live controversy remains.
[3](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_3-32044038594933_0023)
“\[T]he police officer in each \[case would have] 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 . . , and permits the warrantless seizure.” *Coolidge* v. *New Hampshire,* [403 U. S. 443](https://cite.case.law/us/403/443/#p467), 466 (1971) (opinion of Stewart, J.).
[4](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_4-32044038594933_0023)
We also note that this Court’s opinion in *Ybarra* v. *Illinois,* [444 U. S. 85](https://cite.case.law/us/444/85/#p93) (1979), appeared to contemplate the possibility that police officers could obtain probable cause justifying a seizure of contraband through the sense of touch In that case, police officers had entered a tavern and subjected its patrons to patdown searches. While patting down the petitioner Ybarra, an “officer felt what he described as ‘a cigarette pack with objects in it,'” seized it, and discovered heroin inside. [*Id.,*](https://cite.case.law/us/444/85/#p93) [at 88-89](https://cite.case.law/us/444/85/#p93). The State argued that the seizure was constitutional on the grounds that the officer obtained probable cause to believe that Ybarra was carrying contraband during the course of a lawful *Terry* frisk. *Ybarra,* [*supra,*](https://cite.case.law/us/444/85/#p93) [at 92](https://cite.case.law/us/444/85/#p93). This [\*377](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p377-32044038594933_0023)Court rejected that argument on the grounds that “\[t]he initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous,” as required by *Terry.* [444 U. S., at 92-93](https://cite.case.law/us/444/85/#p93). The Court added: “\[s]ince we conclude that the initial patdown of Ybarra was not justified under the Fourth and Fourteenth Amendments, we need not decide whether or not the presence on Ybarra's person of 'a cigarette pack with objects in it’ yielded probable cause to believe that Ybarra was carrying any illegal substance.” [*Id.,*](https://cite.case.law/us/444/85/#p93) [at 93, n. 5](https://cite.case.law/us/444/85/#p93). The Court’s analysis does not suggest, and indeed seems inconsistent with, the existence of a categorical bar against seizures of contraband detected manually during a *Terry* patdown search.
\[…]
~~Justice Scalia,~~
~~concurring.~~
~~I take it to be a fundamental principle of constitutional adjudication that the terms in the Constitution must be given the meaning ascribed to them at the time of their ratification. Thus, when the Fourth Amendment provides 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” (emphasis added), it “is~~ [~~\*380~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p380-32044038594933_0023)~~to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted,”~~ ~~*Carroll*~~ ~~v.~~ ~~*United States,*~~ [~~267 U. S. 132~~](https://cite.case.law/us/267/132/#p149)~~, 149 (1925); see also~~ ~~*California*~~ ~~v.~~ ~~*Acevedo,*~~ [~~500 U. S. 565~~](https://cite.case.law/us/500/565/#p583)~~, 583-584 (1991) (Scalia, J., concurring in judgment). The purpose of the provision, in other words, is to preserve that degree of respect for the privacy of persons and the inviolability of their property that existed when the provision was adopted — even if a later, less virtuous age should become accustomed to considering all sorts of intrusion “reasonable.”~~
~~My problem with the present ease is that I am not entirely sure that the physical search — the “frisk” — that produced the evidence at issue here complied with that constitutional standard. The decision of ours that gave approval to such searches,~~ ~~*Terry*~~ ~~v.~~ ~~*Ohio,*~~ [~~392 U. S. 1~~](https://cite.case.law/us/392/1/) ~~(1968), made no serious attempt to determine compliance with traditional standards, but rather, according to the style of this Court at the time, simply adjudged that such a search was “reasonable” by current estimations.~~ [~~*Id.,*~~](https://cite.case.law/us/392/1/) [~~at 22-27~~](https://cite.case.law/us/392/1/)~~.~~
~~There is good evidence, I think, that the “stop” portion of the~~ ~~*Terry*~~ ~~“stop-and-frisk” holding accords with the common law — that it had long been considered reasonable to detain suspicious persons for the purpose of demanding that they give an account of themselves. This is suggested, in particular, by the so-called night-walker statutes, and their common-law antecedents. See Statute of Winchester, 13 Edw. I, Stat. 2, ch. 4 (1285); Statute of 5 Edw. Ill, ch. 14 (1331); 2 W. Hawkins, Pleas of the Crown, ch. 13, § 6, p. 129 (8th ed. 1824) (“It is holden that this statute was made in affirmance of the common law, and that every private person may by the common law arrest any suspicious night-walker, and detain him till he give a good account of himself”); 1 E. East, Pleas of the Crown, ch. 5, §70, p. 303 (1803) (“It is said ... that every private person may by the common law arrest any suspicious night-walker, and detain him till he give a good account of himself”); see also M. Dalton, The Country~~ [~~\*381~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p381-32044038594933_0023)~~Justice, ch. 104, pp. 352-358 (1727); A. Costello, Our Police Protectors: History of the New York Police 25 (1885) (citing 1681 New York City regulation); 2 Perpetual Laws of Massachusetts 1788-1798, ch. 82, §2, p. 410 (1797 Massachusetts statute).~~
~~I am unaware, however, of any precedent for a physical search of a person thus temporarily detained for questioning. Sometimes, of course, the temporary detention of a suspicious character would be elevated to a fall custodial arrest on probable cause — as, for instance, when a suspect was unable to provide a sufficient accounting of himself. At~~ ~~*that*~~ ~~point, it is clear that the common law would permit not just a protective “frisk,” but a full physical search incident to the arrest. When, however, the detention did not rise to the level of a full-blown arrest (and was not supported by the degree of cause needful for that purpose), there appears to be no clear support at common law for physically searching the suspect. See Warner, The Uniform Arrest Act,~~ [~~28 Va. L. Rev. 315~~](https://cite.case.law/citations/?q=28%20Va.%20L.%20Rev.%20315)~~, 324 (1942) (“At common law, if a watchman came upon a suspiciously acting nightwalker, he might arrest him and then search him for weapons, but he had no right to search before arrest”); Williams, Police Detention and Arrest Privileges — England, 51 J. Crim. L., C.~~ ~~*&*~~ ~~P. S. 413,418 (1960) (“Where a suspected criminal is also suspected of being offensively armed, can the police search him for arms, by tapping his pockets, before making up their minds whether to arrest him? There is no English authority ...”).~~
~~I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere~~ ~~*suspicion*~~ ~~of being armed and dangerous, to such indignity — which is described as follows in a police manual:~~
> ~~“Check the subject’s neck and collar. A check should be made under the subject’s arm. Next a check should be made of the upper back. The lower back should also be checked.~~
> [~~\*382~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p382-32044038594933_0023)~~“A cheek should be made of the upper part of the man’s chest and the lower region around the stomach. The belt, a favorite concealment spot, should be checked. The inside thigh and crotch area also should be searched. The legs should be checked for possible weapons. The last items to be cheeked are the shoes and cuffs of the subject.” J. Moynahan, Police Searching Procedures 7 (1963) (citations omitted).~~
~~On the other hand, even if a “frisk” prior to arrest would have been considered impermissible in 1791, perhaps it was considered permissible by 1868, when the Fourteenth Amendment (the basis for applying the Fourth Amendment to the States) was adopted. Or perhaps it is only since that time that concealed weapons capable of harming the interrogator quickly and from beyond arm’s reach have become common — which might alter the judgment of what is “reasonable” under the original standard. But technological changes were no more discussed in~~ ~~*Terry*~~ ~~than was the original state of the law.~~
~~If I were of the view that~~ ~~*Terry*~~ ~~was (insofar as the power to “frisk” is concerned) incorrectly decided, I might — even if I felt bound to adhere to that case — vote to exclude the evidence incidentally discovered, on the theory that half a constitutional guarantee is better than none. I might also vote to exclude it if I agreed with the original-meaning-is-irrelevant, good-policy-is-constitutional-law school of jurisprudence that the~~ ~~*Terry*~~ ~~opinion represents. As a policy matter, it may be desirable to~~ ~~*permit*~~ ~~“frisks” for weapons, but not to~~ ~~*encourage*~~ ~~“frisks” for drugs by admitting evidence other than weapons.~~
~~I adhere to original meaning, however. And though I do not favor the mode of analysis in~~ ~~*Terry,*~~ ~~I cannot say that its result was wrong. Constitutionality of the “frisk” in the present case was neither challenged nor argued. Assuming, therefore, that the search was lawful, I agree with the Court’s premise that any evidence incidentally discovered in~~ [~~\*383~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p383-32044038594933_0023)~~the course of it would be admissible, and join the Court’s opinion in its entirety.~~
~~Chief Justice Rehnquist,~~
~~with whom~~
~~Justice Black-mun and Justice Thomas join, concurring in part and dissenting in part.~~
~~I join Parts I and II of the Court’s opinion. Unlike the Court, however, I would vacate the judgment of the Supreme Court of Minnesota and remand the case to that court for further proceedings.~~
~~The Court, correctly in my view, states that “the dispositive question before this Court is whether the officer who conducted the search was acting within the lawful bounds marked by~~ ~~*Terry*~~ ~~\[v.~~ ~~*Ohio,*~~ [~~892 U. S. 1~~](https://cite.case.law/citations/?q=892%20U.S.%201) ~~(1968),] at the time he gained probable cause to believe that the lump in respondent’s jacket was contraband.”~~ ~~*Ante,*~~ ~~at 377. The Court then goes on to point out that the state trial court did not make precise findings on this point, but accepts the appellate findings made by the Supreme Court of Minnesota. I believe that these findings, like those of the trial court, are imprecise and not directed expressly to the question of the officer’s probable cause to believe that the lump was contraband. Because the Supreme Court of Minnesota employed a Fourth Amendment analysis which differs significantly from that now adopted by this Court, I would vacate its judgment and remand the ease for further proceedings there in the light of this Court’s opinion.~~
* \[Fourth Amendment]
* '
* \[Fourth Amendment]
* III
* \[under Terry:]
## 3.6 United States v. Place 3.6 United States v. Place
Supreme Court of the United States
462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637, 1983 U.S. LEXIS 74, SCDB 1982-123
No. 81-1617
1983-06-20
**UNITED STATES *****v.***** PLACE**
No. 81-1617.
Argued March 2, 1983
Decided June 20, 1983
[\*697](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p697-NOTALEPH001032_0031)O’CONNOR, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed an opinion concurring in the result, in which Marshall, J., joined \[…] ~~,~~ ~~*post,*~~ ~~p. 710~~. Blackmun, J., filed an opinion concurring in the judgment, in which Marshall, J., joined \[…] ~~,~~ ~~*post,*~~ ~~p. 720~~.
\[…] ~~*Alan I. Horowitz*~~ ~~argued the cause for the United States. With him on the briefs were~~ ~~*Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey,*~~ ~~and~~ ~~*John Fichter De Pue.*~~
~~*James D. Clark*~~ ~~argued the cause and filed a brief for respondent.~~[~~\*~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_0_1-NOTALEPH001032_0031)
[~~\*~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_0_1-NOTALEPH001032_0031)
~~*Fred E. Inbau, Wayne W. Schmidt, James P. Manak, Evelle J. Younger,*~~ ~~and~~ ~~*Howard G. Berringer*~~ ~~filed a brief for Americans for Effective Law Enforcement, Inc., et al. as~~ ~~*amici curiae*~~ ~~urging reversal.~~
~~*Richard Emery*~~ ~~and~~ ~~*Charles S. Sims*~~ ~~filed a brief for the American Civil Liberties Union et al. as~~ ~~*amici curiae*~~ ~~urging affirmance.~~
Justice O’Connor
delivered the opinion of the Court.
This case presents the issue ==whether the Fourth Amendment prohibits law enforcement authorities from temporarily== [==\*698==](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p698-NOTALEPH001032_0031)==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.
~~pH~~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 La Guardia 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 La Guardia 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. [\*699](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p699-NOTALEPH001032_0031)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, 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 violation of [21 U. S. C. § 841](https://cite.case.law/citations/?q=21%20U.S.C.%20%C2%A7%20841)(a)(1). \[…] ~~In the District Court, Place moved to suppress the contents of the luggage seized from him at La Guardia Airport, claiming that the warrantless seizure of the luggage violated his Fourth Amendment rights.~~[~~1~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_1-NOTALEPH001032_0031) ~~The District Court denied the motion.~~ [~~\*700~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p700-NOTALEPH001032_0031)~~Applying the standard of~~ ~~*Terry*~~ ~~v.~~ ~~*Ohio,*~~ [~~392 U. S. 1~~](https://cite.case.law/us/392/1/) ~~(1968), to the detention of personal property, it concluded that detention of the bags could be justified if based on reasonable suspicion to believe that the bags contained narcotics.~~ Finding reasonable suspicion, the District Court held that Place’s Fourth Amendment rights were not violated by seizure of the bags by the DEA agents. \[…] [~~498 F. Supp. 1217~~](https://cite.case.law/f-supp/498/1217/#p1228)~~, 1228 (EDNY 1980).~~ 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. \[…] [~~660 F. 2d 44~~](https://cite.case.law/f2d/660/44/) ~~(1981).~~ The majority assumed both that *Terry* principles could be applied to justify a warrantless seizure of baggage on less than probable cause and that reasonable suspicion existed to justify the investigatory stop of Place. The majority concluded, however, that the prolonged seizure of Place’s baggage exceeded the permissible limits of a Terry-type investigative stop and consequently amounted to a seizure without probable cause in violation of the Fourth Amendment.
We granted certiorari \[…] ~~,~~ [~~457 U. S. 1104~~](https://cite.case.law/us/457/1104/) ~~(1982),~~ and now affirm.
~~) — I h — I~~II
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, *and effects,* against unreasonable searches and seizures.” (Emphasis added.) Although in the context of personal property, and particularly containers, the Fourth Amendment challenge is [\*701](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p701-NOTALEPH001032_0031)typically to the subsequent search of the container rather than to its initial seizure by the authorities, our cases reveal some general principles regarding seizures. ==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==.[2](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_2-NOTALEPH001032_0031) \[…] ~~See,~~ ~~*e. g., Marron*~~ ~~v.~~ ~~*United States,*~~ [~~275 U. S. 192~~](https://cite.case.law/us/275/192/#p196)==~~, 196 (1927).~~ 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 exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present==. \[…] ~~See,~~ ~~*e. g., Arkansas*~~ ~~v.~~ ~~*Sanders,*~~ [~~442 U. S. 753~~](https://cite.case.law/us/442/753/#p761)~~, 761 (1979);~~ ~~*United States*~~ ~~v.~~ ~~*Chadwick,*~~ [~~433 U. S. 1~~](https://cite.case.law/us/433/1/) ~~(1977);~~ ~~*Coolidge*~~ ~~v.~~ ~~*New Hampshire,*~~ [~~403 U. S. 443~~](https://cite.case.law/us/403/443/) ~~(1971).~~[~~3~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_3-NOTALEPH001032_0031) For example, “objects such as weapons or contraband found in a public place may be seized by the police without a warrant,” *Payton* v. *New York,* [445 U. S. 573](https://cite.case.law/us/445/573/#p587), 587 (1980), because, under these circumstances, the risk of the item’s disappearance or use for its intended purpose before a [\*702](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p702-NOTALEPH001032_0031)warrant may be obtained outweighs the interest in possession. \[…] ~~See also~~ ~~*G. M. Leasing Corp.*~~ ~~v.~~ ~~*United States,*~~ [~~429 U. S. 338~~](https://cite.case.law/us/429/338/#p354)~~, 354 (1977).~~
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 \[…] *~~*,*~~ [~~*supra,*~~](https://cite.case.law/us/392/1/) 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.
In *Terry* the Court first recognized “the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual’s personal security based on less than probable cause.” *Michigan* v. *Summers,* [452 U. S. 692](https://cite.case.law/us/452/692/#p698), 698 (1981). In approving the limited search for weapons, or “frisk,” of an individual the police reasonably believed to be armed and dangerous, the Court implicitly acknowledged ==the authority of the police to make a== *==forcible stop==* ==of a person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity==. \[…] [~~392 U. S., at 22~~](https://cite.case.law/us/392/1/)~~.~~[~~4~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_4-NOTALEPH001032_0031) That implicit proposition was embraced openly in *Adams* v. *Williams, \[…]* [~~407 U. S. 143~~](https://cite.case.law/us/407/143/#p146)~~, 146 (1972),~~ where the Court relied on *Terry* to hold that the police officer lawfully made a forcible stop of the suspect to investigate an informant’s tip that the suspect was carry[\*703](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p703-NOTALEPH001032_0031)ing narcotics and a concealed weapon. \[…] ~~See also~~ ~~*Michigan*~~ ~~v.~~ ~~*Summers,*~~ [~~*supra*~~](https://cite.case.law/us/452/692/#p698) ~~(limited detention of occupants while authorities search premises pursuant to valid search warrant);~~ ~~*United States*~~ ~~v.~~ ~~*Cortez,*~~ [~~449 U. S. 411~~](https://cite.case.law/us/449/411/) ~~(1981) (stop near border of vehicle suspected of transporting illegal aliens);~~ ~~*United States*~~ ~~v.~~ ~~*Brignoni-Ponce,*~~ [~~422 U. S. 873~~](https://cite.case.law/us/422/873/) ~~(1975) (brief investigative stop near border for questioning about citizenship and immigration status).~~
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.” \[…] [~~392 U. S., at 20~~](https://cite.case.law/us/392/1/)==~~.~~ 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. As observed in *United States* v. *Mendenhall, \[…]* [~~446 U. S. 544~~](https://cite.case.law/us/446/544/#p561)==~~, 561 (1980) (opinion of Powell, J.),~~ “\[t]he public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit.”==
Respondent suggests that, absent some special law enforcement interest such as officer safety, a generalized interest in law enforcement cannot justify an intrusion on an individual’s Fourth Amendment interests in the absence of [\*704](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p704-NOTALEPH001032_0031)probable cause. Our prior cases, however, do not support this proposition. In *Terry,* we described ==the governmental interests supporting the initial seizure of the person as “effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest==.” [392 U. S., at 22](https://cite.case.law/us/392/1/). Similarly, in *Michigan* v. *Summers* we identified three law enforcement interests that justified limited detention of the occupants of the premises during execution of a valid search warrant: ==“preventing flight in the event that incriminating evidence is found,” “minimizing the risk of harm” both to the officers and the occupants, and “orderly completion of the search.”== [452 U. S., at 702-703](https://cite.case.law/us/452/692/#p698). \[…] ~~Cf.~~ ~~*Florida*~~ ~~v.~~ ~~*Royer,*~~ [~~460 U. S. 491~~](https://cite.case.law/us/460/491/#p500)==~~, 500 (1983) (plurality opinion) (“The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect”).~~ The test is whether those interests are sufficiently “substantial,”== [==452 U. S., at 699==](https://cite.case.law/us/452/692/#p698)==, not whether they are independent of the interest in investigating crimes effectively and apprehending suspects==. The context of a particular law enforcement practice, of course, may affect the determination whether a brief intrusion on Fourth Amendment interests on less than probable cause is essential to effective criminal investigation. Because of the inherently transient nature of drug courier activity at airports, allowing police to make brief investigative stops of persons at airports on reasonable suspicion of drug-trafficking substantially enhances the likelihood that police will be able to prevent the flow of narcotics into distribution channels.[5](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_5-NOTALEPH001032_0031)
[\*705](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p705-NOTALEPH001032_0031)==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 personalty. 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.[6](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_6-NOTALEPH001032_0031) Moreover, the police may confine their investi[\*706](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p706-NOTALEPH001032_0031)gation to an on-the-spot inquiry — for example, immediate exposure of the luggage to a trained narcotics detection dog[7](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_7-NOTALEPH001032_0031)— 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==.
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. \[…] ~~See~~ ~~*Terry*~~ ~~v.~~ ~~*Ohio,*~~ [~~392 U. S., at 20~~](https://cite.case.law/us/392/1/)~~;~~ ~~*United States*~~ ~~v.~~ ~~*Cortez,*~~ [~~449 U. S., at 421~~](https://cite.case.law/us/449/411/)~~;~~ ~~*United States*~~ ~~v.~~ ~~*Brignoni-Ponce,*~~ [~~422 U. S., at 881-882~~](https://cite.case.law/us/422/873/)~~;~~ ~~*Adams*~~ ~~v.~~ ~~*Williams,*~~ [~~407 U. S., at 146~~](https://cite.case.law/us/407/143/#p146)~~.~~
\==The Fourth Amendment “protects people from unreasonable government intrusions into their legitimate expectations== [==\*707==](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p707-NOTALEPH001032_0031)==of privacy.”== *United States* v. *Chadwick,* [433 U. S., at 7](https://cite.case.law/us/433/1/). We have affirmed that ==a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment==. [*Id.,*](https://cite.case.law/us/433/1/) [at 13](https://cite.case.law/us/433/1/). ==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*](https://www.law.cornell.edu/wex/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==.
~~*S*~~ ~~HH H-Í~~III
There is no doubt that the agents made a “seizure of Place’s luggage for purposes of the Fourth Amendment when, following his refusal to consent to a search, the agent told Place that he was going to take the luggage to a federal judge to secure issuance of a warrant. As we observed in *Terry,* “\[t]he manner in which the seizure . . . \[was] con[\*708](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p708-NOTALEPH001032_0031)ducted is, of course, as vital a part of the inquiry as whether \[it was] warranted at all.” \[…] [~~392 U. S., at 28~~](https://cite.case.law/us/392/1/)==~~.~~ We therefore 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.==
At the outset, we must reject the Government’s suggestion that the point at which probable cause for seizure of luggage from the person’s presence becomes necessary is more distant than in the case of a *Terry* stop of the person himself. The premise of the Government’s argument is that seizures of property are generally less intrusive than seizures of the person. While true in some circumstances, that premise is faulty on the facts we address in this case. ==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.[8](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_8-NOTALEPH001032_0031) Therefore, ==when the police seize luggage from the== [==\*709==](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p709-NOTALEPH001032_0031)==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. Although we have recognized the reasonableness of seizures longer than the momentary ones involved in *Terry, Adams,* and *Brignoni-Ponce, \[…]* ~~see~~ ~~*Michigan*~~ ~~v.~~ ~~*Summers,*~~ [~~452 U. S. 692~~](https://cite.case.law/us/452/692/#p698) ==~~(1981),~~ 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==. Moreover, in 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 La Guardia, 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.[9](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_9-NOTALEPH001032_0031) Thus, although we decline to adopt any outside time limitation for a permissible *Terry* stop,[10](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_1_10-NOTALEPH001032_0031) we have never [\*710](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p710-NOTALEPH001032_0031)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. \[…] ~~See~~ ~~*Dunaway*~~ ~~v.~~ ~~*New York,*~~ [~~442 U. S. 200~~](https://cite.case.law/us/442/200/) ~~(1979).~~
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.
*It is so ordered.*
[1](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_1-NOTALEPH001032_0031)
In support of his motion, respondent also contended that the detention of his person at both the Miami and La Guardia Airports was not based on reasonable suspicion and that the “sniff test” of his luggage was conducted in a manner that tainted the dog’s reaction. [498 F. Supp. 1217](https://cite.case.law/f-supp/498/1217/#p1228), 1221, 1228 [\*700](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p700-NOTALEPH001032_0031)(EDNY 1980). The District Court rejected both contentions. As to the former, it concluded that the agents had reasonable suspicion to believe that Place was engaged in criminal activity when he was detained at the two airports and that the stops were therefore lawful. [*Id.,*](https://cite.case.law/f-supp/498/1217/#p1228) [at 1225, 1226](https://cite.case.law/f-supp/498/1217/#p1228). On appeal, the Court of Appeals did not reach this issue, assuming the existence of reasonable suspicion. Respondent Place cross-petitioned in this Court on the issue of reasonable suspicion, and we denied certiorari. *Place* v. *United States,* [457 U. S. 1106](https://cite.case.law/us/457/1106/) (1982). We therefore have no occasion to address the issue here.
[2](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_2-NOTALEPH001032_0031)
The Warrant Clause of the Fourth Amendment provides 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.”
[3](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_3-NOTALEPH001032_0031)
In *Sanders,* the Court explained:
> “The police acted properly — indeed commendably — in apprehending respondent and his luggage. They had ample probable cause to believe that respondent’s green suitcase contained marihuana. . . . Having probable cause to believe that contraband was being driven away in the taxi, the police were justified in stopping the vehicle . . . and seizing the suitcase they suspected contained contraband.” 442 U. S., at 761.
The Court went on to hold that the police violated the Fourth Amendment in immediately searching the luggage rather than first obtaining a warrant authorizing the search. *Id.,* at 766. That holding was not affected by our recent decision in *United States* v. *Ross,* [456 U. S. 798](https://cite.case.law/us/456/798/#p824), 824 (1982).
[4](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_4-NOTALEPH001032_0031)
In his concurring opinion in *Terry,* Justice Harlan made this logical underpinning of the Court’s Fourth Amendment holding clear:
> “In the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a *forcible* stop. ... I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime.” 892 U. S., at 32-33.
[5](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_5-NOTALEPH001032_0031)
Referring to the problem of intercepting drug couriers in the Nation’s airports, Justice Powell has observed:
> “Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates. The profits are enormous. And many drugs . . . may be easily concealed. As a result, the obstacles to detection of [\*705](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p705-NOTALEPH001032_0031)illegal conduct may be unmatched in any other area of law enforcement.” *United States* v. *Mendenhall,* [446 U. S. 544](https://cite.case.law/us/446/544/#p561), 561-562 (1980).
See *Florida* v. *Royer,* [460 U. S. 491](https://cite.case.law/us/460/491/#p500), 519 (1983) (Blackmun, J., dissenting) (“The special need for flexibility in uncovering illicit drug couriers is hardly debatable”) (airport context).
[6](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_6-NOTALEPH001032_0031)
One need only compare the facts of this case with those in *United States* v. *Van Leeuwen,* [397 U. S. 249](https://cite.case.law/us/397/249/) (1970). There the defendant had voluntarily relinquished two packages of coins to the postal authorities. Several facts aroused the suspicion of the postal officials, who detained the packages, without searching them, for about 29 hours while certain lines of inquiry were pursued. The information obtained during this time was sufficient to give the authorities probable cause to believe that the packages contained counterfeit coins. After obtaining a warrant, the authorities opened the packages, found counterfeit coins therein, resealed the packages, and sent them on their way. Expressly limiting its holding to the facts of the case, the Court concluded that the 29-hour detention of the packages on reasonable suspicion that they contained contraband did not violate the Fourth Amendment. [*Id.,*](https://cite.case.law/us/397/249/) [at 253](https://cite.case.law/us/397/249/).
As one commentator has noted, *“Van Leeuwen* was an easy case for the Court because the defendant was unable to show that the invasion intruded [\*706](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p706-NOTALEPH001032_0031)upon either a privacy interest in the contents of the packages or a posses-sory interest in the packages themselves.” 3 W. LaFave, Search and Seizure § 9.6, p. 71 (Supp. 1982).
[7](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_7-NOTALEPH001032_0031)
Cf. *Florida* v. *Royer,* [*supra,*](https://cite.case.law/us/460/491/#p500) [at 502](https://cite.case.law/us/460/491/#p500) (plurality opinion) (“We agree with the State that \[the officers had] adequate grounds for suspecting Royer of carrying drugs and for temporarily detaining him *and his luggage* while they attempted to verify or dispel their suspicions in a manner that did not exceed the limits of an investigative detention”) (emphasis added).
[8](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_8-NOTALEPH001032_0031)
“At least when the authorities do not make it absolutely clear how they plan to reunite the suspect and his possessions at some future time and place, seizure of the object is tantamount to seizure of the person. This is because that person must either remain on the scene or else seemingly surrender his effects permanently to the police.” 3 W. LaFave, Search and Seizure § 9.6, p. 72 (Supp. 1982).
[9](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_9-NOTALEPH001032_0031)
Cf. *Florida* v. *Royer,* [460 U. S., at 506](https://cite.case.law/us/460/491/#p500) (plurality opinion) (“If \[trained narcotics detection dogs] had been used, Royer and his luggage could have been momentarily detained while this investigative procedure was carried out”). This course of conduct also would have avoided the further substantial intrusion on respondent’s possessory interests caused by the removal of his luggage to another location.
[10](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_1_10-NOTALEPH001032_0031)
Cf. ALI, Model Code of Pre-Arraignment Procedure § 110.2(1) (1975) (recommending a maximum of 20 minutes for a *Terry* stop). We understand the desirability of providing law enforcement authorities with a clear rule to guide their conduct. Nevertheless, we question the wisdom of a rigid time limitation. Such a limit would undermine the equally important need to allow authorities to graduate their responses to the demands of any particular situation.
\[…]
~~Justice Brennan,~~
~~with whom Justice Marshall joins,~~
~~concurring in the result.~~
~~In this case, the Court of Appeals assumed both that the officers had the “reasonable suspicion” necessary to justify an “investigative” stop of respondent under~~ ~~*Terry*~~ ~~v.~~ ~~*Ohio,*~~ [~~392 U. S. 1~~](https://cite.case.law/us/392/1/) ~~(1968), and its progeny, and that the principles of~~ ~~*Terry*~~ ~~apply to seizures of property. See~~ [~~660 F. 2d 44~~](https://cite.case.law/f2d/660/44/)~~, 50 (CA2 1981);~~ ~~*ante,*~~ ~~at 700. The court held simply that “the prolonged seizure of \[respondent’s] baggage went far beyond a mere investigative stop and amounted to a violation of his Fourth Amendment rights.”~~ [~~660 F. 2d, at 50~~](https://cite.case.law/f2d/660/44/)~~. See also~~ [~~*id.,*~~](https://cite.case.law/f2d/660/44/)[~~\*711~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p711-NOTALEPH001032_0031)[~~at 52, 53~~](https://cite.case.law/f2d/660/44/)~~. I would affirm the Court of Appeals’ judgment on this ground.~~
~~Instead of simply affirming on this ground and putting an end to the matter, the Court decides to reach, and purportedly to resolve, the constitutionality of the seizure of respondent’s luggage on less than probable cause and the exposure of that luggage to a narcotics detection dog. See~~ ~~*ante,*~~ ~~at 706-707. Apparently, the Court finds itself unable to “resist the pull to decide the constitutional issues involved in this case on a broader basis than the record before \[it] imperatively requires.”~~ ~~*Street*~~ ~~v.~~ ~~*New York,*~~ [~~394 U. S. 576~~](https://cite.case.law/us/394/576/#p581)~~, 581 (1969). Because the Court reaches issues unnecessary to its judgment and because I cannot subscribe to the Court’s analysis of those issues, I concur only in the result.~~
~~I — l~~
~~I have had occasion twice m recent months to discuss the limited scope of the exception to the Fourth Amendment’s probable-cause requirement created by~~ ~~*Terry*~~ ~~and its progeny. See~~ ~~*Florida*~~ ~~v.~~ ~~*Royer,*~~ [~~460 U. S. 491~~](https://cite.case.law/us/460/491/#p500)~~, 509 (1983) (Brennan, J., concurring in result);~~ ~~*Kolender*~~ ~~v.~~ ~~*Lawson,*~~ [~~461 U. S. 352~~](https://cite.case.law/us/461/352/#p362)~~, 362 (1983) (Brennan, J., concurring). Unfortunately, the unwarranted expansion of that exception which the Court endorses today forces me to elaborate on my previously expressed views.~~
~~In~~ ~~*Terry*~~ ~~the Court expressly declined to address “the constitutional propriety of an investigative ‘seizure’ upon less than probable cause for purposes of ‘detention’ and/or interrogation.”~~ [~~392 U. S., at 19, n. 16~~](https://cite.case.law/us/392/1/)~~.~~[~~1~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_2_1-NOTALEPH001032_0031) ~~The Court was con~~[~~\*712~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p712-NOTALEPH001032_0031)~~fronted with “the quite narrow question” of “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.”~~ [~~*Id.,*~~](https://cite.case.law/us/392/1/) [~~at 15~~](https://cite.case.law/us/392/1/)~~. In addressing this question, the Court noted that it was dealing “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.”~~ [~~*Id.,*~~](https://cite.case.law/us/392/1/) [~~at 20~~](https://cite.case.law/us/392/1/)~~. As a result, the conduct involved in the case had to be “tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.”~~ ~~*Ibid,*~~ ~~(footnote omitted). The Court’s inquiry into the “reasonableness” of the conduct at issue was based on a “ ‘balancing \[of] the need to search \[or seize] against the invasion which the search \[or seizure] entails.’”~~ [~~*Id.,*~~](https://cite.case.law/us/392/1/) [~~at 21~~](https://cite.case.law/us/392/1/)~~, quoting~~ ~~*Camara*~~ ~~v.~~ ~~*Municipal Court,*~~ [~~387 U. S. 523~~](https://cite.case.law/us/387/523/#p537)~~, 537 (1967). The Court concluded that the officer’s conduct was reasonable and stated its holding as follows:~~
> ~~“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~~ [~~\*713~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p713-NOTALEPH001032_0031)~~the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”~~ [~~392 U. S., at 30~~](https://cite.case.law/us/392/1/)~~.~~
~~In~~ ~~*Adams*~~ ~~v.~~ ~~*Williams,*~~ [~~407 U. S. 143~~](https://cite.case.law/us/407/143/#p146) ~~(1972), the Court relied on~~ ~~*Terry*~~ ~~to endorse “brief” investigative stops based on reasonable suspicion.~~ [~~407 U. S., at 145-146~~](https://cite.case.law/us/407/143/#p146)~~. In this regard, the Court stated that “\[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.”~~ [~~Id., at 146~~](https://cite.case.law/us/407/143/#p146)~~. The weapons search upheld in~~ ~~*Adams*~~ ~~was very limited and was based on~~ ~~*Terry’s*~~ ~~safety rationale.~~ [~~407 U. S., at 146~~](https://cite.case.law/us/407/143/#p146)~~. The Court stated that the purpose of a “limited” weapons search “is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence. ...”~~ [~~*Ibid.*~~](https://cite.case.law/us/407/143/#p146)
~~In~~ ~~*United States*~~ ~~v.~~ ~~*Brignoni-Ponce,*~~ [~~422 U. S. 873~~](https://cite.case.law/us/422/873/) ~~(1975), the Court relied on~~ ~~*Terry*~~ ~~and~~ ~~*Adams*~~ ~~in holding that “when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion.”~~ [~~422 U. S., at 881~~](https://cite.case.law/us/422/873/)~~.~~[~~2~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_2_2-NOTALEPH001032_0031) ~~The Court based this relaxation of the traditional probable-cause requirement on the importance of the governmental interest in stemming the flow of illegal aliens, on the minimal intrusion of a brief stop, and on the absence of practical alternatives for policing the border.~~ [~~*Ibid.*~~](https://cite.case.law/us/422/873/) ~~The Court noted the limited holdings of~~ ~~*Terry*~~ ~~and~~ ~~*Adams*~~ ~~and while authorizing the police to “question the driver and passengers about their citizenship and immigration status, and . . . ask them to explain suspicious circumstances,” the Court expressly stated that “any further detention or search must be based on consent or probable cause.”~~ [~~422 U. S., at 881-882~~](https://cite.case.law/us/422/873/)~~. See also~~ [~~\*714~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p714-NOTALEPH001032_0031) ~~*Ybarra*~~ ~~v.~~ ~~*Illinois,*~~ [~~444 U. S. 85~~](https://cite.case.law/us/444/85/#p93)~~, 93 (1979) (“The~~ ~~*Terry*~~ ~~case created an exception to the requirement of probable cause, an exception whose ‘narrow scope’ this Court ‘has been careful to maintain’” (footnote omitted));~~ ~~*Dunaway*~~ ~~v.~~ ~~*New York,*~~ [~~442 U. S. 200~~](https://cite.case.law/us/442/200/)~~, 209-212 (1979) (discussing the narrow scope of~~ ~~*Terry*~~ ~~and its progeny).~~[~~3~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_2_3-NOTALEPH001032_0031)
~~It is clear that~~ ~~*Terry,*~~ ~~and the cases that followed it, permit only brief investigative stops and extremely limited searches based on reasonable suspicion. They do not provide the police with a commission to employ whatever investigative techniques they deem appropriate. As I stated in~~ ~~*Florida*~~ ~~v.~~ ~~*Royer,*~~ ~~“\[t]he scope of a Terry-type ‘investigative’ stop and any attendant search must be extremely limited or the~~ ~~*Terry*~~ ~~exception would ‘swallow the general rule that Fourth Amendment seizures \[and searches] are “reasonable” only if based on probable cause.’”~~ [~~460 U. S., at 510~~](https://cite.case.law/us/460/491/#p500) ~~(concurring in result), quoting~~ ~~*Dunaway*~~ ~~v.~~ ~~*New York, supra,*~~ ~~at 213.~~
~~II~~
~~In some respects the Court’s opinion in this case can be seen as the logical successor of the plurality opinion in~~ ~~*Florida*~~ ~~v.~~ ~~*Royer,*~~ [~~*supra.*~~](https://cite.case.law/us/460/491/#p500) ~~The plurality opinion in~~ ~~*Royer*~~ ~~contained considerable language which was unnecessary to the judgment,~~ [~~*id.,*~~](https://cite.case.law/us/460/491/#p500) [~~at 509~~](https://cite.case.law/us/460/491/#p500) ~~(Brennan, J., concurring in result), regarding the permissible scope of~~ ~~*Terry*~~ ~~investigative stops. See~~ [~~460 U. S., at 501-507~~](https://cite.case.law/us/460/491/#p500)~~, and n. 10. Even assuming, however, that the Court finds some support in~~ ~~*Royer*~~ ~~for its discussion of the scope of~~ ~~*Terry*~~ ~~stops, the Court today goes~~ [~~\*715~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p715-NOTALEPH001032_0031)~~well beyond~~ ~~*Royer*~~ ~~in endorsing the notion that the principles of~~ ~~*Terry*~~ ~~permit “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.”~~ ~~*Ante,*~~ ~~at 702. See also~~ ~~*ante,*~~ ~~at 706. In addition to being unnecessary to the Court’s judgment, see~~ ~~*supra,*~~ ~~at 711, this suggestion finds no support in~~ ~~*Terry*~~ ~~or its progeny and significantly dilutes the Fourth Amendment’s protections against government interference with personal property. In short, it represents a radical departure from settled Fourth Amendment principles.~~
~~As noted~~ ~~*supra,*~~ ~~at 711-712,~~ ~~*Terry*~~ ~~and the cases that followed it authorize a brief “investigative” stop of an individual based on reasonable suspicion and a limited search for weapons if the officer reasonably suspects that the individual is armed and presently dangerous. The purpose of this brief stop is “to determine \[the individual’s] identity or to maintain the status quo momentarily while obtaining more information. . . .”~~ ~~*Adams*~~ ~~v.~~ ~~*Williams,*~~ [~~407 U. S., at 146~~](https://cite.case.law/us/407/143/#p146)~~. Anything more than a brief stop “must be based on consent or probable cause.”~~ ~~*United States*~~ ~~v.~~ ~~*Brignoni-Ponce,*~~ [~~*supra,*~~](https://cite.case.law/us/422/873/) [~~at 882~~](https://cite.case.law/us/422/873/)~~. During the course of this stop, “the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him.”~~ ~~*Kolender*~~ ~~v.~~ ~~*Lawson,*~~ [~~461 U. S., at 365~~](https://cite.case.law/us/461/352/#p362) ~~(Brennan, J., concurring). It is true that~~ ~~*Terry*~~ ~~stops may involve seizures of personal effects incidental to the seizure of the person involved. Obviously, an officer cannot seize a person without also seizing the personal effects that the individual has in his possession at the time. But there is a difference between~~ [~~\*716~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p716-NOTALEPH001032_0031)~~incidental seizures of personal effects and seizures of property independent of the seizure of the person.~~
~~The Fourth Amendment protects “effects” as well as people from unreasonable searches and seizures. In this regard, Justice Stevens pointed out in~~ ~~*Texas*~~ ~~v.~~ ~~*Brown,*~~ [~~460 U. S. 730~~](https://cite.case.law/us/460/730/) ~~(1983), that “\[t]he \[Fourth] Amendment protects two different interests of the citizen — the interest in retaining possession of property and the interest in maintaining personal privacy.”~~ [~~*Id.,*~~](https://cite.case.law/us/460/730/) [~~at 747~~](https://cite.case.law/us/460/730/) ~~(opinion concurring in judgment). “A seizure threatens the former, a search the latter.”~~ [~~*Ibid.*~~](https://cite.case.law/us/460/730/) ~~Even if an item is not searched, therefore, its seizure implicates a protected Fourth Amendment interest. For this reason, seizures of property must be based on probable cause. See~~ ~~*Colorado*~~ ~~v.~~ ~~*Bannister,*~~ [~~449 U. S. 1~~](https://cite.case.law/us/449/1/#p3)~~, 3 (1980);~~ ~~*Payton*~~ ~~v.~~ ~~*New York,*~~ [~~445 U. S. 573~~](https://cite.case.law/us/445/573/#p587)~~, 587 (1980);~~ ~~*G. M. Leasing Corp.*~~ ~~v.~~ ~~*United States,*~~ [~~429 U. S. 338~~](https://cite.case.law/us/429/338/#p354)~~, 351 (1977);~~ ~~*Chambers*~~ ~~v.~~ ~~*Maroney,*~~ [~~399 U. S. 42~~](https://cite.case.law/us/399/42/#p51)~~, 51-52 (1970);~~ ~~*Warden*~~ ~~v.~~ ~~*Hayden,*~~ [~~387 U. S. 294~~](https://cite.case.law/us/387/294/#p309)~~, 309-310 (1967). See also~~ ~~*Texas*~~ ~~v.~~ ~~*Brown,*~~ [~~*supra,*~~](https://cite.case.law/us/460/730/) [~~at 747-748~~](https://cite.case.law/us/460/730/) ~~(Stevens, J., concurring in judgment). Neither~~ ~~*Terry*~~ ~~nor its progeny changed this rule.~~
~~In this case, the officers’ seizure of respondent and their later independent seizure of his luggage implicated separate Fourth Amendment interests. First, respondent had a protected interest in maintaining his personal security and privacy.~~ ~~*Terry*~~ ~~allows this interest to be overcome, and authorizes a limited intrusion, if the officers have reason to suspect that criminal activity is afoot. Second, respondent had a protected interest in retaining possession of his personal effects. While~~ ~~*Terry*~~ ~~may authorize seizures of personal effects incident to a lawful seizure of the person, nothing in the~~ ~~*Terry*~~ ~~line of cases authorizes the police to seize personal property, such as luggage, independent of the seizure of the person. Such seizures significantly expand the scope of a~~ ~~*Terry*~~ ~~stop and may not be effected on less than probable~~ [~~\*717~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p717-NOTALEPH001032_0031)~~cause.~~[~~4~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_2_4-NOTALEPH001032_0031) ~~Obviously, they also significantly expand the scope of the intrusion.~~
~~The officers did not develop probable cause to arrest respondent during their encounter with him. See~~ [~~660 F. 2d, at 50~~](https://cite.case.law/f2d/660/44/)~~. Therefore, they had to let him go. But despite the absence of probable cause to arrest respondent, the officers seized his luggage and deprived him of possession. Respondent, therefore, was subjected not only to an invasion of his personal security and privacy, but also to an independent dispossession of his personal effects based simply on reasonable suspicion. It is difficult to understand how this intrusion is not more severe than a brief stop for questioning or even a limited, on-the-spot patdown search for weapons.~~
~~In my view, as soon as the officers seized respondent’s luggage, independent of their seizure of him, they exceeded the scope of a permissible~~ ~~*Terry*~~ ~~stop and violated respondent’s Fourth Amendment rights. In addition, the officers’ seizure of respondent’s luggage violated the established rule that seizures of personal effects must be based on probable cause. Their actions, therefore, should not be upheld.~~
~~The Court acknowledges that seizures of personal property must be based on probable cause. See~~ ~~*ante,*~~ ~~at 700-702. Despite this recognition, the Court employs a balancing test drawn from~~ ~~*Terry*~~ ~~to conclude that personal effects may be seized based on reasonable suspicion. See~~ ~~*ante,*~~ ~~at 703-706.~~[~~5~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_2_5-NOTALEPH001032_0031) [~~\*718~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p718-NOTALEPH001032_0031)~~In~~ ~~*Dunaway*~~ ~~v.~~ ~~*New York,*~~ [~~442 U. S. 200~~](https://cite.case.law/us/442/200/) ~~(1979), the Court stated that “\[t]he narrow intrusions involved in~~ ~~*\[Terry*~~ ~~and its progeny] were judged by a balancing test rather than by the general principle that Fourth Amendment seizures must be supported by the ‘long-prevailing standards’ of probable cause . . . only because these intrusions fell far short of the kind of intrusion associated with an arrest.”~~ [~~*Id.,*~~](https://cite.case.law/us/442/200/) [~~at 212~~](https://cite.case.law/us/442/200/)~~. As~~ ~~*Dunaway*~~ ~~suggests, the use of a balancing test in this case is inappropriate. First, the intrusion involved in this case is no longer the “narrow” one contemplated by the~~ ~~*Terry*~~ ~~line of cases. See~~ ~~*supra,*~~ ~~at 717. In addition, the intrusion involved in this case involves not only the seizure of a person, but also the seizure of property. As noted,~~ ~~*supra,*~~ ~~at 711-712,~~ ~~*Terry*~~ ~~and its progeny did not address seizures of property. Those cases left unchanged the rule that seizures of property must be based on probable cause. See~~ ~~*supra,*~~ ~~at 716-717. The~~ ~~*Terry*~~ ~~balancing test should not be wrenched from its factual and conceptual moorings.~~
~~There are important reasons why balancing inquiries should not be conducted except in the most limited circumstances.~~ ~~*Terry*~~ ~~and the cases that followed it established “isolated exceptions to the general rule that the Fourth Amendment itself has already performed the constitutional balance between police objectives and personal privacy.”~~ ~~*Michigan*~~ ~~v.~~ ~~*Summers,*~~ [~~452 U. S. 692~~](https://cite.case.law/us/452/692/#p698)~~, 706 (1981) (Stewart, J., dissenting). “\[T]he protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases, especially when that balancing may be done in the first instance by police officers engaged in the ‘often competitive enterprise of ferreting out crime.’ ”~~ ~~*Dunaway*~~ ~~v.~~ ~~*New York,*~~ [~~\*719~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p719-NOTALEPH001032_0031) ~~*supra,*~~ ~~at 213, quoting~~ ~~*Johnson*~~ ~~v.~~ ~~*United States,*~~ [~~333 U. S. 10~~](https://cite.case.law/us/333/10/#p14)~~, 14 (1948). The truth of this proposition is apparent when one considers that the Court today has employed a balancing test "to swallow the general rule that \[seizures of property] are ‘reasonable’ only if based on probable cause.” 442 U. S., at 213. Justice Blackmun’s concern over “an emerging tendency on the part of the Court to convert the~~ ~~*Terry*~~ ~~decision into a general statement that the Fourth Amendment requires only that any seizure be reasonable,”~~ ~~*post,*~~ ~~at 721 (Blackmun, J., concurring in judgment) (footnote omitted), is certainly justified.~~
~~Ill~~
~~The Court also suggests today, in a discussion unnecessary to the judgment, that exposure of respondent’s luggage to a narcotics detection dog “did not constitute a ‘search’ within the meaning of the Fourth Amendment.”~~ ~~*Ante,*~~ ~~at 707. In the District Court, respondent did “not contest the validity of sniff searches~~ ~~*per se.*~~ ~~. . .”~~ [~~498 F. Supp. 1217~~](https://cite.case.law/f-supp/498/1217/#p1228)~~, 1228 (EDNY 1980). The Court of Appeals did not reach or discuss the issue. It was not briefed or argued in this Court. In short, I agree with Justice Blackmun that the Court should not address the issue. See~~ ~~*post,*~~ ~~at 723-724 (Blackmun, J., concurring in judgment).~~
~~I also agree with Justice Blackmun’s suggestion,~~ ~~*ibid.,*~~ ~~that the 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,*~~ [~~460 U. S. 276~~](https://cite.case.law/us/460/276/) ~~(1983), the use of electronic detection techniques that enhance human perception implicates “especially sensitive concerns.”~~ [~~*Id.,*~~](https://cite.case.law/us/460/276/) [~~at 288~~](https://cite.case.law/us/460/276/) ~~(opinion concurring in judgment). 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~~ [~~\*720~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p720-NOTALEPH001032_0031)~~privacy. Such use implicates concerns that are at least as sensitive as those implicated by the use of certain electronic detection devices. Cf.~~ ~~*Katz*~~ ~~v.~~ ~~*United States,*~~ [~~389 U. S. 347~~](https://cite.case.law/us/389/347/) ~~(1967).~~
~~I have expressed the view that dog sniffs of people constitute searches. See~~ ~~*Doe*~~ ~~v.~~ ~~*Renfrow,*~~ [~~451 U. S. 1022~~](https://cite.case.law/us/451/1022/)~~, 1025-1026 (1981) (Brennan, J., dissenting from denial of certio-rari). In~~ ~~*Doe,*~~ ~~I suggested that sniffs of inanimate objects might present a different case.~~ [~~*Id.,*~~](https://cite.case.law/us/451/1022/) [~~at 1026, n. 4~~](https://cite.case.law/us/451/1022/)~~. 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.~~
~~IV~~
~~Justice Douglas was the only dissenter in~~ ~~*Terry.*~~ ~~He stated that “\[tjhere 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.”~~ [~~392 U. S., at 39~~](https://cite.case.law/us/392/1/) ~~(dissenting opinion). Today, the Court uses~~ ~~*Terry*~~ ~~as a justification for submitting to these pressures. Their strength is apparent, for even when the Court finds that an individual’s Fourth Amendment rights have been violated it cannot resist the temptation to weaken the protections the Amendment affords.~~
[~~1~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_2_1-NOTALEPH001032_0031)
~~The “seizure” at issue in~~ ~~*Terry*~~ ~~v.~~ ~~*Ohio*~~ ~~was the actual physical restraint imposed on the suspect.~~ [~~392 U. S., at 19~~](https://cite.case.law/us/392/1/)~~. The Court assumed that the officer's initial approach and questioning of the suspect did not amount to a “seizure.”~~ [~~*Id.,*~~](https://cite.case.law/us/392/1/) [~~at 19, n. 16~~](https://cite.case.law/us/392/1/)~~. The Court acknowledged, however, that “seizures” may occur irrespective of the imposition of actual physical restraint. The Court stated that “\[i]t must be recognized that whenever a police officer accosts an individual and restrains his freedom to~~ [~~\*712~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p712-NOTALEPH001032_0031)~~walk away, he has ‘seized’ that person.”~~ ~~*Id,.,*~~ ~~at 16. See also~~ [~~*id.,*~~](https://cite.case.law/us/392/1/) [~~at 19, n. 16~~](https://cite.case.law/us/392/1/)~~. This standard, however, is easier to state than it is to apply. Compare~~ ~~*United States*~~ ~~v.~~ ~~*Mendenhall,*~~ [~~446 U. S. 544~~](https://cite.case.law/us/446/544/#p561)~~, 550-557 (1980) (opinion of Stewart, J.), with~~ ~~*Florida*~~ ~~v.~~ ~~*Royer,*~~ [~~460 U. S. 491~~](https://cite.case.law/us/460/491/#p500)~~, 511-512 (1983) (Brennan, J., concurring in result).~~
[~~2~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_2_2-NOTALEPH001032_0031)
~~The stops “‘usually consumefd] no more than a minute.’”~~ ~~*United States*~~ ~~v.~~ ~~*Brignoni-Ponce,*~~ [~~422 U. S., at 880~~](https://cite.case.law/us/422/873/)~~.~~
[~~3~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_2_3-NOTALEPH001032_0031)
~~In~~ ~~*Michigan*~~ ~~v.~~ ~~*Summers,*~~ [~~452 U. S. 692~~](https://cite.case.law/us/452/692/#p698) ~~(1981), the Court relied on~~ ~~*Terry*~~ ~~and its progeny to hold that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.”~~ [~~452 U. S., at 705~~](https://cite.case.law/us/452/692/#p698) ~~(footnotes omitted). The Court also relied on~~ ~~*Terry*~~ ~~in~~ ~~*Pennsylvania*~~ ~~v.~~ ~~*Mimms,*~~ [~~434 U. S. 106~~](https://cite.case.law/us/434/106/) ~~(1977), to uphold an officer’s order to an individual to get out of his car following a lawful stop of the vehicle. Both~~ ~~*Summers*~~ ~~and~~ ~~*Mimms*~~ ~~focused on seizures of people.~~
[~~4~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_2_4-NOTALEPH001032_0031)
~~Putting aside the legality of the independent seizure of the luggage, the Court correctly points out that the seizure of luggage “can effectively restrain the person” beyond the initial stop “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.”~~ ~~*Ante,*~~ ~~at 708 (footnote omitted).~~
[~~5~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_2_5-NOTALEPH001032_0031)
~~To the extent that the Court relies on~~ ~~*United States*~~ ~~v.~~ ~~*Van Leeuwen,*~~ [~~397 U. S. 249~~](https://cite.case.law/us/397/249/) ~~(1970), as support for its conclusion, see~~ ~~*ante,*~~ ~~at 705-706, n. 6, such reliance is misplaced. As the Court itself points out, the holding in~~ ~~*Van Leeuvjen*~~ ~~was expressly limited to the facts of that case.~~ ~~*Ante,*~~ ~~at 705, n. 6. Moreover, the Court of Appeals more than adequately distin~~[~~\*718~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p718-NOTALEPH001032_0031)~~guished~~ ~~*Van Leewwen.*~~ ~~See~~ [~~660 F. 2d 44~~](https://cite.case.law/f2d/660/44/)~~, 52-63 (CA21981). As the court stated: “Unlike the dispossession of hand baggage in a passenger’s custody, which constitutes a substantial intrusion, the mere detention of mail not in his custody or control amounts to at most a minimal or technical interference with his person or effects, resulting in no personal deprivation at all.”~~ [~~*Ibid.*~~](https://cite.case.law/f2d/660/44/)
~~Justice Blackmun,~~
~~with whom Justice Marshall joins,~~
~~concurring in the judgment.~~
~~For me, the Court’s analysis in Part III of its opinion is quite sufficient to support its judgment. I agree that on the facts of this case, the detention of Place’s luggage amounted to, and was functionally identical with, a seizure of his person. My concern with the Court’s opinion has to do (a) with its general discussion in Part II of seizures of luggage under the~~ ~~*Terry*~~ ~~v.~~ ~~*Ohio,*~~ [~~392 U. S. 1~~](https://cite.case.law/us/392/1/) ~~(1968), exception to the war~~[~~\*721~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p721-NOTALEPH001032_0031)~~rant and probable-cause requirements, and (b) with the Court’s haste to resolve the dog-sniff issue.~~
~~I~~
~~In providing guidance to other courts, we often include in our opinions material that, technically, constitutes dictum. I cannot fault the Court’s desire to set guidelines for~~ ~~*Terry*~~ ~~seizures of luggage based on reasonable suspicion. I am concerned, however, with what appears to me to be an emerging tendency on the part of the Court to convert the~~ ~~*Terry*~~ ~~decision into a general statement that the Fourth Amendment requires only that any seizure be reasonable.~~[~~1~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_3_1-NOTALEPH001032_0031)
~~I pointed out in dissent in~~ ~~*Florida*~~ ~~v.~~ ~~*Royer,*~~ [~~460 U. S. 491~~](https://cite.case.law/us/460/491/#p500)~~, 513 (1983), that our prior cases suggest a two-step evaluation of seizures under the Fourth Amendment. The Amendment generally prohibits a seizure unless it is pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized. See~~ ~~*ante,*~~ ~~at 701;~~ ~~*Florida*~~ ~~v.~~ ~~*Royer,*~~ [~~460 U. S., at 514~~](https://cite.case.law/us/460/491/#p500) ~~(dissenting opinion). The Court correctly observes that a warrant may be dispensed with if the officer has probable cause and if some exception to the warrant requirement, such as exigent cir~~[~~\*722~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p722-NOTALEPH001032_0031)~~cumstances, is applicable.~~ ~~*Ante,*~~ ~~at 701. While the Fourth Amendment speaks in terms of freedom from unreasonable seizures, the Amendment does not leave the reasonableness of most seizures to the judgment of courts or government officers: the Framers of the Amendment balanced the interests involved and decided that a seizure is reasonable only if supported by a judicial warrant based on probable cause. See~~ ~~*Texas*~~ ~~v.~~ ~~*Brown,*~~ [~~460 U. S. 730~~](https://cite.case.law/us/460/730/)~~, 744-745 (1983) (Powell, J., concurring);~~ ~~*United States*~~ ~~v.~~ ~~*Rabinowitz,*~~ [~~339 U. S. 56~~](https://cite.case.law/us/339/56/#p70)~~, 70 (1950) (Frankfurter, J., dissenting).~~
~~*Terry*~~ ~~v.~~ ~~*Ohio,*~~ ~~however, teaches that in some circumstances a limited seizure that is less restrictive than a formal arrest may constitutionally occur upon mere reasonable suspicion, if “supported by a special law enforcement need for greater flexibility.”~~ ~~*Florida*~~ ~~v.~~ ~~*Royer,*~~ [~~460 U. S., at 514~~](https://cite.case.law/us/460/491/#p500) ~~(dissenting opinion). See~~ ~~*Michigan*~~ ~~v.~~ ~~*Summers,*~~ [~~452 U. S. 692~~](https://cite.case.law/us/452/692/#p698)~~, 700 (1981). When this exception to the Fourth Amendment’s warrant and probable-cause requirements is applicable, a reviewing court must balance the individual’s interest in privacy against the government’s law enforcement interest and determine whether the seizure was reasonable under the circumstances.~~ [~~*Id.,*~~](https://cite.case.law/us/452/692/#p698) [~~at 699-701~~](https://cite.case.law/us/452/692/#p698)~~. Only in this limited context is a court entitled to engage in any balancing of interests in determining the validity of a seizure.~~
~~Because I agree with the Court that there is a significant law enforcement interest in interdicting illegal drug traffic in the Nation’s airports,~~ ~~*ante,*~~ ~~at 704; see~~ ~~*Florida*~~ ~~v.~~ ~~*Royer,*~~ [~~460 U. S., at 513, 519~~](https://cite.case.law/us/460/491/#p500) ~~(dissenting opinion), a limited intrusion caused by a temporary seizure of luggage for investigative purposes could fall within the~~ ~~*Terry*~~ ~~exception. The critical threshold issue is the intrusiveness of the seizure.~~[~~2~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_3_2-NOTALEPH001032_0031) ~~In this~~ [~~\*723~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p723-NOTALEPH001032_0031)~~case, the seizure went well beyond a minimal intrusion and therefore cannot fall within the~~ ~~*Terry*~~ ~~exception.~~
~~HH l — H~~
~~The Court s resolution of the status of dog sniffs under the Fourth Amendment is troubling for a different reason. The District Court expressly observed that Place “does not contest the validity of sniff searches~~ ~~*per se.”*~~ [~~498 F. Supp. 1217~~](https://cite.case.law/f-supp/498/1217/#p1228)~~, 1228 (EDNY 1980).~~[~~3~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#footnote_3_3-NOTALEPH001032_0031) ~~While Place may have possessed such a claim, he chose not to raise it in that court. The issue also was not presented to or decided by the Court of Appeals. Moreover, contrary to the Court’s apparent intimation,~~ ~~*ante,*~~ ~~at 706, an answer to the question is not necessary to the decision. For the purposes of this case, the precise nature of the legitimate investigative activity is irrelevant. Regardless of the validity of a dog sniff under the Fourth Amendment, the seizure was too intrusive. The Court has no need to decide the issue here.~~
~~As a matter of prudence, decision of the issue is also unwise. While the Court has adopted one plausible analysis of the issue, there are others. For example, a dog sniff may be a search, but a minimally intrusive one that could be justified in this situation under~~ ~~*Terry*~~ ~~upon mere reasonable suspicion. Neither party has had an opportunity to brief the issue, and the Court grasps for the appropriate analysis of the problem. Although it is not essential that the Court ever adopt the views of one of the parties, it should not decide an issue on which neither party has expressed any opinion at all. The Court is certainly in no position to consider all the ramifica~~[~~\*724~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p724-NOTALEPH001032_0031)~~tions of this important issue. Certiorari is currently pending in two cases that present the issue directly.~~ ~~*United States*~~ ~~v.~~ ~~*Beale,*~~ ~~No. 82-674;~~ ~~*Waltzer*~~ ~~v.~~ ~~*United States,*~~ ~~No. 82-5491. There is no reason to avoid a full airing of the issue in a proper case.~~
~~For the foregoing reasons, I concur only in the judgment of the Court.~~
[~~1~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_3_1-NOTALEPH001032_0031)
~~The Court states that the applicability of the~~ ~~*Terry*~~ ~~exception “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.’”~~ ~~*Ante,*~~ ~~at 703, quoting~~ ~~*Terry,*~~ [~~392 U. S., at 20~~](https://cite.case.law/us/392/1/)~~. As the context of the quotation from~~ ~~*Terry*~~ ~~makes clear, however, this balancing to determine reasonableness occurs only under the exceptional circumstances that justify the~~ ~~*Terry*~~ ~~exception:~~
> ~~“But we 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.”~~ [~~*Ibid.*~~](https://cite.case.law/us/392/1/)
[~~2~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_3_2-NOTALEPH001032_0031)
~~I cannot agree with the Court’s assertion that the diligence of the police in acting on their suspicion is relevant to the extent of the intrusion on Fourth Amendment interests. See~~ ~~*ante,*~~ ~~at 709-710. It makes little difference to a traveler whose luggage is seized whether the police conscientiously followed a lead or bungled the investigation. The duration and intrusiveness of the seizure is not altered by the diligence the police ex~~[~~\*723~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#p723-NOTALEPH001032_0031)~~ercise. Of course, diligence may be relevant to a court’s determination of the reasonableness of the seizure once it is determined that the seizure is sufficiently nonintrusive as to be eligible for the~~ ~~*Terry*~~ ~~exception.~~
[~~3~~](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#ref_footnote_3_3-NOTALEPH001032_0031)
~~The District Court did hold that the dog sniff was not conducted in a fashion that under the circumstances was “reasonably calculated to achieve a tainted reaction from the dog.”~~ [~~498 F. Supp., at 1228~~](https://cite.case.law/f-supp/498/1217/#p1228)~~. This, however, is a due process claim, not one under the Fourth Amendment. Place apparently did not raise this issue before the Court of Appeals.~~
* I
* II
*
* III
* IV
Hide Exit \[
## JPP 308 (in progress)
Matthew L. Mac Kelly]\()
This free and open casebook is Creative Commons licensed. [Learn more](https://about.opencasebook.org/making-casebooks/#copyright)
## Table of contents
1. 1
#### [Introduction to Constitutional Foundations](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/1/#introduction-to-constitutional-foundations)
2. 2
#### [Consensual Encounters — Investigative Contacts](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/2/#consensual-encounters-investigative-contacts)
3. 3
#### [Investigative Detensions](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#investigative-detensions)
1. 3.1
[**Introductory Basics**](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#introductory-basics)
2. 3.2
[**Investigative Detentions (by Alvarez)**](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#investigative-detentions-by-alvarez)
3. 3.3
[**Untitled**](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#untitled)
4. 3.4
[**Terry v. Ohio**](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#terry-v-ohio)
5. 3.5
[**Minnesota v. Dickerson**](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#minnesota-v-dickerson)
6. 3.6
[**United States v. Place**](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/3/#united-states-v-place)
4. 4
#### [Arrests](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/4/#arrests)
5. 5
#### [Searches and Seizures of Things](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/5/#searches-and-seizures-of-things)
6. 6
#### [The Exclusionary Rule](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/6/#the-exclusionary-rule)
7. 7
#### [The Plain View Doctrine](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/7/#the-plain-view-doctrine)
8. 8
#### [Abandonment, Open Fields, and Border Searches](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/8/#abandonment-open-fields-and-border-searches)
9. 9
#### [Vehicle Searches](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/9/#vehicle-searches)
10. 10
#### [Probation and Parole Searches](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/10/#probation-and-parole-searches)
11. 11
#### [Exigency and Community Caretaking](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/11/#exigency-and-community-caretaking)
12. 12
#### [The Warrant Process](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/12/#the-warrant-process)
13. 13
#### [Use of Force](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/13/#use-of-force)
14. 14
#### [5th Amendment Protections](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/14/#5th-amendment-protections)
15. 15
#### [Suspect Identification](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/15/#suspect-identification)
16. 16
#### [Jailhouse Undercover Operations](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/16/#jailhouse-undercover-operations)
17. 17
#### [Constitutional Rights of the Accused](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/17/#constitutional-rights-of-the-accused)
18. 18
#### [Sentencing](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/18/#sentencing)
19. 19
#### [Victims Rights](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/19/#victims-rights)
20. 20
#### [De Facto Arrests](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/20/#de-facto-arrests)
[◀ Previous](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/2/) 1 of 20 sections 2 of 20 sections 3 of 20 sections 4 of 20 sections 5 of 20 sections 6 of 20 sections 7 of 20 sections 8 of 20 sections 9 of 20 sections 10 of 20 sections 11 of 20 sections 12 of 20 sections 13 of 20 sections 14 of 20 sections 15 of 20 sections 16 of 20 sections 17 of 20 sections 18 of 20 sections 19 of 20 sections 20 of 20 sections [Next ▶](https://opencasebook.org/casebooks/9358-jpp-308-in-progress/as-printable-html/4/)
\[^2] footnote
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# Agent Instructions
This documentation is published with GitBook. GitBook is the documentation platform designed so that both humans and AI agents can read, navigate, and reason over technical content effectively. Learn more at gitbook.com.
## Querying This Documentation
If you need additional information that is not directly available in this page, you can query the documentation dynamically by asking a question.
Perform an HTTP GET request on the current page URL with the `ask` query parameter:
```
GET https://studies-de-jure.gitbook.io/learn/sourcebooks/criminal-law/page-1.md?ask=
```
The question should be specific, self-contained, and written in natural language.
The response will contain a direct answer to the question and relevant excerpts and sources from the documentation.
Use this mechanism when the answer is not explicitly present in the current page, you need clarification or additional context, or you want to retrieve related documentation sections.